Mitchell v. Illinois Central Railway Company Records and Briefs
Public Court Documents
January 1, 1941

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Brief Collection, LDF Court Filings. Mitchell v. Illinois Central Railway Company Records and Briefs, 1941. 6b6ef565-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/463288ba-5e76-4f52-a09d-82e083637b17/mitchell-v-illinois-central-railway-company-records-and-briefs. Accessed June 17, 2025.
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RECORDS INI) BRIEFS *\ ‘ k I DISTRICT COURT OF THE UNITED STATES F or the N orthern D istrict of I llinois E astern D ivision i ARTHUR W . MITCHELL, Plaintiff, VS. UNITED STATES OF AMERICA, FRANK 0. LOWDEN, JAMES E. GORMAN, and JOSEPH B. FLEMING, Trustees of the Estate of the Chicago, Rock Island and Pacific Rail way Company, a corporation; ILLINOIS CENTRAL R AILW AY COMPANY, a corporation; and PULLMAN COMPANY, a corporation, K In Equity Defendants. P E T I T I O N . RICHARD E. WESTBROOKS, 3000 South State Street, Chicago, Illinois and ARTHUR W. MITCHELL, Pro Se, 417 East 47th Street, Chicago, Illinois, Attorneys for Plaintiff. P R I N T E D B Y C H I C A G O L A W P R I N T I N G C O . ' . I N D E X . PAGE Excerpts from complaint filed before Interstate Com mission ......................................................................... 3-9 Excerpts from the answer of the Illinois Central.... 9 Excerpts from the answer of the Rock Island........... 9 Excerpts from the answer of the Pullman Company 10 Exhibit “ A ” proposed report of Examiner, Wm. A. Disgne ..................................................................... 12-21 Exhibit “ B ” report of Commission............................ 22-40 Order of Commission dismissing the complaint....... 40-41 Exhibit “ C” order of Commission denying petition for rehearing and reargument ................................ 41-42 IN THE DISTRICT COURT OF THE UNITED STATES F ob the N orthern D istrict of I llinois E astern D ivision . ARTHUR W . MITCHELL, V 8. Plaintiff, UNITED STATES OF AMERICA, FR AN K O. LOWDEN, JAM ES E. GORMAN, and In E(.uity JOSEPH B. FLEM ING, Trustees of the Estate of the Chicago, Rock Island and Pacific Railway Company, a corporation; ILLINOIS CENTRAL R A IL W A Y COMPANY, a corporation; and PULLM AN COMPANY, a corporation, Defendants. P E T I T I O N . To the Honorable Judges of the District Court of the United States for the Northern District of Illinois, Eastern Divi sion; Your petitioner, Arthur W. Mitchell, the plaintiff herein, presents this his petition against the United States of America, Frank 0. Lowden, Janies E. Gorman, and Joseph B. Fleming, trustees of the estate of the Chicago, Rock Island & Pacific Railway Company, a corporation, Illinois Central Railway Company, a corporation and Pullman Company, a corporation and thereupon petitioner respect fully states: 2 I. That he is now and was at the time of the grievances, in juries and damages to him sustained by the acts, as herein after alleged, of certain of the defendants, a native born citizen of the United States of America, a resident of Chi cago, County of Cook and State of Illinois; is a duly licensed and practicing attorney-at-law, and is now and was a Representative in Congress of the First Congres sional District of the said State of Illinois. II. The defendants and each of them, excepting the United States of America, are duly organized and incorporated, severally, as railroad and transportation corporations under the laws of the State of Illinois, with principal operating offices at Chicago, Illinois, and within the jurisdiction of this Honorable Court. III. Each of the defendant corporations, mentioned in Para graph II hereof, is a common carrier engaged in the trans portation of persons and property by railroad, in interstate commerce, between points inter alia, in the States of Illi nois, Tennessee and Arkansas as well as points in various other states of the United States and as such common car riers were so engaged at the time of the grievances here inafter stated as having been suffered by the plaintiff from the acts of the said defendants; that at the time of the said grievances last mentioned and for many years prior thereto as well as subsequently thereafter, continuously to the present time, the said defendants were engaged in inter state commerce and are subject to the provisions of the Interstate Commerce Act and its supplements. 3 The within suit is brought to set aside and annul an order of the Interstate Commerce Commission, other than for the payment of money, pursuant to the provisions of the Act of February 4, 1887, and all amendments and supple ments thereto, known as the Interstate Commerce Act, the laws of the United States designated as the Judicial Code and Judiciary and under the general equity jurisdiction of this court. IV. V. Defendant, United States of America, is made a party defendant to this suit as directed by the Congress of the United States (28 U. S. C. A. Sec. 41, subsection 28; secs. 43-48.) VI. The facts and circumstances leading to the order of the Interstate Commerce Commission herein sought to be set aside and annulled, are as follows: On or about, to-wit: September 2, 1937 the plaintiff duly filed his written complaint with the Interstate Commerce Commission charging the defendant cor porations with the doing of certain acts as alleged in the said complaint, which said acts the plaintiff charged, were in violation of the Interstate Commerce Act and the Fourteenth Amendment of the United States Constitution. The complaint filed by the plaintiff was duly verified and in substance is as follows: II. That the defendants, and each of them, are common carriers engaged in the transportation of passengers 4 and property, wholly by railroad, between Chicago, Illinois; and points in the State of Arkansas, particu larly the city of Hot Springs, Arkansas; as well as points in various other states of the United States, in eluding the State of Tennessee; and as such common carriers are subject to the provisions of the Interstate Commerce Act. m. That the defendants, and each of them, in violation of Section 1 of the Interstate Commerce Act, Clause 5 thereof, on April 20, 1937, did make and receive a charge for services rendered and to be rendered in connection with the transportation of the complainant from Chicago, Illinois, to Hot Springs, Arkansas, which was unjust, unreasonable and unlawful; in this, that complainant on said April 20, 1937, did purchase in Chicago, Illinois, a first-class round-trip ticket to and from Hot Springs, Arkansas, over the defendant lines, and did pay therefor the rates demanded and received of first class passengers for first class accommoda tions ; yet defendants failed to furnish complainant first class accommodations and instead thereof, fur nished him with second class accommodations over his protest; which said action of the defendants in charg ing for and receiving the fare for first class accom modations and failing to provide same; providing in lieu thereof, second class accommodations, was unjust, unreasonable and unlawful, in violation of Section 1, Clause 5, of the Interstate Commerce Act. IV. That the defendants, and each of them, in violation of Section 2 of the Interstate Commerce Act, on the date aforesaid, did directly and indirectly charge, de mand, collect, and receive from this complainant a greater compensation for service rendered in trans porting him as a passenger, than was charged, de manded, collected and received from other persons (whose names are to complainant unknown) for doing 5 for them a like and contemporaneous service, and did thereby unjustly discriminate against complainant; in this, that the defendants did charge this complainant and received from him the price of first class accommo dations; yet furnished to him second class accommo dations, while furnishing first class accommodations to all others who had purchased first class tickets for first class accommodations; and such action of the de fendants did thereby unjustly discriminate against complainant in violation of Section 2 of the Interstate Commerce Act. V. That the defendants, and each of them, in violation of Section 3, Clause 1 of the Interstate Commerce Act, on the date aforesaid, did give undue and unreason able preference and advantage to certain white per sons (whose names are to this complainant unknown) in respect to transporting them from Chicago to Hot Springs aforesaid; and did subject this complainant to undue and unreasonable prejudice and disadvantage in respect to transporting him as aforesaid; in this, that the aforesaid white persons holding first class tickets similar identically to the first class ticket held by this complainant, were transported in a first class car, said car being equipped with clean towels, clean washbowls, comfortable seats with upholstered backs and foot rests; clean smoking rooms, lounging rooms, observation space, writing desks; writing paper, pen and ink, magazines and other reading periodicals, reg ular and efficient porter service, pressing and shoe shining service, stenographic service, manicuring and barber shop service, bath service, valet service, radio, soap of high quality, facilities for serving meals in the car or the option of having meals in the dining car; clean toilet facilities with running hot and cold water, and water for flushing purposes with disinfectant, all free of charge to first class passengers, and many other services too numerous to mention or to particularize more definitely; while this complainant, notwithstand ing the fact that he possessed a first class ticket en- 6 titling him to ride in a first class car possessing each and every one of the last named facilities, was com pelled by the defendants by and through their agents, servants, and employees and over protest of this com plainant, to ride in a second class car which possessed none of the aforementioned facilities but on the con trary said second class car did not contain clean towels, nor clean washbowls; nor compartments, berths, sec tions, drawingrooms, smoking rooms, lounging rooms, observation space, writing desks, paper, pen, ink, mag azines, and other reading periodicals; nor porter ser vice, soap, nor facilities for meals being served in said car; nor clean toilet facilities with running hot and cold water for flushing purposes and disinfectant; and this complainant specifically charges that the second class car in which he was forced to ride as aforesaid did not contain the above facilities and did not contain any one or either of them; but on the contrary the said second class car was filthy with filthy toilets, and so remained during the entire time this complainant was compelled to occupy it, which was for a period of more than four hours and over a journey of about 160 miles; beginning at a point just west of Memphis, Tennessee, and continuing on into Hot Springs, Arkansas. And in this connection, complainant further states that the first class car occupied by the aforesaid white persons holding tickets identically similar to the first class ticket held by this complainant was large, com fortable, free from stench and odors, well ventilated, lighted, and air-conditioned; and always clean and sanitary; while the second class car which this com plainant was forced to complete his journey in as out lined in the preceding paragraph, was divided by par titions and used jointly for carrying baggage, train crew, and passengers; that said ear was small, poorly ventilated, filthy, filled with stench and odors emitting from the toilet, and otherwise filthy and indescribably unsanitary. That said action of defendants in furnishing accom modations to the aforesaid white persons holding first 7 class tickets which were far superior to the accommo dations furnished to this complainant on his first class ticket, was unduly and unreasonably prejudicial to him, and was unduly and unreasonably preferential to said white persons to the disadvantage of this complainant, in violation of Section 3, Clause 1, aforesaid. VL That the defendants, claiming to act under authority of the Arkansas Statute (K irby’s Arkansas Statute, Sections 6622 to 6632), did force and compel this com plainant to ride in a second class car, notwithstanding the fact that complainant held a first class ticket; that the second class car was the car described in Para graph Five hereof which by reference is made a part of this paragraph. That the action of defendants was based on the fact that this complainant is a Colored person, and in transporting him in the second class car referred to, while white persons holding iden tically similar first class tickets were permitted to ride in the first class car described in Paragraph Five of this complaint, which by reference is made a part hereof, and said practice of the defendants in furnish ing such unequal accommodations to persons holding similar first class tickets, under the aforesaid Statute, causes undue and unreasonable advantage and pref erence to white persons; and causes undue and unrea sonable prejudice to this complainant and all other Colored persons who in the future will use, as inter state passengers, the lines of the said defendants. The said unreasonable and undue advantage and preference to white persons aforesaid; and undue and unreasonable prejudice to this complainant and all other Colored persons who in the future will use defen dant lines, only arises between persons in intrastate commerce on the one hand and persons in interstate commerce on the other hand, in this, that said practice under said law only arises after Colored persons have entered the State of Arkansas and did not exist while 8 this complainant was traveling in Illinois; that said law is not intended to and does not operate beyond the territorial boundaries of said State. That said action, causing undue and unreasonable advantage to white persons, and causing undue and unreasonable prejudice to this complainant, being based on the State law aforesaid, is in violation of Section 13, Clause 4, of the Interstate Commerce Act. VII. That by reason of the facts stated in the foregoing paragraph complainant has been subjected to the pay ment of fares for transportation which were when exacted and still are unjust and unreasonable in vio lation of Section 1 of the Interstate Commerce Act; and said complainant has been unjustly discriminated against in violation of Section 2 of the Interstate Com merce Act; that said defendants have been unduly and unreasonably preferential to some persons while at the same time being unduly and unreasonably prejudiced against this complainant in violation of Section 3 of the Interstate Commerce A ct; that the action of defen dants in operating under the Arkansas Law causes un due and unreasonable preference to some persons and undue and unreasonable prejudice to complainant and other persons, in violation of Section 13 of the Inter state Commerce Act, and the Fourteenth Amendment of the United States Constitution in denying to peti tioner equal protection of the laws. W herefore, complainant prays that defendants and each of them may be required to answer the charges herein; that after due hearing and investigation an order be made commanding said defendants and each of them to cease and desist from the aforesaid viola tions of said act, and establish and put in force and apply in future to the transportation of persons be tween the origin and destination points named in par agraphs V and VI hereof, in lieu of the services and facilities named in said paragraphs V and VI, and such 9 other services and facilities as the Commission may deem reasonable and just; and that such other and fur ther order or orders be made as the Commission may consider proper in the premises.” VII. The defendant, Frank 0. Lowden, James E. Gorman and Joseph B. Fleming, trustees of the estate of the Chi cago, Bock Island and Pacific Bailroad Company, a cor poration and hereinafter called and referred to as the “ Bock Island,” filed an answer to the complaint above set forth, (1) it admits that it was a common carrier engaged in the transportation of passengers and property by rail road in interstate commerce on April 20, 1937, (2) it denies that the facts charged in Paragraph III of the complaint were unjust, unreasonable or unlawful and in violation of Section 1, Clause 5 of the Interstate Commerce Act; (3) it denies the charges contained in Paragraph IV of the complaint and further denies said acts contained in the said paragraph violated Section 2 of the Interstate Com merce Act; (4) it denies each and every allegation con tained in Paragraphs V-VI of the complaint and denies that the acts charged in said paragraphs violated Section 3, Clause 1 or Section 13, Clause 4 of the Interstate Com merce Act; (5) it denies the allegations of Paragraph VII of the complaint and further denies that the acts charged in said paragraph violated Sections 1, 2, 3 and 13 of the Interstate Commerce Act and the Fourteenth Amendment of the United States Constitution and prayed to be dis missed. VIII. The defendant, Illinois Central Bailroad Company, here inafter referred to as the Illinois Central by and in its 10 answer filed to the above mentioned complaint, (1) denies that it owned or operated any line of railroad within the State of Arkansas; (2) it denies each and every allegation of Paragraphs III, IV, V, VI and the first paragraph of Paragraph VII of the complaint; (3) it further denies that the acts or omissions towards the complaint violated Sections 1 (5), 2, 3 (1) or 13 (4) of the Interstate Com merce Act and prayed that the complaint be dismissed as to it. IX. The defendant, the Pullman Company, filed its answer to the above mentioned complaint, by and in its answer, (1) it admits the allegations of Paragraph I of the com plaint; (2) it denies the allegations of Paragraph II of the complaint in so far as it pertains to this defendant and states that it is a Sleeping Car Company, subject to the provisions of the Interstate Commerce Act, and furnishes sleeping car accommodations to passengers traveling be tween the points stated in Paragraph II of the complaint, when such passenger contract with it for such accommoda tions in accordance with the provisions of its tariffs on file with the Interstate Commerce Commission; (3) it denies the allegations of Paragraph 3 of the complaint as applying to it and states that it furnished equal accommo dations to the plaintiff, for which the plaintiff had paid and that it had no contract with the plaintiff for accom modations between Memphis, Tennessee and Hot Springs, Arkansas; (4) it denies the allegations of Paragraph IV of the complaint and refers to Paragraph II of its answer concerning the sleeping car accommodations; (5) it like wise denies the allegations of Paragraph V of the com plaint and states that it did not own or control the inferior accommodations in the equipment which the plaintiff was compelled to occupy between Memphis and Hot Springs, 11 and (6) it likewise denies the allegations of Paragraphs VI and VII of the complaint as relating to the plaintiff and prays the dismissal of the complaint as to it. X. The said complaint was assigned for hearing by the commission by order dated December 4, 1937, of which due notice was given to all parties. XI. A formal hearing of the complaint was heard before the commission represented by W. A. Disque, examiner, on March 7, 1938. XII. That on said last mentioned date, evidence, both oral and documentary, was introduced by the plaintiff and the defendant, Rock Island. A complete transcript of the evi dence had and taken before the commission as aforesaid, is hereby made a part of this petition, by reference thereto, as though fully set out herein and will be offered on behalf of the plaintiff on the hearing of this petition. XIII. Thereafter, briefs were filed by the plaintiff and by the defendants, and in due course the examiner’s proposed report was filed, recommending that the complaint should be dismissed, which said proposed report is hereto attached and marked Exhibit “ A ” and made a part hereof, and is as follows: 12 E x h ib it “ A . ” “ INTERSTATE COMMERCE COMMISSION No. 27844 A rth u r W . M itchell v. C hicago, R ock I sland & P acific R ailw ay Com pany , T rustees, et al . Submitted Decided May 5th, 1938. Present accommodations for colored passengers travel ing in Arkansas over the line of The Chicago, Rock Island and Pacific Railway Company on through journeys from Chicago, HI., to Hot Springs, Ark., found not unjustly discriminatory or unduly preju dicial. Complaint dismissed. Arthur TV. Mitchell and Richard E. Westbrooks for complainant. Wallace T. Hughes, Daniel Taylor, E. A. Smith, Robert Mitten, H. J. Deany, Erwin W. Roemer, Charles S. Williston, and Lowell M. Greenlaw for defendants. R eport P roposed by W m . A . D isque, E xam iner . Complainant, a negro resident of Chicago, 111., and a member of the House of Representatives of the United States, by complaint filed September 2, 1937, alleges, in effect, that defendants, in connection with their purported compliance with an Arkansas statute re quiring segregation of the races during transportation, do not provide as desirable accommodations for col- 13 ored as for white passengers traveling in Arkansas over the line of The Chicago, Rock Island and Pacific Railway Company at first-class fares from Chicago, 111., to Hot Springs, Ark., and that this results in un reasonable charges and unjust discrimination against, and undue prejudice to, colored passengers, in viola tion of sections 1, 2, 3, and 13 of the Interstate Com merce Act, and the Fourteenth Amendment to the Constitution of the United States. However, the only relief sought is removal and avoidance in the future of the alleged discrimination and prejudice in the furnishing of accommodations. The above-named car rier will be hereinafter called the Rock Island. It is the principal defendant. Docket No. 27844— Sheet 2. Defendants question our jurisdiction to give the relief, on the ground that the sections of the act in voked relate only to rates and charges. They take the position that the only provisions which give this Commission power over the furnishing of equipment and facilities of transportation begin with section 1 (10), which says that the term ‘ car service’ as used in those provisions ‘ shall include the use, control, supply, movement, * * * and return of * * * cars * * * used in the transportation of property * * *.’ (Italics ours.) However section 3 (1) makes it unlawful ‘ to subject any particular person * * *, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.’ In view of the conclusion reached the question raised is not important, but it appears to be set at rest by Interstate Commerce Commission v. Illinois Central R. Co., 215 U. S. 452, and Pennsylvania R. Co. v. Clark Bros. Coal Mining Co., 238 U. S. 456, where the Su preme Court held that this Commission had jurisdic tion to deal with discrimination in the distribution of coal cars. The complaint mentions but a single incident of alleged discrimination and prejudice, the one herein- 14 after described in which complainant was involved. Although there is an allegation that ‘ said practice of the defendants in furnishing such unequal accommoda tions * * * causes * * * undue and unreasonable preju dice to this complainant and all other colored persons who in the future will use * * * the lines of said de fendants,’ defendants upon brief urge that the com plaint is sufficient to raise any issue as to practice, on the ground that one incident does not amount to a practice, and move that all testimony that does not relate to this particular incident be stricken. Plainly, however, the incident was mentioned as representa tive of an alleged practice that was expected to con tinue. The prayer is that an order be entered requir- Docket No. 27844— Sheet 3. ing defendants to cease and desist from the alleged violations of the act and provide lawful accommoda tions in the future for colored passengers from and to the points involved. Defendants are taking an unduly technical position. They have long understood that a complaint is not to be narrowly construed. They were well aware of the kind of accommodations they were furnishing and were not taken by surprise, but came to the hearing with a full array of witnesses adequately informed respecting all the facts. They objected at the hearing to the receipt of any testi mony not confined to the incident mentioned, but their objections were overruled by the examiner. At the hearing complainant moved that the Rock Island’s answer be stricken, contending that it violated Rule IV, (d), (e) of the Rules of Practice, because it did not state fully, completely and with particularity the nature and grounds of the defense. Paragraph (e) of the rule deals specifically with answers to allegations under sections 2 and 3 of the act. How ever, there is no indication that complainant was put to any material disadvantage by defendant’s failure and the matter may be passed, as it calls only for a reprimand. 15 The case is built mainly on an unpleasant experi ence complainant had a little over a year ago. On the evening of April 20, 1937, he left Chicago for Hot Springs, over the lines of the Illinois Central Railroad Company to Memphis, Tenn., and the Rock Island beyond, traveling on a first-class round-trip ticket he had purchased from the initial carrier’s ticket agent in Chicago. He had requested a bedroom on defend ants’ through Chicago-Hot Springs Pullman sleeping car, but none being available, the ticket agent provided him with a compartment as far as Memphis in the sleeper destined to New Orleans, La. Just before the train reached Memphis, on the morning after leaving Chicago, he had a Pullman porter transfer him, to- Dochet No. 27844—Sheet 4. gether with his hand baggage and other personal effects, to the Chicago-Hot Springs sleeper then on the same train, but which was to leave Memphis at 8:30 a.m., on Rock Island train no. 45, and reach Hot Springs, 193 miles west, at 1:05 p.m., the same day. Plenty of space was available and the porter assigned him a particular seat in that car, for which he was to pay the established fare, 90 cents. Shortly after leaving Memphis and crossing the Mississippi River into Arkansas the train conductor took up the Mem phis-Hot Springs portion of his ticket, but refused to accept payment for the Pullman seat from Memphis, and in accordance with custom, compelled him, over his protest and finally under threat of arrest, to move into the so-called Jim Crow car, or colored coach, in compliance with an Arkansas statute requiring segre gation of colored from white persons by the use of cars or sections thereof providing ‘ equal, but separate and sufficient accommodations,’ for both races. Com plainant’s baggage and other personal effects were allowed to go on to destination in the Pullman car. Later, the conductor returned the portion of the ticket he had taken up and correctly advised complainant that he could get a refund on the basis of the second- 16 class fare from Memphis, which was one cent less per mile than the first class fare. The refund was never claimed from defendants and is not here sought, but defendants stand ready to make it upon application. Complainant has an action at law pending against the defendants in the Circuit Court of Cook County, 111., for damages incident to his transfer. The Pullman car contained 10 sections of berths and two compartment-drawing rooms. The use of one of the drawing rooms would have amounted to segrega tion under the State law and ordinarily such accom modations are available. Whether the 90-cent seat fare would have been applicable is not clear, but both drawing rooms were occupied by white passengers. Docket No. 27844— Sheet 5. The car was of modern design and had all the usual facilities and conveniences found in standard sleeping cars. It contained a smoking room for men and a dressing room for women. It was air conditioned, had hot and cold running water, tables, carpet, mirrors, wash basins with good soap, clean linen towels, and separate flushable toilets for men and women. It was in excellent condition throughout. First-class white passengers had, in addition to the Pullman sleeper, the exclusive use of the train’s only dining car and only observation-parlor car, the latter having somewhat the same accommodations for day use as the Pullman car and, in addition, a wi’iting desk and perhaps a radio. The white passengers could range throughout the portion of the train behind the colored coach, but colored passengers were confined to that car. The colored coach, carried next to the baggage car, was the first passenger car behind the locomotive. Behind it came a white day coach, the dining car, the sleeper and finally the observation-parlor car, all being Rock Island equipment, except the sleeper. The colored coach, though of standard size and steel con struction, was an old combination affair. It was 17 divided by partitions into three main parts, one for colored smokers, one for white smokers, and one, in the middle, for colored men and women, hut primarily the latter, and known as the women’s section, each section having seats for about 20 passengers. Com plainant sat in the women’s section. The car was poorly ventilated and not air conditioned. The up holstery was of leather. There was a toilet in each section, but only the one in the women’s section was equipped for flushing and it was for the exclusive use of the colored women. The car was without wash basins, soap, towels or running water, except in the Avomen’s section. According to complainant the car was filthy and. foul smelling, but the testimony of defendants, as we shall later see, is to the contrary. Docket No. 27844—Sheet 6. The car contained, besides complainant, several other colored passengers, including women. Two pairs of seats in the colored men’s section were used as an office by the conductor and the flagman, who were white. These conditions had prevailed for at least 25 years. The above facts are gathered principally from com plainant’s testimony, but several other colored per sons, who had traveled from Memphis to Hot Springs over the Rock Island at times during the above-men tioned period, gave similar testimony as to the condi tion of the cars in which they rode. They also told of colored coaches between these points that had common toilets for men and women and of the absence of carpets and foot rests, while much more desirable accommodations were provided for white passengers traveling in coaches. This treatment of the colored race cannot be too strongly condemned. Defendant’s witnesses, namely the conductor and flagman of the train and the superintendent who had charge of getting the equipment ready at Memphis, testified that they noticed no dirt, filth or obnoxious odors in the car; that it was as clean as it could be 18 made; that in accordance with the usual practice it was thoroughly cleaned, disinfected, equipped with newly laundered seat and seat-back linen covers, and inspected at Memphis before it was put into the train. Each section of the car contained a cooler of ice water and a 12-inch electric fan. Incidentally, the Eock Island keeps eight men busy preparing equipment for 13 or 14 trains per day. Since the early part of July, 1937, the Eock Island has been running a colored coach between Memphis and Hot Springs that is entirely modern. It is of all-steel construction, with six-wheel trucks. It is divided by a partition into two sections, one for col ored and the other for white passengers. It has comfortable seats with plush upholstery and linen seat Docket No. 27844—Sheet 7. covers, linoleum floor covering, air conditioning, elec tric light, and electric fans. In each section there are wash basins, running hot and cold water, free paper towels and drinking cups, and separate flush toilets for men and women. There is no smoker section, as smoking nowadays is generally permitted in all coaches and sections thereof, and even in some instances, or to some extent, in Pullman cars. The present colored coach is as fully desirable in all its appointments as the coach used by the white passengers traveling at second-class fares. One of the complainant’s witnesses testified that as late as September, 1937, he found conditions in the colored coach between Memphis and Hot Springs ‘ very bad,’ but evidently he was not riding the train that carried the new car, as he said the men and women used the same toilet. The present colored coach takes care of colored second-class passengers, but there is no Pullman, din ing or observation-parlor car for colored first-class passengers. Only about one negro to 20 white pas sengers rides this train from and to points on the line between Memphis and Hot Springs and there is hardly ever a demand from a colored passenger for 19 Pullman accommodations; the conductor recalled but 10 or 12 in the past 32 years of his service on the train. What demand there may have been at ticket offices does not appear. Various previous proceedings akin to this one are Council v. Western & A. R. Co., 1 I.C.C. 339; 1 I.C.R. 638; Heard v. Georgia R. Co., 1 I.C.C. 428; 1 I.C.R. 719; Edwards v. Nashville C. & St. L. Ry. Co., 12 I.C.C. 247, and Crosby v. St. Louis-S. F. Ry. Co., 112 I.C.C. 239. In the first four proceedings affirmative findings and orders were entered requiring the removal of unjust discrimination and undue prejudice to colored passengers, but not in the last one. Each rested on its own facts. None presented the same situation as the instant proceeding. Docket No. 27844—Sheet 8. For the purposes of this proceeding complainant accepts segregation under the Arkansas statute, but urges that defendants, to remove and avoid unjust discrimination and undue prejudice, are bound to provide the same equipment and accommodations for colored passengers as for white passengers. In other words, he says that if defendants are to continue the Pullman sleeper, the dining car and the observation- parlor car for white passengers, they must provide similar facilities, three extra cars, for colored passen gers paying first-class fares plus the additional charges provided by tariff for seat space. Complainant urges that collection of the first-class fare, notwithstanding the fact that second-class ac commodations were furnished him, was violative of sections 1, 2, 3 and 6 of the Interstate Commerce A ct; also of the Fourteenth Amendment to the Constitu tion, on the ground that he was deprived of money without due process of law and denied equal protec tion of the laws. It is sufficient to say that a first-class ticket was furnished and charged for because com plainant wanted it, and that after it developed that the first-class accommodations west of Memphis were all 20 taken by other passengers defendants offered to re fund the difference. Moreover, as already stated, complainant is here seeking no relief from the charges paid. Complainant urges that the Rock Island, having received from him the first-class fare but having failed to furnish first-class accommodations west of Mem phis, violated section 13(4) of the act. That provision relates to intrastate fares that are unjustly discrimina tory or unduly prejudicial in their relation to inter state fares. No intrastate fares are here involved. There was no break in complainant’s journey at the Tennessee-Arkansas State line. He was engaged in through interstate travel from Chicago to Hot Springs. Moreover, as said in the next preceding paragraph, Docket No. 27844— Sheet 9. complainant was furnished a first-class ticket because he asked for it, and refund awaits him. Regardless of what finding may be made respecting the Rock Island, the Illinois Central asks that the complaint be dismissed as to it. There is no showing that colored passengers are treated differently from white passengers on their journeys from Chicago to Memphis and apparently that road is in no way chargeable with discrimination, even though it par ticipates in the through transportation under joint fares and other arrangements. This carrier is a proper, but perhaps not necessary party. It was named as a defendant apparently out of abundance of caution, because it participated in the movement. The Pullman Company also asks dismissal, regard less of what may be done as to the Rock Island, con tending that it is not chargeable with discrimination because it provides accommodations in the form of drawing rooms, which if not already occupied or reserved for some one else, are available for colored passengers west of Memphis. Apparently there is no discrimination on its part, if the 90-cent seat fare is applicable. 21 The present colored coach meets the requirements of the law. As there is comparatively little colored traffic and not likely to be such demand for Pullman, dining and observation-parlor car accommodations by colored passengers as to warrant the running of any extra cars, the discrimination and prejudice is plainly not unjust or undue. Only differences in treatment that are unjust or undue are unlawful and within the power of this Commission to condemn, remove and prevent. The complaint should be dismissed.” XIV. The plaintiff on or about May 25, 1938, duly filed excep tions to the said proposed report in which exceptions, among other things the plaintiff contended that his con stitutional rights under the 14th Amendment of the United States had been violated. XV. The defendant, Rock Island filed a reply to the excep tions, on or about June 4, 1938. XVI. On or about July 6, 1938, the cause came on before the full Commission for oral argument. XVII. On or about November 7, 1938, the Commission filed its report and order thereon dismissing the complaint. The said report was dissented to by five members of the said Commission. 22 XVIII. The said report, including the dissenting expressions and the order of the Commission are hereto attached and marked Exhibit B and made a part hereof and is as fol lows : E xh ibit B. INTERSTATE COMMERCE COMMISSION Reed. 11/28/38 No. 27844 A rthur W . M itchell v. C hicago, R ock I sland & P acific R ailw ay Company ET AL. Submitted July 6, 1938. Decided November 7, 1938. Present accommodations for colored passengers trav eling in Arkansas over the line of The Chicago, Rock Island and Pacific Railway Company on through journeys from Chicago, 111., to Hot Springs, Ark., found not unjustly discriminatory or unduly prejudicial. Complaint dismissed. Arthur W. Mitchell and Richard E. Westbrooks for complainant. Wallace T. Hughes, Daniel Taylor, E. A. Smith, Robert Mitten, H. J. Deany, Erwin W . Roemer, Charles S. Williston, and Lowell M. Greenlaw for defendants. 23 R eport of the C ommission By th e Commission : Exceptions to the examiner’s report were filed by complainant, to which the trustees of The Chicago, Rock Island and Pacific Railway Company, herein after called the Rock Island, replied. The proceeding was orally argued. Complainant, a negro resident of Chicago, 111., and a member of the House of Representatives of the United States, by complaint filed September 2, 1937, alleges, in effect, that defendants, in connection with their purported compliance with an Arkansas stat ute requiring segregation of the races during trans portation, do not provide as desirable accommodations for colored as for white passengers traveling in Ar kansas over the line of the Rock Island at first-class fares from Chicago, 111., to Hot Springs, Ark., and that this results in unreasonable charges and unjust discrimination against, and undue prejudice to, col ored passengers, in violation of sections 1, 2, 3, and 13 of the Interstate Commerce Act, and the four teenth amendment to the Constitution of the United Docket No. 27844—Sheet 2. States, guaranteeing due process of law and equal protection of the laws. However, the only relief sought is removal and avoidance in the future of the alleged discrimination and prejudice in the fur nishing of accommodations. Defendants question our jurisdiction to give the relief sought, on the ground that the sections of the act invoked relate only to rates and charges. They take the position that the only provisions which give this Commission power over the furnishing of equip ment and facilities of transportation begin with sec tion 1 (10), which says that the term “ car service” as used in those provisions “ shall include the use, control, supply, movement, * * * and return of # * # 24 cars * * # used in the transportation of property * * (Italics onrs) However section 3 (1) makes it unlawful “ to subject any particular person * * #, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.” In view of the conclusion reached the question raised is not important, but it appears to be set at rest by Interstate Commerce Commission v. Illinois Central R. Co., 215 U. S. 452, and Pennsylvania R. Co. v. Clark Bros. Coal Mining Co., 238 U. S. 456. The complaint mentions but a single incident of alleged discrimination and prejudice, the one herein after described in which complainant was involved. Although there is an allegation that “ said practice of the defendants in furnishing such unequal accom modations * * * causes # * * undue and unreasonable prejudice to this complainant and all other colored Docket No. 27844—Sheet 3. persons who in the future will use * * # the lines of said defendants,” defendants upon brief urge that the complaint is insufficient to raise any issue as to practice, on the ground that one incident does not amount to a practice, and they move that all testi mony that does not relate to this particular incident be stricken. Plainly, however, the incident was men tioned as representative of an alleged practice that was expected to continue. The prayer is that we require defendants to cease and desist from the al leged violations of the act and to provide lawful accommodations in the future for colored passengers from and to the points involved. Defendants are tak ing an unduly technical position. They have long understood that a complaint is not to be narrowly construed. They were well aware of the kind of accommodations they were furnishing and were not taken by surprise, but came to the hearing with wit nesses adequately informed respecting all the facts. They objected at the hearing to the receipt of any 25 testimony not confined to the incident mentioned, but their objections were properly overruled by the ex aminer. At the hearing, complainant moved that the Rock Island’s answer be stricken, contending that it vio lated rule IV (d), (e) of the Rules of Practice, be cause it did not state fully, completely, and with particularity the nature and grounds of the defense nor deny specifically and in detail each material alle gation of the complaint. However, there is no indi cation that complainant was put to any material disadvantage by defendant’s failure; and striking the answer would avail nothing, for the proceeding would nevertheless be at issue. Rule IV (b) and Smokeless Fuel Co. v. Norfolk & W. Ry. Co., 85 I.C.C. 395. Docket No. 27844—Sheet 4. The case is built mainly on an unpleasant experience complainant had about 18 months ago. On the eve ning of April 20,1937, he left Chicago for Hot Springs, over the lines of the Illinois Central Railroad Com pany to Memphis, Tenn., and the Rock Island beyond, traveling on a round-trip ticket he had purchased at 3 cents per mile from the initial carrier’s ticket agent in Chicago. He had requested a bedroom on defendants’ through Chicago-Hot Springs Pullman sleeping car, but none being available, the ticket agent provided him with a compartment as far as Memphis in the sleeper destined to New Orleans, La. Just before the train reached Memphis, on the morning after leaving Chicago, he had a Pullman porter trans fer him, together with his hand baggage and other personal effects, to the Chicago-Hot Springs sleeper then on the same train, but which was to leave Mem phis at 8:30 a.m., on Rock Island train no. 45, and reach Hot Springs, 193 miles west, at 1 :05 p.m., the same day. Space was available and the porter assigned him a particular seat in that car, for Avhich he was to pay the established fare, 90 cents. Shortly after leaving Memphis and crossing the Mississippi River 26 into Arkansas the train conductor took up the Mem phis-Hot Springs portion of his ticket, but refused to accept payment for the Pullman seat from Memphis, and in accordance with custom, compelled him, over his protest and finally under threat of arrest, to move into the car provided for colored passengers, in pur ported compliance with an Arkansas statute requiring segregation of colored from white persons by the use of cars or partitioned sections thereof providing “ equal, but separate and sufficient accommodations” , for both races. Complainant’s baggage and other per sonal effects were allowed to go on to destination in Docket No. 27844— Sheet 5. the Pullman car. Later the conductor returned the portion of the ticket he had taken up and correctly advised complainant that he could get a refund on the basis of the coach fare of 2 cents per mile from Memphis. The refund was never claimed from de fendants and is not here sought, but defendants stand ready to make it upon application. Complainant has an action at law pending against defendants in the Circuit Court of Cook County, 111., for damages in cident to this transfer. The Pullman car contained 10 sections of berths and 2 compartment-drawing rooms. The use of one of the drawing rooms would have amounted to segre gation under the State law and ordinarily such ac commodations are available to colored passengers upon demand, the 90-cent seat fare being applicable. Oc casionally they are used by colored passengers, but in this instance both drawing rooms were already occupied by white passengers. The car was of modern design and had all the usual facilities and conveniences found in standard sleeping cars. It contained a smok ing room for men and a dressing room for women. It was air conditioned, had hot and cold running water, tables, carpet, mirrors, wash basins with good soap, clean linen towels, and separate flushable toilets for men and women. It was in excellent condition through 27 out. First-class white passengers had, in addition to the Pullman sleeper, the exclusive use of the train’s only dining car and only observation-parlor car, the latter having somewhat the same accommodations for day use as the Pullman car and, in addition, a writing desk and perhaps a radio. The coach for colored passengers was in the rear of the baggage car. Behind it were a day coach for white passengers, the dining car, the sleeper and, fin- Docket No. 27844—Sheet 6. ally, the observation-parlor car, all being Rock Island equipment, except the sleeper. The colored-passenger coach, though of standard size and steel construction, was an old combination affair, not air conditioned. It was divided by partitions into three main parts, one for colored smokers, one for white smokers, and one, in the center, for colored men and women, but primarily the latter and known as the women’s sec tion, each section having seats for about 20 passengers. Complainant sat in the women’s section. There was a toilet in each section, but only the one in the women’s section was equipped for flushing and it was for the exclusive use of the colored women. The car was without wash basins, soap, towels, or running water, except in the women’s section. According to com plainant, the car was filthy and foul smelling, but the testimony of defendants, as we shall later see, is to the contrary. The car contained, besides complain ant, several other colored passengers, including women. Two pairs of seats in the colored men’s section were used as an office by the conductor and the flag-man, who were white. These conditions had prevailed for at least 25 years. The above facts are gathered principally from com plainant’s testimony, but several other colored per sons, who had traveled from Memphis to Hot Springs over the Rock Island at times during the above-men tioned period, gave similar testimony as to the con 2 8 dition of the cars in which they rode. They also told of colored coaches between these points that had com mon toilets for men and women and of the absence of carpets and foot rests, while much more desirable accommodations were provided for white passengers traveling in coaches. Docket No. 27844— Sheet 7. Defendant’s witnesses, namely the conductor and flagman of the train and the superintendent who had charge of cleaning the equipment at Memphis, tes tified that they noticed no dirt, filth, or obnoxious odors in the car; that in accordance with the usual practice it was thoroughly cleaned, disinfected, equipped with newly laundered seat and seat-hack linen covers, and inspected at Memphis before being put into the train. Each section of the car contained a cooler of ice water and a 12-inch electric fan. Inci dentally, the Rock Island employs eight men at Mem phis preparing equipment for 13 or 14 trains per day. Since the early part of July, 1937, when the coach above described was taken out of service, the Rock Island has operated a modern combination coach be tween Memphis and Hot Springs. It is of all-steel construction, with six-wheel trucks. It is divided by a partition into two sections, one for colored and the other for white passengers. It has comfortable seats, linoleum floor covering, and is air conditioned. In each section there are wash basins, running hot and cold water, free paper towels and drinking cups, and separate flush toilets for men and women. There is no smoker section, as smoking nowadays is generally permitted in all coaches and sections thereof, and even in some instances, or to some extent, in Pullman cars. The combination coach is as fully desirable in all its appointments as the coach used entirely by white passengers traveling at second-class fares. One of the complainant’s witnesses testified that as late as September, 1937, he found conditions in the colored- passenger coach between Memphis and Hot Springs 29 “ very bad” , but evidently he was not riding the train that carried the new car ...................... same toilet. Docket No. 27844—Sheet 8. Only about 1 negro to 20 white passengers rides this train from and to points on the line between Memphis and Hot Springs, and there is hardly ever a demand from a colored passenger, for Pullman accommodations; the conductor recalled but 10 or 12 instances, in the past 32 years of his service on the train, wherein colored passengers who had entered Pullman cars were required by him to move into the colored-passenger coach. He estimated that the de mand for Pullman accommodations did not amount to one per year. What demand there may have been at ticket offices does not appear. The present coach properly takes care of colored second-class passengers, and the drawing rooms and compartments in the sleeper provide proper Pullman accommodations for colored first-class passengers, but there are no dining-car nor observation-parlor car accommodations for the latter and they can not law fully range through the train. Various previous proceedings akin to this are Coun- cill v. Western & A. R. Co., 1 I. C. C. 339; 1 I. C. R. 638; Heard v. Georgia R. Co., 1 I. C. C. 428; 1 I. C. R. 719; Edivards v. Nashville, C. & St. L. Co., 12 I. C. C. 247; and Crosby v. St. Louis-S. F. Ry. Co., 112 I. C. C. 239. In the first four proceedings affirmative findings and orders were entered requiring the re moval of unjust discrimination and undue prejudice to colored passengers, but not in the last cited case. Each rested on its own facts. None presented the same situation as the instant proceeding. Several decisions of the Supreme Court are re ferred to. In Louisville, N. 0. <& T. R. Co. v. Missis sippi, 133 U. S. 587, and Chesapeake < f i 0. Ry. Co. v. Kentucky, 179 U. S. 388, statutes of the States of Mis sissippi and Kentucky requiring segregation of colored 30 Docket No. 27844—Sheet 9. passengers in intrastate commerce were upheld as not repugnant to the commerce clause of the Consti tution. The State courts, at least for the purpose of limiting the constitutional question, had held that the statutes applied only intrastate, and the question of whether they were constitutional, so far as inter state traffic was concerned was not decided. In Chiles v. Chesapeake £ 0. Ry. Co., 218 U. S. 71, dealing with coach passengers, the Supreme Court held that in a southern State a railroad has the right, by the estab lishment of appropriate rules and regulations, to re quire segregation, intrastate and interstate, aside from any statutory requirements, provided substantially the same accommodations are furnished for the two races. It said that railroad regulations respecting this matter were subject to the same tests of reason ableness as those enacted by legislative authority and that rules and regulations induced by the general sentiment of the community for which they are made and upon which they operate are not unreasonable. In McCabe v. Atchison, T. £ S. F. R. Co., 235 U. S. 151, several negroes attacked, before it became ef fective, a statute of the State of Oklahoma requiring segregation, on the ground that it violated the four teenth amendment. They sought to enjoin the carrier defendant therein from complying with its terms, but no basis was shown for equitable relief and the de cree of the lower court dismissing the bill Avas affirmed. In South Covington £ C. Street Ry. Co. v. Kentucky, 252 U. S. 399, the Supreme Court held that the Ken tucky segregation statute, as applicable intrastate to an interurban electric carrier, which also operated principally interstate, was not an unconstitutional in terference with interstate commerce. Docket No. 27844—Sheet 10. Complainant urges that defendants, to remove and avoid unjust discrimination and undue prejudice, are bound to provide the same equipment and accommo- 31 dations for colored passengers as for white passengers. In other words, he says, that if defendants are to continue all the present first-class accommodations for white passengers, they must provide similar ac commodations for colored passengers on the same basis of charge. He understands that it is for defend ants to determine whether this equality of treatment should be accomplished by the running of extra cars solely for colored passengers or by partitions in the cars now operated. The statute sets up two distinct groups of passengers, and the question for our de termination is whether the circumstances and condi tions surrounding these respective kinds of traffic are so substantially different as to justify the difference in treatment here alleged to be unlawful. Complainant contends that the extent of the demand for first-class accommodations for colored passengers has no bearing on the question presented. He urges that McCabe v. Atchison, T. & S. F. R. Co., supra, is to the effect that a constitutional right is personal and that lack of volume of colored traffic or limited demand by colored passengers for Pullman space is no defense to a charge that under segregation which results in the occupancy of unequal facilities colored passengers are denied equal protection of the laws. That case dealt with an Oklahoma statute which al lowed defendants to provide sleeping cars, dining cars, and chair cars to be used exclusively by either white or negro passengers, separately but not jointly. The court below had concluded that sleeping cars, dining cars, and chair cars, were, comparatively speaking, Docket No. 27844— Sheet 11. luxuries, and that it was competent for the legisla ture to take into consideration the limited demand for such accommodations by one race, as compared with the demand on the part of the other. Complainant relies upon the following statement contained in the Supreme Court’s decision: 32 It is not questioned that the meaning of this clause is that the carriers may provide sleeping cars, dining cars and chair cars exclusively for white persons and provide no similar accommo dations for negroes. The reasoning is that there may not he enough persons of African descent seek ing these accommodations to warrant the outlay in providing them. Thus, the Attorney General of the State, in the brief filed by him in support of the law, urges that “ the plaintiffs must show that their own travel is in such quantity and of such kind as to actually afford the roads the same profits, not per man, hut per car, as does the white traffic, or, sufficient profit to justify the furnishing of the facility, and that in such case they are not supplied with separate cars containing the same. This they have not attempted. What vexes the plaintiffs is the limited market value they offer for such accom modations. Defendants are not by law compelled to furnish chair cars, diners nor sleepers, except when the market offered reasonably demands the facility.” And in the brief of counsel for the ap pellees, it is stated that the members of the legis lature “ were undoubtedly familiar with the char acter and extent of travel of persons of African descent in the State of Oklahoma and were of the opinion that there was no substantial demand for Pullman car and dining car service for persons of the African race in the intrastate travel” in that State. This argument with respect to volume of traffic seems to us to be without merit. It makes the con stitutional right depend upon the number of per sons who may be discriminated against, whereas the essence of the constitutional right is that it is a personal one. Whether or not particular facil ities shall be provided may doubtless be conditioned upon there being a reasonable demand therefor, but, if facilities are provided, substantial equality of 33 treatment of persons traveling under like condi tions cannot be refused. It is the individual who is entitled to the equal protection of the laws, and if he is denied by a common carrier, acting in the matter under the authority of a state law, a facility or convenience in the course of his journey which Docket No. 27844—Sheet 12. under substantially the same circumstances is fur nished to another traveler, he may properly com plain that his constitutional privilege has been in vaded. Defendants say that what the Court evidently meant by this comment was that a carrier could not abso lutely refuse to afford colored passengers Pullman accommodations, but had to provide them if there was reasonable demand from colored passengers. In any event, we are not here considering a constitutional question, but rather questions of the act. Volume of traffic is an important consideration in determining whether certain services demanded are warranted and whether a difference in treatment is justified. At the hearing complainant stated that segregation was not involved and apparently for the purpose of this case he accepted it, regarding the Arkansas stat ute as requiring it in that State for all passengers, both interstate and intrastate. However, in his ex ceptions he opposes it as abominable and urges that the statute does not require it as to interstate pas sengers. The statute is general in its terms in that like the Mississippi and Kentucky statutes dealt with by the Supreme Court, it does not mention either intrastate or interstate passengers. These lat ter statutes, as already stated, were by State courts confined to intrastate passengers and the Supreme Court accepted these constructions as binding on it. Complainant also relies on the Supreme Court’s con clusion in McCabe v. Atchison, T. & S. F. R. Co., supra, to the effect that the Oklahoma statute had to 34 Docket No. 27844^-Sheet 13. be construed as applying only intrastate because theie bad been no construction to the contrary by the State court. Be that as it may, the present case arose out of the apparent assumptions of the parties that the Arkansas statute was applicable to interstate traffic, and while it is not for us to construe the statute, we think, in view of its general terms, that until further informed by judicial determination, defendants are justified, as a matter of self protection, in assuming that it applies to interstate, as well as intrastate, traffic. What we are here dealing with is the practice of the carriers in assumed compliance with the stat ute, a practice which they could follow even if there were no statute. Complainant urges that collection of the first-class fare, notwithstanding the fact that second-class ac commodations were furnished him, was violative of sections 1, 2, 3, and 6 of the act; also of the fourteenth amendment, on the ground that he was deprived of money without due process of law and denied equal protection of the laws. It is sufficient to say that a first-class ticket was furnished and charged for be cause complainant wanted it, and that after it de veloped that the first-class accommodations ordinarily available for colored passengers west of Memphis were all taken by other passengers defendants offered to refund the difference. Moreover, as already stated, complainant is here seeking no relief from the charges paid. Complainant urges also that the Rock Island, hav ing received from him the first-class fare but having failed to furnish first-class accommodations west of Memphis, violated section 13(4) of the act. That pro vision relates to intrastate fares that are unjustly discriminatory or unduly prejudicial in their relation Docket No. 27844—Sheet 14. to interstate fares. No intrastate fares are here in volved. There was no break in complainant’s journey 35 at the Tennessee-Arkansas State line. He was engaged in through interstate travel from Chicago to Hot Springs. Moreover, as said in the next preceding paragraph, complainant was furnished a first-class ticket because he asked for it, and refund awaits him. Regardless of what finding may be made respecting the Rock Island, the Illinois Central asks that the complaint be dismissed as to it. There is no showing that colored passengers are treated differently from white passengers on their journeys from Chicago to Memphis and apparently that road is in no way charge able with discrimination, even though it participates in the through transportation under joint fares and other arrangements. This carrier is a proper, but perhaps not necessary party. It was named as a defendant apparently out of abundance of caution, because it participated in the movement. The Pullman Company also asks dismissal, regard less of what may be done as to the Rock Island, con tending that it is not chargeable with discrimination, because it provides accommodations in the form of drawing rooms, which if not already occupied or re served for someone else, are available for colored passengers west of Memphis at the 90-cent charge. There is no discrimination on its part. It is not for us to enforce the State law. We under stand that to be a matter for State authorities. But in deciding the case on the facts presented we must recognize that under the State law defendants must segregate colored passengers. In these circumstances we find that the present colored-passenger coach and the Pullman drawing rooms meet the requirements of the act; and that as there is comparatively little colored traffic and no indication that there is likely Docket No. 27844—Sheet 15. to be such demand for dining-car and observation- parlor ear accommodations by colored passengers as to warrant the running of any extra cars or the con struction of partitions, the discrimination and preju- 36 dice is plainly not unjust or undue. Only differences in treatment that are unjust or undue are unlawful and within the power of this Commission to condemn, remove, and prevent. The complaint wall be dismissed. E astman, Commissioner, dissenting: In his dissenting expression Commissioner Lee has correctly indicated the rule which railroads must fol low to avoid unlawful discrimination between white and colored passengers, where State statutes require their segregation. So far as coach travel is con cerned, it is clear that the Rock Island was not con forming to this rule, when complainant made his trip to Hot Springs, but is probably conforming to it now. So far as Pullman accommodations are concerned, I am not satisfied that defendants were observing the rule then or that they are observing it now. The latter conclusion I reach reluctantly, for I realize that, where segregation is required, the prac tical difficulties of observing the rule with respect to Pullman accommodations are very great. The facts are that white passengers were and are given adequate opportunity to obtain seats, berths, compartments, or rooms in Pullman cars, together with the right to use any dining car or observation car that may be attached to the train, whereas colored passengers have no op portunity to obtain seats or berths in the body of the car or to use dining or observation cars, but may ob tain accommodations in a compartment or room, pro vided one can be found that has not been previously Docket No. 27844^-Slieet 16. been taken by a white passenger. If the conditions were reversed, I cannot believe that the white pas sengers would regard this as equality of treatment and opportunity. The practical difficulty lies, of course, in the fact that the demand for Pullman accommodations on the part of colored passengers is very small. So long as 37 this condition exists, I am not prepared to say that it is necessary for a railroad to attempt the partition of observation or dining cars, but I do believe that it is necessary to provide some Pullman space, small though it may be, which will be reserved for the oc cupancy of colored passengers and which white pas sengers will not be permitted to occupy, and to pro vide means by which meals from the dining car may be served in such space. Lee, Commissioner, dissenting: The rule was laid down in the early days of this Commission that it was the duty of the railroads to furnish, for all passengers paying the same fare, cars in all respects equal and provided with the same comforts, accommodations, and protection for travel ers. Councill v. Western & Atlantic R. R. Co., 1 I. C. C. 339; William H. Heard v. The Georgia R. R. Co., 1 I. C. C. 428. It was further held “ * * * that the separation of white and colored passengers paying the same fare is not unlawful if cars and accommo dations equal in all respects are furnished to both and the same care and protection of passengers is observed.” Edwards v. Nash., Chat. & St. Louis Ry. Co., 12 I. C. C. 247. In the latter case the Commission said: “ While, therefore, the reasonableness of such regulation as to interstate passenger traffic is es tablished, it by no means follows that carriers may discriminate between white and colored passengers in the accommodations which they furnish to each. If a railroad provides certain facilities and accom modations for first-class passengers of the white race, it is commanded by the law that like accom- Docket No. 27844—Sheet 17. modations shall be provided for colored passengers of the same class. The principle that must govern is that the carriers must serve equally well all pas sengers, whether white or colored, paying the same 38 fare. Failure to do this is discrimination and sub jects the passenger to ‘ undue and unreasonable prej udice and disadvantage.’ ” In each of the three cases, because the railroad had furnished colored passengers inferior accommodations to those furnished white passengers of the same class, a finding of discrimination was made. No decision has been found in which this Commission, on such facts, has held to the contrary. In this case complainant, traveling on a first-class ticket and offering to pay for a seat in the Pullman car, to which the Pullman porter had assigned him, and in which there was “ plenty of space” , was re quired to move from the Pullman car into the coach provided for colored passengers. The latter was described as “ an old combination affair” , not air- conditioned, which was divided into three parts, and, except in the Avomen’s section, was Avithout wash basins, soap, towels, or running water. Testifying for defendants, the conductor, Avho re fused to sell complainant a seat in the Pullman car, and had him removed into the coach provided for colored passengers, said that “ during the thirty-two years I have worked over there in Arkansas, for the Rock Island Railroad Company, it has never had any first-class accommodations for Negroes” and “ I would not have sold a seat in Section 3 or any other space in the Pullman car to Congressman Mitchell because he Avas a colored person. ’ ’ Witnesses other than com plainant testified that they had been refused Pullman accommodations on Rock Island trains solely because they were Negroes. In view of this evidence, I ques tion the statement in the report that Pullman accom modations ordinarily “ are a Available to colored pas sengers upon demand.” Docket No. 27844—Sheet 18. I f the action complained of does not constitute undue or unreasonable prejudice or disadvantage under the 39 act, as those terms are understood, then I am at a loss to understand their meaning. The act which we ad minister authorizes no difference in treatment of passengers because of color, and it is my understand ing that the segregation statutes of the State require equal accommodations for persons of the two races. No doubt the action of the Rock Island in refusing to permit complainant to occupy a seat in the Pullman car was due to the State statute, requiring the segregation of white and colored passengers. Conceding the car rier’s legal right to segregate white and colored pass engers in the State of Arkansas, in segregating such passengers, it must accord to one class accommoda tions substantially equal to those accorded the other. If the carrier provides certain accommodations for first-class white passengers, it is required to provide substantially similar accommodations for colored passengers of the same class. In my opinion, when the railroad refused complainant Pullman accommodations and required him to l'ide in the coach provided for col ored passengers, it violated the act in failing to fur nish him substantially similar accommodations to those furnished white people willing, as he was, to pay therefor. I am authorized to state that Conmxissioners Aitchi- son and Porter joint in this expression. Miller, Commissioner, dissenting in part: I am in accord with the conclusion of the majority that the present accommodations over the lines of defendants on through journeys from Chicago, HI., to Hot Springs, Ark., do not result in unjust discrimina tion or undue prejudice. The demaxxd of colored pass engers for Pullman accommodations over the route in Docket No. 27844— Sheet 19. question is shown by the evidence of record to have been negligible over a period of many years. The pro visions for such few colored passengers as have desired to avail themselves of that service is shown to have 40 been, and to be, ample under ordinary circumstances. Had complainant made Pullman reservations some what in advance of the date of travel I am convinced that he would have had no difficulty in obtaining suit able accommodations over the entire route. With respect to the service rendered complainant from Memphis to Hot Springs in lieu of Pullman accommodations, however, I am of the view, and I think the report should so find, that the coach accommoda tions furnished complainant resulted in unjust dis crimination and undue prejudice. The preponderance of the evidence of record indicates that the coach serv ices afforded complainant, as well as other colored passengers, were decidedly inferior to those afforded white passengers and to which all passengers are en titled. It appears that the improvement in the col ored coach service which has taken place over the route in question since this complaint was filed has made such service satisfactory. When a colored person purchases a first-class ticket in a state where segregation is not required to a point in a state where it is required, or through such a state, such dissatisfaction and trouble as was here incurred by complainant may, I think, be avoided by advice of the ticket agent to the effect that through Pullman ac commodations should be secured in advance. Order. At a General Session of the Interstate Commerce Commission, held at its office in Washington, D. C., on the 7th day of November, A. D. 1938 No. 27844 Arthur W. Mitchell v. Chicago, Rock Island & Pacific Railway Company et cd. This proceeding being at issue upon complaint and answers on file, and having been duly heard and sub 41 mitted by the parties, and full investigation of the matters and things involved having been made, and the Commission having, on the date hereof, made and filed a report containing its findings of fact and con clusions thereon, which said report is hereby referred to and made a part hereof: It is O rdered, That the complaint in this proceeding be, and it is hereby, dismissed. By the Commission. ( s e a l ) W. P. Bartel, Secretary. XIX. A copy of the report of the Commission was received on November 28, 1938 by the plaintiff and on, to wit: Jan uary 23, 1939 a petition for rehearing and re-argument was filed by the plaintiff. XX. That on about February 2, 1939 the defendant, Rock Island, filed its reply to the plaintiff’s petition for rehear ing and re-argument. XXI. On or about March 6, 1939, the Commission filed its order, denying the petition of the plaintiff for rehearing and re-argument, a copy and notice of the said order was received by the plaintiff March 20, 1939 and a copy of the said order is hereto attached, marked Exhibit C and made a part hereof, and is as follows: E x h ib it C. ORDER. At a General Session of the Interstate Commerce Commission, held at its office in Washington, D. C., on the 6tli day of March, A. D. 1939. 42 No. 27844 A rthur R . M itchell v. C hicago, R ock I sland & P acific R ailway C om pany, et AL. Upon further consideration of the record in the above-entitled proceeding, and upon consideration of petition of complainant for rehearing and reargument: It is ordered, That the said petition be, and it is hereby, denied. By the Commission. W . P. B artel, (Seal) Secretary. XXII. All of the various steps in the above recited proceed ings were taken in accordance with the said Act of Con gress and the rules of the Interstate Commerce Commis sion. XXIII. Plaintiff avers that he has been damaged and injured by the order of the Interstate Commerce Commission en tered November 7, 1938 and the order of the said Commis sion entered March 6, 1939 as aforesaid. XXIV. That the said order entered November 7, 1938 dismiss ing the complaint is inconsistent with the evidence pro duced by the defendant, Rock Island and with the findings contained in the proposed report of the Examiner and the report of the commission. XXV. That the undisputed and uncontradieted testimony of the chief witness, Albert W. Jones, a conductor on the 43 Rock Island for thirty-two years, offered by the defend ant, Rock Island, fully sustains the allegations contained in the complaint filed before the Commission, an excerpt from the abstract of his testimony as contained in the in itial brief of the complainant and which was before the Commission is as follows: p. 43: “ The only provision that the Rock Island has for carrying all colored passengers is in that part of the Jim Crow car.” A colored person who has a first class ticket is compelled to ride in the Jim Crow car with all other colored persons who have second-class tickets or “ two-cent-per-mile” tickets. ‘ ‘A white person with a first-class ticket is entitled to use the Pullman, the diner and observation car, which provide first class accommodations. (Rec. 148.)” p. 44: “ The Rock Island Railroad Company has no such first-class accommodations for negroes, although the negroes may have first-class tickets on the Rock Is land Railway or ‘three-cent-per-mile’ tickets. During the thirty-two years I have worked over there in Arkansas, for the Rock Island Railroad Company it has never had any first-class accommodations for Negroes (Rec. 149). And they haven’t any first-class accommodations in the sleeping cars for Negroes now.” “ The Rock Island Railroad Company does not at this time have any first-class accommodations for col ored passengers paying the ‘ three-cent-a-mile’ fare permitting them to use the observation car which be longs to the Rock Island. They cannot use the dining car, nor sleeping car, although they may hold first- class tickets.” p. 45: “ Congressman Mitchell was sitting in Section 3 of the Pullman car alone (Rec. 154). I do not know if anyone occupied Section 3 from Memphis to Hot Springs on April 21st, but whether the space had been 44 sold or not. I would not have sold a seat Section 3 or any other space in that Pullman car to Congressman Mitchell, because he was a colored person. I know he had a first-class interstate round-trip ticket from Chicago, Illinois, to Hot Springs, Arkansas.” “ The accommodations furnished to Negro passen gers in the Jim Crow car where Congressman Mitchell was compelled to ride are not equal to the accommoda tions furnished in the observation car by the Rock Island Railway to white passengers holding first-class tickets” (Rec. 155). “ There is porter service furnished to the passengers in the observation car but no porter service furnished to the colored passengers in the Jim Crow cars” (Rec. 157). “ The Jim Crow car which all colored passengers were compelled to ride in in April, 1937, had three compartments (Rec. 158). There was no running water, no wash basins or towels. There were only paper towels furnished in the compartment of the Jim Crow car but linen and paper towels were fur nished in the observation car (Rec. 160), There was only one toilet in the compartment where Congress man Mitchell was riding in the Jim Crow car, which was ‘ for women’. There was none for men who were riding in that compartment” (Rec. 161). p. 46: “ I have never sold any colored person any space or accommodations in the Pullman car during my entire service.” “ But I had charge of the train as the conductor for the company and having charge of the train for the company I felt it was my duty to put the congress man out of the sleeping car into the Jim Crow car (Rec. 168). The congressman did complain and pro test being put out of the Pullman car. He showed me his ticket and offered to pay for the accommoda tions. But I told him' he was a colored man and couldn’t ride in those first-class accommodations. If there had been a white passenger with a first-class ticket who had boarded the train at Memphis, for Hot 45 Springs, and had ashed for a berth or a seat in that Pullman car, where there were vacant seats or had ashed for a seat in the observation car, I would have sold it to him. I do not hnotv how many colored peo ple apply for Pullman tichets in Hot Springs, for Chicago, and are refused (Rec. 169). If the compart ments or stateroom are occupied, no colored person can ride in the body of the sleeping car. No colored persons are allowed to ride in the observation car which belongs to the Boch Island, even if they have first-class tichets. Those are the rules of the railway company and I follow the rules.” p. 47: “ I sell space on that train for seats in the observa tion car but would not sell a colored person any ac commodations in the observation car, although he had a first-class ticket (Rec. 171). The white people and colored people are chai’ged the same fare for the ‘ three-cent-per-mile’ ticket, or the ‘ first-class tickets’ (Rec. 172). There is no difference in the charge for the ticket because of color. The Pullman car is bet ter equipped than the Jim Crow car. If a white pas senger with a first-class tichet was put out of the Jim Crow car he could receive the first-class accommoda tions of the Pullman car, and would not be compelled to purchase a compartment or a seat in the compart ment. He could bug a seat in the Pullman car or ob servation car, or parlor car. The only requirement is, his having a first-class or ‘ three-cents-per-mile> tichet. They have the entire car (Rec. 174). Colored people cannot ride in that car, even if they have a first or second-class tichet. All the colored people who ride on my train must stay in the Jim Crow car, no mutter what hind of a tichet they have.” XXVI. Plaintiff alleges that the Commission’s said findings and orders are erroneous, invalid, unlawful and void for the following reasons: 46 1. Said order dismissing the complaint of the plaintiff and the findings upon which said order is based are arbi trary and unjust. 2. Said order and findings are contrary to the evidence of record. 3. Said order and findings are without support of any substantial evidence in the record. 4. Said order and findings are without support of any evidence in the record before the said Commission in the proceedings in which they are made. 5. Said order and findings are against the indisputable character of and the manifest weight of the evidence. 6. In making the order and findings the Commission proceeded upon the misapprehension of the law. 7. In making the order and the findings the Commis sion disregarded the undisputed and uncontradicted evi dence contained in the record. 8. There are no findings of facts to support the order of the Commission. 9. The Commission proceeded under erroneous con structions of law and misapprehensions in respect of its powers. 10. That said order and findings are contrary to the laws of the United States of America. 11. Said order and findings conflict with the former de cisions of the Interstate Commerce Commission in cases involving the identical situation as the case at bar. 12. Said orders and findings are contrary to and con flict with the United States Constitution and all amend ments thereto. 47 13. Said order and findings are contrary to and con flict with the Enforcement Acts of the United States. 14. Said order and findings are a denial of the plaintiff of the due process of law as guaranteed by the Fourteenth Amendment of the United State’s Constitution. 15. Said order and findings are a denial of the equal protection of the laws to the plaintiff as guaranteed by the Fourteenth Amendment of the United States Consti tution. XXVII. All of the matters herein alleged, plaintiff offers to prove. XXVIII. That the plaintiff will suffer irreparable loss and dam age unless the said order entered November 7, 1938 be set aside, annulled and vacated. XXIX. In T ender Consideration W hereof and inasmuch as your petitioner, the plaintiff herein, has no adequate remedy at law, and may have relief only in a court of equity, peti tioner prays: 1. That the petition be received and filed. 2. That writs of subpoena be issued by the clerk of the court, as provided by law, commanding the United States of America, Frank 0. Lowden, James - E. Gorman, and Joseph B. Fleming, Trustees of the estate of the Chicago, Bock Island & Pacific Railway Company, a corporation; Illinois Central Railway Company, a corporation, and Pull man Company, a corporation, defendants herein, to ap pear and defend this action. TRANSCRIPT OF RECORD Supreme Court of the United States OCTOBER TERM, 1940 No. 577 ARTHUR W. MITCHELL, APPELLANT, vs. THE UNITED STATES OF AMERICA, INTERSTATE COMMERCE COMMISSION, FRANK 0. LOWDEN, ET AL. APPEAL PROM TH E DISTRICT COURT OF TH E U N ITED STATES FOR TH E NORTHERN DISTRICT OF ILLIN OIS FILED NOVEMBER 18, 1940. SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1940 No. 577 ARTHUR W. MITCHELL, APPELLANT, vs. THE UNITED STATES OF AMERICA, INTERSTATE COMMERCE COMMISSION, FRANK 0. LOWDEN, ET AL. APPEAL PROM TH E DISTRICT COURT OF TH E U N ITED STATES FOR TH E N ORTH ERN DISTRICT OF ILLIN OIS INDEX. Record from D. C. U. S., Northern District of Illinois......... Caption .......................................(omitted in printing) .. Petition................................................................................. Excerpts from complaint filed before Interstate Com mission ...................................................................... Excerpts from the answer of the Illinois Central. . . . Excerpts from the answer of the Rock Island......... Excerpts from the answer of the Pullman Company Exhibit “A”—Proposed report of Examiner, Wm. A. Disque ...................................................................... Exhibit “B”—Report of Commission........... ............ Order of Commission dismisssing the complaint___ Exhibit “C”—Order of Commission denying petition for rehearing and reargument............................... Summons and return.................(omitted in printing).. Answer of defendant, United States of America............. Intervention and answer of Interstate Commerce Com mission ............................................................................. Original Print 1 1 1 3 1 7 2 13 7 13 7 14 8 16 10 26 18 44 33 45 34 55 58 41 61 42 Judd & Detweiler ( I nc.) , Printers, Washington, D. C., January 11, 1941. —1948 1 1 INDEX Record from D. C. U. S., Northern District of Illinois—Con tinued Original Print Answer of defendants, Frank O. Lowden, et al., Trustees of Chicago, Rock Island & Pacific Railway Co............ 66 44 Answer of defendant, The Pullman Company................. 70 46 Answer of defendant, Illinois Central Railroad Co......... 78 50 Order setting cause for hearing before three-judge court. 82 52 Findings of fact and conclusions of law........................... 84 52 Order dismissing cause for lack of jurisdiction............. 86 53 Notice of appeal.................................................................. 88 53 Petition for appeal.................................. 90 55 Assignment of errors ......................................................... 91 55 Order granting appeal ....................................................... 98 61 Citation and service thereof....... (omitted in printing) .. 100 Appeal bond ............................... (omitted in printing) .. 103 Order approving appeal bond............................................. 107 62 Order extending time to docket appeal to November 21, 1940 ................................................................................... 130 63 Order granting leave to use original exhibits..................... 132 63 Order re transcript of testimony had on May 27, 1940, before District Court ..................................................... 134 64 Appellant’s praecipe and proof of service........................ 136 64 Plaintiff’s Exhibit No. 1—Proceedings before Interstate Commerce Commission, Docket No. 27844.................... 139 65 Complaint (copy) ...............(omitted in printing).. 140 Transcript of notes of hearing................................... 150 66 Caption and appearances ................................... 150 66 Proceedings ........................................................... 153 67 Testimony of Arthur W. Mitchell...................... 157 70 Thomas J. P r ice ............................ 200 97 Edward H. Carry ........................ 209 103 William Harrison ........................ 220 109 John J. Pullen............................... 228 115 Elias A. Morris ............................ 238 121 Albert W. Jones............................ 248 12S W. S. Scott ................................... 331 180 A. C. McGuire............................... 346 189 Arthur W. Mitchell (recalled)... 366 201 Exhibit No. 1—Railroad ticket .......................... 369 204 Exhibit No. 2—Pullman stub ............................. 370 204 Exhibit No. 3—Time table—Illinois Central.... 371 205 Exhibit No. 4—Time table—Rock Island........ 406 207 Exhibit No. 5—Arkansas separate coach law ... 442 211 Proposed report of examiner (copy) (omitted in printing) .................................................................. 445 Report and order of Commission (copy) (omitted in printing) ............................................................... 454 Order denying petition for rehearing and reargu ment (copy) (omitted in printing)........................ 465 Defendants’ Exhibit No. 1—Reply of Frank O. Lowden, et al., Trustees of Chicago, Rock Island & Pacific Rail way Co., filed June 4, 1938, before Interstate Com merce Commission ......................................................... 466 214 Record from D. C. U. S., Northern District of Illinois—Con tinued Original Print Statement of evidence ....................................................... 478 220 Caption and appearances .......................................... 470 220 Plaintiff's evidence ..................................................... 481 221 Defendants’ evidence ................................................ 483 222 Argument by Mr. Mitchell.......................................... 483 222 Argument by Mr. Westbrooks ................................... 500 230 Argument by Mr. Payne............................................ 511 235 Argument by Mr. Hughes .......................................... 538 248 Defendants’ praecipe for transcript of record................. 559 258 Defendants’ Exhibit No. 2—Exceptions on behalf of plaintiff to report of examiner, filed May 26, 1938, before Interstate Commerce Commission.................... 562 259 Clerk’s certificate ...................... (omitted in printing).. 598 Statement of points to be relied upon and designation of parts of record to be printed......................................................599 279 INDEX 111 ■ - 1 [fols. 1-5] IN UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION In Equity. No. 500 A rthur W. M itchell , Plaintiff, vs. U nited S tates of A merica, F rank 0. L owden, J ames E. G orman, and Joseph B. Fleming, Trustees of the Estate of the Chicago, Rock Island and Pacific Railway Com pany, a corporation; Illinois Central Railway Company, a corporation; and Pullman Company, a corporation, Defendants P etition— Filed April 20, 1939 To the Honorable Judges of the District Court of the United States for the Northern District of Illinois, Eastern Divi sion : Your petitioner, Arthur W. Mitchell, the plaintiff herein, presents this his petition against the United States of America, Frank 0. Lowden, James E. Gorman, and Joseph B. Fleming, trustees of the estate of the Chicago, Rock Island & Pacific Railway Company, a corporation, Illinois Central Railway Company, a corporation and Pullman Company, a corporation and thereupon petitioner respect fully states: [fol. 6] I That he is now and was at the time of the grievances, in juries and damages to him sustained by the acts, as herein after alleged, of certain of the defendants, a native born citizen of the United States of America, a resident of Chi cago, County of Cook and State of Illinois; is a duly licensed and practicing attorney-at-law, and is now and was a Representative in Congress of the First Congres sional District of the said State of Illinois. II The defendants and each of them, excepting the United States of America, are duly organized and incorporated, 1—577 2 severally, as railroad and transportation corporations under the laws of the State of Illinois, with principal operating offices at Chicago, Illinois, and within the jurisdiction of this Honorable Court. I l l Each of the defendant corporations, mentioned in Para graph II hereof, is a common carrier engaged in the trans portation of persons and property by railroad, in interstate commerce, between points inter alia, in the States of Illi nois, Tennessee and Arkansas as well as points in various other states of the United States and as such common car riers were so engaged at the time of the grievances here inafter stated as having been suffered by the plaintiff from the acts of the said defendants; that at the time of the said grievances last mentioned and for many years prior thereto as well as subsequently thereafter, continuously to the present time, the said defendants were engaged in inter state commerce and are subject to the provisions of the Interstate Commerce Act and its supplements. [fol. 7] IV The within suit is brought to set aside and annul an order of the Interstate Commerce Commission, other than for the payment of money, pursuant to the provisions of the Act of February 4, 1887, and all amendments and supple ments thereto, known as the Interstate Commerce Act, the laws of the United States designated as the Judicial Code and Judiciary and under the general equity jurisdiction of this court. V Defendant, United States of America, is made a party defendant to this suit as directed by the Congress of the United States (28 U. S. C. A. Sec. 41, subsection 28; secs. 43-48.) VI The facts and circumstances leading to the order of the Interstate Commerce Commission herein sought to be set aside and annulled, are as follows: On or about, to-wit: September 2, 1937 the plaintiff duly filed his written complaint with the Interstate Commerce 3 Commission charging the defendant corporations with the doing of certain acts as alleged in the said complaint, which said acts the plaintiff charged, were in violation of the Inter state Commerce Act and the Fourteenth Amendment of the United States Constitution. The complaint filed by the plaintiff was duly verified and in substance is as follows: II “ That the defendants, and each of them, are common carriers engaged in the transportation of passengers and [fol. 8] property, wholly by railroad, between Chicago, Illinois; and points in the State of Arkansas, particu larly the city of Hot Springs, Arkansas; as well as points in various other states of the United States, including the State of Tennessee; and as such common carriers are sub ject to the provisions of the Interstate Commerce Act. III That the defendants, and each of them, in violation of Section 1 of the Interstate Commerce Act, Clause 5 thereof, on April 20, 1937, did make and receive a charge for services rendered and to be rendered in connection with the transportation of the complainant from Chicago, Illi nois, to Hot Springs, Arkansas, which was unjust, unreason able and unlawful; in this, that complainant on said April 20, 1937, did purchase in Chicago, Illinois, a first-class round-trip ticket to and from Hot Springs, Arkansas, over the defendant lines, and did pay therefor the rates de manded and received of first class passengers for first class accommodations; yet defendants failed to furnish com plainant first class accommodations and instead thereof, furnished him with second class accommodations over his protest; which said action of the defendants in charging for and receiving the fare for first class accommodations and failing to provide same; providing in lieu thereof, second class accommodations, was unjust, unreasonable and unlawful, in violation of Section 1, Clause 5, of the Inter state Commerce Act. IV That the defendants, and each of them, in violation of Section 2 of the Interstate Commerce Act, on the date afore 4 said, did directly and indirectly charge, demand, collect, and receive from this complainant a greater compensation for service rendered in transporting him as a passenger, than was charged, demanded, collected and received from other persons (whose names are to complainant unknown) for do- [fol. 9] ing for them a like and contemporaneous service, and did thereby unjustly discriminate against complainant; in this, that the defendants did charge this complainant and received from him the price of first class accommodations; yet furnished to him second class accommodations, while furnishing first class accommodations to all others who had purchased first class tickets for first class accommodations; and such action of the defendants did thereby unjustly dis criminate against complainant in violation of Section 2 of the Interstate Commerce Act. y That the defendants, and each of them, in violation of Section 3, Clause 1 of the Interstate Commerce Act, on the date aforesaid, did give undue and unreasonable preference and advantage to certain white persons (whose names are to this complainant unknown) in respect to transporting them from Chicago to Hot Springs aforesaid; and did subject this complainant to undue and unreasonable prejudice and disadvantage in respect to transporting him as aforesaid; in this, that the aforesaid white persons holding first class tickets similar identically to the first class ticket held by this complainant, were transported in a first class car, said car being equipped with clean towels, clean washbowls, comfortable seats with upholstered backs and foot rests; clean smoking rooms, lounging rooms, observation space, writing desks; writing paper, pen and ink, magazines and other reading periodicals, regular and efficient porter serv ice, pressing and shoe shining service, stenographic serv ice, manicuring and barber shop service, bath service, valet service, radio, soap of high quality, facilities for serving- meals in the car or the option of having meals in the dining- car ; clean toilet facilities with running hot and cold water, and water for flushing purposes with disinfectant, all free of charge to first class passengers, and many other services too numerous to mention or to particularize more definitely; while this complainant, notwithstanding- the fact that he possessed a first class ticket entitling him to ride in a first 5 [fol. 10] class car possessing each and every one of the last named facilities, was compelled by the defendants by and through their agents, servants, and employees and over pro test of this complainant, to ride in a second class car which possessed none of the aforementioned facilities but on the contrary said second class car did not contain clean towels, nor clean washbowls; nor compartments, berths, sections, drawingrooms, smoking rooms, lounging rooms, observation space, writing desks, paper, pen, ink, magazines, and other reading periodicals; nor porter service, soap, nor facilities for meals being served in said car; nor clean toilet facilities with running hot and cold water for flushing purposes and disinfectant; and this complainant specifically charges that the second class car in which he was forced to ride as afore said did not contain the above facilities and did not contain any one or either of them; but on the contrary the said second class car was filthy with filthy toilets, and so re mained during the entire time this complainant was com pelled to occupy it, which was for a period of more than four hours and over a journey of about 160 miles; beginning at a point just west of Memphis, Tennessee, and continuing on into Hot Springs, Arkansas. And in this connection, complainant further states that the first class car occupied by the aforesaid white persons holding tickets identically similar to the first class ticket held by this complainant was large, comfortable, free from stench and odors, well ventilated, lighted, and air-condi tioned : and always clean and sanitary; while the second class car which this complainant was forced to complete his journey in as outlined in the preceding paragraph, was di vided by partitions and used jointly for carrying baggage, train crew, and passengers; that said car was small, poorly ventilated, filthy, filled with stench and odors emitting from the toilet, and otherwise filthy and indescribably unsanitary. That said action of defendants in furnishing accommoda tions to the aforesaid white persons holding first class [fol. 11] tickets which were far superior to the accommoda tions furnished to this complainant on his first class ticket, was unduly and unreasonably prejudicial to him, and was unduly and unreasonably preferential to said white persons to the disadvantage of this complainant, in violation of Sec tion 3, Clause 1, aforesaid. 6 VI That the defendants, claiming to act under authority of the Arkansas Statute (Kirby’s Arkansas Statute, Sections 6622 to 6632), did force and compel this complainant to ride in a second class car, notwithstanding the fact that complain ant held a first class ticket; that the second class car was the car described in Paragraph Five hereof which by reference is made a part of this paragraph. That the action of defend ants was based on the fact that this complainant is a Colored person, and in transporting him in the second class car re ferred to, while white persons holding identically similar first class tickets were permitted to ride in the first class car described in Paragraph Five of this complaint, which by reference is made a part hereof, and said practice of the defendants in furnishing such unequal accommodations to persons holding similar first class tickets, under the afore said Statute, causes undue and unreasonable advantage and preference to white persons; and causes undue and unreas onable prejudice to this complainant and all other Colored persons who in the future will use, as interstate passengers, the lines of the said defendants. The said unreasonable and undue advantage and prefer ence to white persons aforesaid; and undue and unreason able prejudice to this complainant and all other Colored persons who in the future will use defendant lines, only arises between persons in intrastate commerce on the one hand and persons in interstate commerce on the other hand, in this, that said practice under said law only arises after Colored persons have entered the State of Arkansas and did not exist while this complainant was traveling in Illinois; [fol. 12] that said law is not intended to and does not operate beyond the territorial boundaries of said State. That said action, causing undue and unreasonable advan tage to white persons, and causing undue and unreasonable prejudice to this complainant, being based on the State law aforesaid, is in violation of Section 13, Clause 4, of the Inter state Commerce Act. VII That by reason of the facts stated in the foregoing para graph complainant has been subjected to the payment of fares for transportation which were when exacted and still are unjust and unreasonable in violation of Section 1 of the Interstate Commerce Act; and said complainant has been 7 unjustly discriminated against in violation of Section 2 of the Interstate Commerce Act; that said defendants have been unduly and unreasonably preferential to some persons while at the same time being unduly and unreasonably preju diced against this complainant in violation of Section 3 of the Interstate Commerce A ct; that the action of defendants in operating under the Arkansas Law causes undue and un reasonable preference to some persons and undue and un reasonable prejudice to complainant and other persons, in violation of Section 13 of the Interstate Commerce Act, and the Fourteenth Amendment of the United States Constitu tion in denying to petitioner equal protection of the laws. Wherefore, complainant prays that defendants and each of them may be required to answer the charges herein; that after due hearing and investigation an order be made com manding said defendants and each of them to cease and desist from the aforesaid violations of said act, and estab lish and put in force and apply in future to the transporta tion of persons between the origin and destination points named in paragraphs V and VI hereof, in lieu of the serv ices and facilities named in said paragraphs V and VI, and such other services and facilities as the Commission may [fol. 13] deem reasonable and just; and that such other and further order or orders be made as the Commission may consider proper in the premises.” VII The defendant, Frank 0. Lowden, James E. Gorman and Joseph B. Fleming, trustees of the estate of the Chicago, Rock Island and Pacific Railroad Company, a corporation and hereinafter called and referred to as the “ Rock Island,” filed an answer to the complaint above set forth, (1) it admits that it was a common carrier engaged in the trans portation of passengers and property by railroad in inter state commerce on April 20, 1937, (2) it denies that the facts charged in Paragraph III of the complaint were un just, unreasonable or unlawful and in violation of Section 1, Clause 5 of the Interstate Commerce Act; (3) it denies the charges contained in Paragraph IV of the complaint and further denies said acts contained in the said paragraph vio lated Section 2 of the Interstate Commerce A ct; (4) it denies each and every allegation contained in Paragraphs V-VI of the complaint and denies that the acts charged in said para 8 graphs violated Section 3, Clause 1 or Section 13, Clause 4 of the Interstate Commerce Act; (5) it denies the allega tions of Paragraph VII of the complaint and further denies that the acts charged in said paragraph violated Sections 1, 2, 3, and 13 of the Interstate Commerce Act and the Four teenth Amendment of the United States Constitution and prayed to be dismissed. VIII The defendant, Illinois Central Railroad Company, here inafter referred to as the Illinois Central by and in its [fol. 14] answer filed to the above mentioned complaint, (1) denies that it owned or operated any line of railroad within the State of Arkansas; (2) it denies each and every allegation of Paragraphs III, IV, V, VT and the first para graph of Paragraph VII of the complaint; (3) it further denies that the acts or omissions towards the complaint vio lated Sections 1 (5), 2, 3 (1) or 13 (4) of the Interstate Commerce Act and prayed that the complaint be dismissed as to it. IX The defendant, the Pullman Company, filed its answer to the above mentioned complaint, by and in its answer, (1) it admits the allegations of Paragraph I of the com plaint; (2) it denies the allegations of Paragraph II of the complaint in so far as it pertains to this defendant and states that it is a Sleeping Car Company, subject to the pro visions of the Interstate Commerce Act, and furnishes sleep ing car accommodations to passengers traveling between the points stated in Paragraph II of the complaint, when such passenger- contract with it for such accommodations in accordance with the provisions of its tariffs on file with the Interstate Commerce Commission; (3) it denies the alle gations of Paragraph 3 of the complaint as applying to it and states that it furnished equal accommodations to the plaintiff, for which the plaintiff had paid and that it had no contract with the plaintiff for accommodations between Memphis, Tennessee and Hot Springs, Arkansas; (4) it denies the allegations of Paragraph IV of the complaint and refers to Paragraph II o f its answer concerning the sleeping car accommodations; (5) it likewise denies the alle gations of Paragraph V of the complaint and states that it 9 did not own or control the inferior accommodations in the equipment which the plaintiff was compelled to occupy be tween Memphis and Hot Springs, and (6) it likewise denies [fol. 15] the allegations of Paragraphs VI and VII of the complaint as relating to the plaintiff and prays the dismissal of the complaint as to it. X The said complaint was assigned for hearing by the com mission by order dated December 4, 1937, of which due notice was given to all parties. XI A formal hearing of the complaint was heard before the commission represented by W. A. Disque, examiner, on March 7, 1938. XII That on said last mentioned date, evidence, both oral and documentary, was introduced by the plaintiff and the defend ant, Rock Island. A complete transcript of the evidence had and taken before the commission as aforesaid, is here by made a part of this petition, by reference thereto, as though fully set out herein and will be offered on behalf of the plaintiff on the hearing of this petition. XIII Thereafter, briefs were filed by the plaintiff and by the defendants, and in due course the examiner’s proposed report was filed, recommending that the complaint should be dismissed, which said proposed report is hereto attached and marked Exhibit “ A ” and made a part hereof, and is as follows: 1 0 [fol. 16] E xh ibit “ A ” “ I nterstate C ommerce C ommission No. 27844 A rth u r W . M itchell v. Chicago, R ock I sland & P acific R ailw ay C om pany , Trustees, et al. Submitted —— . Decided May 5th, 1938 Present accommodations for colored passengers traveling in Arkansas over the line of The Chicago, Rock Island and Pacific Railway Company on through journeys from Chi cago, 111., to Hot Springs, Ark., found not unjustly discri minatory or unduly prejudicial. Complaint dismissed. Arthur W. Mitchell and Richard E. Westbrooks for com plainant. Wallace T. Hughes, Daniel Taylor, E. A. Smith, Robert Mitten, II. J. Deany, Erwin W. Roemer, Charles S. Willis- ton, and Lowell M. Greenlaw for defendants. Report Proposed by Win. A. Disque, Examiner Complainant, a negro resident of Chicago, 111., and a mem ber of the House of Representatives of the United States, by complaint filed September 2, 1937, alleges, in effect, that defendants, in connection with their purported compliance with an Arkansas statute requiring segregation of the races during transportation, do not provide as desirable accom modations for colored as for white passengers traveling in [fol. 17] Arkansas over the line of The Chicago, Rock Island and Pacific Railway Company at first-class fares from Chi cago, 111., to Hot Springs, Ark., and that this results in un reasonable charges and unjust discrimination against, and undue prejudice to, colored passengers, in violation of sections 1, 2, 3, and 13 of the Interstate Commerce Act, and the Fourteenth Amendment to the Constitution of the United States. However, the only relief sought is removal and avoidance in the future of the alleged discrimination and prejudice in the furnishing of accommodations. The above 1 1 named carrier will be hereinafter called the Rock Island. It is the principal defendant. Docket No. 27844— Sheet 2 Defendants question our jurisdiction to give the relief, on the ground that the sections of the act invoked relate only to rates and charges. They take the position that the only provisions which give this Commission power over the furnishing of equipment and facilities of transportation be gin with section 1 (10), which says that the term ‘ car service’ as used in those provisions ‘ shall include the use, control, supply, movement, * * * and return of * * * cars * * * used in the transportation of property * * . V (Italics ours.) However section 3 (1) makes it unlawful ‘ to subject any particular person * * *, or any particular description of traffic to any undue or unreasonable prejudice or disad vantage in any respect whatsoever. ’ In view of the conclu sion reached the question raised is not important, but it appears to be set at rest by Interstate Commerce Commis sion v. Illinois Central R. Co., 215 U. S. 452, and Pennsyl vania R. Co. v. Clark Bros. Coal Mining Co., 238 U. S. 456, where the Supreme Court held that this Commission had jurisdiction to deal wdtli discrimination in the distribution of coal cars. The complaint mentions but a single incident of alleged discrimination and prejudice, the one hereinafter described [fol. 18] in which complainant was involved. Although there is an allegation that ‘ said practice of the defendants in furnishing such unequal accommodations * * * causes * * * undue and unreasonable prejudice to this complain ant and all other colored persons who in the future will use * * * the lines of said defendants ’, defendants upon brief urge that the complaint is sufficient to raise any issue as to practice, on the ground that one incident does not amount to a practice, and move that all testimony that does not relate to this particular incident be stricken. Plainly, however, the incident was mentioned as representative of an alleged practice that was expected to continue. The prayer is that an order be entered requiring defendants to cease and desist Docket No. 27844— Sheet 3 from the alleged violations of the act and provide lawful ac commodations in the future for colored passengers from and 1 2 to the points involved. Defendants are taking an unduly technical position. They have long understood that a com plaint is not to be narrowly construed. They were well aware of the kind of accommodations they were furnishing and were not taken by surprise, but came to the hearing with a full array of witnesses adequately informed respecting all the facts. They objected at the hearing to the receipt of any testimony not confined to the incident mentioned, but their objections were overruled by the examiner. At the hearing complainant moved that the Rock Island’s answer be stricken, contending that it violated Rule IV, (d), (e) of the Rules of Practice, because it did not state fully, completely and with particularity the nature and grounds of the defense. Paragraph (e) of the rule deals specifically with answers to allegations under sections 2 and 3 of the act. However, there is no indication that complainant was put to any material disadvantage by defendant’s failure and the matter may be passed, as it calls only for a reprimand, [fol. 19] The case is built mainly on an unpleasant experi ence complainant had a little over a year ago. On the eve ning of April 20, 1937, he left Chicago for Hot Springs, over the lines of the Illinois Central Railroad Company to, Memphis, Tenn., and the Rock Island beyond, traveling- on a first-class round-trip ticket he had purchased from the initial carrier’s ticket agent in Chicago. He had requested a bedroom on defendants’ through Chicago-Hot Springs Pullman sleeping car, but none being available, the ticket agent provided him with a compartment as far as Memphis in the sleeper destined to New Orleans, La. Just be fore the train reached Memphis, on the morning after leaving Chicago, he had a Pullman porter transfer him, to- Docket No. 27844— Sheet 4 gether with his hand baggage and other personal effects, to the Chicago-Hot Springs sleeper then on the same train, but which was to leave Memphis at 8:30 a.m., on Rock Island train no. 45, and reach Hot Springs, 193 miles west, at 1 :05 p.m., the same day. Plenty of space was available and the porter assigned him a particular seat in that car, for which he was to pay the established fare, 90 cents. Shortly after leaving Memphis and crossing the Mississippi River into Arkansas the train conductor took up the Mem phis-Hot Springs portion of his ticket, hut refused to ac 13 cept payment for the Pullman seat from Memphis, and in accordance with custom, compelled him, over his protest and finally under threat of arrest, to move into the so-called Jim Crow car, or colored coach, in compliance with an Arkansas statute requiring segregation of colored from white persons by the use of cars or sections thereof provid ing ‘ equal, but separate and sufficient accommodations,’ for both races. Complainant’s baggage and other personal effects were allowed to go on to destination in the Pullman car. Later, the conductor returned the portion of the ticket he had taken up and correctly advised complainant that he could get a refund on the basis of the second-class fare [fol. 20] from Memphis, which was one cent less per mile than the first class fare. The refund was never claimed from defendants and is not here sought, but defendants stand ready to make it upon application. Complainant has an action at law pending against the defendants in the Circuit Court of Cook County, 111., for damages inci dent to his transfer. The Pullman car contained 10 sections of berths and two compartment-drawing rooms. The use of one of the draw ing rooms would have amounted to segregation under the State law and ordinarily such accommodations are avail able. Whether the 90-cent seat fare would have been ap plicable is not clear, but both drawing rooms were occupied Docket No. 27844— Sheet 5 by white passengers. The car was of modern design and had all the usual facilities and conveniences found in standard sleeping cars. It contained a smoking room for men and a dressing room for women. It was air conditioned, had hot and cold running water, tables, carpet, mirrors, wash basins with good soap, clean linen towels, and separate flushable toilets for men and women. It was in excellent condition throughout. First-class white passengers had, in addition to the Pullman sleeper, the exclusive use of the train’s only dining car and only observation-parlor car, the latter having somewhat the same accommodations for day use as the Pullman car and, in addition, a writing desk and perhaps a radio. The white passeng'ers could range throughout the portion of the train behind the col ored coach, but colored passengers were confined to that car. 14 The colored coach, carried next to the baggage car, was the first passenger car behind the locomotive. Behind it came a white day coach, the dining car, the sleeper and finally the observation-parlor car, all being Bock Island equipment, except the sleeper. The colored coach, though of standard size and steel construction, was an old com- [fol. 21] bination affair. It was divided by partitions into three main parts, one for colored smokers, one for white smokers, and one, in the middle, for colored men and women, but primarily the latter, and known as the women’s section, each section having seats for about 20 passengers. Complainant sat in the women’s section. The car was poorly ventilated and not air conditioned. The upholstery was of leather. There was a toilet in each section, but only the one in the women’s section was equipped for flushing and it was for the exclusive use of the colored women. The car was without wash basins, soap, towels or running water, except in the women’s section. Accord ing to complainant the car was filthy and foul smelling, but the testimony of defendants, as we shall later see, is to Docket No. 27844— Sheet 6 the contrary. The car contained, besides complainant, several other colored passengers, including women. Two pairs of seats in the colored men’s section were used as an office by the conductor and the flagman, who were white. These conditions had prevailed for at least 25 years. The above facts are gathered principally from complain ant’s testimony, but several other colored persons, who had traveled from Memphis to Hot Springs over the Rock Island at times during the above-mentioned period, gave similar testimony as to the condition of the cars in which they rode. They also told of colored coaches between these points that had common toilets for men and women and of the absence of carpets and foot rests, while much more desirable accommodations were provided for white passengers traveling in coaches. This treatment of the colored race cannot be too strongly condemned. Defendant’s witnesses, namely the conductor and flag man of the train and the superintendent who had charge of getting the equipment ready at Memphis, testified that they noticed no dirt, filth or obnoxious odors in the car; that it was as clean as it could be made; that in accord- 15 [fol. 22] ance with the usual practice it was thoroughly cleaned, disinfected, equipped with newly laundered seat and seat-back linen covers, and inspected at Memphis be fore it was put into the train. Each section of the car contained a cooler of ice water and a 12-inch electric fan. Incidentally, the Rock Island keeps eight men busy pre paring equipment for 13 or 14 trains per day. Since the early part of July, 1937, the Rock Island has been running a colored coach between Memphis and Hot Springs that is entirely modern. It is of all-steel construc tion, with six-wheel trucks. It is divided by a partition into two sections, one for colored and the other for white passengers. It has comfortable seats with plush upholstery Docket No. 27844—Sheet 7 and linen seat covers, linoleum floor covering, air condi tioning, electric light, and electric fans. In each section there are wash basins, running hot and cold water, free paper towels and drinking cups, and separate flush toilets for men and women. There is no smoker section, as smok ing nowadays is generally permitted in all coaches and sections thereof, and even in some instances, or to some extent, in Pullman cars. The present colored coach is as fully desirable in all its appointments as the coach used by the white passengers traveling at second-class fares. One of the complainant’s witnesses testified that as late as September, 1937, he found conditions in the colored coach between Memphis and Hot Springs ‘ very bad,’ but evidently he was not riding the train that carried the new car, as he said the men and women used the same toilet. The present colored coach takes care of colored second- class passengers, but there is no Pullman, dining or ob servation-parlor car for colored first-class passengers. Only about one negro to 20 white passengers rides this train from and to points on the line between Memphis and Hot Springs and there is hardly ever a demand from [fol. 23] a colored passenger for Pullman accommodations; the conductor recalled but 10 or 12 in thei past 32 years of his service on the train. What demand there may have been at ticket offices does not appear. Various previous proceedings akin to this one are Coun cil v. Western & A. R. Co., 1 1.C.C. 339; 1 1.C.R. 638; Heard v. Georgia R. Co., 1 I.C.C 428; 1 I.C.R. 719; Edwards v. 16 Nashville C. & St. L. Ry. Co., 12 I.C.C. 247, and Crosby v. St. Louis-S. F. Ry. Co., 112 I.C.C. 239. In the first four proceedings affirmative findings and orders were entered requiring the removal of unjust discrimination and undue prejudice to colored passengers, but not in the last one. Each rested on its own facts. None presented the same situation as the instant proceeding. Docket No. 27844— Sheet 8 For the purposes of this proceeding complainant accepts segregation under the Ai’kansas statute, hut urges that defendants, to remove and avoid unjust discrimination and undue prejudice, are bound to provide the same equipment and accommodations for colored passengers as for white passengers. In other words, he says that if defendants are to continue the Pullman sleeper, the dining car and the observation-parlor car for white passengers, they must provide similar facilities, three extra cars, for colored passengers paying first-class fares plus the additional charges provided by tariff for seat space. Complainant urges that collection of the first-class fare, notwithstanding the fact that second-class accommodations were furnished him, was violative of sections 1, 2, 3 and 6 of the Interstate Commerce Act; also of the Fourteenth Amendment to the Constitution, on the ground that he was deprived of money without due process of law and denied equal protection of the laws. It is sufficient to say that a first-class ticket was furnished and charged for because complainant wanted it, and that after it developed that the first-class accommodations west of Memphis were all [fol. 24] taken by other passengers defendants offered to refund the difference. Moreover, as already stated, com plainant is here seeking no relief from the charges paid. Complainant urges that the Rock Island, having received from him the first-class fare but having failed to furnish first-class accommodations west of Memphis, violated sec tion 13 (4) of the act. That provision relates to intrastate fares that are unjustly discriminatory or unduly prejudicial in their relation to, interstate fares. No intrastate fares are here involved. There was no break in complainant’s journey at the Tennessee-Arkansas State line. He was engaged in through interstate travel from Chicago to Hot Springs. Moreover, as said in the next preceding para- 17 Docket No. 27844— Sheet 9 graph, complainant was furnished a first-class ticket be cause he asked for it, and refund awaits him. Regardless of what finding may be made respecting the Rock Island, the Illinois Central asks that the complaint be dismissed as to it. There is no showing that colored passengers are treated differently from white passengers on their journeys from Chicago to Memphis and appar ently that road is in no way chargeable with discrimination, even though it participates in the through transportation under joint fares and other arrangements. This carrier is a proper, but perhaps not necessary party. It was named as a defendant apparently out of abundance of caution, because it participated in the movement. The Pullman Company also asks dismissal, regardless of what may be done as to the Rock Island, contending that it is not chargeable with discrimination because it provides accommodations in the foi'm of drawing rooms, which if not already occupied or reserved for some one else, are available for colored passengers west of Memphis. Apparently there is no discrimination on its part, if the 90- cent seat fare is applicable. [fol. 25] The present colored coach meets the require ments of the law. As there is comparatively little colored traffic and not likely to be such demand for Pullman, dining and observation-parlor car accommodations by colored passengers as to warrant the running of any extra cars, the discrimination and prejudice is plainly not unjust or undue. Only differences in treatment that are unjust or undue are unlawful and within the power of this Commis sion to condemn, remove and prevent. The complaint should be dismissed.” X IV The plaintiff on or about May 25, 1938, duly filed excep tions to the said proposed report in which exceptions, among other things the plaintiff contended that his con stitutional rights under the 14th Amendment of the United States — had been violated. X V The defendant, Rock Island filed a reply to the excep tions, on or about June 4, 1938. 2—577 18 XVI On or about July 6, 1938, the cause came on before the full Commission for oral argument. XV II On or about November 7, 1938, the Commission filed its report and order thereon dismissing the complaint. The said report was dissented to by five members of the said Commission. [fol. 26] XVIII The said report, including the dissenting expressions and the order of the Commission are hereto attached and marked Exhibit B and made a part hereof and is as follows: E xhibit “ B ” Interstate Commerce Commission Becd. 11/28/38 No. 27844 A rthur W . M itchell v. C hicago, R ock I sland & P acific R ailw ay C ompany et al. Submitted July 6, 1938. Decided November 7, 1938 Present accommodations for colored passengers traveling in Arkansas over the line of The Chicago, Rock Island and Pacific Railway Company on through journeys from Chicago, 111., to Hot Springs, Ark., found not unjustly discriminatory or unduly prejudicial. Complaint dis missed. Arthur W. Mitchell and Richard E. Westbrooks for complainant. Wallace T. Hughes, Daniel Taylor, E. A. Smith, Robert Mitten, H. J. Deany, Erwin W. Roemer, Charles S. Willis- ton, and Lowell M. Greenlaw for defendants. 19 [fol. 27] Report of the Commission By the Commission: Exceptions to the examiner’s report were filed by com plainant, to which the trustees of The Chicago, Rock Island and Pacific Railway Company, hereinafter called the Rock Island, replied. The proceeding- was orally argued. Complainant, a negro resident of Chicago, 111., and a member of the House of Representatives of the United States, by complaint filed September 2, 1937, alleges, in effect, that defendants, in connection with their purported compliance with an Arkansas statute requiring segrega tion of the races during transportation, do not provide as desirable accommodations for colored as for white passengers traveling in Arkansas over the line of the Rock Island at first-class fares from Chicago, 111., to Hot Springs, Ark., and that this results in unreasonable charges and unjust discrimination against, and undue prejudice to, colored passengers, in violation of sections 1, 2, 3, and 13 of the Interstate Commerce Act, and the fourteenth amend ment to the Constitution of the United States, guarantee- Docket No. 27844— Sheet 2 ing due process of law and equal protection of the laws. However, the only relief sought is removal and avoidance in the future of the alleged discrimination and prejudice in the furnishing of accommodations. Defendants question our jurisdiction to give the relief sought, on the ground that the sections of the act invoked relate only to rates and charges. They take the position that the only provisions which give this Commission power over the furnishing of equipment and facilities of trans portation begin with section 1 (10), which says that the term “ car service” as used in those provisions “ shall in clude the use, control, supply, movement, * * * and return [fol. 28] of * * * cars # * * used in the transportation of property * * (Italics ours.) However section 3 (1) makes it unlawful “ to subject any particular person * * *, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.” In view, of the conclusion reached the ques tion raised is not important, but it appears to be set at rest by Interstate Commerce Commission v. Illinois Cen 2 0 tral R. Co., 215 U. S. 452, and Pennsylvania R. Co. v. Clark Bros. Coal Mining Co., 238 U. S. 456. The complaint mentions but a single incident of alleged discrimination and prejudice, tile one hereinafter de scribed in which complainant was involved. Although there is an allegation that “ said practice of the defendants in furnishing such unequal accommodations * * * causes * * * undue and unreasonable prejudice to this complain ant and all other colored persons who in the future will Docket No. 27844— Sheet 3 use * * * the lines of said defendants,” defendants upon brief urge that the complaint is insufficient to raise any issue as to practice, on the ground that one incident does not amount to a practice, and they move that all testi mony that does not relate to this particular incident be stricken. Plainly, however, the incident was mentioned as representative of an alleged practice that was expected to continue. The prayer is that we require defendants to cease and desist from the alleged violations of the act and to provide lawful accommodations in the future for col ored passengers from and to the points involved. Defend ants are taking an unduly technical position. They have long understood that a complaint is not to be narrowly construed. They were well aware of the kind of accom modations they were furnishing and were not taken by surprise, but came to the hearing with witnesses adequately informed respecting all the facts. They objected at the hearing to the receipt of any testimony not confined to [fol. 29] the incident mentioned, but their objections were properly overruled by the examiner. At the hearing, complainant moved that the Rock Island’s answer be stricken, contending that it violated rule IV (d), (e) of the Rules of Practice, because it did not state fully, completely, and with particularity the nature and grounds of the defense nor deny specifically and in detail each material allegation of the complaint. However, there is no indication that complainant was put to any material disadvantage by defendant’s failure; and striking the an swer would avail nothing, for the proceeding would never theless be at issue. Rule IV (b) and Smokeless Fuel Co. v. Norfolk & W. Ry. Co., 85 I.C.C. 395. 2 1 Docket No. 27844— Sheet 4 The case is built mainly on an unpleasant experience complainant had about 18 months ago. On the evening of April 20, 1937, he left Chicago for Hot Springs, over the lines of the Illinois Central Railroad Company to Memphis, Tenn., and the Rock Island beyond, traveling on a round-trip ticket he had purchased at 3 cents per mile from the initial carrier’s ticket agent in Chicago. He had requested a bedroom on defendants’ through Chicago-Hot Springs Pullman sleeping car, but none being available, the ticket agent provided him with a compartment as far as Memphis in the sleeper destined to New Orleans, La. Just before the train reached Memphis, on the morning after leaving Chicago, he had a Pullman porter transfer him, together with his hand baggage and other personal effects, to the Chicago-Hot Springs sleeper then on the same train, hut which was to leave Memphis at 8:30 a.m., on Rock Island train no. 45, and reach Hot Springs, 193 miles west, at 1 :05 p.m., the same day. Space was avail able and the porter assigned him a particular seat in that car, for which he was to pay the established fare, 90 cents. Shortly after leaving Memphis and crossing the Mississippi [fol. 30] River into Arkansas the train conductor took up the Memphis-Hot Springs portion of his ticket, but refused to accept payment for the Pullman seat from Memphis, and in accordance with custom, compelled him, over his protest and finally under threat of arrest, to move into the car provided for colored passengers, in purported compliance with an Arkansas statute requiring segrega tion of colored from white persons by the use of cars or partitioned sections thereof providing ‘ ‘ equal, but separate and sufficient accommodations” , for both races. Complain ant’s baggage and other personal effects were allowed to go Docket No. 27844— Sheet 5 on to destination in the Pullman car. Later the conductor returned the portion of the ticket he had taken up and correctly advised complainant that he could get a refund on the basis of the coach fare of 2 cents per mile from Mem phis. The refund was never claimed from defendants and is not here sought, but defendants stand ready to make it upon application. Complainant has an action at 2 2 law pending against defendants in the Circuit Court of Cook County, 111., for damages incident to this transfer. The Pullman car contained 10 sections of berths and 2 compartment-drawing rooms. The use of one of the draw ing rooms would have amounted to segregation under the State law and ordinarily such accommodations are avail able to colored passengers upon demand, the 90-cent seat fare being applicable. Occasionally they are used by col ored passengers, but in this instance both drawing rooms were already occupied by white passengers. The car was of modern design and had all the usual facilities and con veniences found in standard sleeping cars. It contained a smoking room for men and a dressing room for women. It was air conditioned, had hot and cold running water, tables, carpet, mirrors, wash basins with good soap, clean linen towels, and separate flushable toilets for men and women. It was in excellent condition throughout. First- [fol. 31] class white passengers had, in addition to the Pullman sleeper, the exclusive use of the train’s only din ing car and only observation-parlor car, the latter having somewhat the same accommodations for day use as the Pullman car and, in addition, a writing desk and perhaps a radio. The coach for colored passengers was in the rear of the baggage car. Behind it were a day coach for white pas sengers, the dining car, the sleeper and, finally, the observa- Docket No. 27844— Sheet 6 tion-parlor car, all being Rock Island equipment, except the sleeper. The colored-passenger coach, though of standard size and steel construction, was an old combination affair, not air conditioned. It was divided by partitions into three main parts, one for colored smokers, one for white smokers, and one, in the center, for colored men and women, but primarily the latter and known as the women’s section, each section having seats for about 20 passengers. Complainant sat in the women’s section. There was a toilet in each sec tion, but only the one in the women’s section was equipped for flushing and it was for the exclusive use of the colored women. The car was without wash basins, soap, towels, or running water, except in the women’s section. According to complainant, the car was filthy and foul smelling, but the testimony of defendants, as we shall later see, is to the con 23 trary. The car contained, besides complainant, several other colored passengers, including women. Two pairs of seats in the colored men’s section were used as an office by the conductor and the flagman, who were white. These con ditions had prevailed for at least 25 years. The above facts are gathered principally from complain ant’s testimony, but several other colored persons, who had traveled from Memphis to Hot Springs over the Rock Is land at times during the above-mentioned period, gave simi lar testimony as to the condition of the cars in which they [fol. 32] rode. They also told of colored coaches between these points that had common toilets for men and women and of the absence of carpets and foot rests, while much more desirable accommodations were provided for white passengers traveling in coaches. Docket No. 27844— Sheet 7 Defendant’s witnesses, namely the conductor and flagman of the train and the superintendent who had charge of clean ing the equipment at Memphis, testified that they noticed no dirt, filth, or obnoxious odors in the car; that in accord ance with the usual practice it was thoroughly cleaned, dis infected, equipped with newly laundered seat and seat-back linen covers, and inspected at Memphis before being put into the train. Each section of the car contained a cooler of ice water and a 12-inch electric fan. Incidentally, the Rock Island employs eight men at Memphis preparing equipment for 13 or 14 trains per day. Since the early part of July, 1937, when the coach above described was taken out of service, the Rock Island has operated a modern combination coach between Memphis and Hot Springs. It is of all-steel construction, with six- wheel trucks. It is divided by a partition into two sections, one for colored and the other for white passengers. It has comfortable seats, linoleum floor covering, and is air condi tioned. In each section there are wash basins, running hot and cold water, free paper towels and drinking cups, and separate flush toilets for men and women. There is no smoker section, as smoking nowadays is generally permitted in all coaches and sections thereof, and even in some in stances, or to some extent, in Pullman cars. The combina tion coach is as fully desirable in all its appointments as the coach used entirely by white passengers traveling at 24 second-class fares. One of the complainant’s witnesses testified that as late as September, 1937, he found condi tions in the colored-passenger coach between Memphis and Hot Springs “ very bad” , but evidently he was not riding [fol. 33] the train that carried the new car — same toilet. Docket No. 27844— Sheet 8 Only about 1 negro to 20 white passengers rides this train from and to points on the line between Memphis and Hot Springs, and there is hardly ever a demand from a colored passenger, for Pullman accommodations; the con ductor recalled but 10 or 12 instances, in the past 32 years of his service on the train, wherein colored passengers who had entered Pullman cars were required by him to move into the colored-passenger coach. He estimated that the demand for Pullman accommodations did not amount to one per year. What demand there may have been at ticket offices does not appear. The present coach properly takes care of colored second- class passengers, and the drawing rooms and compartments in the sleeper provide proper Pullman accommodations for colored first-class passengers, but there are no dining-car nor observation-parlor car accommodations for the latter and they can not lawfully range through the train. Various previous proceedings akin to this are Councill v. Western & A. R. Co., 1 I. C. C. 339; 1 1. C. R. 638; Heard v. Georgia R. Co., 1 I. C. C. 428; 1 I. C. R. 719; Edwards v. Nashville, C. & St. L. Co., 12 I. C. C. 247; and Crosby v. St. Louis-S. F. Ry. Co., 112 I. C. C. 239. In the first four pro ceedings affirmative findings and orders were entered re quiring the removal of unjust discrimination and undue prejudice to colored passengers, but not in the last cited case. Each rested on its own facts. None presented the same situation as the instant proceeding. Several decisions of the Supreme Court are referred to. In Louisville, N. 0. & T. R. Co. v. Mississippi, 133 U. S. 587, and Chesapeake & 0. Ry. Co. v. Kentucky, 179 U. S. 388, statutes of the States of Mississippi and Kentucky re quiring segregation of colored passengers in intrastate com- Docket No. 27844— Sheet 9 [fol. 34] merce were upheld as not repugnant to the com merce clause of the Constitution. The State courts, at least 25 for the purpose of limiting the constitutional question, had held that the statutes applied only intrastate, and the ques tion of whether they were constitutional, so far as interstate traffic was concerned was not decided. In Chiles v. Chesa peake & 0. Ry. Co., 218 U. S. 71, dealing with coach passen gers, the Supreme Court held that in a southern State a rail road has the right, by the establishment of appropriate rules and regulations, to require segregation, intrastate and in terstate, aside from any statutory requirements, provided substantially the same accommodations are furnished for the two races. It said that railroad regulations respecting this matter were subject to the same tests of reasonable ness as those enacted by legislative authority and that rules and regulations induced by the general sentiment of the community for which they are made and upon which they operate are not unreasonable. In McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151, several negroes attacked, before it became effective, a statute of the State of Oklahoma re quiring segregation, on the ground that it violated the fourteenth amendment. They sought to enjoin the carrier defendant therein from complying with its terms, but no basis was shown for equitable relief and the decree of the lower court dismissing the bill was affirmed. In South Cov ington & C. Street Ry. Co. v. Kentucky, 252 U. S. 399, the Supreme Court held that the Kentucky segregation statute, as applicable intrastate to an interurban electric carrier, which also operated principally interstate, was not an un constitutional interference with interstate commerce. Docket No. 27844— Sheet 10 Complainant urges that defendants, to remove and avoid unjust discrimination and undue prejudice, are bound to provide the same equipment and accommodations for colored [fol. 35] passengers as for white passengers. In other words, he says, that if defendants are to continue all the present first-class accommodations for white passengers, they must provide similar accommodations for colored pas sengers on the same basis of charge. He understands that it is for defendants to determine whether this equality of treatment should be accomplished by the running of extra cars solely for colored passengers or by partitions in the cars now operated. The statute sets up two distinct groups of passengers, and the question for our determination is 26 whether the circumstances and conditions surrounding these respective kinds of traffic are so substantially different as to justify the difference in treatment here alleged to be un lawful. Complainant contends that the extent of the demand for first-class accommodations for colored passengers has no bearing on the question presented. He urges that McCabe v. Atchison, T. & S. F. R. Co., supra, is to the effect that a constitutional right is personal and that lack of volume of colored traffic or limited demand by colored passengers for Pullman space is no defense to a charge that under segre gation which results in the occupancy of unequal facilities colored passengers are denied equal protection of the laws. That case dealt with an Oklahoma statute which allowed de fendants to provide sleeping cars, dining cars, and chair cars to be used exclusively by either white or negro passen gers, separately but not jointly. The court below had con cluded that sleeping cars, dining cars, and chair cars, were, comparatively speaking, luxuries, and that it was competent Docket No. 27844— Sheet 11 for the legislature to take into consideration the limited demand for such accommodations by one race, as compared with the demand on the part of the other. Complainant relies upon the following statement contained in the Su preme Court’s decision: [fol. 36] It is not questioned that the meaning of this clause is that the carriers may provide sleeping cars, din ing cars and chair cars exclusively for white persons and provide no similar accommodations for negroes. The reasoning is that there may not be enough persons of A fri can descent seeking these accommodations to warrant the outlay in providing them. Thus, the Attorney General of the State, in the brief filed by him in support of the law, urges that ‘ ‘ the plaintiffs must show that their own travel is in such quantity and of such kind as to actually afford the roads the same profits, not per man, but per car, as does the white traffic, or, sufficient profit to justify the furnishing of the facility, and that in such case they are not supplied with separate cars containing the same. This they have not attempted. What vexes the plaintiffs is the limited market value they offer for such accommodations. Defendants are not by law compelled to furnish chair cars, 27 diners nor sleepers, except when the market offered reason ably demands the facility.” And in the brief of counsel for the appellees, it is stated that the members of the legis lature “ were undoubtedly familiar with the character and extent of travel of persons of African descent in the State of Oklahoma and were of the opinion that there was no substantial demand for Pullman car and dining car service for persons of the African race in the intrastate travel” in that State. This argument with respect to volume of traffic seems to us to be without merit. It makes the constitutional right depend upon the number of persons who may be discrimi nated against, whereas the essence of the constitutional right is that it is a personal one. Whether or not particular facilities shall be provided may doubtless be conditioned upon there being a reasonable demand therefor, but, if facilities are provided, substantial equality of treatment of [fol. 37] persons traveling under like conditions cannot be refused. It is the individual who is entitled to the equal protection of the laws, and if he is denied by a common car rier, acting in the matter under the authority of a state law, a facility or convenience in the course of his journey Docket No. 27844— Sheet 12 which under substantially the same circumstances is fur nished to another traveler, he may properly complain that his constitutional privilege has been invaded. Defendants say that what the Court evidently meant by this comment was that a carrier could not absolutely refuse to afford colored passengers Pullman accommodations, but had to provide them if there was reasonable demand from colored passengers. In any event, we are not hei’e consid ering a constitutional question, but rather questions of the act. Volume of traffic is an important consideration in de termining whether certain services demanded are warranted and whether a difference in treatment is justified. At the hearing complainant stated that segregation was not involved and apparently for the purpose of this case he accepted it, regarding the Arkansas statute as requiring it in that State for all passengers, both interstate and intra state. However, in his exceptions he opposes it as abomin able and urges that the statute does not require it as to 2 8 interstate passengers. The statute is general in its terms in that like the Mississippi and Kentucky statutes dealt with by the Supreme Court, it does not mention either intra state or interstate passengers. • These latter statutes, as already stated, were by State courts confined to intrastate passengers and the Supreme Court accepted these construc tions as binding on it. Complainant also relies on the Su preme Court’s conclusion in McCabe v. Atchison, T. & S. F. B. Co., supra, to the effect that the Oklahoma statute had to be construed as applying only intrastate because [fol. 38] Docket No. 27844— Sheet 13 there had been no construction to the contrary by the State court. Be that as it may, the present case arose out of the apparent assumptions of the parties that the Arkansas statute was applicable to interstate traffic, and while it is not for us to construe the statute, we think, in view of its general terms, that until further informed by judicial de termination, defendants are justified, as a matter of self protection, in assuming that it applies to interstate, as well as intrastate, traffic. What we are here dealing with is the practice of the carriers in assumed compliance with the statute, a practice which they could follow even if there were no statute. Complainant urges that collection of the first-class fare, notwithstanding the fact that second-class accommodations were furnished him, was violative of sections 1, 2, 3, and 6 of the act; also of the fourteenth amendment, on the ground that he was deprived of money without due process of law and denied equal protection of the laws. It is sufficient to say that a first-class ticket was furnished and charged for because complainant wanted it, and that after it developed that the first-class accommodations ordinarily available for colored passengers west of Memphis were all taken by other passengers defendants offered to refund the difference. Moreover, as already stated, complainant is here seeking- no relief from the charges paid. Complainant urges also that the Rock Island, having re ceived from him the first-class fare but having failed to furnish first-class accommodations west of Memphis, vio lated section 13(4) of the act. That provision relates to intrastate fares that are unjustly discriminatory or un duly prejudicial in their relation to interstate fares. No 29 Docket No. 27844—Sheet 14 intrastate fares are here involved. There was no break in complainant’s journey at the Tennessee-Arkansas State [fol. 39] line. He was engaged in through interstate travel from Chicago to Hot Springs. Moreover, as said in the next preceding paragraph, complainant was furnished a first- class ticket because he asked for it, and refund awaits him. Regardless of what finding may be made respecting the Rock Island, the Illinois Central asks that the complaint be dismissed as to it. There is no showing that colored pas sengers are treated differently from white passengers on their journeys from Chicago to Memphis and apparently that road is in no way chargeable with discrimination, even though it participates in the through transportation under joint fares and other arrangements. This carrier is a proper, but perhaps not necessary party. It was named as a defendant apparently out of abundance of caution, be cause it participated in the movement. The Pullman Company also asks dismissal, regardless of what may be done as to the Rock Island, contending that it is not chargeable with discrimination, because it provides accommodations in the form of drawing rooms, which if not already occupied or reserved for someone else, are available for colored passengers west of Memphis at the 90-cent charge. There is no discrimination on its part. It is not for us to enforce the State law. We understand that to be a matter for State authorities. But in deciding the case on the facts presented we must recognize that under the State law defendants must segregate colored passengers. In these circumstances we find that the present colored- passenger coach and the Pullman drawing rooms meet the requirements of the act; and that as there is comparatively little colored traffic and no indication that there is likely Docket No. 27844— Sheet 15 to he such demand for dining-car and observation-parlor car accommodations by colored passengers as to warrant the running of any extra cars or the construction of par titions, the discrimination and prejudice is plainly not un- [fol. 40] just or undue. Only differences in treatment that 30 are unjust or undue are unlawful and within the power of this Commission to condemn, remove, and prevent. The complaint will be dismissed. Eastman, Commissioner, dissenting: In his dissenting expression Commissioner Lee has cor rectly indicated the rule which railroads must follow to avoid unlawful discrimination between white and colored passengers, where State statutes require their segregation. So far as coach travel is concerned, it is clear that the Eock Island was not conforming to this rule, when complainant made his trip to Hot Springs, but is probably conforming to it now. So far as Pullman accommodations are concerned, I am not satisfied that defendants were observing the rule then or that they are observing it now. The latter conclusion I reach reluctantly, for I realize that, where segregation is required, the practical difficulties of observing the rule with respect to Pullman accommoda tions are very great. The facts are that white passengers were and are given adequate opportunity to obtain seats, berths, compartments, or rooms in Pullman cars, together with the right to use any dining car or observation car that may be attached to the train, whereas colored passengers have no opportunity to obtain seats or berths in the body of the car or to use dining or observation cars, but may ob tain accommodations in a compartment or room, provided one can be found that has not been previously been taken Docket No. 27844—Sheet 16 by a white passenger. If the conditions were reversed, I cannot believe that the white passengers would regard this as equality of treatment and opportunity. The practical difficulty lies, of course, in the fact that the demand for Pullman accommodations on the part of colored passengers is very small. So long as this condition exists, [fol. 41] I am not prepared to say that it is necessary for a railroad to attempt the partition of observation or dining cars, but I do believe that it is necessary to provide some Pullman space, small though it may be, which will be re served for the occupancy of colored passengers and which white passengers will not be permitted to occupy, and to 31 provide means by which meals from the dining car may be served in such space. Lee, Commissioner, dissenting: The rule was laid down in the early days of this Commis sion that it was the duty of the railroads to furnish, for all passengers paying the same fare, cars in all respects equal and provided with the same comforts, accommodations, and protection for travelers. Councill v. Western & Atlantic R. R. Co., 1 I. C. C. 339; William H. Heard v. The Georgia R. R. Co., 1 I. C. C. 428. It was further held “ * * * that the separation of white and colored passengers paying the same fare is not unlawful if cars and accommodations equal in all respects are furnished to both and the same care and protection of passengers is observed.” Edwards v. Nash., Chat. & St. Louis Ry. Co., 12 I. C. C. 247. In the latter case the Commission said: “ While, therefore, the reasonableness of such regulation as to interstate passenger traffic is established, it by no means follows that carriers may discriminate between white and colored passengers in the accommodations which they furnish to each. I f a railroad provides certain facili ties and accommodations for first-class passengers of the white race, it is commanded by the law that like accoin- Docket No. 27844— Sheet 17 modations shall be provided for colored passengers of the same class. The principle that must govern is that the carriers must serve equally well all passengers, whether white or colored, paying the same fare. Failure to do this [fol. 42] is discrimination and subjects the passenger to ‘ undue and reasonable prejudice and disadvantage. ’ ’ ’ In each of the three cases, because the railroad had fur nished colored passengers inferior accommodations to those furnished white passengers of the same class, a finding of discrimination was made. No decision has been found in which this Commission, on such facts, has held to the con trary. In this case complainant, traveling on a first-class ticket and offering to pay for a seat in the Pullman car, to which the Pullman porter had assigned him, and in which there was “ plenty of space” , was required to move from the 32 Pullman car into the coach provided for colored passengers. The latter was described as “ an old combination affair” , not air-conditioned, which was divided into three parts, and, except in the women’s section, was without wash basins, soap, towels, or running water. Testifying for defendants, the conductor, who refused to sell complainant a seat in the Pullman car, and had him re moved into the coach provided for colored passengers, said that “ during the thirty-two years I have worked over there in Arkansas, for the Rock Island Railroad Company, it has never had any first-class accommodations for Negroes” and “ I would not have sold a seat in Section 3 or any other space in the Pullman car to Congressman Mitchell because he was a colored person.” Witnesses other than complainant tes tified that they had been refused Pullman accommodations on Rock Island trains solely because they were Negroes. In view of this evidence, I question the statement in the report that Pullman accommodations ordinarily “ are available to colored passengers upon demand. ’ ’ Docket No. 27844— Sheet 18 If the action complained of does not constitute undue or unreasonable prejudice or disadvantage under the act, as [fol. 43] those terms are understood, then I am at a loss to understand their meaning. The act which we administer authorizes no difference in treatment of passengers because of color, and it is my understanding that the segregation statutes of the State require equal accommodations for per sons of the two races. No doubt the action of the Rock Island in refusing to per mit complainant to occupy a seat in the Pullman car was due to the State statute, requiring the segregation of white and colored passengers. Conceding the carrier’s legal right to segregate white and colored passengers in the State of Arkansas, in segregating such passengers, it must ac cord to one class accommodations substantially equal to those accorded the other. If the carrier provides certain accommodations for first-class white passengers, it is re quired to provide substantially similar accommodations for colored passengers of the same class. In my opinion, when the railroad refused complainant Pullman accommodations and required him to ride in the coach provided for colored passengers, it violated the act in failing to furnish him sub 33 stantially similar accommodations to those furnished white people willing, as he was, to pay therefor. I am authorized to state that Commissioners Aitchison and Porter join# in this expression. Miller, Commissioner, dissenting in part: I am in accord with the conclusion of the majority that the present accommodations over the lines of defendants on through journeys from Chicago, 111., to Hot Springs, Ark., do not result in unjust discrimination or undue prejudice. The demand of colored passengers for Pullman accommoda- Docket No. 27844— Sheet 19 tions over the route in question is shown by the evidence of record to have been negligible over a period of many years. The provisions for such few colored passengers as have desired to avail themselves of that service is shown to have [fol. 44] been, and to be, ample under ordinary circum stances. Had complainant made Pullman reservations somewhat in advance of the date of travel I am convinced that he would have had no difficulty in obtaining suitable accommodations over the entire route. With respect to the service rendered complainant from Memphis to Hot Springs in lieu of Pullman accommoda tions, however, I am of the view, and I think the report should so find, that the coach accommodations furnished complainant resulted in unjust discrimination and undue prejudice. The preponderance of the evidence of record indicates that the coach services afforded complainant, as well as other colored passengers, were decidedly inferior to those afforded white passengers and to which all passengers are entitled. It appears that the improvement in the col ored coach service which has taken place over the route in question since this complaint was filed has made such ser vice satisfactory. When a colored person purchases a first-class ticket in a state where segregation is not required to a point in a state where it is required, or through such a state such dissatis faction and trouble as was here incurred by complainant may, I think, be avoided by advice of the ticket agent to the effect that through Pullman accommodations should be secured in advance. 3—577 34 O rder At a General Session of the Interstate Commerce Commis sion, held at its office in Washington, D. C., on the 7th day of November, A. D. 1938 No. 27844 A rthur, W. M itchell v. Chicago, R ock I sland & Pacific R ailway Company et al. This proceeding being at issue upon complaint and an swers on file, and having been duly heard and submitted by [fol. 45] the parties, and full investigation of the matters and things involved having been made, and the Commission having, on the date hereof, made and filed a report con taining its findings of fact and conclusions thereon, which said report is hereby referred to and made a part hereof: It is Ordered, That the complaint in this proceeding be, and it is hereby, dismissed. By the Commission. W. P. Bartel, Secretary. (Seal) X IX A copy of the report of the Commission was received on November 28, 1938 by the plaintiff and on, to wit: January 23, 1939 a petition for rehearing and re-argument was filed by the plaintiff. X X That on about February 2, 1939 the defendant, Rock Island, filed its reply to the plaintiff’s petition for re hearing and re-argument. X X I On or about March 6, 1939, the Commission filed its order, denying the petition of the plaintiff for rehearing and re-argument, a copy and notice of the said order was received by the plaintiff March 20, 1939 and a copy of the said order is hereto attached, marked Exhibit C and made a part hereof, and is as follows: E x h ib it “ C ” Order 3 5 At a General Session of the Interstate Commerce Com mission, held at its office in Washington, D. C., on the 6th day of March, A. D. 1939. [fol. 46] No. 27844 A rthur R. M itchell v. Chicago, R ock I sland & Pacific R ailway Company, et al. Upon further consideration of the record in the above- entitled proceeding, and upon consideration of petition of complainant for rehearing and reargument: It is ordered, That the said petition be, and it is hereby, denied. By the Commission. W. P. Bartel, Secretary. (Seal) X X II All of the various steps in the above recited proceedings were taken in accordance with the said Act of Congress and the rules of the Interstate Commerce Commission. XXIII Plaintiff avers that he has been damaged and injured by the order of the Interstate Commerce Commission entered November 7, 1938 and the order of the said Com mission entered March 6, 1939 as aforesaid. XXIV That the said order entered November 7, 1938 dismiss ing the complaint is inconsistent with the evidence pro duced by the defendant, Rock Island and with the findings contained in the proposed report of the Examiner and the report of the commission. 36 That the undisputed and uncontradicted testimony of the chief witness, Albert W. Jones, a conductor on the [fol. 47] Rock Island for thirty-two years, offered by the defendant, Rock Island, fully sustains the allegations con tained in the complaint filed before the Commission, an excerpt from the abstract of his testimony as contained in the initial brief of the complainant and which was before the Commission is as follows: p. 43: ‘ ‘ The only provision that the Rock Island has for carry ing all colored passengers is in that part of the Jim Crow car.” A colored person who has a first class ticket is compelled to ride in the Jim Crow car with all other colored persons who have second-class tickets or “ two- cent-per-mile” tickets. “ A white person with a first-class ticket is entitled to use the Pullman, the diner and ob servation car, which provide first class accommodations. (Rec. 148.)” p. 44: “ The Rock Island Railroad Company has no such first- class accommodations for negroes, although the negroes may have first-class tickets on the Rock Island Railway or ‘ three-cent-per-mile ’ tickets. During the thirty-two years I have worked over there in Arkansas, for the Rock Island Railroad Company it has never had any first-class accommodations for Negroes (Rec. 149). And they haven’t any first-class accommodations in the sleeping cars for Negroes now.” “ The Rock Island Railroad Company does not at this time have any first-class accommodations for colored pas sengers paying the ‘ three-cent-a-mile’ fare permitting them to use the observation car which belongs to the Rock Island. They cannot use the dining car, nor sleeping car, although they may hold first-class tickets.” p. 45: “ Congressman Mitchell was sitting in Section 3 of the Pullman car alone (Rec. 154). I do not know if anyone occupied Section 3 from Memphis to Hot Springs on April 21st, but whether the space had been sold or not. I would [fol. 48] not have sold a seat Section 3 or any other space X X V 37 in that Pullman car to Congressman Mitchell, because he was a colored person. I know he had a first-class inter state round-trip ticket from Chicago, Illinois, to Hot Springs, Arkansas.” “ The accommodations furnished to Negro passengers in the Jim Crow car where Congressman Mitchell was compelled to ride are not equal to the accommodations furnished in the observation car by the Rock Island Rail way to white passengers holding first-class tickets” (Rec. 155). “ There is porter service furnished to the passengers in the observation car but no porter service furnished to the colored passengers in the Jim Crow cars” (Rec. 157). “ The Jim Crow car which all colored passengers were compelled to ride in in April, 1937, had three compart ments (Rec. 158). There was no running water, no wash basins or towels. There were only paper towels furnished in the compartment of the Jim Crow car but linen and paper towels were furnished in the observation car (Rec. 160). There was only one toilet in the compartment where Congressman Mitchell was riding in the Jim Crow car, which was ‘ for women’. There was none for men who were riding in that compartment” (Rec. 161). p. 46: “ I have never sold any colored person any space or accommodations in the Pullman car during my entire service.” “ But I had charge of the train as the conductor for the company and having charge of the train for the com pany I felt it was my duty to put the congressman out of the sleeping car into the Jim Crow car (Rec. 168). The congressman did complain and protest being put out of the Pullman car. He showed me his ticket and offered to pay for the accommodations. But I t-old him he was a colored nian and couldn’t ride in those first-class ac commodations. If there had been a white passenger with a first-class ticket who had boarded the train at Memphis, [f°l. 49] for Hot Springs, and had asked for a berth or a seat in that Pullman car, where there were vacant seats or had asked for a seat in the observation car, I would ha\ e sold it to him. I do not know how many colored people apply for Pullman tickets in Hot Springs, for Chicago, and are refused (Rec. 169). If the compartments 3 8 or stateroom are occupied, no colored person can ride in the body of the sleeping car. No colored persons are allowed to ride in the observation car which belongs to the Bock Island, even if they have first-class tickets. Those are the rules of the railway company and I follow the rules.” p. 47 : “ I sell space on that train for seats in the observation car but would not sell a colored person any accommoda tions in the observation car, although he had a first-class ticket (Rec. 171). The white people and colored people are charged the same fare for the ‘ three-cent-per-mile ’ ticket, or the ‘ first-class tickets’ (R. 172). There is no difference in the charge for the ticket because of color. The Pullman car is better equipped than the Jim Crow car. If a white passenger with a first-class ticket was put out of the Jim Crow car he could receive the first-class accommodations of the Pullman car, and would not be compelled to purchase a compartment or a seat in the compartment. He could buy a seat in the Pullman car or observation car, or parlor car. The only requirement is, his having a first-class or ‘ three-cents-per-mile’ ticket. They have the entire car (Rec. 174). Colored people can not ride in that car, even if they have a first or second- class ticket. All the colored people who ride on my train must stay in the Jim Crow car, no matter what kind of a ticket they have. ’ ’ X X V I Plaintiff alleges that the Commission’s said findings and orders are erroneous, invalid, unlawful and void for the following reasons: [fol. 50] 1. Said order dismissing the complaint of the plaintiff and the findings upon which said order is based are arbitrary and unjust. 2. Said order and findings are contrary to the evidence of record. 3. Said order and findings are without support of any substantial evidence in the record. 4. Said order and findings are without support of any evidence in the record before the said Commission in the proceedings in which they are made. 3 9 5. Said order and findings are against the indisputable character of and the manifest weight of the evidence. 6. In making the order and findings the Commission proceeded upon the misapprehension of the law. 7. In making the order and the findings the Commis sion disregarded the undisputed and uncontradicted evi dence contained in the record. 8. There are no findings of fact to support the order of the Commission. 9. The Commission proceeded under erroneous construc tions of law and misapprehensions in respect of its powers. 10. That said order and findings are contrary to the laws of the United States of America. 11. Said order and findings conflict with the former de cisions of the Interstate Commerce Commission in cases involving the identical situation as the case at bar. 12. Said orders and findings are contrary to and con flict with the United States Constitution and all amend ments thereto. [fol. 51] 13 Said order and findings are contrary to and conflict with the Enforcement Acts of the United States. 14. Said order and findings are a denial of the plaintiff of the due process of law as guaranteed by the Fourteenth Amendment of the United State’s Constitution. 15. Said order and findings are a denial of the equal pro tection of the laws to the plaintiff as guaranteed by the Fourteenth Amendment of the United States Constitution. XXVII All of the matters herein alleged plaintiff offers to prove. XXVIII That the plaintiff will suffer irreparable loss and damage unless the said order entered November 7, 1938 be set aside, annulled and vacated. X X IX In Tender Consideration Whereof and inasmuch as your petitioner, the plaintiff herein, has no adequate remedy at 4 0 law, and may have relief only in a court of equity, petitioner prays: 1. That the petition be received and filed. 2. That writs of subpoena be issued by the clerk of the court, as provided by law, commanding the United States of America, Frank 0. Lowden, James E. Gorman, and Joseph B. Fleming, Trustees of the estate of the Chicago, Rock Island & Pacific Railway Company, a corporation; Illinois Central Railway Company, a corporation, and Pullman Company, a corporation, defendants herein, to appear and defend this action. [fol. 52] 3. That notice hereof be given to the attorney general of the United States and all other persons required by law to be notified. 4. That upon the filing of this petition the Judge of this court shall call to his assistance in the hearing and de termination thereof two other Judges, one of whom shall be a Circuit Judge, as provided by law. 5. That upon final hearing of this cause, this Honorable Court will enter its decree that said order of the said Inter state Commerce Commission as aforesaid is null and void and further decree that said order be set aside, annulled and vacated. 6. That a decree be entered granting to the plaintiff the relief prayed for in his complaint filed before the said Commission. 7. And that any and all other and further relief may be granted to the plaintiff as shall seem meet and just. Arthur W. Mitchell, Plaintiff, By Richard E. Westbrooks, Solicitor for Plaintiff Richard E. Westbrooks, 3000 South State Street, Chicago, Illinois and Arthur W. Mitchell, Pro Se, 417 East 47th Street, Chicago, Illinois, Attorneys for the Plaintiff. [fols. 53-57] Duly sworn to by Richard E. Westbrooks. Jurat omitted in printing. 41 [Title omitted] A nswer of U nited States of A merica—Filed June 9, 1939 United States of America, one of the defendants named in the petition filed in the above entitled cause, answers and says: I United States admits the truth of the facts alleged in paragraphs numbered I to XXII, both inclusive, of the pe tition, except that, with respect to Paragraph XII, it denies that a transcript of the evidence before the Interstate Com merce Commission was attached to, or made a part of, the copy of the petition served upon this defendant and United States has no knowledge whether plaintiff will offer such transcript upon the hearing in this case. II United States denies the matters, things, and conclusions alleged in Paragraphs X X III to XXVIII, both inclusive, of the petition, except that it admits that Paragraph X X V of the petition quotes a part of the evidence of record before [fols. 59-60] the Commission, but denies that the testimony as quoted in said paragraph constitutes all the evidence submitted to and considered by the Commission. III Further answering the petition, United States denies that the facts therein alleged are sufficient to constitute a cause of action against the United States or to entitle plaintiff to the relief prayed or to any other relief. Wherefore, having fully answered, United States prays that the relief sought by the petition be denied and that the petition be denied at the cost of the plaintiff, and that it have the benefit of such other and further orders, decrees, or relief as may be just and proper. Elmer B. Collins, Special Assistant to the Attorney General. Thurman Arnold, Assistant Attorney General. William J. Campbell, United States At torney. [fol. 58] In United States District Court 42 [Title omitted] I ntervention of I nterstate Commerce Commission—Filed June 19, 1939 To the Honorable Judges of Said, Court: In accordance with the provisions of section 212 of the Judicial Code (36 Stat. L 1150, U. S. C., tit. 28, sec. 45a), we hereby enter the appearance of the Interstate Commerce Commission as a party defendant in the above-entitled case, and of ourselves as its counsel. Daniel W. Knowlton, Chief Counsel. J. Stanley Payne, Assistant Chief Counsel. Washington, D. C., June 15, 1939. [fol. 61] In U nited States District Court [fol. 62] I n U nited States District Court [Title omitted] A nswer of I nterstate Commerce Commission— Filed June 19, 1939 The Interstate Commerce Commission, hereinafter called the Commission, intervening defendant in the above-en titled action, answers and says: I Answering paragraphs I to XXII, both inclusive, of the petition, the Commission admits, for the purposes of this suit, that the allegations contained therein are true. The report of the Commission in its Docket No. 27844, Arthur W. Mitchell v. Chicago, Rock Island & Pacific Railway Com pany et al., referred to in paragraph X V III of the petition, is officially reported in 229 I. C. C. 703. II Answering paragraphs XXII, XXIII, and XIV, of the petition, the Commission denies the allegations contained therein. 43 Answering paragraph XXV of the petition, the Commis sion denies the allegations contained therein, with the fol lowing exceptions: It admits that Albert W. Jones testified in the proceeding before the Commission entitled No. 27844, Arthur W. Mitchell v. Chicago, Rock Island & Pacific Railway Company et al., but denies that the excerpt from the abstract of his testimony as quoted on pages 43-45 of the petition is a full, accurate and complete statement of his testimony, and the Commission respectfully refers the Court to the testimony itself, appearing at pages 99-181 of the official transcript of the testimony before the Commis sion, a complete copy of which, it is alleged in paragraph XII of the petition, will be offered on behalf of the plain tiff at the hearing on his petition before this Court. The Commission respectfully calls the Court’s attention to the fact that other evidence than that of the above-mentioned witness was introduced at the hearing before the Com mission. IV Answering paragraphs X XV I to XXVIII, both inclusive, of the petition, the Commission denies the allegations con tained therein. V Further answering paragraph X XV I of the petition, the Commission alleges that the gravamen of plaintiff’s com plaint to the Commission was that he was subjected to un just discrimination and undue prejudice, in violation of sections 2 and 3 (1) of the Interstate Commerce Act, in connection with accommodations furnished to him on a journey from Chicago, 111., to Hot Springs, Ark., April 20- 21 1937; that in the proceedings before the Commission plaintiff was accorded the full hearing provided for in [fol. 64-65] and by the Interstate Commerce Act; that at the hearing on his complaint to the Commission a large volume of testimony and other evidence bearing upon the subject matter of the complaint was submitted to the Commission for consideration, including testimony and other evidence submitted on behalf of plaintiff by his counsel; that in briefs filed in said proceeding and in oral argument questions relating to said matters were fully argued and submitted to the Commission for determination on behalf of the parties [fol. 63] HI 44 by their respective counsel, and the Commission determined said matters and entered and served upon the plaintiff and other interested parties its said report and order, in which the Commission found that plaintiff had not been subjected to unjust discrimination or undue prejudice, and entered an order dismissing the complaint. Wherefore, having fully answered, the Commission prays that the relief sought by the petition be denied and that the petition be dismissed. Interstate Commerce Commission, By J. Stanley Payne. Assistant Chief Counsel. Daniel W. Knowlton, Chief Counsel, of Counsel. [fol. 66] I n U nited States District Court [Title omitted] S eparate A nswer of P rank O. L owden, James E. Gorman and J oseph B. F leming, T rustees of the E state of the Chicago, B ock I sland and Pacific B ailway, a Corpora tion.— Piled June 16, 1939 Frank O. Lowden, Janies E. Gorman and Joseph B. Flem ing, Trustees of The Chicago, Bock Island and Pacific Bail- way Company, a corporation, by Wallace T. Hughes and Daniel Taylor, their attorneys, answering the petition of the plaintiff, say: I They admit the facts alleged in paragraphs I to XXI, inclusive, of the petition, except (a) as to the allegations in paragraph II of the petition, these defendants deny that they are a corporation, but on the contrary say that they are Trustees having charge, control and possession of The Chicago, Bock Island and Pacific Bailroad under and by virtue of their appointment as such by the District Court of the United States for the Northern District of Illinois, Eastern Division, in a certain proceeding, therein pending, for the reorganization of a railroad under Section 77 of the Bankruptcy Act of the United States; and, (b) except as [fol. 67] to paragraph XII, they deny that a transcript of the evidence before the Interstate Commerce Commission was attached to, or made a part of, the copy of the petition 4 5 served upon these defendants, and defendants have no knowledge whether plaintiff will offer such transcript upon the hearing in this case. II These defendants deny the matters, things and conclu sions alleged in paragraphs X X III to XXVII, both in clusive of the petition, except that they state that paragraph XXV of the petition quotes a part only of the evidence of record before the Commission, and they deny that the testi mony so quoted in said paragraph constitutes all of the testimony of Witness Albert W. Jones, or all of the evi dence submitted to the Interstate Commerce Commission upon which that body made its findings and reached its conclusions. III These defendants deny that the facts, matters and things alleged in the petition are sufficient to constitute a cause of action against these defendants or to entitle the plaintiff to the relief prayed in his petition or to any other relief. Wherefore, having fully answered, these defendants, Frank 0. Lowden, James E. Gorman and Joseph B. Flem ing, Trustees of the Estate of The Chicago, Rock Island and Pacific Railway Company, pray that the relief sought by the petition be denied and that the petition be dismissed at the cost of the plaintiff. Frank 0. Lowden, James E. Gorman and Joseph B. Fleming, Trustees of the Estate of The Chicago, Rock Island and Pacific Railway Company, a cor poration. By: Wallace T. Hughes, Daniel Taylor. Their Attorneys, 1025 LaSalle Street Station, Chicago, 111. [fols. 68-69] Certificate of Serivce I hereby certify that copies of this answer have been served this day upon plaintiff and other defendants by mail ing the same to their respective attorneys in envelopes properly addressed. Daniel Taylor, Attorney for Defendants, Frank 0. Lowden, James E. Gorman and Joseph B. Fleming, Trustees of the Estate of The Chicago, Rock Is land and Pacific Railway Company, a corporation. Chicago, 111., June 16, 1939. 46 [Title omitted] Separate A nswer of T he P uulman Company, a Corpora tion, to the P etition of A rthur W. M itchell—Piled June 17, 1939 The Pullman Company, one of the defendants herein, by Lowell M. Greenlaw, Charles S. Williston, Herbert S. Anderson and Erwin W. Roemer, its attorneys, answering the petition of the plaintiff: 1. Denies the allegations of paragraph II of the petition so far as such allegations pertain to this defendant, and alleges that it is organized and incorporated as a corpora tion under the laws of the State of Illinois and authorized to manufacture, construct, and purchase railway cars, with all convenient appendages and supplies for persons travel ing therein, and to sell or use, or permit to be used, the same in such manner and upon such terms as it may think fit and proper. [fol. 71] 2. Denies the allegations of paragraph III of the petition so far as such allegations pertain to this defendant, and alleges that this defendant is a sleeping car company subject to provisions of the Interstate Commerce Act and that as such sleeping car company it furnishes sleeping car accommodations to passengers traveling between points stated in paragraph III, when such passengers contract with this defendant for such accommodations in accordance with the provisions of this defendant’s tariffs on file with the Interstate Commerce Commission. 3. Admits the filing by the plaintiff herein on, to-wit, September 2, 1937, of a written complaint with the Inter state Commerce Commission in form and substance as set forth in paragraph VI of said petition. 4. Admits the allegations of paragraphs V II and VIII of said petition. 5. Admits the allegations of paragraph IX of said peti tion and states that the full and complete answer of The Pullman Company filed in said proceedings before the In terstate Commerce Commission was as follows: [fol. 70] In United States District Court 47 “ Answer of Defendant, The Pullman Company” “ The Pullman Company, defendant, for its answer to the complaint herein, says: “ 1. It admits the allegations of Paragraph I in said com plaint. “ 2. It denies the allegations of Paragraph II of said complaint so far as such allegations pertain to this de- [fol. 72] fendant, and states that this defendant is a sleep ing car company subject to the provisions of the Interstate Commerce Act, and that as such sleeping car company it furnishes sleeping car accommodations to passengers travel ing between points stated in said Paragraph II, when such passengers contract with this defendant for such accommo dations in accordance with provisions of this defendant’s tariffs on file with the Interstate Commerce Commission. “ 3. It denies the allegations of Paragraph III of said complaint so far as such allegations apply to this defend ant, and states that the only charge paid by complainant to this defendant in connection with the journey referred to was for a compartment in this defendant’s sleeping car between Chicago, Illinois, and Memphis, Tennessee; that this defendant furnished to complainant the accommodations for which he paid and that such accommodations were fully equal to the accommodations furnished other patrons of this defendant, paying the same fare. This defendant received no fare and made no contract with complainant for any accommodations in this defendant’s cars for the portion of complainant’s journey between Memphis, Tennessee, and Hot Springs, Arkansas. “ 4. It denies all of the allegations of Paragraph IV of said complaint, so far as they pertain to this defendant, and in that connection states the facts to be as alleged in Para graph 3 of this answer. [fol. 73] “ 5. It denies all of the allegations of Paragraph V of said complaint so far as they pertain to any prejudice or disadvantage or inferior accommodations with respect to complainant’s journey from Chicago to Memphis in the car in which he had purchased Pullman accommodations. M ith respect to the alleged inferior accommodations in the equipment occupied by complainant between Memphis and Hot Springs, this defendant states that such equipment 48 and accommodations were not owned or controlled or op erated by this defendant. “ 6. It denies the allegations of Paragraph VI of the complaint so far as they relate to any act or ommission of this defendant, and states the facts to be as heretofore al leged in this answer. “ 7. It denies the allegations of Paragraph VII of the complaint, so far as they relate to any act or ommission of this defendant. “ This defendant denies that complainant is entitled to the relief prayed for in his complaint against this defend ant. “ Wherefore this defendant prays that the said complaint may be dismissed as to this defendant. “ Dated at Chicago, Illinois, this 22nd day of September, A. D., 1937. ‘ ‘ The Pullman Company. By G. A. Kelly, Vice Pres ident. L. M. Greenlaw, Attorney for The Pullman Company, 79 East Adams Street, Chicago, Illi nois. ’ ’ [fol. 74] 6. Admits the allegations of paragraphs X to XXII, inclusive, of said petition. 7. Denies that the plaintiff has been damaged and in jured by the order of the Interstate Commerce Commission entered November 7, 1938, and the order of the said Com mission entered March 6, 1939, as alleged in paragraph X X III of said petition. 8. Denies that the said order entered November 7, 1938, dismissing the complaint, is inconsistent with the evidence produced and with the findings contained in the proposed report of the Examiner and the report of the Commission, as alleged in paragraph X X IV of said petition. 9. Denies that the testimony of Albert W. Jones, a con ductor on the Rock Island, sustains the allegations con tained in the complaint filed before the Commission, as al leged in paragraph X X V of said petition, and alleges that the testimony of said Albert W. Jones and other testi mony are consistent with the dismissal of the complaint as to this defendant and denies that the testimony set forth in said paragraph X X V constitutes all the evidence submitted to and considered by the Commission. 4 9 10. Denies that the findings and orders of the Interstate Commerce Commission are erroneous, invalid, unlawful or void for the reasons alleged by the plaintiff in paragraph XXVI of said petition, or for any other reasons, and alleges: (I) That said order dismissing the complaint of the plain tiff and findings upon which said order is based are not arbitrary and unjust. [fol. 75] (2) That said order and findings are consistent with the evidence of the record. (3) That said order and findings are supported by the evidence of the record. (4) That said order and findings are supported by the evidence in the record before the Interstate Commerce Commission in the proceedings in which they were made. (5) That said order and findings are consistent with the character of and the manifest weight of the evidence. (6) That in making the order and findings the Interstate Commerce Commission proceeded with full knowledge of and in conformity with the law pertaining thereto. (7) That in making the order and the findings the Inter state Commerce Commission gave due regard to the evi dence contained in the record. (8) That there are findings of fact to support the order of the Interstate Commerce Commission. (9) That the Interstate Commerce Commission proceeded under and by reason of a proper and correct construction of law and of its powers. (10) That the said order and findings are consistent with the laws of the United States of America. (II) That said order and findings are consistent with the former decisions of the Interstate Commerce Commission in analogous situations. That said order and findings are consistent with the ( onstitution of the United States of America and all amendments thereto. 4.! ^ „ That said order and findings are consistent with the Enforcement Acts of the United States of America. 4—577 50 (14) That said order and findings adequately grant to the plaintiff due process of law guaranteed by the Consti tution of the United States of America. (15) That said order and findings are consistent with and a grant to the plaintiff of equal protection of the laws guaranteed by the Constitution of the United States of America. [fols. 76-77] 11. Denies that the plaintiff will suffer ir reparable loss or damage unless the said order entered November 7, 1938, be set aside, annulled and vacated, as alleged in paragraph X X V III of said petition. 12. Denies that the facts alleged in the petition are suffi cient to constitute a cause of action against this defendant or to entitle plaintiff to the relief prayed or to any other relief. Wherefore, this defendant respectfully prays that an order be entered herein dismissing the said petition as to this defendant. The Pullman Company, by Lowell M. Greenlaw, Charles S. Williston, Herbert S. Anderson, Erwin W. Roemer, Its Attorneys. [fol. 78] I n U nited States D istrict Court [Title omitted] Separate A nswer of I llinois Central Railroad Company, a Corporation— Filed June 17, 1939 Comes now one of the defendants, Illinois Central Rail road Company, a corporation, sued herein under the name and style of Illinois Central Railway Company, by E. A. Smith, H. J. Deany and Robert Mitten, its attorneys, and answering the petition of plaintiff says: I This defendant admits the truth of the facts alleged in Paragraphs I to XXII, both inclusive, of the petition, except that it denies the allegations of Paragraph II of said peti tion so far as such allegations pertain to the defendant Pullman Company, and states that said Pullman Company 51 is a sleeping car company and not a railroad or transporta tion company; and except further that it denies the allega tions of Paragraph III of said petition so far as such allega tions pertain to this defendant, Illinois Central Railroad Company, being a common carrier engaged in interstate Commerce in the State of Arkansas, and states the fact to be that this defendant, Illinois Central Railroad Company, [fol. 79] is not engaged in interstate commerce between any points in the State of Arkansas. II This defendant denies the matters, things and conclusions alleged in Paragraphs X XIII to XXVIII, both inclusive, of the petition, except that it admits that Paragraph X XV of the petition quotes a part of the evidence of record before the Commission, but denies that the testimony so quoted in said paragraph constitutes all the evidence submitted to and considered by the Commission. III Further answering the petition this defendant, Illinois Central Railroad Company, denies that the facts therein alleged are sufficient to constitute a cause of action against any of the defendants, or to entitle plaintiff to the relief prayed or to any other relief. IV Further answering the petition this defendant, Illinois Central Railroad Company, denies that the facts therein alleged are sufficient to constitute a cause of action against this defendant, Illinois Central Railroad Company, or to entitle plaintiff to the relief prayed, or to any other relief against this defendant, Illinois Central Railroad Company. ( Wherefore, having fully answered, this defendant, Illinois Central Railroad Company, prays that the relief sought by the petition be denied at the cost of the plaintiff, and that this defendant have the benefit of such other and further orders, decrees or relief as may be just and proper. Illinois Central Railroad Company, by E. A. Smith, H. J. Deany, Robert Mitten, Its Attorneys, 135 East 11th Place, Chicago. Vernon W. Foster, of Counsel, 135 East 11th Place, Chicago, Illinois. 5 2 [fols. 80-81] Certificate of Service I hereby certify that I have this day served a copy of the foregoing upon the attorneys of all parties of record by mailing a copy thereof to each party, properly addressed. Dated at Chicago, Illinois, this 17th day of June, 1939. V. W. Foster, of Counsel. [fols. 82-83] In U nited States D istrict Court [Title omitted] Order Setting Cause for H earing— April 23, 1940 On motion of Plaintiff’s Attorney It Is Ordered that this cause be and the same is hereby set for hearing before three judges May 27, A.D. 1940 [fols. 84-85] In U nited S tates D istrict Court [Title omitted] Findings of Fact and Conclusions of Law—June 27, 1940 Pursuant to Federal Equity Rule 70£, and Rule 52 of the Federal Rules of Civil Procedure, we find the facts to be as follows: F indings of F act 1. The order here in question was made by the Interstate Commerce Commission after a full hearing. 2. The Commission, after the hearing, found the facts specially, and stated separately its conclusions of law there on, and they are made a part of these findings and con clusions respectively by reference. 3. The Commission’s findings of facts were all supported by substantial evidence. Conclusions of L aw 1. The findings of the Commission are not erroneous. 2. The order of the Commission is not contrary to law. 5 3 3. The order of the Commission contravenes no provision of the Federal Constitution. 4. The order of the Commission is supported by the find ings. 5. This court is without jurisdiction to grant the relief sought in the complaint, or any part thereof, and the com plaint should be dismissed. William M. Sparks, Cir. J. Charles E. Woodward, Dist. Judge. M. L. Igoe, Dist. Judge. [fols. 86-87] I n U nited States D istrict Court for the Northern D istrict of Illinois, E astern D ivision Present: Hon. William M. Sparks, Circuit Judge; Hon. Charles E. Woodward, District Judge; Hon. Michael L. Igoe, District Judge. No. 500 A rthur W. M itchell vs. U nited States of A merica Order D ismissing Cause—June 27, 1940 Upon the findings of fact and conclusions of law this day entered herein It Is Ordered and Decreed that this cause he and the same hereby is dismissed for lack of jurisdiction at the costs of the complainant. [fob 88] I n U nited States D istrict Court [Title omitted] N otice of A ppeal— Filed August 23, 1940 T o: Elmer B. Collins, Esq., Solicitor for the United States of America, Washington, D. C. J. Stanley Payne, Esq., Solicitor for the Interstate Com merce Commission, Washington, D. C. 5 4 Wallace T. Hughes and Daniel Taylor, Esquires, General Attorneys for Frank 0. Lowden, James E. Gorman and Joseph B. Fleming, Trustees of the Estate of the Chicago, Rock Island and Pacific Railway Company, a corporation, LaSalle Street Station, Chicago, Illinois. C. S. Williston, Esq., Solicitor for the Pullman Company, Pullman Building, 79 East Adams Street, Chicago, Illinois. Robert Mitten, Esq., Commerce Attorney for the Illinois Central Railway Company, a corporation, 135 East 11 Place, Chicago, Illinois. You and each of you are hereby notified that on the 23rd day of August, 1940, at ten o ’clock a. m., or as soon there after as counsel can be heard, we shall present to the Hon orable William M. Sparks, United States Circuit Judge, and the Honorable Charles E. Woodward and Honorable Michael L. Igoe, United States District Judges, the petition of the petitioner herein for an appeal from the final orders and decree made and entered in the District Court in the above entitled cause on the 27th day of June, 1940, to the Supreme Court of the United States, a copy of said petition for appeal and Assignment of Errors therein referred to being attached hereto; and ask that an order he entered herein allowing said appeal and making same returnable [fol. 89] within thirty (30) days from August 23rd, 1940, a copy of said order being also attached hereto. Richard E. Westbrooks, Arthur W. Mitchell, pro se., Solicitors for Petitioner. State oe I llinois, County of Cook, ss.: A ffidavit of Sekvice Hattie Mae Salone, first being duly sworn, deposes and says that at the request of the attorneys for the petitioner she served the above and foregoing Notice of Appeal, the Petition for Appeal and Assignment of Errors hereto at tached upon the attorneys for all parties of record and who are named in the foregoing Notice of Appeal by placing a copy of the same in a sealed envelope with the proper amount of postage attached to said envelope and addressed to each of the attorneys for the parties of record in this cause as the names and addresses appear in the foregoing Notice of Appeal, and depositing each of the said envelopes 5 5 in the United States mail-box at 30th and State Street, Chicago, Illinois, on the 18th day of August, 1940. Hattie Mae Salone, Affiant. Subscribed and sworn to before me this 18th day of August, A. D., 1940. Birdie Lee James, Notary Public. (Seal.) [fol. 90] In U nited States D istrict Court [Title omitted] Petition for A ppeal— Filed August 23, 1940 To: Honorable William M. Starks, United States Circuit Judge. Honorable Charles E. Woodward and Honorable Michael L. Igoe, United States District Judges. Now comes Arthur W. Mitchell, petitioner, by his solici tors and feeling aggrieved by the final order and decree of the District Court made and entered herein on to-wit, June 27, 1940, does hereby appeal therefrom to the Supreme Court of the United States and prays that his appeal be allowed and that citations be issued as provided by law. The particulars wherein he considers the final order and decree erroneous are set forth in the Assignment of Errors on file, to which reference is made. He prays that a tran script of the record, proceedings and papers on which the final order and decree was made and entered, duly authenti cated, may be transmitted to the Supreme Court of the United States, and he further prays that a proper order granting to him an appeal to the Supreme Court of the United States and relating to the security to be required of him be made. Richard E. Westbrooks, Arthur W. Mitchell, pro se, Solicitors for Petitioner. Dated the 18th day of August, 1940. [fol. 91] In U nited States D istrict Court [Title omitted] A ssignment of E rrors— Filed Aug. 23,1940 Now comes Arthur W. Mitchell, petitioner herein, and presents with his petition for appeal herein this assign 5 6 ment of errors and says that in the above entitled cause and the decree made and entered against him therein on the 27th day of June, 1940, there is error in the particulars hereinafter set forth. The District Court for the Northern District of Illinois, Eastern Division, erred in making the final order and decree in this cause and in dismissing the petition herein for lack of jurisdiction at the costs of the complain-t in the following respects: 1. It erred in finding that the Commission’s findings of fact were all supported hy substantial evidence. 2. It erred in finding that the finding- of the Commission are not erroneous. 3. It erred in finding that the order of the Commission is not contrary to law. 4. It erred in finding that the order of the Commission contravenes no provisions of the Federal Constitution. 5. It erred in finding that the order of the Commission is supported by findings. [fol. 92] 6. It erred in finding that the court was without jurisdiction to grant the relief sought in the complaint or any part thereof and that the complaint should be dismissed. 7. It erred in dismissing the cause for lack of jurisdiction at the costs of the complainant. 8. It erred in failing to find, as it should have done, that the plaintiff was an interstate passenger on the Rock Is land Railroad, holding a first-class round trip ticket for which he had paid a first-class fare from Chicago, Illinois, to Hot Springs, Arkansas. 9. It erred in failing to find, as it should have done, that as such first-class passenger, making a continuous inter state journey and travelling in interstate commerce, that he was entitled to equal first-class accommodations and com forts identical with the first-class accommodations and com forts furnished all other white passengers holding first- class tickets and travelling in interstate commerce. 10. It erred in failing to find, as it should have done, that it was the lawful duty of the Rock Island to furnish to the plaintiff, as a first-class interstate passenger, such equal 57 accommodations and comforts as were furnished to first- class white passengers travelling on the same train as inter state passengers. 11. It erred in failing to find, as it should have done, that the Rock Island failed to furnish to the plaintiff such equal accommodations and comforts as was its lawful duty to so furnish hut — the contrary, compelled the plaintiff to occupy, during a part of his interstate journey, second- class accommodations. 12. It erred in failing to find, as it should have done, that such conduct on the part of the Rock Island was in violation of the Interstate Commerce Act. 13. It erred in failing to find, as it should have done, that the Rock Island received from the plaintiff a first- class fare but compelled him to occupy second-class ac commodations in violation of the Interstate Commerce Act. [fol. 93] 14. It erred in failing to find, as it should have done, that the conductor of the Rock Island, in furnishing first-class accommodations to all Avliite passengers holding- first-class tickets and travelling as interstate passengers, and refusing to furnish the same to the plaintiff who held a first-class ticket and was travelling as an interstate pas senger, was unduly and unreasonably prejudicial to him and was unduly and unreasonably preferential to the white passengers to the disadvantage of the plaintiff and violated the Interstate Commerce Act. 15. It erred in failing to find, as it should have done, that the Rock Island, in charging and receiving a greater compensation for services rendered in transporting the plaintiff as a first-class interstate passenger, than was charged and collected from other persons for doing for them a like and contemporaneous service, did unjustly dis criminate against the plaintiff in violation of the Interstate Commerce Act. 16. It erred in failing to find, as it should have done, that the Rock Island, in receiving a charge from the plain tiff and contracting to furnish first-class accommodations and comforts during the entire interstate trip of the plaintiff from Chicago, Illinois, to Hot Springs, Arkansas, and in failing and in refusing to furnish such first-class accommo dations, although such first-class accommodations were 5 8 available, was unjust, unreasonable, unlawful and in viola tion of the Interstate Commerce Act. 17. It erred in failing to find, as it should have done, that the conductor of the Rock Island, in having practiced unjust discrimination against all colored persons travelling in interstate commerce for the past 32 years has caused, is causing and will cause undue and unreasonable advantage to white persons and undue and unreasonable prejudice to the plaintiff and all colored persons travelling in inter state commerce and is in violation of the Interstate Com merce Act. 18. It erred in failing to find, as it should have done, that the conduct of the Rock Island towards the plaintiff as above set forth, is in violation of the 14th Amendment of the United States Constitution in denying to the plaintiff the equal protection of the law. 19. It erred in failing to find, as it should have done, that the conduct of the Rock Island towards the plaintiff as above set forth, is in violation of the statutes and laws enacted by the Congress of the United States, known as the Enforcement Act or Civil Rights Act. 20. It erred in failing to find, as it should have done, that it is a lawful duty which the Rock Island owes to white and colored passengers on this line, in interstate travel, to make them equal in comforts, accommodations, and equip- [fol. 94] ment, without any discrimination where the same price is charged. 21. It erred in failing to find, as it should have done, that it is the lawful duty, which the Rock Island owes to the travelling public over its line, engaged in interstate travel, that its train officers should refrain from practices against all such passengers without regard to race, color or sex, which result in undue prejudice and disadvantage. 22. It erred in failing to find, as it should have done, that there is no equality of service, when the money of white first-class interstate passengers purchases luxurious accommodations and comforts and the same amount of money purchases for colored first-class interstate passengers inferior quarters on the same interstate journey. 23. It erred in failing to find, as it should have done, that common carriers are bound to provide for colored 5 9 interstate passengers, holding first-class tickets, accommoda tions and comforts precisely equal in all respects to those provided for white interstate passengers holding a similar ticket. 24. It erred in failing to find, as it should have done, that common carriers are bound to provide first-class accommo dations and comforts to interstate passengers without regard to race or color as first-class interstate passengers have con tracted and paid for. 25. It erred in failing to find, as it should have done, that the separate coach law of the State of Arkansas has no application to interstate passengers making a continuous journey in interstate commerce. 26. It erred in failing to find, as it should have done, that the plaintiff, as a native born citizen of the United States, was entitled to all privileges and immunities of citi zens in the several States and a denial to the plaintiff solely on account of his color and race by the Rock Island, under a claim of custom or local State law, while all other white citizens under like conditions are granted the same privileges and immunity, is in violation of the Constitution of the United States. 27. It erred in failing to find, as it should have done, that the order entered by the Interstate Commerce Com mission dismissing the proceedings filed by the plaintiff before the Interstate Commerce Commission and the find ings upon which said order is based, are arbitrary and unjust. [fob 95] 28. It erred in failing to find, as it should have done, that said order and findings are contrary to the evi dence of record. 29. It erred in failing to find, as it should have done, that said order and findings are without support of any substantial evidence in the record. 30. It erred in failing to find, as it should have done, that said order and findings are without support of any evidence in the record before the said Commission in the proceedings in which they were made. 31. It erred in failing to find, as it should have done, that said order and findings are against the indisputable character of and the manifest weight of the evidence. 6 0 32. It erred in failing to find, as it should have done, that in making the order and findings the Commission dis regarded the undisputed and uncontradicted evidence con tained in the record. 33. It erred in failing to find, as it should have done, that there are not findings of facts to support the order of the Commission. 34. It erred in failing to find, as it should have done, that the Commission proceeded under erroneous construc tions of law and misapprehensions in respect of its powers. 35. It erred in failing to find, as it should have done, that said order and findings are contrary to the laws of the United States of America. 36. It erred in failing to find, as it should have done, that said order and findings conflict with the former deci sions of the Interstate Commerce Commission in cases in volving the identical situation as the case at bar. 37. It erred in failing to find, as it should have done, that said orders and findings are contrary to and conflict with the United States Constitution and all amendments thereto. 38. It erred in failing to find, as it should have done, that the order and findings of the Commission conflicts with and is contrary to the decisions of the Supreme Court of the United States, the United States Circuit Courts of Appeal and the United States District Courts, in cases involving the identical situation as shown by the undisputed and uncontradicted evidence appearing in the record. [fols. 96-97] 39. It erred in failing to find, as it should have done, that said order and findings are contrai'y to and in conflict with the Enforcement Act or Civil Rights Act of the United States. 40. It erred in failing to find, as it should have done, that said order and findings are a denial of the plaintiff of the due process of law as guaranteed by the Fourteenth Amend ment of the United State’s Constitution. 41. It erred in failing to find, as it should have done, that said order and findings are a denial of the equal protection of the laws to the plaintiff as guaranteed by the Fourteenth Amendment of the United States Constitution. 61 43. That the order of the Interstate Commerce Commis sion and the judgment of the United States District Court are contrary to the basic principles upon which this govern ment was founded and judicially approves unjust discrimi nation against a native born American citizen, solely on account of his race and color and said order and judgment is unjust and unamerican. Wherefore, petitioner prays that the said order and de cree entered herein on the 27th day of June, 1940, be re versed, and that the said District Court of the United States for the Northern District of Illinois, Eastern Divi sion, be directed to enter a decree granting the prayer of the petition of the petitioner and that the said order of the Interstate Commission be declared void and perpetually set aside, suspended and annulled and that your petitioner may have such other and further relief as may be appro priate. Richard E. Westbrooks, Arthur W. Mitchell, Pro Se., Solicitors for Petitioner, 3000 S. State Street, Chicago, Illinois. [fols. 98-99] I n U nited States D istrict Court [Title omitted] Order Granting Petitioner an A ppeal to the United States S upreme Court and F ixing the A mount of the B ond—Aug. 23, 1940 Upon the entering of the final decree in this cause came Richard E. Westbrooks and Arthur W. Mitchell, pro se., solicitors for petitioner, and filed their Assignment of Er rors and Petition for Appeal and it is hereby - Ordered that an appeal by the petitioner in the above entitled cause to the Supreme Court of the United States from the final order and decree heretofore filed and entered on June 27th, 1940, be and the same is hereby allowed, and that a certified transcript of the record, testimony, exhibits, stipulations and all proceedings be forthwith transmitted to the Supreme Court of the United States, said appeal be hereby made returnable thirty (30) days from the date hereof, 6 2 It Is Hereby Further Ordered that the bond of appeal be, and the same is hereby fixed in the sum of $300.00 Dollars. Entered: William M. Sparks, United States Circuit Judge; --------------, United States District Judge. Dated August 23, 1940. [fols. 100-106] Citation in usual form showing service on Daniel W. Knowlton, et al., filed Sept. 17, 1940, omitted in printing. [fols. 107-129] I n U nited S tates D istrict Coukt [Title omitted] Order A pproving A ppeal B ond— Aug. 24, 1940 This cause coming on to be heard upon the motion of Richard E. Westbrooks and Arthur W. Mitchell, pro se, solicitors for petitioner for an order approving the Appeal Bond heretofore ordered in this cause, August 23rd, 1940, and it appearing to the court that the petitioner presents in open court a certified check dated August 23rd, 1940, drawn on the American National Bank & Trust Company of Chicago, payable to Hoyt King, Clerk of the United States District Court, in the sum of Three Hundred ($300.00) Dol lars as security; It Is Hereby Ordered that the Appeal Bond of Arthur W. Mitchell, be and the same is hereby approved and ordered filed; It Is Further Ordered that the Clerk of this court, accept and receive the above mentioned certified check, which is to be cashed by the said clerk of this court and held as security under the terms and conditions contained in the said Appeal Bond of Arthur W. Mitchell, petitioner, until the further order of this court. Entered: ------------- , United States Circuit Judge; Holly, United States District J u d g e ;-------------- , United States District Judge. Dated August 24th, 1940. 6 3 [fols. 130-131] In U nited States D istrict Court [Title omitted] Order E xtending T ime— Sept. 21, 1940 On motion of the plaintiff and for satisfactory reasons appearing to the court, it is hereby ordered that, The time for the docketing of this cause in the Supreme Court of the United States, pursuant to the appeal sued out; to present for approval the Narrative Statement of Evidence and to complete the preparation of the Transcript of Record for certification by the Clerk of this court, be and is hereby extended to and including the 21st day of November, A.D. 1940. Entered: -------------- , United States Circuit J u d g e ;-------------- , United States District Judge; Igoe, United States District Judge. Dated this 21st day of September, A.D. 1940. [fols. 132-133] In U nited States D istrict Court [Title omitted] Order re Original E xhibits— Nov. 14, 1940 On motion of the plaintiff and for satisfactory reasons appearing to the court, It Is Hereby Ordered that, a. The Clerk of this court include in the transcript of record, which is being prepared for use in the proceedings on appeal to the Supreme Court of the United States in this cause, all original exhibits which were introduced in the United States District Court on the hearing of this cause. b. That Plaintiff Exhibit No. 1, (a), (b) , ' (c ) , (d), (e), and Defendant’s Exhibit No. 1, stand in lieu of a Narrative Statement of the Evidence and be so certified to the Su preme Court of the United States by Clerk of this court. Entered: , United States Circuit J u d g e ;-------------- .f United States District Judge; Igoe, United States District Judge. Dated this 14th day of November, A.D. 1940. 6 4 [fols. 134-135] In U nited S tates D isteict C ourt [Title omitted] Order re T ranscript of T estimony—Nov. 14, 1940 Good cause appearing, it is ordered that a transcript of oral argument in this cause, presented before this Court on May 27, 1940, by counsel for the respective parties, be sent as an original exhibit to the Clerk of the Supreme Court of the United States and be included as part of the record herein on appeal. Entered: Igoe, Judge United States District Court. Dated this 14th day of November, 1940. [fol. 136] In U nited S tates D istrict C ourt [Title omitted] P raecipe for T ranscript of R ecord— Filed Sept. 3, 1940 To the Honorable Hoyt King, Clerk of the District Court of the United States for the Northern District of Illinois, Eastern Division: You are hereby requested to make a transcript of record to be filed in the Supreme Court of the United States pur suant to a Notice of Appeal heretofore filed August 23, 1940 and to include in such transcript of record the following, and no other papers, to-wit: (1) The process. (2) The pleadings. (3) Copy of petition, which shall include so much of the exhibits in accordance with the rules of the United States Supreme Court. (4) Answer of United States of America. (5) Answer of the Interstate Commerce Commission. (6) Answer of Frank O. Lowden, James E. Gorman and James B. Fleming, Trustees of the Estate of the Chicago, Rock Island and Pacific Railway Company, a corporation. (7) Answer of Pullman Company, a corporation. (8) Answer of Illinois Central Railway Company. 6 5 (9) Order setting cause for hearing. [fols. 137-138] (10) Narrative statement of evidence or agreed statement of fact. (See Order 11-14-40) (11) Findings of fact, conclusions of law and Final De cree entered by the court June 27, 1940. (12) Order approving narrative statement of evidence or agreed statement of fact. (See Order 11-14-40) (13) Notice of Application for order allowing appeal. (14) Petition for Appeal. (15) Assignment of errors. (16) Order allowing appeal. (17) Citation on appeal. (18) Bond on appeal. (19) All orders, enlarging time for docketing cause in the United States Supreme Court and extending time to have approved the narrative statement of evidence in condensed form. (20) Praecipe for record on appeal and proof of service thereof. (21) Jurisdictional statement and proof of service there of. (22) Order certifying record to United States Supreme Court. (23) All stipulations filed in said cause. (24) All orders of the court entered subsequent to the entry of the decree and not heretofore requested herein. Richard E. Westbrooks, Arthur W. Mitchell pro se, Solicitors for Plaintiff. [fob 139] Plaintiff’s E xhibit No. 1 Interstate Commerce Commission Washington I, W. P. Bartel, Secretary of the Interstate Commerce Commission, do hereby certify that the attached are true copies of the following: Complaint filed September 2, 1937; Transcript of the stenographer’s notes of the hearing leld March 7, 1938, at Chicago, 111., before Examiner W. A. Disque, and exhibits filed at said hearing; 5—577 G6 Report proposed by Wm. A. Disque, Examiner, filed May 5, 1938; Report and order of the Commission filed and entered November 7, 1938; and Order of the Commission entered March 6, 1939, in Docket No. 27844, Arthur W. Mitchell v. Chicago, Rock Island & Pacific Railway Company et al., the originals of which are now on file and of record in the office of this Commission. In Witness Whereof I have hereunto set my hand and affixed the Seal of said Commission this 15th day of Sep tember, A. D. 1939. W. P. Bartel, Secretary of the Interstate Commerce Commission. (Seal.) y [fols. 140-149] Complaint omitted. Printed side page 7 ante. [fol. 150] B efore I nterstate C ommerce C ommission Docket No. 27844 A rth u r W. M itch ell vs. T he C hicago, R ock I sland and P acific R ailw ay C om pany , (F. 0. Lowden, J. E. Gorman and J. B. Fleming, Trus tees), et al. Chicago, Illinois, March 7, 1938. 10 a. m. Before W. A. Disque, Examiner Met pursuant to notice. Appearances: Richard E. Westbrooks, 3000 South State Street, Chicago, Illinois, appearing for complainant. Arthur W. Mitchell, 3000 South State Street, Chicago, Illinois, complainant, appearing pro se. Daniel Taylor and Wallace T. Hughes, 1025 LaSalle Street Station, Chicago, Illinois; appearing for the Chi cago, Rock Island and Pacific Railway Company (Frank 67 0. Lowden, James E. Gorman, and Joseph P. Fleming, Trustee). Erwin W. Roemer, Charles S. Williston, and Lowell M. Greenlaw, 79 East Adams Street, Chicago, Illinois, appear ing for The Pullman Company. [fol. 151] H. J. Deany and R. Mitten, 135 East 11th Place, Chicago, Illinois, appearing for Illinois Central Railroad Company. [fols. 152-153] Proceedings Exam. Disque: Come to order, please. The Interstate Commerce Commission has assigned for hearing at this time and place, Docket No. 27844, Arthur W. Mitchell against Frank 0. Lowden, et al., Trustees of The Chicago, Rock Island & Pacific Railway Company, and other carriers. Who appears for complainant? Mr. Westbrooks: Richard E. Westbrooks, for the com plainant ; and Arthur W. Mitchell, pro se. Exam. Disque: Who appears for defendants? Mr. Hughes: Daniel Taylor and Wallace T. Hughes, 1025 LaSalle Street Station, Chicago, for The Chicago, Rock Island & Pacific Railway Company, Frank O. Lowden, James E. Gorman, and Joseph B. Fleming, Trustees. Mr. Roemer: Erwin W. Roemer, Lowell M. Greenlaw, and Charles S. Williston, Chicago, Illinois, appearing for The Pullman Company. Mr. Deany: H. J. Deany, and Robert Mitten, Chicago, Illinois, appearing for the Illinois Central Railroad Com pany. Exam. Disque: Does anyone else appear? (No response.) Exam. Disque: You may proceed, Mr. Westbrooks. Mr. Westbrooks: First, before we proceed, if the Exam iner please, I presume that it is proper and fitting, for the purpose of the record if nothing more, that I call your [fol. 154] attention to the fact that I have received for the first time a copy of the answer of The Pullman Company, and we are making no objection on account of receiving it now for the first time. I want the record to show that. Exam. Disque: You mean, you just received it today? 68 Mr. Westbrooks: Just received it today. Exam. Disque: All right. Mr. Westbrooks: At the hearing here. With respect to the answer of Frank 0. Lowden, James E. Gorman, and Joseph B. Fleming, as Trustees of the estate of The Chicago, Rock Island and Pacific Railway Company, I want to make a motion to strike their answer. Now, I appreciate that these hearings are not to a great degree, technical, but that they are somewhat informal. However, under the pleadings prescribed by this Commis sion, I think that they have failed to conform. I particularly refer to page 43 of the rules of the Com mission, promulgated and revised April 1, 1936,—that is, page 23, paragraph (d), which says: “ All answers should be so drawn as fully and completely to advise the parties and the Commission of the nature of the defense, and should admit or deny specifically and in detail each material allegation of the pleading answered.” Section (e) which should be read in connection Avith Sec- [fol. 155] tion (d), concerning ansAvers, of the rules of practice, is entitled “ Denials of violations of Section 2 or 3 ’ ’— that is, of the act. It provides: “ An ansAver denying that an alleged discrimination is unjust, under Section 2 of the act, or that an alleged preference or prejudice is undue, or unreasonable, under Section 3 of the act, should state fully the grounds relied upon in making such denial.” N oav, as I said, it is not merely for technical reasons, but I do not think that the Lowden answer complies, or attempts to comply with fully giving their defense. Now, the ansAver, of course, speaks for itself, and I presume that rather than to— it is only for the purpose of saving that point, that is, as to the insufficiency of the ansAver, that I desire to make that motion. Exam. Disque: All right. Mr. Westbrooks: Our motion is noted on the record. Exam. Disque: Your motion will be given consideration. We will proceed with the first witness. Mr. Greenlaw: If the Examiner please, may I state, if you please, in ansAver to the statement of the attorney for the complainant, concerning the answer of The Pullman 69 Company, that I hold in my hand our file copy of my letter of September 22nd, addressed to Mr. Arthur W. Mitchell, and Mr. Richard E. Westbrooks, 417 East 47th Street, Chi- [fol. 156] cago, stating that I am enclosing a copy to each of them of the answer. That was the same date that the answer was filed with the Interstate Commerce Commission. In our letter to the Commission, I stated that copies were being served upon other parties. Possibly it may have gone astray in the mails, but I just wanted the record to show that the answer had been sent in due form. Exam. Disque: All right. Mr. Westbrooks: Now, I think that the issues here are very simple, as to whether or not the acts which we have alleged in our complaint, violated the sections of the Inter state Commerce act which we have alleged in our complaint. I do not think that there are any money demands asked, or any reparation for the violations; that is, the violation of the excess fare, charging a fare for first class service, and then the complainant only receiving that first class service a part cf the way, and being compelled to receive second class service from Memphis, Tennessee to Hot Springs, Arkansas, after having paid the first class fare. The second dlass accommodations, I believe, we have specifically described, as to the condition of the second class car, commonly called a Jim Crow car in the south. The issue here is as to whether or not they can compel a passenger who has paid the first class fare for accommo- [fol. 157] dations in interstate commerce to be—well, put out, thrown out, asked out, or removed, either way we want to put it, out of the first class accommodations, before he reaches the end of his journey, over his protests and against his will; and be compelled to continue to the end of his journey in second class accommodations and facilities. Now, we will proceed with the evidence. I think those are the issues, briefly stated. Call Congressman Mitchell. Exam, Disque: Be sworn, please, Congressman Mitchell. 70 A rthur W. M itchell was sworn and testified as follows: Direct examination. By Mr. Westbrooks: Q. State your name, please. A. Arthur W. Mitchell. Q. Your address? A. 3806 South Parkway, Chicago, is my home address. Q. What is your business, sir? A. I am a lawyer; at the present time member of the Congress of the United States. Q. And you have been a member of the Congress of the United States for how long, sir? A. Since—I took a seat in the Congress on the 3rd of January, 1935, and I have been a member since. I am now serving my second term in Congress. [fol. 158] Q. Calling your attention, sir, to April the 20th, 1937, did you have occasion to see, or were you in Chicago at that time? A. I was in Chicago on April 20th, 1937. I left Chicago the evening of April 20th on a trip to Hot Springs, Arkansas. Q. And did you make arrangements for that trip, sir, yourself in person? ' A. I did. Q. What arrangements did you make for the trip to Hot Springs? A. During the day of the 20th I believe— or the 19th, I called the Illinois Central office and made a reservation for the trip. I tried to get a bedroom, and they did not have a bed room that was going all the way to Hot Springs, that was not then engaged; but they did provide me with a bedroom over the Illinois Central to Memphis, Tennessee. I bought a first class ticket, a part of which ticket is here now, that I did not use, the return part of the ticket, after this thing happened. I have here the return part of the ticket that I bought to Hot Springs, Arkansas, from Chicago. Q. Now------ A. (Continuing) Then I bought the bedroom from here to Memphis, and I have the stub for that bedroom. Before I got to Memphis, I knew that the car that I was 71 in would not go to Hot Springs, but there was a car at tached to that train that I was informed would go to Hot Springs. [fol. 159] I had the porter of the particular car that was to go—that I was informed would go to Hot Springs, come back to my reservation on the car in which I had traveled to Memphis—or, I was at that time perhaps 8 or 10 miles out from Memphis; and he took my baggage, consisting of two suit cases, a large handbag, brief case and a small hand bag, raincoat, topcoat, and umbrella, and conveyed them up to a seat in the car that would go to Hot Springs, and assigned me to that car. Q. Now, may I ask you this question at this point, s ir : you paid for your railroad ticket, did you? A. Yes. Q. How much did you pay for your railroad ticket? A. I have the figures here. Q. What did it cost you? A. I find, taking the memorandum I made when I called up, that I paid $27.70 for the railroad ticket. Q. And did the Illinois Central agent from whom you purchased the ticket in Chicago here to Hot Springs, Ar kansas, inform you whether that was a first class or sec ond class ticket, sir? A. I called for a first class ticket, and this is what he gave me, and it is marked that way, “ First Class.” Q. That was a first class round trip ticket? A. Yes, sir. Q. From Chicago, Illinois, to Hot Springs, Arkansas? A. Yes, sir. [fol. 160] Q. And return. A. Yes. Q. By way of Memphis, Tennessee; is that correct? A. Yes, sir,—returning over the Rock Island and Illinois Central to Chicago. Mr. Westbrooks: I ask that the ticket be marked as exhibit No. 1 for the complainant. Exam. Disque: He has never turned that in, for a refund, has he? Mr. Westbrooks: No, he has not. We are still entitled to a refund. The Witness: I thought it was worth more in a hearing like this than it would be to turn it in. 72 Exam. Disque: Mark it Complainant’s Exhibit No. 1 for identification at this time. (Complainant’s Exhibit No. 1 marked for identification.) Mr. Westbrooks: Is there any objection? I show it to counsel. Is there any objection? Mr. Taylor: No objection. Mr. Westbrooks: I f there is no objection, if the Exam iner please, I offer in evidence Complainant’s Exhibit 1. The Witness: I have a photostatic copy of that. Mr. Westbrooks: I will ask leave to file a photostatic copy in lieu of the original, and withdraw the original at this time. [fol. 161] The Witness: This is a photostatic copy. Exam. Disque: Let us put the photostatic copy in, as the one for the record. Then you can keep your own ticket. Mr. Westbrooks: Is there any objection to the photostatic copy? Mr. Hughes: No. Exam. Disque: It is received as Complainant’s Exhibit No. 1. (Complainant’s Exhibit No. 1, witness Mitchell, received in evidence.) Mr. Westbrooks: This original having been admitted, I ask leave to withdraw it and substitute a photostatic copy therefor. Exam. Disque: No, you have offered the copy now, as I understand it. Mr. Westbrooks: Yes. Exam. Disque: That will be the one that will go into the record. By Mr. Westbrooks: Q. Now, then, the Pullman ticket: referring to the Pull man ticket, which you purchased, sir, do you recall what you paid for that ticket? A. I paid for the Pullman ticket, $7.50, and then I had to pay an additional $1.65 because I occupied this room alone. Q. I see. Now, then, that was paid also at the Illinois Central station------ [fol. 162] A. Yes, sir. 7 3 Q. —here in Chicago, was it? A. Yes, sir. Q. A total of how much? A. The total amount paid was $36.85. Q. And that was to the ticket agent here, at the Illinois Central station, in Chicago? A. Yes, and those are his figures, made on this envelope. This is the envelope he gave me at the time when I made the purchase. Those are his figures. Mr. Westbrooks: Mark this for identification, please, Complainant’s Exhibit 2. (Complainant’s Exhibit No. 2 marked for identification.) Mr. Westbrooks: I am introducing now stub for Pullman accommodations from Chicago to Memphis, Tennessee— just a moment. I wanted to call attention to the number of the ticket. By Mr. Westbrooks: Q. The original railroad ticket is No. C-2649? A. Yes, sir. Q. Showing the unused portion of the ticket from Mem phis back to—from Hot Springs to Memphis, and Memphis to Chicago? A. That is the unused portion, yes. Mr. Westbrooks: This Pullman ticket is No. 0-5, it looks like—0-51, or 951------ [fol. 163] Mr. Greenlaw: 951. Mr. Westbrooks: 951, from Chicago to Memphis, com partment C, car 227, for one passenger, marked April 20th, 1937, from Chicago. I now offer in evidence, if there is no objection, a photo- static copy. Have you a photostatic copy of that? The Witness: Yes, sir, I have a photostatic copy of that. These exhibits go to Washington, as I understand it. Exam. Disque: Yes. When anything once gets into the record, it has to stay there, for our permanent record. (Complainant’s Exhibit No. 2, witness Mitchell, received in evidence.) 7 4 By Mr. Westbrooks: Q. When you said, a1 bedroom, that was compartment C, as indicated by this ticket? A. Yes. I refer to a compartment, not a bedroom. There is a difference between a bedroom and a compartment. Q. Yes. A. This happens to have been a compartment. Q. Yes. A. (Continuing:) And I think it is so marked on the memorandum that I used—let me see that just a moment, please. You can see it is marked ‘ ‘ Compartment C, Car 277, Illinois Central Railroad.” Then, they charged me $1.65, and the round trip ticket of $27.70. This is the memorandum I made over the telephone. By Mr. Greenlaw : Q. That is, the railroad ticket? [fol. 164] A. Yes, sir. Those fi gures were made before I came down to pick up my reservation; made in my office here. By Mr. Westbrooks: Q. Now, sir, after you had paid, at the Illinois Central Railroad station here, for your Pullman accommodation and your railroad ticket, did you occupy that Pullman— you occupied that compartment you said as far as Memphis — or as far as near Memphis, Tennessee? A. Yes. I would say I occupied it to within 5 or 6 miles, maybe 10 miles, of Memphis. Q. Were other first class passengers riding in that Pull man? A. Oh, yes, there were other passengers who had space in the same car. Q. Now, then, you said that just before you reached Memphis, I believe, something happened. What did you say happened? A. I had the porter of this car—I talked with him, and I knew this car was not going through to Hot Springs, but there was a car that would go through attached to this train; I asked him to get the porter of that car that would go through to Hot Springs, and have him come back and let me make a reservation. 7 5 He told me that car would be in charge of that porter; there was no Pullman conductor that would go through on this train. This porter did come back—oh, I should say anyway 7 or 8 or maybe 10 miles out from Memphis, and he said [fol. 165] they had plenty of space in the car; he made two or three trips and conveyed all of my baggage to this car; and then took me to the car and assigned me space which he told me I could occupy; and he said he would pick up the fare as soon as we left Memphis. Q. Now, then, you left Chicago what time on that date, sir? A. 6 :05, I believe was the time. That is the time I have designated here. I am not sure about the time. Q. 6:05? A. In the afternoon. Q. On Train No. 3, leaving here at 6.05 p. m. A. Yes, sir. Q. And you arrived at Memphis, Tennessee, the next morning about when? A. Somewhere around 8 :00 o ’clock. Q. About 8:00 or 8:20 on train daily No. 3, called the Louisiane? A. Yes, sir. Mr. Westbrooks: Mr. Reporter, please mark this Com plainant’s Exhibit No. 3 for identification. (Complainant’s Exhibit No. 3, marked for identification.) By Mr. Westbrooks: Q. I will show you Complainant’s Exhibit No. 3 for identification. Is that one of the folders which you received at the Illinois Central Station at the time you bought your tickets ? [fol. 166] A. I received a folder like this. I did not mark it. I could not designate it as being exactly the one, but I received one that was given me, the time table that was given me at that time. Q. A time table? A. Yes, sir. Q. And this is for December 31, 1936. A. Yes, sir. 7 6 Mr. Westbrooks: I will ask to have this marked in evi dence as Complainant’s Exhibit No. 3, for the purpose of showing train daily No. 3, called the Louisiane, as the train leaving Chicago, that has been referred to. Mr. Taylor: No objection. Mr. Roemer: No objection. Mr. Westbrooks: I offer in evidence Complainant’s Ex hibit No. 3, to show that this is the time table, issued Decem ber 31, 1936, of the Illinois Central System, showing that there was a train leaving at 6 :05 called the daily Louisiane, Chicago to Little Rock and Hot Springs. Exam. Disque: Just a moment. Exhibit 3 is received in evidence. (Complainant’s Exhibit No. 3, witness Mitchell, received in evidence.) Mr. Westbrooks (Continuing): It is mentioned on page 2, of this Complainant’s Exhibit 3, showing that it leaves, [fol. 167] 6:05, Chicago, Illinois, and arrives in Memphis, Tennessee at 8 :20, and that it connects with the Chicago, Rock Island & Pacific at Memphis, Tennessee, train 45, at 8 :30 a. m., due in Hot Springs, Arkansas at 1 :05 p. m. Now, it also shows, and I am particularly calling atten tion to page 5 of this Louisiane time table, which shows the passenger train equipment. It shows that there were sleepers, Chicago to New Orleans and Houston, Texas; a 10-section drawing room, connecting with S. P. No. 3, New Orleans to Houston; Chicago to Hot Springs, Arkansas, a 10-section, 2-compartment drawing room which connects with Rock Island No. 45 at Memphis, Tennessee, to Hot Springs, Arkansas; also Cincinnati & Louisville to New Orleans, a 10-section, 2-compartment drawing room, connecting with B. & 0. No. 63 at Cincinnati, to Louisville, and 103, Louisville to Memphis, No. 3 to New Orleans; Louisville to Paducah, Kentucky, a 12-section drawing room. It also shows that this train had diners, air-conditioned, and that the regularly-assigned cars as described in this train, were air-conditioned; diners from Chicago to Carbon- dale, Illinois, and Pulton, Kentucky to New Orleans. There was a buffet-lounge car, air-conditioned, radio, Chicago to New Orleans; chair cars, air-conditioned, Chi cago to New Orleans; and coaches, air-conditioned. 7 7 By Mr. Westbrooks: [fol. 168] Q. Well, now, you said you were in one of these cars, these Pullman cars, first class accommodation, out of Chicago, in accordance with the ticket which you had? A. Yes, sir. Q. (Continuing:) And the extra fare which you paid, to occupy that compartment as one passenger? A. Yes, sir. Q. Now, then, after the porter—you said the porter moved your luggage ? A. Yes, sir. Q. From the Pullman car in which you were riding, to another Pullman car on that train ? A. Yes, sir. Q. Which was going to Hot Springs, Arkansas. A. Yes, sir. Q. The Pullman which your baggage was moved into just before you reached Memphis: will you describe that, sir? A. Describe the car?, Q. Yes, describe the car. A. Well, it was just an ordinary Pullman car. I think you read a description of the cars, a moment ago, when you were reading from the booklet. It had several sections, and a drawing room, I know; I don’t know how many, but I know it had one. It had a smoker for the men; running water. I went into the smoker, and smoked, and it had all of the [fol. 169] accommodations, it seemed to me that a Pullman car, any Pullman car ordinarily has, except I don’t think it had bedrooms, except it had sections. Q. I see. Now, what about the upholstery in the two Pullman cars in which you rode? A. The upholstering in the Pullman car to which I was transferred compared favorably with the upholstering of the Pullman car that I was transferred from. Q. Was the upholstering clean? A. It was. It had clean linen, and everything in the way of accommodations that Pullman cars ordinarily carry. Q. Porter service? A. Yes, sir. Q. In both of the Pullmans? A. Both had porter service, and were both air-condi tioned. 7 8 Q. Both air-conditioned. A. Yes, sir. Q. And with soap—what kind of soap ? A. They were equipped with soap, as Pullman cars ordi narily are. Q. Of high quality? A. High quality. I don’t think the Pullman Company uses other than that. Q. And was there------ Mr. Taylor: Unless he is an expert on soap, your Honor, [fol. 170] how does he know? Mr. Roemer: We do not object, your Honor; the Pull man Company is not objecting. By Mr. Westbrooks: Q. Now, the toilets were clean? A. Yes, sir. Q. Running water? A. The toilets were clean, and had running water, yes, sir. Q. What about the wash bowls ? A. They were supplied—those Pullman cars were both equipped with washbowls and clean towels. Q. Hot and cold water? A. Mirrors; hot and cold water. Q. What about the flushing, the water for flushing pur poses in the toilets of the two Pullman cars in which you were ? A. Why, I would say that they both were properly equipped for that purpose. Q. With plenty of water for flushing purposes? A. I use Pullman cars quite often, and they were equipped the same as all Pullman cars I have had occasion to use. Q. What about disinfectant in the toilets ? A. Well, there were no obnoxious odors; they were prop erly disinfected, if I were to judge from the absence of obnoxious odors. Q. Now, you said you changed into this Pullman car, and you rode into Memphis, Tennessee, in this Pullman car, the [fol. 171] car designated for Hot Springs, Arkansas? A. Yes, sir. Q. Then, what happened, if anything? A. Well, nothing happened until after we left Memphis. 79 Q. All right. A. After we left Memphis, and had gotten a little dis tance, the conductor, the train conductor and the Pullman porter came to me together; and when I offered my ticket, the train conductor took my ticket and tore off a piece of it, but told me at that time that I couldn’t ride in that car. He first spoke to the Pullman porter; he said, “ This man can’t ride in this car.” Q. That is, the train conductor on the Rock Island? A. Yes, sir. Q. That is, leaving Memphis? A. Yes, sir. Q. Having left Memphis, Tennessee, you crossed into Arkansas ? A. Yes, we were in Arkansas; we had crossed the river, I believe, when this took place. Q. Yes. A. (Continuing) We had gone maybe a distance of 4 or 5, or maybe 6 or 7 miles; about the time for him to come on and pick up tickets. We had quite a little controversy about it, and when he said I couldn’t ride there I thought it might do some good for me to tell him who I was. I said, [fol. 172] “ I am Mr. Mitchell, serving in the Congress of the United States.” He said it didn’t make a damn bit of difference who I was, that as long as I was a nigger I couldn’t ride in that car. Q. Did you say, the porter was in charge? A. The porter—the Pullman porter was doing all he could to make it so that I could ride in the car. He even went—after the conductor and I had had a squabble that lasted I would say three or four, or maybe five minutes, in a very arrogant and nasty manner, and he told me that I had better get out of that car, and had better be gone when he came back, for a moment I decided that I wouldn’t go, that I would let them put me in jail down there and see how the thing would finally come out. But I happened to think that I was in Arkansas, and sometimes they don’t keep them in jail for trial down there, but they take them out and lynch them after they put them in ja il; so I thought maybe I had better not; being the only negro in Congress, that I had better not be lynched on that trip. So I then held my seat until the porter came back again, and I said to the porter, “ Well, suppose you go up and talk 8 0 with the conductor, and see if you can’t arrange for me to ride in the smoking car. There is nobody occupying it.” Q. In the Pullman car, do you mean! A. In the smoker of the Pullman car; that there was nobody in it. And there was at least several places—I would say there were at least four or five sections,—that [fol. 173] meant, the seats turning front and back—that nobody occupied. Q. With no passengers in them? A. No passengers,—except the baggage. Q. Yes. A. And one or two other people. There was a white man to the right of me, and in front of me, riding there, who gave some attention to this little fracas, but he didn’t say anything about it. Q. And it was in the presence of those other passengers that this conductor used that language? A. Yes. The other passengers heard and saw the little controversy that was going on, and they were watching, looking on with interest; but the car was not crowded. And then I rode until we got, I would say, 10 or 15 miles, probably, up the road; and the Pullman porter came back and said, “ Well, I just can’t do anything with this man. He says, you can’t ride” ------ Q. Referring to the conductor? A. Yes, sir. “ He says you can’t ride in the smoker.” And he said, “ I know who you are, and I hate to do it, but I am helpless.” And I told him,—I said, “ I think I should let them put me in ja il” —the conductor had told me, “ In Arkansas, they will put both of us in jail and fine us $50 apiece.” I said to him, “ I have my $50, and I hope you have yours, because I don’t mind going to jail about a matter like this, [fol. 174] if you insist I must go.” Now, when I went out of this car, after we had gone a certain distance, and the Pullman porter was terribly ex cited himself about it, I decided that I would go up into the Jim Crow car, and I did; but my baggage went to Hot Springs in this Pullman car. I couldn’t go in it, but my baggage, my overcoat—that is, my topcoat, my raincoat, my umbrella, my brief case and all of my baggage went on to Plot Springs in this car. Q. Now------ A. It wasn’t transferred at all. 81 Q. Now, did the train conductor wlio had taken up part of your first class ticket, at any time offer to refund you any of the fare that you had paid for first class accom modations ? A. No. He kept—he had no business to take the ticket; he should have punched the ticket and left it with me; but he was excited, and tore a piece off of the ticket and kept it until we got half way, I would say, maybe half way to Little Rock. Then he came back and asked to see my ticket again, and with some hesitancy I showed it to him, and what he did was to pin back on my ticket the piece that he had torn o ff ; and he told me that I could get a refund on it. He said, ‘ ‘ Of course, this ticket .entitles you to have first class accommodations, but under the law of the state of [fol. 175] Arkansas, you can’t have them, and they have the right to give you hack the difference between the price of the ticket and a regular coach ticket.” And that piece of the ticket which he tore off, was taken up; they changed crews at Little Rock, and that piece of a ticket which he had torn off was again taken up after I left Little Rock. Q. Now, then, did you offer to pay for the extra accom modations, that is, the seat and the use of the Pullman car? A. Yes. I had the money in my hand when I offered the ticket, to pay for this Pullman accommodation, on to Hot Springs. Q. And they refused to accept it? A. Yes, sir. Q. Now, then, after he told you that there were no first class accommodations, but that it was a first class ticket, and you were entitled to first class accommodations, after you came into the state of Arkansas, what kind of accom modations did he tell you you could get,—the only kind ? A. He didn’t tell m e; he didn’t say anything about it. He told me that I would have to ride in the Jim Crow car. Q. Now------ A. (Continuing) He told me that before I left, before I left that Pullman. Q. Yes. Now, then, you protested about being put out of there, did you not? [fol. 176] A. Yes, sir, and he threatened to have me ar rested. 6—577 8 2 Q. Now, then, will yon describe this Jim Crow car that you have referred to, that you were compelled to complete your journey in? A. Yes. The Jim Crow car was an old car up next to the engine, in front of all the other passenger cars. As I re member it, was divided into three, or into two—either two or three compartments. A part of it was used for smoking passengers, a small section of it; separated by partitions, and by a door,—I don’t remember whether it was a swinging door, or just an ordinary door; and a separate section of this car was used for nonsmoking passengers, men and women. The car was in filthy condition. It was old and poorly ventilated; no linen of any kind; no running water; a filthy toilet that emitted obnoxious odors; no washbowl or any convenience where a man or woman could wash their hands; no towels or linen of any kind; and no soap. Q. And did you have------ A. (Continuing) And offensive-smelling spittoons. Part of this Jim Crow car was used by the conductor; he used two seats of it for his office. In fact he and his flagman, his white flagman, used two seats of that part—not the part that was set aside for smokers, but the part that was set aside for the nonsmoking passengers. He rode just across [fol. 177] the aisle from where I sat all the way into—this same conductor, all the way to Little Rock. Q. Now, what about the ventilation in the Jim Crow car? A. Well, the ventilation was the type that they had in the old-fashioned cars. You could get ventilation—they had some arrangement for ventilation at the top. Q. Well, was it well-ventilated; was it air-conditioned? A. Oh, no. Q. Well, was there------ A. (Continuing) It wasn’t air-conditioned at all. It was merely—that car was built before they knew anything about air-conditioned cars, I think. Q. Now, then, was there any hot and cold water for use in that part of the car, in the Jim Crow car, where you were compelled to ride? A. No, sir, there was not. Q. Was there any water for flushing the toilet? A. If there was, the toilet was out of commission, and it could not be flushed that morning, because it was giving off a terrible odor. 83 It might have been due to something caught up above, I don’t want to say it wasn’t; my recollection isn’t clear on that, but I know it wasn’t possible to flush it that morn ing. Q. Well, can you state what was the condition—after you entered this Jim Crow car, was the toilet flushed or cleaned [fol. 178] out at all, from the time you went in there? A. It was not. Q. And it was filled with offal, was it? A. Yes, sir. Q. Were there ladies in that portion of the Jim Crow car where you were ? A. There was one or two ladies who got on at different points, got on and off that train. This little Jim Crow sec tion wasn’t crowded at any time. Q. Well, did they have any separate toilets for men and for women in this Jim Crow car, which colored ladies and colored gentlemen could use ? A. I believe in this one they did. Ordinarily they do not. In a great many of them, in the south, they do not have them separated. I was down south two weeks ago— — Mr. Taylor: If the Examiner please, I object. Exam. Disque: Yes. Mr. Taylor: Let him confine himself to this transaction. Exam. Disque: Tell us about this one. Mr. Westbrooks: Yes. A. (Continuing) As to this one, I am not certain whether there were two toilets, or one. I know there was only one in the compartment where I was riding. By Mr. Westbrook: Q. One. A. There might have been one in the little section set off [fol. 179] for smoking passengers. Q. I mean in this compartment where ladies were riding. A. There was only one toilet in that compartment. Q. Now, this smoking compartment, this other compart ment, you say, of this same car—that part of this car, you stated, was used as a smoker? A. Yes, sir. Q. For white or colored passengers? A. Colored. 84 Q. And you were----- A. Of course there were white in it, too, but I think the purpose of it was—it was designated for colored, hut there were white riding in it. Q. Did they have any signs in this portion of the car that you were riding in “ For Colored” or “ For Negroes” ? A. I think they had a sign “ For Colored.” Q. I see. Now, then, you said that this train conductor had charge of that train ? A. Yes. Q. From Memphis to------ A. Little Rock. Q. —to Little Rock. A. Yes, sir. Mr. Westbrooks: Mr. Reporter, please mark this Com plainant’s Exhibit 4 for identification. [fol. 180] (Complainant’s Exhibit No. 4 marked for iden tification.) By Mr. Westbrooks: Q. Now, then, showing you Complainant’s Exhibit 4 for identification, purporting to be a time table, Rock Island time table, corrected January 24th, 1937; I will ask you if that is one of the Rock Island folders which you used, or which you received from the Rock Island? A. Yes, sir. Q. Covering that train service ? A. Yes, sir. Mr. Westbrooks: Is there any objection to this Rock Is land folder? Mr. Taylor: No, none. Mr. Westbrooks: There being no objection, I offer in evi dence as Complainant’s Exhibit No. 4, Rock Island time table. The exhibit shows on, page 6, equipment of through cars. Exam. Disque: Complainant’s Exhibit No. 4 is received in evidence. (Complainant’s Exhibit No. 4, witness Mitchell, received in evidence.) By Mr. Westbrook: Q. Calling your attention to page 6 of this exhibit,— equipment, through cars—it shows on this train 45, called 8 5 the Chicago-Hot Springs Limited, which was referred to in exhibit 3, of the Illinois Central, daily observation parlor car. It shows observation parlor car from Memphis to Hot [fol. 181] Springs. Were you permitted to ride in that observation parlor car, sir? A. I was not. Q. You had the fare? A. Yes, sir. Q. And you were ready to pay for it, were you, sir ? A. I was ready to pay for it, yes, sir; I offered to pay for it. Q. You were ready, willing and able to pay? A. Yes, sir. Q. To ride in the first-class coaches or cars? A. Yes, sir. Q. You saw other first-class passengers riding in them, did you ? A. Yes, sir. Q. What were they, colored, or white? A. White. Q. Did you see any colored people at all riding in that observation car as passengers? A. I did not. Q. Now, they have a sleeping car, Memphis to Hot Springs, 10 sections, one drawing room and two compart ments, from Chicago, Illinois Central No. 3. That was the car you were requested by the conductor, to move from ; is that correct? [fol. 182] A. That is the car I was ejected from. Q. Did you see any colored people riding as passengers in that car, sir? A. No, sir, I was told by the conductor that they could not ride in it, and because I was colored, I could not tide in it. Q. And was that the only reason he told you you could not ride in there? A. Yes, sir. Q. Because you were colored? A. Absolutely. Q. Now, then------ A. (Continuing) Well, he said this; he said “ The law of Arkansas has made it a crime for a negro to ride in a car of that type, in the presence of white people” ; and that they would have to ride in compartments, or in drawing rooms; 86 that they couldn’t ride in the car. This car that I was in, as a further description of it------ Q. You mean, the sleeping car, now? A. Yes. Q. Yes. A. From which I was ejected. Q. Yes. A. (Continuing) —was of the modern type, with those separations between the sections. It was not the old type, where they used to put up ordinary wooden boards between [fol. 183] the sections when they got ready to make down the berths. It was one of the modern steel cars, with these sec tions that stay permanently fixed, with these separations, or those partitions, that are permanently fixed between the sections; and I always rode in a section. I was trying to buy a section at the time when they ejected me, so I wouldn’t have contact with anybody else. Q. Now, after you said you told him that you were ready to pay the difference for the accommodations in the smoker of this particular car------ Mr. Taylor: If the Examiner please, I hate to annoy counsel, but I would like to suggest, it appears to me that he has been doing a good deal of testifying as we go along. I think it would he better, if he would put his questions in question form, and let the witness answer them. Mr. Westbrooks: I agree with counsel, and there will be no objection to that. By Mr. Westbrooks: Q. Now, then, as to the coach from Chicago to Memphis, on the Illinois Central, No. 3, and from Memphis to Hot Springs; that was on car 45, equipment on car 45 ? A. Train 45, you mean. Q. Train 45. A. Yes, sir. Q. Yes. Now, calling your attention to page 12 of Com plainant’s Exhibit No. 4 ,1 wish to—that is, page 12, which is [fol. 184] entitled, “ Changing class of tickets” , it says: “ Passengers holding coach tickets (not special coach) who desire to use sleeping car or parlor car may have their rail tickets made valid for passage in sleeping cars or 87 parlor cars, on payment of difference between the one way first-class rail fare and the one way coach fare applying between the points between which sleeping or parlor car service is available of. “ Approximately the same charge will be made on in termediate class tickets, when standard sleeping cars, or parlor cars are used. “ In addition, passengers will be charged the sleeping car or parlor car rate for the space occupied. “ Tickets designated ‘ special coach’ will not be honored in sleeping cars or parlor cars, under any circumstances.” Calling your attention to page 24, of this table No. 5, Complainant’s Exhibit No. 4, it shows this train that left Memphis at 8 :30 in the morning 45-51, advertised as “ Route of the Memphis-Californian” was, a through train from Memphis, Tennessee, through Little Rock, Oklahoma City, Amarillo, Tucumcari, El Paso, Los Angeles. You reached—you arrived at Hot Springs about what time that next day, sir? A. Sometime around 1 :00 o ’clock in the afternoon. Q. About 1:05, was it? [fol. 185] A. Yes, sir. Q. This exhibit No. 4 shows this train leaving Memphis at 8 :30 a. m., arriving at 1 :05 at Hot Springs, Arkansas. Now, calling your attention to page 32 of your exhibit No. 4 of the complainant, it also again mentions changing the class of tickets from a coach ticket to a first class ticket by paying the difference in fare, and reads as follows: “ Changing class of tickets. “ Passengers holding coach tickets (not special coach) who desire to use sleeping car” —I believe that is the same as was read heretofore. I am calling attention to that to show the two different classes of tickets used at that time. A. Also on page 33—may I interrupt ? Exam. Disque: Yes. Mr. Westbrooks: Just a moment, please. The Witness: I beg your pardon. By Mr. Westbrooks: Q. (Continuing) Now, calling your attention to Pullman car rates on page 33, it provides that if a person has only 8 8 one ticket, there is an extra fare, or that is, an additional charge for the occupancy of a compartment. The sleeping car fares on page 33, that I call attention to, are advertised in this complainant’s exhibit 4. Now, sir, state what was the condition of your health at that time, that you were ejected from this sleeping car, [fol. 186] this first-class coach. Mr. Taylor: Just a moment. That is objected to as im material, incompetent and irrelevant. Mr. Westbrooks: Well, it is all competent, material and relevant, if the Examiner please, in showing the utter dis regard of the rights of passengers. It is the duty under the law of common carriers to pro tect equal facilities and comforts for their passengers—or rather to provide equal facilities and comforts for their passengers. This was an interstate passenger, in a very poor condition of health at that time, which was known to the conductor, who ejected him out of this comfortable first-class car and put him in this Jim Crow car, coach, where coach fares were paid,—as has been testified to by the witness. Exam. Disque: You are not going into it in any detail, are you? Mr. Westbrooks: No, no. Exam. Disque: He may answer that question. A. Well, I was sick. I had been advised by my physician that I was suffering from low blood pressure; and we had been in a terrible fight in Washington, over the passage of the anti-lynching bill, and I had asked to go away, to build up my health, and I Avas going to Hot Springs for that purpose. I was sick at the time, when I left Washington, and the [fol. 187] records there will show that I was excused from Washington because of illness. By Mr. Westbrooks: Q. Now, did you inform the conductor at the time he told you to leave the car— A. Yes, sir. Q. — of your illness? A. Yes, sir. Q. Now, after you arrived in Hot Springs in the Jim Crow car, second-class, after you had paid your first-class fare, 8 9 did you liave occasion to go to the station at any other time and see this particular train, that is, this train No. 45? A. I did. Q. (Continuing) Arrive there? A. I was in Hot Springs for about 16 or 17 days, and I went down and looked at that train a half a dozen times or more during the time that I was in Hot Springs. I would see it come in—it was sort of a custom to go down, of the patients at the Hotel, and the bath house where I was stopping,—and to spend part of the time by going down to meet this train, and see who else came in, and that sort of thing; and I did it along with the rest. Q. Now, then, will you describe—you saw the Pullman cars, first-class cars as they came in on that train, did you ? A. Yes, sir. Q. And did you see any colored people riding as passen- [fol. 188] gers in those first-class cars, Pullman cars? A. I did not. I did not see any colored people riding as passengers on the Eock Island. They refused me a ticket over the Eock Island, to go back. That is why this ticket was not used. I came back over the Missouri Pacific. I tried to get Pullman accommodations in Hot Springs, to come back here, so that I would not—I had this ticket photo stated, and wanted to use the ticket, but they would not sell me accommodations out of Hot Springs to Chicago, Pull man accommodations, when I got ready to return. Q. Was that at the Eock Island station? A. Well------ Q. Or what station? A. I don’t know whether it is the Eock Island station or not, but it is where the tickets—it is where the Eock Island trains come in and go out. Q. Well------ A. I don’t know------ Q. Where they sell and buy Eock Island tickets ? A. Yes, sir. Q. And also they have Pullman tickets for sale at that same place? A. Well------ Q. Over the Eock Island? A. I presume they do. They didn’t sell me one; they said [fol. 189] they wouldn’t do it. Q. Well, now, what was the condition of the car that you saw the colored passengers riding in? 9 0 A. Why, it was about the same as the one that I de scribed, the car which I spoke of, which was a small section of—what I would call an antiquated railroad car, used for a diversity of purposes. Q. Now, about the upholstering? Did you describe the upholstering? A. I would describe the upholstering as being poor and worn; and no towels. In the first-class car they have white towels that are on the back of the seats; they have them in all of the Pullmans that I have ever used, and they have them in some of the coaches; but they don’t have anything like that in the Jim Crow cars. In fact, there is no effort made by the railroad to give the negroes equal accomodations. Q. And you saw that same Jim Crow car,—that is, the same kind of a Jim Crow car, coming in on that train. A. Yes, sir. Q. During each day ? A. I have been seeing it for 25 years, and there has been no change worth speaking of in it. And not only have I been there and seen it, but I have [fol. 190] been riding in it for that length of time; I rode in it two weeks ago. Mr. Westbrooks: Now, there is a difference in the coach fare and the first-class fare. I am sure the Commission takes judicial notice of the difference in the coach fare and the first-class fare. That is what you take judicial notice of, because you fix the rates, and it needs no proof. By Mr. Westbrooks: Q. Now, there is a suit pending in the Circuit Court of Cook County, Illinois, against these defendants, Mr. Witness, is there not? A. Yes, sir. Q. That is, you filed a suit? A. Yes, sir, I filed suit against these defendants in the Circuit Court of Cook County, before this petition was filed. Q. Yes, and answers—that was before the petition. A. Yes. Q. And answers have been filed ? A. They have. 91 Q. By each of the parties? A. Yes, sir. Q. Now, then, calling your attention to the answer, the separate answer of Frank 0. Lowden, James E. Gorman and Joseph B. Fleming, Trustees of the estate of The Chicago, Bock Island & Pacific Railway Company, a corporation, in the suit of Arthur W. Mitchell, plaintiff, versus Frank 0. [fol. 191] Lowden, James E. Gorman, and Joseph B. Flem ing, Trustees of the estate of The Chicago Rock Island & Pacific Railway Company, a corporation; Illinois Central Railroad Company, a corporation; and The Pullman Com pany, a corporation, defendants, No. 37-C-5529, at law—just a moment. Please mark this for identification Complainant’s Ex hibit No. 5. I will ask you to look at that answer. Did you examine the original answer on file in the Circuit Court of Cook County, sir? A. You are referring to the answer made by------ Q. Frank 0. Lowden? A. The Rock Island? Q. Yes. A. I did. Q. Did you compare it with this carbon copy? A. Yes, sir. Q. That was filed also------ A. Yes, sir. Q. By the Rock Island? A. I did. Q. And are they identical, sir? A. They are identical. This is a correct copy of the original which is filed now in the Circuit Court of Cook County. [fol. 192] Mr. Westbrooks: Now, sir, I offer in evidence this document. Mr. Taylor: It is objected to on the ground that it is im material, irrelevant, incompetent, and not within the issues made by this petition. Mr. Westbrooks: Is there any objection to my answering counsel? It is against the Lowden interests. Now, it is relevant and material because the same issues are involved, and under oath, this would be a duplicate original. 92 It is signed and sworn to by Charles E. Mekota, who says that he is general claim agent of this defendant, which is here now; and he makes oath that he is authorized by the trustees to make this affidavit; that he has read the answer, and knows the contents thereof; he has made an investiga tion of the facts, and the same are true, except those on information and belief. Therefore, this answer is pertinent to the issues involved in this case. Exam. Disque: Let me see it. Mr. Westbrooks: I offer it in evidence. Exam. Disque: We will take a few minutes recess. (A short recess was taken.) Exam. Disque: Come to order, please. Mr. Westbrooks: If the Examiner please, it is agreed and stipulated by and between the Rock Island Railway—or [fol. 193] the group of defendants known as Frank 0. Lowden, James E. Gorman, and Joseph B. Fleming, which we will call the Rock Island, for convenience, and the com plainant, that paragraphs 16, 17 and 18 of the answer, the verified answer filed by this defendant in the Circuit Court of Cook County, Illinois, may be read into the proceeding. Is that correct? Mr. Taylor: Yes. Exam. Disque: That means that you are not offering, then, the exhibit which you did offer before recess? Mr. Westbrooks: This is a part of that exhibit. Exam. Disque: You are withdrawing the exhibit? Mr. Westbrooks: I am withdrawing the exhibit for the purpose of—that is, I am only offering this part of it. The exhibit has been identified. It is a part of the exhibit. Paragraph 16, reads: “ These defendants further state that the Pullman car which the train conductor requested the plaintiff to vacate, and which the plaintiff did vacate in obedience to the re quest of said train conductor, except for the drawing rooms and compartments therein, was at the time assigned to and occupied by passengers of the white race, and that the draw ing rooms and other compartments of said Pullman car to which the plaintiff might have been assigned, were wholly occupied by other passengers; and the train conductor was [fol. 194] required by the laws of the state of Arkansas, 9 3 and under penalty thereof, to assign the plaintiff, who, these defendants allege on information and belief is a person ‘ in whom there is a visible and distinct admixture of African blood’ ” ------ That “ ‘ in whom’ ” was in quotation marks, down to “ ‘ blood’. ” “ —to the car or coach set apart for persons of his race.” That is paragraph 16. Now, paragraph 17: “ These defendants state that the acts and conduct of the train conductor in requesting and directing that the plain tiff vacate said Pullman car, and that he occupy the coach set apart for persons of his race, were in pursuance of the power conferred on him by, and in obedience to, the require ment and command of the Separate Coach Law of the State of Arkansas, hereinabove mentioned and set forth.” Paragraph 18: “ These defendants admit that the railway fare charged passengers who ride in Pullman cars is in excess of the fare charged passengers who ride in coaches; and that there is now due to plaintiff the difference in the railway fare paid by him for transportation from Memphis to Hot Springs, and the fare properly chargeable to him for that portion of his journey, when he was a passenger in the day coach of these defendants; and that said difference is the sum of $3.74, which amount these defendants herewith tender and [fol. 195] offer to repay to plaintiff, with lawful interest thereon. ’ ’ Now,------ The Witness: May I speak to him further, your Honor? Exam. Disque: Yes. (The witness conferred with counsel.) By Exam. Disque: Q. Have you stated, Mr. Mitchell, what accommodations you wanted in this Rock Island train? A. Well------ Q. Was it a seat in a drawing room, or a seat in a car, or what was it ? A. When this porter took me in there, the drawing room 9 4 was occupied to Memphis, and he told me, if the drawing room was not taken out of Memphis, he was going to give me the drawing room, but of course, I would have to pay that extra fare; and if it was, why, I could occupy the seats that he gave me. I guess I rode 8 or 10 miles in the car before I got to Memphis, with my baggage, in a double seat,—or at least, that is, in a section. I don’t remember just what the number of the section was, but I stayed in that same section until I had gotten 8 or 10 or maybe 15 miles from Memphis, going toward Little Rock. Mr. Westbrooks: Now------ A. (Continuing) It wasn’t in the drawing room; it was one of those sections with the partitions extended, as these modern Pullman cars are built. [fol. 196] Q. Now, the Pullman Company is a defendant in the suit, 37-C 5529 in the Circuit Court; is that correct? A. They are. Q. You had occasion to examine the original answer, separate answer, filed by the Pullman Company in that suit, did you? A. Yes, sir. Q. And this is an exact copy of the same, is it? A. Yes, sir. Q. As examined by you? A. Yes, sir. Mr. Westbrooks: I ask that it be marked exhibit 6. Exam. Disque: You withdrew 5? Mr. Westbrooks: No, we withdrew only a portion of ex hibit 5. We left in the portion which I read into the record. Mr. Roemer: There is no exhibit 5. You have read some thing into the record. Exam. Disque: No. 5 is out. Mr. Roemer: No. 5 is withdrawn. Exam. Disque: We have not got it. Mr. Westbrooks: Well------ Exam. Disque: You withdrew exhibit 5, and never intro duced it. Mr. Westbrooks: It makes no difference whether we con sider that as part of exhibit 5, or as a matter of stipulation. 9 5 Mr. Taylor: Let me try to clear it up, if I may. [fol. 197] Mr. Westbrooks: Yes. Mr. Taylor: We stipulated that the entire answer of the Rock Island Railway Company and its trustees, would be withdrawn as an exhibit, but that you might read into the record as evidence in this case, paragraphs 16, 17 and 18 from the answer of the trustees of The Rock Island Rail way Company. Is that not right? Exam. Disque: That is the way I understand it. That means that exhibit No. 5 is withdrawn, and the new exhibit which you are now offering, is No. 5. Mr. Westbrooks: Well, it is in, sir; it answers the same purpose, so we will withdraw No. 5. Maybe we can save some time with The Pullman Com pany. There is only one paragraph, I believe, of that ex hibit, paragraph 16, of The Pullman Company’s answer. If they will stipulate—it is verified by Erwin W. Roemer; I believe Mr. Roemer is here, and I am quite sure------ Mr. Roemer: Just paragraph 16? Mr. Westbrooks: How? Mr. Roemer: Just paragraph 16? Mr. Westbrooks: Yes, just part of 16 here. This is the part that admits------ Mr. Roemer: Is that what you want us to admit? Mr. Westbrooks: I want to read this portion—yes. Mr. Roemer: If he wants us to admit that there were [fol. 198] vacant and unoccupied seats, we will do that. Mr. Westbrooks: Yes. Exam. Disque: All right. Mr. Westbrooks: It is admitted, then, by the defendant, The Pullman Company, by its counsel, that there were vacant and unoccupied seats in the Pullman car in question. Mr. Roemer: Right. Mr. Westbrooks: On the occasion in question. Mr. Roemer: Right. Air. Westbrooks: That is what they are admitting there. Now, if the Examiner please, the Illinois Central: maybe we can get an admission from them as to paragraph 18,— from the Illinois Central. Air. Atitten: Just a moment. Mr. Westbrooks: That is a verified complaint. The Witness: A verified answer. 9 6 Mr. Westbrooks: Or a verified answer, I mean, by one, Kopp. Referring to paragraph------ Mr. Mitten: What is the number of the paragraph? Mr. Roemer: 18, he said. Mr. Westbrooks: Paragraph 18 of the answer of the Illi nois Central, sir. Mr. Mitten: Do you want to read that in? Mr. Westbrooks: Let me see------ [fol. 199] Mr. Mitten: I f you want to read that whole paragraph in------ Mr. Westbrooks: No. Mr. Mitten: —we will be glad to allow it to go in. Mr. Westbrooks: No. Just a moment. I am going to see. The Illinois Central—this is the Illinois Central, is it not? Mr. Mitten: Yes. Mr. Westbrooks: You were not over there, so you cannot— just a moment. I will withdraw that, for the moment. Mr. Deany: We were not over where? Mr. Westbrooks: How? Mr. Deany: We were not over where? Mr. Westbrooks: In Arkansas, at the time in question. Mr. Deany: Right. (The witness left the stand and consulted with counsel.) Mr. Westbrooks: Now, I think that is all at the present time, if the Examiner please. Exam. Disque: Do you mean that you are through on direct ? Mr. Westbrooks: We are through with the direct testi mony. Exam. Disque: Cross-examine. Mr. Taylor: No cross-examination. Mr. Roemer: None. The Witness: No questions? [fol. 200] Exam. Disque: You are excused. The Witness: Thank you. (Witness excused.) Exam. Disque: Who is next? Mr. Westbrooks: Call Mr.------ Mr. Mitchell: Price. Mr. Westbrooks: Mr. Price. Exam. Disque: Be sworn. 97 T h o m as J. P rice , was sworn and testified as follows: Direct examination. By Mr. Westbrooks: Q. State your name. A. Thomas J. Price. Q. What is your address, sir? A. 3812 South Parkway, Chicago, Illinois. Q. How long have you lived in Chicago, Mr. Price? A. I have lived in Chicago about 10 years. Q. What is your business or profession, sir? A. I am a lawyer. Q. How long have you been an attorney, sir ? A. Pardon me? Q. How long have you been a lawyer, engaged in the practice of law? A. I have been a lawyer for 30 years. 20 years of that time, I spent in Little Rock, Arkansas. [fol. 201] Q. You have had occasion to use the Rock Is land System of transportation, have you? A. Yes, sir. I used to use scrip on the Rock Island. I had a newspaper that I was interested in, called the Arkan sas Times, and they used to pay that in exchange for ad vertising. Q. Now, then, are you familiar with the train that runs from Memphis, Tennessee, through Hot Springs—through Little Rock, Arkansas, to Hot Springs, and on out west, sir? A. Yes, sir. Q. No. 45 I believe they call it. A. Yes, sir. Q. And are you familiar with the class of facilities that are furnished to colored people, to ride in? A. Yes, sir. Q. Are you familiar with the class of facilities on that train that are furnished to first-class passengers, to ride in? A. I am. Q. Now, will you describe that coach. I believe they call it------ A. Well, now------ Q. What they generally call a Jim Crow car. A. The Rock Island, as I remember it------- 7—577 9 8 Mr. Taylor: Just a moment. Unless lie is making a de scription, or intends to make a description of the train upon which this petitioner rode I object. [fol. 202] I want to insist that all of the testimony in this case, according to the allegations of the petition, be directed to this one particular transaction and this one particular train. Exam. Disque: No, this is a continuing proposition. It does not deal with this one coach, now, as I understand it. Mr. Westbrooks: No, that is correct. That is a continu ing proposition, before as well as after. Exam. Disque: He is alleging discrimination, and he wants to have it removed for the future. Mr. Taylor: He has not alleged------ Exam. Disque: That is the purpose of his case. Mr. Westbrooks: Absolutely. Mr. Taylor: It may be the purpose, but he has not stated it in his complaint. Exam. Disque: You know what it is, do you not? Mr. Taylor: Yes. Exam. Disque: There is no mistake on your part about the issues in this case, is there? Mr. Taylor: Well, I hope not. Mr. Hughes: If the Examiner please, we can only deter mine the issues which he raises by his complaint, and his complaint confines itself to an experience which he had, or alleges: Mr. Westbrooks: Except—pardon me. Mr. Mitchell: I would like to call the attention of the [fol. 203] Commission to the fact that I testified on my direct testimony, that not only was that the condition when I rode on that train, but I saw that train day after day, and that condition was still the condition, and nothing was said about it. That is already in the record. Mr. Taylor: Well, then, this other is merely cumulative. Mr. Westbrooks: We want it that way; we want corrobo ration. Mr. Taylor: We object. Mr. Westbrooks: That is the purpose of the proceeding. Mr. Taylor: We object to any testimony of that charac ter— Mr. Westbrooks: Well, pardon me------ Mr. Taylor: (Continuing) —as going beyond the scope of the petition. Exam. Disque: This man asks that the discrimination be removed, in the future. Now, what is the discrimination that he asks be removed? Do you admit that there is a dis crimination today,—not talking about whether it is undue, or not? Mr. Taylor: No. Exam. Disque: He says that there is a discrimination to day, and he wants it removed. Mr. Mitten: He alleges one particular act of discrimina tion, and that is the one that we are meeting here, if the Examiner please. Exam. Disque: We are legislating for the future here, [fob 204] so to speak. What shall these railroads do in the future? Shall they continue this discrimination, or shall they not? Mr. Westbrooks: That is the point. Exam. Disque: We do not care about this particular inci dent. We are talking about the future. What are you go ing to do in the future ? Mr. Westbrooks: This is for the purpose, sir, of remov ing a condition, which we claim violates the Interstate Commerce Act, and I believe that, under the law, within a reasonable period of time, we can show that this condition has existed. The one act certainly gives him his interest to bring this suit. Exam. Disque: Now, if the railroads will admit that this discrimination will be removed in the future the case will end, possibly. Mr. Westbrooks: That is all we want, that discrimina tion removed. Exam. Disque: This particular act is merely a sample of what you expect for the future? Mr. Westbrooks: Yes, that is the idea. Exam. Disque: The purpose of this case is to have the Commission make an order for the future, if there is any undue discrimination. Mr. Mitten: But that order must be based upon the one [fol. 205] act which is charged in the complaint; is that not true ? Mr. Westbrooks: No. 9 9 100 Exam. Disque: No. Mr. Westbrooks: That is not correct. Exam. Disque: No. Mr. Mitchell: No. Exam. Disque: I do not take that view. Mr. Westbrooks: It is based upon a course of conduct. Exam. Disque: It is an example. Mr. Westbrooks: Against which we complain. Mr. Mitchell: Based on the practices of these defendants. Exam. Disque: We all know what the practice is, so what is the objection to letting the matter go in! Mr. Taylor: It is not alleged in the complaint, or in the petition; and that is the thing that we are here to meet. Exam. Disque: Well, the objection is overruled. We will proceed. Mr. Westbrooks: All right. By Mr. Westbrooks: Q. Proceed to describe the condition of that car you said was called a Jim Crow car, Sir, for colored passengers. A. Well, now, you must pardon me if I refresh my mem ory a little bit here. The Rock Island, as I remember it, had three types of [fol. 206] cars or service, for negro passengers. They had a car that they divided up in three sections, with black leather upholstery. They had another combination in which they put you up there next to the baggage coach, and that was divided up into two sections, a smoker and another sec tion there. Then, they had a car that was divided up into two sec tions there, with ordinary upholstery,—not a chair car at all. Mr. Taylor: Pardon the interruption for a moment, but we would like for the witness at this time, if possible, to specify the period about which he is talking. Mr. Westbrooks: Yes. By Mr. Westbrooks: Q. Would you give the period of time in which you ob served these conditions, Mr. Price! A. Well, the last time I rode on the Rock Island Railway was about eleven months ago. In the period from 1908 to about 11 months ago, I rode 101 up and down, all over tlie state, wherever the Rock Island tracks carry the engines and the trains. Q. Now, then, describe those conditions as you saw them. A. Well------ Q. The conditions you were describing, were the condi tions which have been existing in the period from 1908 down to the present time? A. Yes. They were not anywhere up to the accommoda- [fol. 207] tions they had for white people, because I rode in those cars, and I noticed. Down there in Arkansas one time, I was back there, and I got on the car, and when I saw the place was dirty, with peanuts and tobacco juice all over it, I just walked right on through into the other coach and sat down, and nobody said anything to me, and I said nothing to them. I didn’t have any badge on, as to whether I was colored or white. Q. Did they have in the Jim Crow car a sign “ For Ne groes’ ’ or “ For Colored” ? A. Yes, sir. Q. And in the white car, did they have “ For White” ? A. Yes, sir. Q. And you did not see any other colored persons occu pying those cars------ A. Oh, no. Q. —where it said “ For White” ? A. No, sir. Q. What about the toilet facilities ? A. Well------ Q. (Continuing): In the Jim Crow car, where ladies would go? A. Well, ladies—the men and women occupied—or used the same toilet, generally. Q. Did you find any running wrnter in that toilet? [fol. 208] A. Oh, no. Q. Any towels? A. No. Q. Any washbowl? A. No] Q. Now, that is in the “ Colored” car------ A. You usually find it covered over with railroad dust, dust from the engine. Q. That is, the toilet in there? A. Yes, sir, 102 Q. Now, in the white compartment that yon have had occasion to ride in: will you describe that? A. Well, you find in there towels over the back of the chairs. Q. Covers? A. Yes, and clean. Q. Yes. A. Everything nice; air circulating. Q. Washbowls? A. Oh, yes. Q. And towels? A. Yes. Q. Soap? A. Yes, sir. Q. And do they have separate toilets for the men and women? A. Yes, sir. [fob 209] Q. That is in the white cars, in the compart ments of white passenger cars? A. Yes, sir. Q. Now, then, you paid the first-class fare when you rode down there, did you not? A. Oh, yes. Q. And you said that up to eleven months ago, you found that same condition existing? A. Yes, sir. Mr. Westbrooks: All right. Exam. Disque: Are you through? Mr. Westbrooks: Cross-examine. Mr. Taylor: We move to strike out the testimony of this witness, because it is neither relevant, germane or com petent; or confined to the case made in the petition. Exam. Disque: Is there any cross-examination? (No response.) Exam. Disque: The witness is excused. Mr. Westbrooks: All right, Mr. Price; you may step down. (Witness excused.) Mr. Westbrooks: Call Mr. Edward H. Carry. Exam. Disque: Be sworn, please. 103 E dward H. Carry was sworn and testified as follows: [fol. 210] Direct examination. By Mr. Westbrooks: Q. What is your name? A. Edward H. Carry. Q. Where do you reside, sir? A. 4252 Vincennes Avenue. Q. Chicago, Illinois? A. Yes, sir. Q. And how long have you been a resident of Illinois? A. Seventeen years. Q. Before that time, where did you reside? A. Little Bock, Arkansas. Q. How long were you in Arkansas? A. Twelve years. Q. Now, during the time that you resided in Arkansas, and the time you resided in Chicago, Illinois, have you had occasion to use the facilities of the Rock Island Rail way Company, for transportation? A. I have. Q. About when was the first time you began using the Rock Island Railway for interstate transportation? A. In Arkansas, you mean? Q. From Arkansas to some other state, on the Rock Island ? A. Oh, I traveled through the south, from 1910 to 1920. Q. And during that time did you—you said you traveled through the south. Did you travel on the Rock Island? [fol. 211] A. Yes, sir. Q. Into Arkansas? A. Yes, sir. Q. Did you go into any other state? A. Oklahoma. Q. Sir? A. Oklahoma, from Arkansas,—from Little Rock. Q. Did you have occasion to make a trip to Chicago, Illi nois, also? A. I did. Q. Now, then, since you have lived in Chicago, Illinois, have you had occasion to return to your home state, Ar kansas ? A. I have. 104 Q. How often have you returned, since you have been in Chicago? A. Oh------ Q. By way of the Rock Island Railway? A. That is the only way I have ever gone, Mr. West brooks. Several times. Q. How many times? A. Several times. Q. Now, then, did you use—did you have occasion to use train 45, that runs from Mempliis, Tennessee, through Little Rock to Hot Springs, and on out to Oklahoma? A. Yes, sir. Q. How many times ? [fol. 212] A. Several times. Q. Did you have occasion to see the accommodations on that train that are furnished to white passengers? A. I have. Q. Have you ridden in those accommodations? A. I have. Q. And have you ridden in the accommodations that are furnished to colored passengers? A. I have. Q. What kind of a ticket did you have each time you were riding in both of those accommodations, sir? A. I paid the same price. Q. A first-class ticket? A. First-class. Q. Now, then, sir, 'will you describe those accommoda tions on that No. 45 train, that train from Memphis, Ten nessee, over into—through Hot Springs, and Little Rock, and on out to Oklahoma? A. Why, the coach that they set aside for negroes was usually a coach next to the baggage car, and it was usually divided into two sections, with poor accommodations as to cleanliness; one toilet; no washbowls. Q. By “ one toilet,” do you mean for both men and women ? A. Yes, sir. Q. Colored ladies and colored gentlemen? [fol. 213] A. Yes, sir. Q. Yes. A. In the part of the section where the ladies were sit ting, the conductor would usually use four seats for his 1 0 5 office; and in the part that was used as a smoker for the men—the women didn’t smoke in those days very much— the butcher would usually use part of that for his store house, for his goods. Q. Did they have colored men and white also smoking- next to where the ladies’ apartment was? A. Yes, sir. Q. What kind of a partition or door was there between them? A. A little swinging door. Q. A swinging door. A. Yes, sir. Q. And would there be an occasion—would there be any occasion, when passing through that door would cause smoke to come in where the ladies were, in their compartment? A. Yes, sir. Q. Did that happen quite often? A. Yes, sir. Q. Now, then, what about—there was no washbowl, you said? A. No washbowl. Q. No towels? A. No towels. Q. Any soap? [fol. 214] A. No soap. Q. Running water? A. No running water. Q. Hot and cold water? A. None. Q. Was there any water which could be used to flush the toilet? A. No flushing. Q. (Continuing) For the ladies? A. No water. Q. Now, did you ever see any prisoners carried on Rock Island trains? A. Yes, sir. Q. What compartment would the prisoners be in— or did you see prisoners occupy? A. They would usually occupy the smoking compartment, next to the baggage room, where the smoking was, where negro men were. 1 0 6 Q. And that would be next to the compartment where the ladies were? A. Yes, sir. Q. Which colored ladies were compelled to occupy? A. Yes, sir. Q. Now, were those white or colored prisoners? A. White and colored. Q. Both. A. Yes, sir. [fol. 215] Q. Did you ever see, during the time you stated, from 1908 to the last time you were there—or rather, 1910, I believe— did you ever notice any white or colored pris oners being carried in the coach set apart for white pas sengers ? A. No, sir. Q. Ladies and gentlemen. A. No, sir. Q. Now, then, what about footrests in the compartment of the Jim CroAV car, as they call it? A. There usually Averen’t any. Q. And AArhat about carpets on the floor, and so forth? A. There Averen’t any. Q. Noav, then, describe the cuspidors; what Avas the con dition of the cuspidors in the compartment occupied by the ladies? A. Usually very filthy. Q. N oav, Avill you describe the compartment that you saAV, that Avas set aside for Avhite passengers, that you had occa sion to ride in? A. Well, on a feAv times Avhen I Avould go into the colored coach, or the coach set aside for negroes, the train con ductor Avould run me out of there; he Avould remark, “ This coach is for negroes,” and so I Avould take his advice, and go on back into the Avhite coach. The conditions were so much different that I Avas rather glad that he ran me out. Q. Noav, then, describe the upholstering in the part Avhere [fol. 216] you sat, which Avas occupied by Avhite passengers. A. Oh, it usually aauis clean. They had covers on the back of the seats, Avhich Avere very comfortable; and the upholstering Avas nice,— plush, sometimes red and some times green; and comfortable. 107 Q. What about running water? A. Plenty of running water. Q. Hot and cold? A. Yes, sir. Q. Towels? A. Yes, sir. Q. Soap? A. Yes, sir,—everything to make you comfortable. Q. Washbowls? A. Yes, sir. Q. Now, did they have a smoking room in the coach for white persons? A. Usually a whole coach was set aside for smoking. Q. By white passengers? A. Yes, sir, for white passengers. Q. Now, then------ Exam. Disque: When you are talking about a “ white” coach, you do not mean a Pullman coach, do you? The Witness: No. Mr. Westbrooks: No. [fob 217] Exam. Disque: You are talking about a second class coach? The Witness: Yes. By Mr. Westbrooks: Q. The coach for white passengers provided by the rail road company. A. Yes, sir. Q. Exclusive of the Pullman Company? A. Yes. Exam. Disque: Are you alleging discrimination between the two kinds of second-class coaches, or only between the Pullman coach and the railroad coach? Mr. Westbrooks: I am alleging discrimination, if the Examiner please, in the difference in the first-class accom modations which are furnished on a first-class ticket to a colored man, because he is colored, and the first-class accom modations which are allowable to a person because he is white. Exam. Disque: All right. 1 0 8 By Mr. Westbrooks: Q. Now, then, with respect to Pullman accommodations, sir: you have ridden in Pullman cars down in Arkansas, have you? A. Yes, sir. Q. On trains passing through that state, or in the state ? A. Yes, sir. Q. Will you describe the Pullman equipment? A. Well, the modern Pullman coaches are usually sup plied with everything that would make passengers com fortable. [fol. 218] Q. What about the upholstering ? A. The upholstering was first-class. Q. Berths? A. Oh, yes, berths first-class. Q. Soap? A. Yes. Q. Towels? A. Yes. Q. Washbowls? A. Yes, sir. Q. Tables? A. Yes, sir. Q. Did you see the observation car? A. Yes, sir. Q. And the lounging compartments? A. Yes, sir. Q. Now, then, you have applied for Pullman accommoda tions, have you not? A. Yes, sir. Q. And were they sold to you, furnished to you, or were you denied them on account of your color ? A. Well, if I would make application for a Pullman in Arkansas, for instance, at Little Bock—they have separate ticket agents, or rather, ticket rooms, where you—or offices, where you buy your ticket; and if I would go into the room, [fol. 219] or the office set aside for negroes, they would not sell me one. But if I would go around on the other side, they would sell me one without a question; and I usually went around on the other side. Q. Now, then, when you did happen to go in where it said 1 0 9 “ For Colored” , did you have any conversation with the man about it? A. Yes, sir. He would say, “ I can’t sell you one.” Q. Did you ask him why? A. Well, yes, and he would say that it was against the laws to sell negroes a Pullman ticket, a ticket in a Pullman car. Q. And there were Pullman trains—or cars------ A. Oh, yes------ Q. Running on the trains in which you rode ? A. Yes, sir. Mr. Westbrooks: That is all. Exam. Disque: Cross-examine. Mr. Taylor: I would just make the same motion as to the testimony of this witness, that I did as to the testimony of the preceding witness; I move to have it excluded because of the reasons heretofore assigned. Exam. Disque: All right. The record shows your mo tion, and the witness is excused. The Witness: Thank you, sir. (Witness excused.) [fol. 220] Exam. Disque: Call your next. Mr. Westbrooks: Mr. Harrison,—Judge Harrison. Exam. Disque: Be sworn, please. W illiam H arrison, was sworn and testified as follows: Direct examination. By Mr. Westbrooks: Q. What is your name, sir? A. William Harrison. Q. Where do you reside, sir? A. I live in Chicago, Illinois. Q. How long have you lived in Chicago, sir? A. About 19 years. Q. Previous to that time you resided where, sir? A. In Oklahoma City, Oklahoma. Q. Your profession or occupation is what, sir? A. I am a practicing lawyer. 110 Q. And you have held office also, have you? A. I have. Q. What office have you held, sir? A. In this state, I have held the office of assistant attorney general; and the office of member of the Board of Pardons and Paroles. Q. And in Oklahoma City, Oklahoma, sir? A. In Oklahoma City, Oklahoma, I was made special judge in the Superior Court of that county and state. [fol. 221] Q. Now, sir, did you have occasion to travel on the Rock Island Railway System prior to April 20th, 1937 ? A. I did. Q. And have you had occasion to travel on the Rock Island Railway System subsequent to April 27th—April 20th, 1937? A. No, sir, I have not. That is, I have traveled on it, too, but going to the Pacific Coast. I have not been in the southern states on it, since that time. Q. Now, then, calling your attention, sir, to—did you have occasion to travel over the Rock Island System through the state of Arkansas? A. I did. Q. There is a train, I believe, running from Memphis, Tennessee, through Hot Springs and Little Rock, to Okla homa, called 45. A. Yes, sir. Q. Have you had occasion to travel on that train? A. Yes, sir, I did have. Q. Now, then, will you describe, sir—or, strike that out. Did you notice the compartments which were occupied by the different passengers, that is, the colored and white passengers ? A. Yes, sir. Q. What kind of ticket did you travel on, sir ? A. Well------ [fol. 222] Q. First or second-class? A. I traveled on first-class tickets; that is, I paid the usual fare that all others paid for tickets. Q. Now, then, calling your attention, sir, to the train— the part of the train that was set apart for the use of colored persons: will you describe that, sir? A. Yes. One coach is cut up into compartments, the colored people occupying the compartment next to the I ll bag-gage car; and white passengers, smokers, occupying the rear part of that coach. The toilet in the compartment for negroes was a common toilet at that time for men and women. The upholstering in the car was leather. Part of that car was occupied by the conductor, and the news butcher. The butch ordinarily occupied two of the seats, and the conduc tor, two of the seats. There was at that time no provision made------ By Mr. Taylor: Q. At what time, please? A. That was back in 1916,1912, and on back to 1904. Q. 1916, 1912, and 1904? A. Back to 1904. The smoking—if men wanted to smoke, negro men, they had to smoke in that compartment. When I was there last, there was a little compartment midway of the car in which negro men could go and smoke. It frequently happened that the conductor smoked in the [fol. 223] car, and so did the flagman—or the brakeman on the train. There was no covering on the seats in that car. It was usually filthy; the cuspidors were always unseemly, and smelled. In the other coaches it was easy to see the clean covers on the seats, and on the chairs that were furnished, in the same train. It was in nowise equal, in point of comfort and con venience. By Mr. Westbrooks: Q. Did you notice—now, was this the train you are speak ing of, that runs through Memphis? A. This train runs through Memphis to Little Bock, and on through Oklahoma City, Oklahoma, and on' to Amarillo, Texas. Q. Arriving at Memphis just about 8 :30 in the morning, and reaching Hot Springs about 1 :00 o ’clock in the after noon ? A. Yes, sir. Q. And then on through. A. Yes, sir. 112 Q. Now, in this compartment which you, say was cut oil, this part of the car, did it have “ For Colored Persons” or “ For Negroes” or something like that? A. Yes. Q. A sign, that you recall? A. Yes, there was a sign there. Q. “ For Negroes” ? A. Yes, sir. [fol. 224] Q. And did they have separate toilets in that compartment for men and women, colored ladies and gentle men, or only one toilet in that particular compartment? A. They only had one, but my recollection is now, when I was there last, that they had separate toilets for them; but in that same compartment. Q. Now, then, what about running water in the toilet, or washbowls ? A. There was no running water. Q. Nothing to flush the toilet? A. Nothing at that time. Q. Now, in the first-class accommodations that were fur nished the white passengers, ladies and gentlemen; you saw the Pullman cars on those trains, did you ? A Yes, sir. Q. Do you know whether they had running water? A. They did have. Q. And towels ? A. Towels. Q. Soap? A. Yes, sir. Q. Washbowls—did they have any? A. Washbowls. Q. Clean washbowls? A. Yes, sir. [fol. 225] Q. And they kept the cuspidors in the Pullman car, fairly clean, did they? A. Yes. Q. In the Pullman cars. A. Well, there were no cuspidors except in the smoker. Q. In the smoker. A. In the men’s room. Q. And that was kept clean? A. Yes, sir. Q. Now, on the Rock Island there, in Hot Springs, or any 1 1 3 part of Arkansas on the Rock Island System, have you ap plied for Pullman accommodations? A. Yes. Q. Along with a first-class ticket? A. Yes, sir. Q. What was the result of your application, sir? A. I was denied transportation on a Pullman. Q. Where did you apply, sir, on the Rock Island Lines? A. I went to the regular station there in Hot Springs, Arkansas. Q. In Hot Spring, Arkansas. A. Yes, sir. Q. And where did you make' application for accommoda tions to ? A. From Hot Springs to Chicago. Exam. Disque: When was all this ? [fol. 226] By Mr. Westbrooks: Q. Now, about when was this? Exam. Disque: When did all of this happen? A. The last time I made application was about six years ago. By Exam. Disque: Q. Did they have second class in those days,—first-class and second-class? A. I don’t know. I made application for a Pullman out of Hot Springs, Arkansas, to Chicago, Illinois, at that time, offering to pay whatever the price might have been. By Mr. Westbrooks: Q. You bought a regular ticket? A. Yes, sir. Q. A regular through ticket, did you? A. Yes, sir. Q. And you made application for Pullman accommoda tions ? A. Yes, sir. 8—577 1 1 4 By Mr. Greenlaw: Q. Did they tell you why you were denied? A. Yes, sir. Q. Why? A. They said they could not sell them to colored people. By Mr. Westbrooks: Q. You know this coach business, first-class and coach,— the difference has only been in about three or four years. That is when you noticed it; is that correct? A. Well, I didn’t notice it then, at any rate. Q. You did not notice it then? A. No, sir. [fol. 227] Mr. Westbrooks: All right. That is all. Exam. Disque: Cross-examine. Mr. Taylor: The same motion with reference to the testi mony of this witness; we move that it all be excluded for the reasons heretofore assigned. Exam. Disque: The motion will be given consideration, and the witness is excused. (Witness excused.) Exam. Disque: Call your next. Mr. Westbrooks: Dr. John J. Pullen, please. Exam. Disque: You still have several witnesses, have you, Mr. Westbrooks? Mr. Westbrooks: Yes, your Honor. Exam. Disque: Suppose we recess now until 2:00 o ’clock. Is that all right? Mr. Westbrook-: That is agreeable. Exam. Disque: 2:00 o ’clock. (At 12:35 o ’clock p. m., a recess was taken until 2:00 p. m.) Afternoon Session. 2:00 p. m. Exam. Disque: Come to order, please. Are you ready to proceed, Mr. Westbrooks? Mr. Westbrooks: Yes, your Honor. Exam. Disque: Call your next witness. Mr. Westbrooks: Dr. John J. Pullen. Exam. Disque: Be sworn, please. 1 1 5 [fol. 228] John J. Pullen was sworn and testified as fol lows : Direct examination. By Mr. Westbrooks: Q. State your name, sir? A. John J. Pullen. Q. Your address? A. 43i4 Forrestville Avenue, Chicago. Q. Your business or profession? A. I am a retired physician. Q. How long were you in the practice of medicine? A. Thirty-nine years. Q. Where did you practice; where were you practicing, Doctor? A. Well, I practiced in the state of Arkansas for a num ber of years; I was in Alabama, Tennessee, and finished my work in Arkansas. Q. Now, Doctor, you have lived in Chicago how long? A. About 18 years. Q. Have you had occasion at any time to travel from Chi cago, Illinois, back to the state of Arkansas, since you have been here? A. Yes, sir. I own property in Hot Springs and Little Rock, and I very frequently make trips down there. Q. And have you had occasion to use The Rock Island Railway? A. Yes, sir. Q. In making trips from Chicago to Hot Springs? [fol. 229] A. Most of the time. Q. Have you had occasion to use the Rock Island Sys tem—that is, that part of the Rock Island System that con nects at Memphis to Hot Springs, Little Rock, and on through Oklahoma? A. Yes, sir. Q. You paid your fare, did you? A. Yes, sir. Q. Now, Doctor, will you state the accommodations,— have you noticed the accommodations for colored and white persons on those trains? A. Very distinctively, sir. 116 Q. Have you had occasion to ride in both the accommoda tions furnished for white, and the accommodations fur nished for colored? A. Well, occasionally I have rode in with the whites. On one occasion I was ordered out of the Jim Crow part back into the white; and I remained there to my destination. Q. When you say “ Jim Crow” is that the part of the car, or compartment------ A. Yes, sir. Q. — set apart for colored people? A. Absolutely, yes, sir. Q. Now, when you were riding in this part that was set apart for white persons, will you state what was its con dition? A. Well, it was in first-class condition, everything was [fol. 230] strictly modern; water, running water in the toilets, in the baths, soap and conveniences, comb and brush in some of the compartments. By Exam. Disque: Q. Are you talking about a Pullman car now? A. No, just about the passenger car, I am not talking about the Pullman. I am talking about the coach car, chair car. Q. You mean, the white compartment. A. Yes, sir, the white compartment. By Mr. Westbrooks: Q. Now, then, in relation to the part set apart for colored people: did you notice that condition ? A. Yes. Q. Describe that compartment. A. Well, I would always go into the colored compartment. I would always buy my tickets, which were first-class, but I would always go into the colored compartment, and I found some of them very bad, of course. I don’t know that I could give a decent recommendation to any of the colored compartments in that part of the coun try, and on that particular road. Q. Well, what about the toilets? A. I would go into the toilets frequently, and find no water, no way to flush the toilet, and it was very bad, the way it was. 117 Q. How about towels? A. Well, I never seen any towels at all. [fol. 231] Q. What about washbowls? A. Sometimes I would see washbowls that would be covered with soot and cinders. Seemingly, they hadn’t been used. That is the condition I would find occasionally in there. Q. Well, now, this particular car for colored people; how was this car arranged as to compartments? A. Well, it was one coach, sometimes with two partitions, and sometimes one partition, and a part of that was used for smoking; and, of course, occasionally both white and colored would smoke in there. On certain occasions, on several occasions, I have gone into the colored car, and would be sitting there with ladies and gentlemen of my race, and a man would be drunk in the white car, heaving all over everything, and he would be brought into the colored car and remain there until he reached his destination. Q. Did you see any other persons occupying any part of that colored car where ladies and gentlemen, colored ladies and gentlemen were sitting? A. Well, I would see the conductor and the flagman would have a couple of seats occupied. He would sit on one seat, and his grips and his tickets would be on the other, always in the colored coach. Q. Now, Doctor, about when was the last time you made a trip from Chicago, down to Hot Springs, Arkansas, over [fol. 232] the Rock Island lines, from Memphis on to Hot Springs ? A. Well, I think it was in September, the last trip I made; this last September. Q. September, 1937 ? A. 1937. Q. And did you find the conditions the same in September as you had previously found them? A. I found the conditions on that particular trip, going down there, very bad. I made a trip from Memphis to Little Rock, and then from there to Hot Springs, as I own property in Hot Springs and Little Rock; and, of course, I had occasion mostly to use the Rock Island Road. 118 Q. Did they have colored men and women both occupying the colored compartment------ A. Yes. Q. —ladies and gentlemen? A. Men and women, both, yes, sir. Q. Did they have more than one toilet in that car? A. No. The last trip I made, there was only one toilet, because I had occasion to use it, and had to wait until the ladies came out, who were in there. Q. Well, now, what about in the coaches for white pas sengers? Did they have more than one toilet facility in there ? A. They had one at each end, in that coach, one for men [fol. 233] and one for women. Q. How were they marked? A. They said, “ Ladies and Gentlemen.” Q. One for the ladies------ A. Yes. Q. —and one for gentlemen? A. “ Men” and “ Women” on the outside of the doors. Mr. Westbrooks: That is all. By Exam. Disque: Q. I am confused by the fact that you say you paid first- class, and yet traveled second-class. A. Well,' I did. Q. Why did you not buy a second-class ticket? A. I don’t remember of any second-class tickets being offered anybody down there. I would always buy a ticket, and it was a first-class ticket, but, of course, I would fre quently go into the colored car, because it was the custom for me to do that. Exam. Disque: It may not be important, but I was con fused by your statement. The Witness: Yes. By Mr. Westbrooks: Q. Well, prior to about 1933, they only had one class of tickets, as I understand it, one fare, and that fare, that ticket entitled you to use the Pullman, or anything else. A. That is what I understand. 1 1 9 [fol. 234] Q. But later they changed, and they had two classes of tickets. A. Yes. Q. Now, they have one for the coach. A. Yes. Q. And one for what they call the regular ticket. A. Yes, sir. Q. And the regular ticket you must have, before you are allowed to use the accommodations? A. I found that out lately, yes, sir. Q. And all through here where we use the expression “ first and second-class” we mean by that, the second-class was a coach ticket. A. Yes, sir. Q. Used in coaches and no other place on the train? A. Yes, sir. Q. And by first-class we mean that it would entitle you, for the price you pay, for the difference, to use the facilities anywhere on the train? A. Yes, sir. Mr. Westbrooks: That is all. Cross-examination. By Mr. Taylor: Q. Well, now, what kind of a ticket did you have on your last trip ? Did you have what is commonly known as a coach ticket? A. No. [fol. 235] Q. Or did you have a ticket that entitled you to ride in the Pullman car? A. It was not a Pullman car ticket, but it was a first-class ticket. Q. Yes? A. First-class. Q. Do you remember how much per mile you paid for it? A. No, I don’t remember. I paid the customary price, but I don’t remember what it was. Q. You told the agent from whom you bought the ticket, that you were going to ride in a coach, did you not? A. No, I didn’t. I didn’t have to tell him that. 120 Q. You just simply asked for a ticket to Hot Springs? A. Yes. Q. Or Little Rock, as the case might be? A. First-class ticket for Hot Springs. Q. Yes. A. I asked for a first-class ticket; that was all. Q. You did not undertake to ride in the Pullman car? A. No, sir. Q. On that ticket? A. No, sir, I didn’t. Q. You bought it------ A. How is that? Q. You bought your ticket intending to ride in a coach, [fol. 236] did you not? A. First-class fare. Q. Answer the question. A. Well, yes. Q. You bought your ticket intending to ride in a coach, did you not, and not in a Pullman car? A. (No answer.) Q. Is that right? A. Well, sure. I didn’t buy a Pullman ticket. I would have had to buy a Pullman ticket, the way I understand it, sir. Q. At the time you bought that ticket, you did not tell the agent that you wanted to ride in a Pullman car, did you? A. No, certainly not. Q. Have you ever ridden from Chicago to Hot Springs over that route------ A. Oh, yes. Q. —in a Pullman car? A. No, sir. Q. Did you ever try it? A. No, sir, I never tried it. Mr. Taylor: That is all. Exam. Disque: Are there any further questions? Mr. Roemer: Nothing. Exam. Disque: You are excused. Mr. Mitchell: Just a moment, please. [fol. 237] By Mr. Mitchell: Q. This last ticket which you bought—you asked for a first-class ticket? 121 A. Yes, sir, I asked for a first-class ticket. Q. You did not know at that time, did you, that—or did you know at that time that they sold coach tickets and first-class tickets? A. I lived in the south for a number of years, and, of course, when I lived here, finding out that there was first- class, I asked for a first-class ticket, and rode in the chair car. Q. As I understand it, this new coach ticket that we are talking about, is the new arrangement that is not more than three years old. A. Yes. Q. And you did not know about that before, when you bought your ticket, did you? A. Sure not. Mr. Mitchell: That is all. Exam. Disque: Is that all? (No response.) Exam. Disque: That is all. (Witness excused.) Exam. Disque: Call your next. Mr. Westbrooks: Mr. Morris. Exam. Disque: Be sworn. [fol. 238] E lias A. M orris, was sworn and testified as follows: Direct examination. By Mr. Westbrooks: Q. What is your name? A. Elias A. Morris. Q. What is your address, sir? A. 4171 South Parkway. Q. Chicago? A. Yes, sir. Q. How long have you lived in Chicago, sir? A. Sixteen years. 122 Q. Before that, where did you live ? A. Arkansas. Q. What part of Arkansas, sir? A. I was born in Helena, but I was living at Little Bock for about 12 years. Q. What is your business, sir? A. Federal employe. Q. Since you have been living in the city of Chicago, have you had occasion, sir, to return to your home state of Arkansas? A. I have. Q. How often have you used the Rock Island System in returning to and from Chicago to Arkansas? A. About three times, since I have been away. Q. And have you had occasion to—or what class of ticket did you purchase, sir? [fol. 239] A. I didn’t know anything except a first-class ticket. That is what I have always purchased. Q. When was your last trip made, sir? A. 1926. By Mr. Hughes: Q. 1926? A. Yes. Mr. Westbrooks: 1926. The Witness: Yes, sir. By Mr. Westbrooks: Q. Now, then, what compartment of the car did you ride in, sir? A. Well------ Q. (Continuing:) Between Memphis and Hot Springs, or Little Bock, on the Rock Island System? A. I have ridden both chair car and sleeper from Chicago to Memphis. Q. Now, sir, describe the Pullman car in which you have ridden from Chicago to Memphis, through the Rock Island— or over the Rock Island route ? A. Well, it was a car that The Pullman Company has, very well furnished, plush backs for the seats, a smoking room with a lavatory off out of the smoking room; and with the proper necessities for keeping clean. 123 Q. How about running water? A. Yes, sir. Q. Did it have running water? [fol. 240] A. Yes, sir, it bad running water. I put that as one of the necessities. Q. Hot and cold? A. Yes, sir. Q. Towels? A. Yes, sir. Q. Soap? A. Yes, sir. Q. And the car was well-carpeted? A. Yes, sir. Q. Properly carpeted? A. Yes, sir. Q. In the aisles? A. Yes, sir. Q. Porter service? A. Yes, sir. Q. Berths? A. Yes, sir. Q. Tables for use by the passengers? A. If I needed a table to play cards on, and so forth, I could get it. Q. And the car was clean,------ A. Yes, sir. Q. —or otherwise? A. Absolutely clean. [fol. 241] Q. Sanitary? A. Well lighted. Q. Sanitary? A. Yes, sir. Q. Now, then, calling your attention to the section used by colored people, have you seen that car on that train that leaves Memphis about 8:30 in the morning? A. Yes. I have ridden it many a time. Q. Will you describe that particular accommodation? A. Well, it was a coach that was divided into, at least to my knowledge, two sections, one for colored passengers, and the rear part of the coach was used as a smoking compart ment. The colored section was not so well kept. We had, as has been stated here, one lavatory. 124 Q. That is, for both men and women! A. Men and women, with no soap, no towels, or anything of that kind. Q. That is, for the non-smokers who rode in there! A. Yes, sir. Q. Women. A. Yes, sir. Q. No soap. A. No. Q. Towels! A. No. [fol. 242] Q. Washbowls! A. Washbowls, perhaps. Sometimes it looked like they had been used, or had not been used. I f they were used, they were still filthy. Q. Was there hot and cold water in the washbowls! A. There was no hot and cold water in the washbowls, no. Q. Now, you said this car would be separated into two sections. A. Yes, sir. Q. One for smokers, and the other for the ladies—colored ladies and gentlemen! A. Yes, there would be a partition,— sometimes perhaps 50 per cent of the car, or perhaps two-thirds of it. Q. And what kind of a door would there be in between there! A. Well------ Q. Whatever it was, was it opened frequently! A. Oh, yes, for passage. Q. Did you ever notice whether any smoke at any time came out of the smoker------ A. Oh, yes. Q. —into this part where the ladies were sitting! A. There would have to be. Q. You did notice it! A. Yes, sir, because I am an inveterate smoker myself, and I spent a lot of time in the smoker. Q. Now, on these occasions when you said you rode in [fol. 243] the Pullman car—or when you rode in the Jim Crow car—that is what it is called down there. A. Yes, sir. Q. That was assigned to the colored—to negroes! A. I think it said “ For Colored.” 125 Q. Now, whether you rode in the Jim Crow car, or whether you rode in the Pullman car, you said you paid the same rate of fare? A. Yes, sir. Q. And you always asked for a first-class ticket? A. Yes, sir, absolutely. Mr. Westbrooks: That is all. Exam. Disque: Is there any cross-examination? Cross-examination. By Mr. Taylor: Q. The last trip that you made was in 1926, was it? A. 1926, yes, sir. Mr. Taylor: That is all. I now move that the entire testimony of this witness be excluded from the record be cause it is irrelevant and incompetent, and too remote to have any bearing on the issue made in this case, or the transaction therein set forth. Exam. Disque: There is some merit to your motion that it is rather remote. Is there any other cross-examination of the witness? [fol. 244] Mr. Roemer: Nothing. Exam. Disque: That is all. (Witness excused.) Mr. Westbrooks: Is Mr. Bush here? (No response.) Mr. Westbrooks: We will rest at this time, if the Exam iner please. Complainant rests. Exam. Disque: All right. Mr. Westbrooks: Or—pardon me. Before we rest, I want to introduce the portion of the Arkansas law, the statute which was referred to by the defendant as the Separate Coach Law. I want to introduce section 986, which is found in the Arkansas statutes. It is headed “ Equality of Accommo dation” and reads as follows: “ All railway companies carrying passengers in this state, shall provide equal, hut separate and sufficient accommoda tions for the white and African races” ------ 1 2 6 That is old section 986. In the last revised statutes, I believe of 1937, it is section 1190, to be found on page 570 of the last revised statutes, chapter 20: “ All railway companies carrying passengers in this state shall provide equal, but separate and sufficient accommo dations for the white and African races, by providing two or more passenger coaches for each train. [fol. 245] ‘ ‘ Provided that railway companies carrying pas sengers in this state may carry one partitioned car, one end of which may be used by white passengers and the other end by passengers of the African race, said partition to be made of wood, and they shall also provide separate waiting rooms of equal and sufficient accommodations for the two races at all their passenger depots in this state. I want to also introduce section------ Mr. Taylor: I suggest, if I may, at this time that we stipulate that the entire Separate Coach Act of the State of Arkansas, be admitted in evidence in this case. Exam. Disque: All right. It ought to be in the record, technically and physically. The parts that are pertinent, you can refer to in your brief. Mr. Taylor: It is not a very long statute. Mr. Westbrooks: Well, I am just referring to these two portions specifically, and then I will stipulate as to the others. Now, as to separate sleeping cars: “ Separate sleeping and chair cars. “ Carriers may haul sleeping or chair cars for the ex clusive use of either the white or African race separately, but not jointly.” Now, then, those are the portions which------ Mr. Roemer: Does not the Commission take judicial [fol. 246] notice of the Arkansas statute? Exam. Disque: No, I understand not. As I understand it, the state law has to be proven. Mr. Roemer: No longer in the state of Illinois. By statute, they provide now that the courts take judicial notice not only of the laws of Illinois, but of municipalities within the state, and also the laws of all the other sovereign states of the union. 127 Mr. Hughes: What is the stipulation, now; that it is available for all purposes? Exam. Disque: Off the record. (Discussion off the record.) Exam. Disque: Are you offering this, Mr. Westbrooks? Mr. Westbrooks: Only what was read. Mr. Mitchell: Here is a copy, if you want; that can go in. Mr. Roemer: Are you submitting it, or are you stipu lating, or what? Mr. Westbrooks: Only the two sections, 1190 and 1193, about sleeping cars, and so forth, which were read. Otherwise it is a defendants’ exhibit. Exam. Disque: W7hoever puts it in, it is exhibit No. 5. Mr. Westbrooks: Pardon me? Exam. Disque: We will call it exhibit No. 5, regardless of who puts it in. [fol. 247] Mr. Taylor: Did you not stipulate with me that the entire Separate Coach Act of the state of Arkansas------ Mr. Westbrooks: No; I was reading a portion of it. Mr. Taylor: (Continuing) —might be admitted in evi dence? Did you not just stipulate that with me awhile ago? Mr. Westbrooks: I do not think the record will show that. All I was doing was, I was reading the parts that I desire to have placed in the record. If you want to offer it, I have no objection. Exam. Disque: It is in the record now, anyhow. Mr. Taylor: How. Exam. Disque: It is in the record now. Mr. Westbrooks: No objection. Mr. Taylor: All right. Exam. Disque: It is exhibit No. 5. (Exhibit No. 5 received in evidence.) Exam. Disque: Are you through now? Mr. Westbrooks: Yes, I think so. Exam. Disque: Defendants may proceed. Mr. Roemer: If the Examiner please, so far as The Pull man Company is concerned, I would like to make a motion at this time for your consideration: that the Commission dismiss the action, or the complaint, or the proceeding, so far as The Pullman Company is concerned. Mr. Mitten: The same motion is made on behalf of the [fol. 248] Illinois Central Railroad Company, on the ground 128 that the complainant has failed to prove that the Illinois Central Railroad is guilty of the violation of any sections of the act relied upon. Mr. Taylor: And may the record show the same form or motion on behalf of the trustees of the Rock Island Railway. Exam. Disque: All right. Call your next witness. Mr. Taylor: Mr. Jones. Mr. Deany: Will your Honor rule on the motion? Exam. Disque: Not now. Be sworn, please. A lbert W. J ones, was sworn and testified as follows: Direct examination. By Mr. Taylor: Q. What is your name ? A. Albert W. J ones. Q. Where do you reside? A. 711 East Sixth Street, Little Rock, Arkansas. Q. What is your occupation ? A. Conductor. Q. Railroad conductor? A. Yes, sir. Q. By whom are you now employed? A. The Chicago, Rock Island & Pacific Railway Com pany—or the trustees, rather, of The Chicago, Rock Island & Pacific Railway. [fol. 249] Q. The Chicago, Rock Island & Pacific Railway Company went into bankruptcy in 1933? A. Yes, sir. Q. And trustees were appointed; and you have been work ing for the trustees since that time? A. Yes, sir. Q. For the last several years, Mr. Jo7mes, what has been the general nature of your employment? A. Well for the last 32 years I have been running a pas senger train. Q. Well, for how long a time—is your run now, and has it been for the last 5 or 6 years, between Memphis and Lit tle Rock on the Rock Island Railway? 129 A. Between Little Rock, Hot Springs and Memphis. I make all three points. Q. Well, just give us your routine. You do not go from Memphis to Little Rock, or Memphis to Hot Springs every day, do you? A. No, sir. Q. Just what is your routine? A. I start out of Little Rock at 11:25 a. m., and go to Hot Springs, and back to Memphis that night, getting into Hot Springs at 1 :05; leaving there at 3 :05, and getting to Memphis at 7 :30. I leave there the next morning at 8:30, and I go to Lit- [fol. 250] tie Rock. I get there at 11:15. The next day I go to Memphis, and back on a local train; and then I catch the other job back again,—four crews. Q. How long have you been a conductor—the train of which you are usually conductor is train 45 and 46? A. 45 and 50. Q. 45 and 50. A. Yes, sir, the fast train. Q. 45 goes from Memphis to------ A. Hot Springs. Q. —Hot Springs. A. Yes, sir. Q. And 50 goes where ? A. Hot Springs to Memphis. Q. Hot Springs to Memphis. A. Yes, sir. Q. The train running south—or west, then, is No. 45? A. Yes, sir. Q. And the train running north,—or east, is No. 50? A. Yes, sir. Q. Does that train—do either one of those trains go any further north and east than Memphis? A. No, sir. Q. Does it go—does the train go any further south, or west, than Hot Springs ? [fol. 251] A. No, sir. Q. Does that train, or any part of it, run into the state of Oklahoma? A. No, sir. Q. Now, how long did you say you had been conductor on train 45-50? 9—577 1 3 0 A. Well, I have been on that job right there, around 15 years. Q. Running pretty regularly? A. Yes, sir. Q. What is the equipment of train 45? A. It consists of a baggage car, a combination coach, a straight day coach, diner, sleeper, and parlor car. Q. How are they located in the train? A. The baggage car is next to the engine; then comes the combination coach; then the day coach, diner, sleeper and parlor car. Q. The sleeper on that train is a Pullman sleeper, is it? A. Yes, sir. Q. Owned by The Pullman Company? A. Yes, sir. Q. Is all of the balance of the equipment owned by the Rock Island trustees—the trustees of the Rock Island Rail way? A. Yes, sir. Q. I direct your attention to the morning of April 21st, 1937. Do you recall having seen this man here, Congress- [fol. 252] man Mitchell, on that morning? (Indicating.) A. Yes, sir. Q. I wish you would in your own way, taking all of the time you require, state to the Examiner, and for the rec ord, under what circumstances you happened to meet him, and if you had any kind of a transaction with him, describe it. A. Well, in my custom, in working the train, I commence at the head end, that is, the end of the Pullman car, and I work the Pullman car, the day coach, and then the diner. On this particular occasion when I entered the sleeping car, it was from the head end of the car, where the compart ments and the state rooms were, and in the vestibule, or the hallway, between the state rooms and the side of the car, I found the Congressman and the Pullman porter standing there in this vestibule, in this hallway. I asked for his transportation in the usual way, and he handed me his ticket. At the same time he had a' dollar in his hand, to hand to the porter. I asked him if he had a through sleeping car, and he said no. I said, “ Well, we can’t accept your dollar, unless the porter has a compart ment or state room that he can put you in.” 1 3 1 The porter said, “ I don’t think we can; we haven’t any.” I said, “ Well, I am sorry, but you will have to go to the combination car—the colored car.” He spoke up and he said that they told him in Chicago that [fol. 253] him being a congressman, he wouldn’t have any trouble getting through in the car. “ W ell” , I said, “ I am sorry. The law doesn’t make any provision for a Congress man, any more than it does anybody else.” And the porter spoke up and said, “ He is Congressman Mitchell from Chi cago.” I said, “ Well, I am sorry, but I can’t do anything for you. I can’t accept this Pullman fare, and I will have to comply with the law, and have to have the law complied with. ’ ’ He said, “ I know what the law is, but it is unjust.” “ W ell” , I said, “ I am sorry, but I can’t change that law.” And with that he walked on back and sat down, I think about section 3. I worked on back, checking the berths, and when I got back to him, he asked me what I was going to do with his ticket. I said, “ Well, I will make a notation on your ticket, and you can get your refund of one cent per mile.” He said he didn’t want a refund; that he wanted service. “ W ell” I said, “ I am sorry I can’t give you the service.” I said, “ I will have to suggest, or require the law to be lived up to” ; and with that I left him. I went on back and worked my parlor car, and when I came back he had done gone up in the other car, and that was the last that I spoke to him. Q. When you saw him again, where was he ? A. Up in the colored car, at the front of the train. [fol. 254] Q. Do you remember in what compartment of the colored car he sat? A. Yes. Q. State. A. He sat in the middle compartment, next to the ladies’ toilet. Q. Now, as accurately as you can state it, where was your train at the time you first encountered Congressman Mitchell? A. It was right near Hope, 9 miles from Memphis, in the state of Arkansas. 1 3 2 Q. Now, did you leave that train that morning yourself at Little Rock? A. Yes, sir. Q. And another conductor took the train from Little Rock to Hot Springs ? A. Yes, sir. Q. What portion of the journey between Memphis and Little Rock did you spend in the colored car? A. Most of the time from Forrest City. I had an auditor get on, and he took charge of the transportation at Forrest City, and I had nothing else to d o ; and the only time I got out of the colored end of that car was at Brinkley we made a stop there, and I had to get out. Probably I rode in the colored end of that car from For rest City to Memphis; that is, in the smoker end of it. [fob 255] Q. Do you mean, from Forrest City to Little Rock? A. How? Q. From Forrest City to Little Rock? A. From Forrest City to Little Rock. Q. Your train was going toward Little Rock? A. Yes, sir. Q. How far is it from Forrest City to Little Rock? A. 87 miles. Q. How far is it from Memphis to Little Rock? A. 133 miles. Q. During the time that you were in the car between Forrest City and Memphis, was Congressman Mitchell in the car all the time? A. He was in the middle compartment,—not in the com partment I was in. He was in the middle compartment. By Exam. Disque: Q. What is that devoted to, the middle compartment? A. For the women, colored women. Q. Colored women? A. Yes, sir. By Mr. Taylor: Q. Well, colored men may be there also, may they not? A. Yes. Q. If they want to ? A. Yes, but that part they call the colored women’s part. [fol. 256] Q. Just describe that car to the Examiner, in which Congressman Mitchell was riding? A. It has three partitions. It is a solid steel car with three partitions. v The front end of it is used for a colored smoker,—the front partition. The middle partition is used for women— or men, if they want to. The rear end is used for a white smoker, if they want to. It is a three-partition car. Q. It is a standard size------ A. Yes, sir. Q. — steel passenger coach? A. Yes, sir. Q. Divided into------ A. Three partitions. Q. —three compartments; is that it? A. Yes, sir. Q. And the rear compartment is used by white people, who want to smoke? A. Yes, sir. Q. Or for white people------ A. Yes. Q. —whether they are smoking or not? A. Yes, sir. Q. And the middle one is devoted to colored men and women ? [fol. 257] A. Yes, sir. Q. And the forward section is devoted to colored people who want to smoke? A. Yes, sir. Q. Or they may ride there, whether they smoke or not? A. Yes, sir. Q. Were there any toilets in that car? A. Three toilets. Q. Where were they located? A. One was in the front end of the first partition of the car. The other, for women, in the middle compartment, was about middleways of the car. The other one was in the rear end of the car, at the rear end of the white smoker. Q. Were any of those toilets, water toilets? A. Just the middle toilet is a water toilet. Q. With soap and towels ? A. Paper towels, yes, sir. 133 134 Q. And a washbasin? A. Yes, sir. Q. The toilets at either end of the car were not flush toilets ? A. No, sir. Q. The toilet in the rear end of the car was used by white people? A. Yes, sir. Q. And it was a dry toilet? [fol. 258] A. Yes, sir. Q. So to speak. A. Yes, sir. Q. That is, it was not a flush toilet. A. Yes, sir. Q. And the toilet in the forward end of the car, used by colored people, was the same kind of a toilet? A. The same kind of a toilet. Q. Except that the toilet in the center—was that used by white and colored? A. No. Q. By colored men and women? A. Women. Q. Well, I am talking about the compartment. A. Yes. Q. Was it used by men and women? A. Oh, yes. Q. But the toilet in the middle compartment was a water or flush toilet? A. Yes, sir. Q. With those accessories which you have named? A. Yes, sir. Q. But devoted to colored women? A. Yes, sir. Q. During the time that you spent in that car, did you [fol. 259] detect or notice any foul or obnoxious odors of any kind? A. No, sir, I did not. Q. Do you know whether or not that colored car is cleaned and renovated at Memphis, prior to its being put into those trains ? A. Yes, sir. Q. Is it? A. It is. 135 Q. What is the nature of the cleaning that is given it if you know? A. Well, I couldn’t exactly tell you the method that they use? Q. No, but, what does it look like when you see it? A. It is clean and nice. Q. Are the spittoons clean? A. Yes, sir. And they have some kind of disinfectant in them. Q. Is there any dirt, peanuts, tobacco juice, or anything else on the floor? A. No, sir. It is in first class condition. Q. What kind of seats do they have in there? A. Leather seats. Q. Are there any—what do you call them------ Mr. Roemer: Covers. By Mr. Taylor: Q. Linen backs? A. Seat covers. Q. Or whatever it is, that are put on top of the seats ? [fol. 260] A. Yes, sir. Q. Is that car equipped with those? A. Yes, sir. Q. Has it always been equipped with those linen back covers ? A. It has been equipped with them for the last five or six years, to my knowledge. Q. Within the last 5 or 6 years, can you recall a single solitary time that that car had ever been operated, when you were the conductor on it, when it did not contain those linen backs ? A. No, sir. Q. Are there any electric fans in the car? A. Yes, sir. Q. How many? A. One in each compartment. Q. What kind of ventilation has it? A. They have ventilators that you can pull open or close, and they have a ventilating stick, to open and close them. There is plenty of ventilation. 136 Q. Now, on this morning of April the 21st, 1937, were either of the sections of that car that were devoted to col ored people, crowded? A. No, sir. Q. You maintained your office, so to speak, in the for ward part of that colored car, did you not? [fol. 261] A. Yes, sir. Q. What sort of an office did you have there? A. Well, I just occupy two seats, for my working ma terial, that I have there. I sit in one, and use the other seat for a kind of table. Q. You had your grip there? A. Yes, sir. Q. And your tickets, and the envelopes that you put them in? A. Yes, sir. Q. And that is about all of the occupancy you made of that car, I suppose? A. Yes, sir. Q. Is that correct? A. Yes, sir. Q. You did not deprive Congressman Mitchell of a seat, did you? A. No, sir. Q. By being there ? A. No, sir. Q. There was ample room in the car for him and others? A. Yes, sir. Mr. Westbrooks: If the Examiner please, I just want to tentatively make an objection, because counsel made the objection that I was testifying in my examination. Now, since he is testifying------ [fol. 262] Mr. Taylor: He can answer the question any way he wants. Mr. Westbrooks: Since he is testifying------ Mr. Taylor: I did not suggest the answer. Mr. Westbrooks: I just wanted to call attention to it, in consideration to the fact that counsel made an objection to my examining. By Mr. Taylor: Q. How many passengers, colored passengers would you say, according to your recollection, were in that car that morning ? 137 A. Something like about five or six ; not over that many. Q. What is the capacity, the seating capacity of the two compartments that are devoted to the colored race? A. I believe, as well as I can remember, it is about 42. I think one seats 20, and the other 22, as well as I can remember. Q. Now, was there a news butcher up there with you that morning? A. No, sir. Q. Was there a news butcher on that train? A. No, sir. Q. Did you have any ice water in that car? A. Yes, sir. Q. How many coolers of it did you have in the car? A. Three. Q. Three? [fol. 263] A. One in each compartment. Q. Did they have water in them, to the best of your knowledge ? A. Yes, sir. Q. Was there anything, Mr. Jones, that you can recall about the condition of that car, that was foul or odorous, during the journey of April 21st, 1937 ? A. No, sir, not anything. Q. What was the condition of that car? A. First-class, as clean as it could be. Q. When you say “ first-class” , what do you mean? A. I mean, just as clean as it could he made. Q. Now, based on your experience over the number of years to which you have testified as having been a conductor on train 45-50 between Memphis, Tennessee, and Hot Springs, Arkansas, what demand is there, or has there been for Pullman accommodation on the part of the colored population? Mr. Westbrooks: My only objection to that is that this Commission has held that demand and supply have nothing to do with discrimination, in the Hurd case, and in other cases which have been decided by this Commission. Exam. Disque: Volume of traffic may have some bearing on the case,—if that is what you have in mind. Mr. Taylor: Yes. Mr. Mitchell: We further object because this witness has not shown that he knows anything about the demands that [fol. 264] are made. He is not a ticket seller. 138 Q. You are on the train, are you not? How many col ored passengers have you observed on that train in the Pullman car? A. Well, in my experience in the last 32 years, I will say I have handled about 10 or 12 cases of this kind. Now, that was a year ago, it will soon be a year ago. I have not had a case since. Mr. Westbrooks: Just a moment. That is objected to as not responsive,—handling a case of this kind. That is not responsive to the question. By Exam. Disque: Q. What do you mean by “ of this kind” ; where you had to eject a man? A. Where I had to ask him to go up in the coach. Exam. Disque: The question is, how many—is that the question? By Mr. Taylor: Q. What volume of traffic have you observed in Pullman cars on this train, of colored passengers ? A. Well, that is about, say, 10 or 12 in the last 32 years, I would say. Exam. Disque: How could a colored man use a Pullman car on that train? Mr. Taylor: Well, I will ask him that. By Mr. Taylor: Q. How can he use it? [fol. 265] A. He can’t. Q. Do you have anything like—or, what is the fact; do you find colored passengers from time to time occupying compartments and drawing rooms on your train? A. Yes, sir, compartments we do, once in awhile, but not in the body of the car. Q. If just at the time of this transaction there had been a vacant compartment, or a vacant drawing room in that Pullman ear, what would you have done ? A. Put him in there at the expense of The Pullman Com pany. That is why I asked him if he had a vacant compart ment that he could put this man in, and he said no. B y Mr. Taylor : 139 Mr. Westbrooks: Well, the objection to that is that what the man would have done had some contingency arisen, is not the question. The question is, what did he do in this instance. Exam. Disque: I am not so much interested in this in stance. I am trying to find out, what are the accommoda tions provided for white people, and what are the accom modations provided for colored people, in general, now, and for the future. Now, if you have a Pullman car, and you put a colored man into a drawing room or compartment, is that in com pliance with the state law ? A. Yes, sir. Exam. Disque: I assume it is, because the law says some- [fol. 266] thing about partitions. Mr. Taylor: It is a substantial compliance. The segre gation of the races is the gist of the statute. Compart ments and drawing rooms used in that manner are a sub stantial compliance with the Arkansas law, because it ac complishes what the Arkansas statute undertakes to ac complish. Exam. Disque: Now, Mr. Mitchell wanted either a com partment, or a drawing room, or failing in that, he would have taken a regular seat; but under the state law you could not give him an ordinary seat in the Pullman car? Mr. Taylor: Where it amounted to a commingling of the races? Exam. Disque: Yes. Mr. Taylor: Right. Exam. Disque: All right. Mr. Taylor: Within the same enclosure ? Exam. Disque: Yes. Now, are you through with this vol ume of traffic testimony? Mr. Taylor: No, not quite. Exam. Disque: He is testifying only as to the passengers he sees in compartments or drawing rooms in Pullman cars. He is not testifying as to how many people offer themselves at ticket offices to buy tickets. By Mr. Taylor : Q. You do not know anything about that, do you, Mr. J ones ? [fol. 267] A. No, sir. 140 Q. Well, I will ask you only about matters within your own knowledge, then, Mr. Jones. On an average, how many colored passengers per year have applied to you for passage in a Pullman car on your train ? A. Well, it won’t average one a year. Q. Now, Mr. Jones, you said you would have put the complainant, Congressman Mitchell, into one of the draw ing rooms or compartments that morning, if it had been vacant, at the expense of The Pullman Company? A. Yes, sir. Q. Just what do you mean by that? A. Well, I mean, so far as I was concerned. Q. You mean you would have put him in there------ A. Yes. Q. (Continuing) — and let The Pullman Company collect its own charge? A. Yes, sir. Q. Now, Mr. Jones, up to the time of this transaction had you ever been given any instructions by The Chicago, Rock Island & Pacific Railway Company, or its trustees, or any of its officers in authority over you, with reference to the disposition to be made of colored passengers in Pullman cars ? A. No, sir. Q. Was your conduct that morning in pursuance of any [fol. 268] directions or instructions given to you by the rail way company or its officers, or were you acting on your own motion and initiative, and in obedience to the statutes of the state, as you understood them? A. On my own. Mr. Westbrooks: Of course, my objection would be that that calls for a conclusion. That is for the Commission to determine, whether the conductor was acting for the com pany or not. Exam. Disque: Well, he is just talking about whether or not he had instructions. Mr. Taylor: Yes. Mr. Westbrooks: Well------ Exam. Disque: And he says that he had no instructions, that he was doing what he thought was the right thing. 141 Q. Why did you not let this man have a seat in the body of that Pullman car that morning! A. Because it is against the law of the state of Arkansas. Mr. Westbrooks: That is objected to. By Mr. Taylor: Q. What law! Mr. Westbrooks: Objection. A. The state law of Arkansas. Exam. Disque: It was against what he thought was the state law. Mr. Westbrooks: What he thought was the state law! [fol. 269] Exam. Disque: Yes. Mr. Westbrooks: All right. By Mr. Taylor: Q. You have read that state law, have you! A. Yes, sir. Q. Is it posted in the equipment! A. It used to be. I don’t think they do that any more, on the new equipment. Q. The same statute, to your knowledge, is still in force, however! A. Yes, sir. Q. Does that statute—you know that statute, you say! A. Yes, sir. Q. Does that statute impose any duty or obligation upon you as an individual! Mr. Westbrooks: Wait. A. Yes, sir. Mr. Westbrooks: Just a moment. Mr. Taylor: What is it! Mr. Westbrooks: In the first place, he is not qualified to state what the statute is. The statute is in evidence, and the Commission will determine the force and effect of the statute. That is my only objection. Exam. Disque: Are you asking him what his understand ing is of the law; is that your question! B y Mr. T a y lo r : 142 [fol. 270] Mr. Taylor: I have already asked him if he knew the statute, and he said he did. Exam. Disque: All right. Mr. Taylor: Then, I asked him, does that statute put any obligation on him? Mr. Westbrooks: W ell----- Mr. Taylor: And he said it did. Mr. Westbrooks: And I objected. Mr. Taylor: And I asked him, what? Mr. Westbrooks: That calls for a conclusion, if the Ex aminer please. Mr. Taylor: Well, it can be verified. Mr. Westbrooks: It is not for him to determine; that is for the Commission. Exam. Disque: The statute is here in the record. Mr. Westbrooks: Yes. Exam. Disque : And he is asking this man what his under standing of the statute is. Mr. Westbrooks: Oh, well------ Mr. Taylor: Yes. Exam. Disque: In the performance of his duty? Mr. Taylor: Yes. Exam. Disque: Now, what was your understanding of that statute in the performance of your duty? The Witness: A fine on my part, if I didn’t enforce it. [fol. 271] That is the way I understand the statute. Exam. Disque: All right. By Mr. Taylor : Q. Now, throughout that journey between Memphis and Little Rock that morning, Mr. Jones, after Congressman Mitchell went up into the colored car, did he at any time complain to you or anybody else within your hearing about any foul or offensive odors ? A. No, sir. Q. Or the allegedly dirty condition of the car? A. No, sir. Q. Or anything objectionable of that kind? A. He made no complaint whatever about anything. Q. Was there any disturbance of any kind in that car? A. No, sir. Q. You did not see anybody bring any drunks in that morning, did you? A. No, sir. 143 Q. Were there some white people riding back in the com partment devoted to white people that morning? A. Yes, sir. Q. In the compartment devoted to white people? A. Yes, sir. Q. Did the Congressman that morning have any appear ance of being sick? A. He did not, no, sir; he did not to me. [fol. 272] Q. Did he say he was sick? A. No. Q. Did you notice any conduct on his part that would indicate that he was in the slightest degree ill? A. No, sir. Q. In your conversations with him in the car, what was the Congressman’s manner toward you? A. Very gentlemanly. He never went out of his way, never talked noisy, or anything. He was very nice. Q. He did not use any insulting language, did he? A. No, sir. Q. Or any abusive language ? A. No, sir, not a bit. Q. No profane language? A. No, sir. Q. Was his voice loud? A. No, sir. Q. Raucous? A. No, sir. Q. How was it? A. Just an ordinary tone. Q. Yes. Now, how about you? A. I just talked in an ordinary conversation, because there were people sleeping. Q. Did you use any abusive language to him? [fol. 273] A. No, sir, I did not. Q. Were you angry at him? A. No, sir. Q. Did he say anything that would he calculated to irri tate you? A. No, sir. Q. Or excite your anger? A. No, sir. Q. Did you use any profanity? A. No, sir. Q. Of any kind? 144 A. No, sir. Q. Were there people in the Pullman car still in their berths, at that time? A. Yes, sir. Q. In the body of the car? A. Yes, sir, in the body of the car, and in the compart ments also. Q. The first conversation that you had with him was, I understood you to say, in the hallway? A. Yes, sir. Q. That passes right alongside the compartments and the drawing rooms? A. Yes, sir. Q. And the ladies’ toilet. [fol. 274] A. Yes, sir. Q. Were the compartments and the drawing rooms of that Pullman occupied at that time that morning? A. Yes, sir. Q. The Congressman did not mention the words “ obser vation car” that morning, did he? A. No, sir. Q. He did not apply for any permission to ride in the observation car, did he? A. No, sir. Q. In the Pullman car that you were in that morning, you and the Congressman, where this transaction occurred: be tween each two berths, are there any partitions out in the body of the car that we are talking about—headboards ? A. I believe that there are in those cars now. I think they have been reconditioned. Q. Were they in this car at that time? A. I am not positive; I don’t remember; but there are now. Q. I see. A. They still have that same car. Q. Do you recall the name of that car? A. Lake Catherine, is the name of the car. Mr. Westbrooks: Pardon me. I did not get that. The Witness: Lake Catherine. Mr. Taylor: Just a moment. [fol. 275] By Exam. Disque: Q. Where did that come from; Chicago? A. Chicago to Hot Springs. 1 4 5 Q. Now, based on your experience, Mr. Jones, are there more white people who ride that train than there are col ored people------ A. Yes, sir. Q. —who ride that train. A. Oh, yes. Q. Could you give us any idea of the proportion, the number of colored to the number of whites who customarily ride that train ? A. Well, for the last year or so, we have had about— we have handled about 20 whites to one colored. Q. On that train? A. On that train, yes, sir. Q. And you have answered that, so far as your knowl edge goes, one or two colored persons in the Pullman per year------ A. Yes, sir. Q. (Continuing) —would cover the amount of travel in Pullmans. A. Yes, sir. Q. Are the accommodations on that train devoted to col ored people, adequate to care for the amount of travel of colored people? A. Yes, sir. [fol. 276] Mr. Westbrooks: Just a moment. That is ob jected to. That calls for a conclusion. Exam. Bisque: He is showing the number of persons who ride, and the number of seats that there are in this par ticular car. Mr. Westbrooks: That is objectionable for the reason that it is not a question of whether they have seats in that car for colored people. Our position is that first class passengers------ Exam. Disque: He asked him as to the amount, first. Mr. Westbrooks: Well, but as first-class passengers, hav ing paid the first-class fare, we contend that we can ride in the observation car, and in the Pullman car, and in the dining car, and not up there in the Jim Crow car, which is only for coach passengers. That is my objection. We are contending that does not apply to us. We paid the first-class fare, and we are entitled to ride where the first-class passengers ride, in the observa- 10—577 B y Mr. T aylor: 146 tion car, in the dining car, and in the Pullman car, and not limited to that little Jim Crow car up there. So this is immaterial. Exam. Disque: I understand all that, but this question was only as to the amount of seats available. Mr. Taylor: That is all. Exam. Disque: He has not gone into the other question [fol. 277] yet. Mr. Westbrooks: Available to whom; first-class passen gers? Exam. Disque: It is their contention that if there were any seats available, their duty was completed. He has only gone so far as to inquire about the number of seats available, and the number of people traveling. Mr. Westbrooks: Available to whom, if the Examiner please? Exam. Disque: To colored people. Mr. Westbrooks: We are not claiming anything on the basis of colored people. We are claiming on the basis that we have paid the first-class fare. Exam. Disque: He is putting in his defense. Mr. Westbrooks: Well, but we contend that that is im material insofar as our first-class fare is concerned. Exam. Disque: Well, we will get to that later. The only question now is as to the space that is available. Now, you can go into the other matter later. The only question is as to the space available. Mr. Taylor: That is all. Exam. Disque: That is all right. As I say, you can go into the other later. Mr. Hughes : It is our contention, if the Examiner please, that for the volume of traffic, we are supplying an ade- [fol. 278] quate amount of equipment. Exam. Disque: But Mr. Westbrooks wants you to go further, and explain why it is that you do not provide accommodations, not only of a sufficient amount, but of a kind equal to what the white people have? Mr. Westbrooks : Yes. That is our contention. Mr. Mitchell: Yes. Mr. Westbrooks: For the same class of fare. Exam. Disque: Yes. Mr. Taylor: All right. 147 Q. Mr. Jones, ordinarily, considering the number of col ored persons who travel in Pullmans, on your train, are the drawing rooms and compartments ordinarily adequate and sufficient to take care of all of those who desire Pullman accommodations ? Mr. Westbrooks: Of course, the objection to that would be that “ adequately” calls for a conclusion. Mr. Mitchell: Oh, let him testify. A. We have plenty of space, for all we are handling. By Mr. Taylor: Q. Considering the number of colored persons who want to ride in the Pullman cars, are the compartments and the drawing rooms, where you say you can put them------ A. Yes. Q. (Continuing) — ordinarily sufficient to take care of that demand? A. Yes, sir. [fol. 279] Mr. Westbrooks: The objection to that is for this reason: we claim now, that they want to ride, and they can’t buy a ticket; they refuse to sell them. The witness has himself testified that he does not know how many people apply for tickets, who want to go on those trains. Exam. Disque: He is only testifying as to what his ex periences are within the car. Mr. Taylor: That is all. Exam. Disque: And he says that ordinarily he can ac commodate the colored man who desires a drawing room or compartment. The Witness: Yes, sir. Mr. Taylor: No; more than that------ Exam. Disque: He does not know whether people may ask the ticket agent, or not. Mr. Taylor: No; more than that, if the Examiner please. Ordinarily he can accommodate in a drawing room or a compartment, the colored applicant for Pullman accommo dations. The Witness: Yes. Mr. Taylor: And at the same time comply with the Ar kansas law. B y Mr. T a y lo r : 148 The "Witness: Yes. Mr. Taylor: Is that what you mean? The Witness: That is the way I understand it, yes, sir. [fol. 280] Mr. Westbrooks: Well, my objection to that would be this, if the Examiner please, that a colored person buying a first-class fare is not compelled to spend money for a drawing room or compartment, when a white person who buys a first-class fare can have a seat, or a berth. In the second place, it makes no difference what the laws of Arkansas are concerning intrastate passengers; because they are of no force and effect on interstate passengers. Mr. Taylor: That is a pretty big decision, that counsel has just made there. Mr. Westbrooks: Well, it is our contention, and the Su preme Court of the United States has said so. Exam. Disque: What I want to find out------ Mr. Taylor: That is not in my hooks. Mr. Westbrooks: You do not have the right books. Read mine. Exam. Disque: Just a moment. What is the charge made against the colored man who rides in a compartment or drawing room from Memphis to Hot Springs? Is it the same as a white person would pay for a seat in the Pullman car? By Mr. Taylor: Q. Do you know? A. If you will permit me to explain that in my own way------ Exam. Disque: Yes. The Witness: If Mitchell had a lower from Chicago to Hot Springs, and if I had had a compartment vacant at [fol. 281] Memphis, I would have put him in there, and it would not have cost him another dime to ride in that com partment all the way to Hot Springs. Mr. Taylor: In other words------ Exam. Disque: But he did not do that. The Witness: No. Exam. Disque: He bought a ticket to Memphis. The Witness: I am giving you an illustration, if there had been a compartment, of what we would do for him. 149 Q. State whether or not this is correct------ Mr. Westbrooks: Just a moment. Just for the purpose of the record, I \vant to move that that be stricken, that he would let him ride for nothing—or let a man ride for nothing who was able to pay first-class passage, while the poor devil who was not in a position to buy it, could not get anything. By Mr. Taylor: Q. State whether or not this is correct, Mr. Jones, to do away with a lot of language: when you have a drawing room, or a compartment available, you put the colored passengers in that compartment or drawing room? A. Yes, sir. Q. Leaving the door open, fronting out on the aisle? A. Yes, sir. Q. And then the passenger pays only a seat fare; is that correct? A. Yes, sir, that is all. [fol. 282] Q. Just the same amount that he would have paid for a seat in the body of the car. A. Yes sir. Mr. Taylor: May we have just a moment, if the Examiner please. (A short intermission followed.) Mr. Taylor: Cross-examine. Exam. Disque: We will take a few minutes recess. (A short recess was taken.) Exam. Disque: Come to order, please. Proceed with the cross-examination. Mr. Taylor: Just one or two more questions* Mr. Westbrooks: Do I understand that counsel says he has some more questions? Mr. Taylor: Yes. Mr. Westbrooks: All right. By Mr. Taylor: Q. I want to ask you this, Mr. Jones: in your experience as a conductor on this train, did you ever enforce this Ar kansas Separate Coach Law against any white passengers? B y Mr. T a y lo r : 1 5 0 A. Yes sir. Q. Well, tell the Examiner about some of your experi ences, and what you did. Mr. Westbrooks: Now, of course, merely for the sake of the record, so that if this is ever written up, if the Examiner [fob 283] please, it will be in the record, what he enforced against white passengers, I do not think is material to the discrimination that we are complaining about, as a custom. That is the point. Mr. Taylor: I am trying to show equal enforcement of this Arkansas statute as against white and colored indis criminately. Exam. Disque: The statute is not involved here directly at all. The witness may answer that question. It will not be long, I take it? Mr. Taylor: No. The Witness: Do you want me to give you an experience that I have had, or just tell you whether I have or have not. Mr. Taylor: Whether you have or have not The Witness: Yes. By Mr. Taylor: Q. I will ask you the direct question, have you made some white people leave accommodations devoted to colored people? A. Yes sir. Q. On this train f A. Yes sir. Q. Now, Mr. Jones, I believe you stated that the Bock Island has been in bankruptcy since 1933. A. Yes sir. Q. Have there been any gradual changes in the equipment [fol. 284] of these trains since that time? A. Very much so. Q. Tell the Examiner what has been done down there. A. Well, at the present time we have a new combination car that is more up to date, for colored people, than the white coach that we had. It has a Waukesha cooling sys tem; it has a nice ladies’ toilet, and a men’s toilet in each end of the car; hot and cold water; soap; towels; flush toilets, nice plush cushions,—a first-class up to date air cooled car. 151 Q. Is that regular equipment? A. Yes sir. Q. On your two trains ? A. Yes, sir, regular equipment every day. Q. At the present time ? A. Yes sir. Q. And devoted to colored) people ? A. Yes sir. Q. How long has that equipment been on there? A. Since sometime around the 1st of last July. Q. This Waukesha air-cooled equipment,—what is that? A. It is mechanical. It is not what they call an ice-cooling system; it is a new system that they have got. Q. Is that the standard------ A. Standard equipment. Q. —air-cooling device— — [fol. 285] A. Yes. Q. —in use by the railroad? A. Yes sir. Exam. Disque: This car ought to be pretty thoroughly described, because it is the one upon which any discrimina tion finding must rest, and not the one that Mr. Mitchell rode in. We must find out whether or not this car that is now in operation is a! discrimination against the colored race. Mr. Taylor: All right. Exam. Disque: That should be thoroughly described. Mr. Taylor: All right, sir. By Mr. Taylor: Q. Is the car which operates on your two trains, and which you say was put into service last July, a standard steel passenger coach? A. Yes sir. Q. With running gear and accessories in tiptop shape, so to speak? A. Yes sir. Q. Up to date? A. Yes, sir, the latest model. Q. You say that that car is air-conditioned? A. Yes sir. Q. Throughout. A. Yes sir. 152 [fol. 286] Q. Let us have a little more detailed description of the toilets. You say that there is a toilet in each end of the car. A. Two in each end of the car. Q. Two in each end. A. Yes sir. Q. One for men and one for women? A. Yes sir. Q. Does that car have a partition? A. Yes sir. Q. Running through the center? A. Yes sir. Q. And it is divided, one end to colored passengers------ A. Yes sir. Q. —and one end for white passengers ? A. Yes sir. Q. And in each of those compartments of that car there are two toilets ?* A. Yes sir. Q. One for male and one for female? A. Yes, sir. The car has four toilets. Q. Are those toilets modern and up to date? A. Yes sir. By Exam. Disque : Q. Flush or dry? A. Flush. [fol. 287] By Mr. Taylor: Q. Are there washbasins in there ? A. Yes sir. Q. Soap? A. Soap. Q. They are supplied with soap—and paper towels ? A. Towels, yes, sir. By Exam. Disque: Q. Free towels ? A. Paper towels. Q. Free? A. Yes sir. Q. Or do you have to put a penny in the slot? A. No, free; free towels, free drinking cups. 153 Q. Each is supplied with ice water? A. Yes sir. Q. What is the floor covering? A. It is something like linoleum,—congoleum, or some thing like that. It makes it more sanitary than the old carpet or rugs, that they used to have. Q. What kind of seats? A. Plush seats. Q. Plush. A. Yes sir. Q. Do the- have these tidies, or bibs, or whatever you call them------ A. Yes sir. [fol. 288] Q. Over the hack end of them? A. Yes, sir; seat covers. Q. Yes. A. Back covers. Q. Yes. A. That is what they call them. Q. Linen? A. Yes. Q. White linen? A. White linen back covers. Q. Are they clean each trip? A. Yes sir. Q. Put on there clean? A. Yes, sir, every trip. Q. Are there any cuspidors in this car? A. A few, yes, sir, just a few, for those who want to use them. Q. Are the same kind of cuspidors in the colored end that there are in the white end? A. Yes sir. Q. Is that car that is devoted to colored people, which has been in operation there since July, in every respect equal to the coach provided for white people? A. Yes, sir—and better. Q. Did you say it was better? [fol. 289] A. Yes, sir, I think it is, I consider it a better car. Q. Why? A. It is a newer car; more up to date. B y Mr. T a y lo r : 154 Q. Well, each compartment on either side of this center partition is identical, is it? A. Yes sir. Q. Each compartment------ A. Yes. Q. —is just exactly like the other. A. The same, only there is a whole lot more room in the end for the colored people than there is for the white people. It is just the same in each end, however. Q. Except------ A. (Continuing:) Only that there is more space in the one end than there is in the other. Q. Are you familiar with similar equipment on other southern railroads? A. No, sir. I haven’t been on any other railroad in the community,—only the Illinois Central, that I came up on the other night. Q. The trains of other railroads come into the Union Sta tion there at Memphis, do they not? A. Yes sir. Q. Along with your train ? A. Yes sir. [fol. 290] Q. Have you had occasion to observe the equip ment— A. Yes. Q. — of the other railroads? A. Yes sir. Q. What lines? A. Frisco and Illinois Central, in there. Q. Well, how does this new car that has been put on there, compare with the equipment------ A. Very good. Q. — similar equipment of those lines. A. As good as any of them have. By Exam. Disque: Q. The car you have described runs every day, does it? A. Yes sir. Q. The same type of car, I mean. A. How? Q. The same type of car. A. Yes sir. 155 Q. And is it standard equipment, part of the standard equipment of that train? A. Yes sir. By Exam. Disque: Q. Is it a new car------ A. Yes sir. Q. — or an old car remodeled? A. A new car. [fol. 291] Q. Brand new equipment? A. Yes, sir. By Mr. Taylor: Q. Is it brand new? A. As far as I know it is, yes, sir,—it is brand new; any way that is the way it appears to me. Q. It looks brand new? A. It looks brand new to me. I couldn’t tell you when it was built, but I know it has been remodeled and made up to date, if it was remodeled; an up to date solid steel car. Q. So that it could not be any better? A. I don’t think so. Q. A brand new car would not be any better than this one? A. Not a bit. Q. Not any cleaner or nicer? A. No, sir. By Exam. Disque: Q. When is it cleaned? A. Sir? Q. When is it cleaned, and how is it cleaned? Mr. Taylor: I have got a man here to testify about that. Exam. Disque: All right. Mr. Taylor: Who superintends that job? Exam. Disque: What does the Pullman car have that this car does not have? Is it the contention of complainant that you should have the same accommodations that are provided in a Pullman car? B y Mr. T a y lo r : 156 [fol. 292] Mr. Westbrooks: And the observation car, too, —that belongs to the Bock Island,—that first-class passen gers, or passengers paying that fare, can use. Exam. Disque: How do you want the railroad to meet your complaint? What is the remedy you ask? Mr. Mitchell: What we are asking, if the Examiner please is this, that a colored man, or passenger riding on a train, paying the first-class fare, shall have all of the accom modations that anybody else has. The question of segregation is not involved. The law of the state of Arkansas, which has been put into the record here, provides that the passengers of the two races must be separated, but that the accommodations must be equal. Now, we are contending that a colored man is entitled to everything that a white man gets, who pays a similar fare, on these trains. Exam. Disque: Then, in order to meet your complaint, you want the railroads either to take off the Pullman car, or to put one on for you equally as good? Mr. Mitchell: Absolutely. I want to ride in a Pullman just like these other lawyers here, if I have got the money to pay for it. Exam. Disque: You do not care whether it is a Pullman car, or what? Mr. Mitchell: I do not care how they arrange it ; that is [fol. 293] their job. Exam. Disque: You do not care whether it is a railroad car, or a Pullman car: You want a car that is equal to the Pullman car that is now operated and used by the whites? Mr. Mitchell: That is not what I want. I f I want to sleep, and there is a Pullman car for white passengers to sleep in, I want the same arrangement. If there is a parlor car, where white passengers can sit in comfort, and watch the country as they go through, it is our contention that the law of the state of Arkansas says we must have it. By Exam. Disque: Q. What is this observation car, or chair car, or whatever it is? Is that a railroad car, Mr. Jones? A. Yes, sir,—a parlor car. Q. Who is entitled to use the observation car? A. Anyone who has a first-class ticket, and pays that extra fare, they have an extra fare, and it is in addition to 157 your regular railroad ticket, which is the same seat fare as the Pullman car, a seat in the Pullman, which is 65 cents from Little Rock to Memphis, either way. Mr. Taylor: Now------ Exam. Disque: Just a moment please. Mr. Taylor: Pardon me Exam. Disque: You not only want a Pullman car, but you want another car, an observation car, put on there? [fol. 294] Mr. Mitchell: I want dining car accommodations also. Exam. Disque: You want another observation car put on there, and you cannot mix them in the same dining car, so you want another dining car put on there. Mr. Mitchell: Yes. If that is what they should do, under the law, let them pay the price, and give it to me. Exam. Disque: I just want to get the issues clear. Mr. Mitchell: Yes, sir. If they have passed a law that works that hardship on them, we want to take advantage of it. Exam. Disque: Proceed. By Mr. Taylor: Q. A passenger, a Pullman car passenger, would not have any right, on his ticket, to ride in that parlor car, would he? A. We would permit him to do that, so long as it did not interfere with somebody else’s seat. If the seats are all sold in there, then they have got to stay in the Pullman car; but if not, they can go back there; they have the privilege of going back in the parlor car. Q. The parlor car is owned by the railroad company? A. Yes, sir. Q. And the Pullman car is owned by The Pullman Com pany. A. Yes, sir. By Exam. Disque: Q. Is every seat in the parlor car sold,—or I mean, is it reserved for sale, or are there seats where people can go [fol. 295] out and look at the scenery? A. No—in the body of the car, why, the seats are all numbered, and you sell them by number the same as you do berths, by number; but at the back end of the car, why, 158 anybody can go out there,—that is, who is privileged to ride in that car. Q. You mean, on the rear platform? A. Yes, sir. Q. Sitting. A. Yes, sir. Q. Sitting on camp stools, and so forth. A. Yes, sir. Exam. Disque: Proceed. Mr. Taylor: That is all. Exam. Disque: Cross-examine. Cross-examination. By Mr. Westbrooks: Q. Now, Mr. Jones, as I understand the procedure, in order to enable a white passengers to ride in the observa tion car, he must have what we call a first-class ticket. Is that correct? A. Three cents per mile. Q. Three cents per mile. A. Yes, sir. Q. And if he only has a ticket at 2 cents per mile, he can [fol. 296] only ride up there in that half of the Jim Crow car—up in that half of the car where the Jim Crow car is ; isn’t that correct? A. Yes, sir. Q. Now, then, if he has not got a first-class ticket, or a 3 cents per mile ticket, he cannot ride in the Pullman car, can he? A. No, sir. Q. Now, then, the only provision that the Rock Island has for carrying colored persons is in the Jim Crow part, that half of the car which you have described? A. Yes, sir. Q. That is correct? A. Yes, sir. Q. Now, then, a man, a colored person, who has a first- class ticket, he is still compelled to ride in the Jim Crow car, is he not? A. Yes, sir Q. Is that correct? A. Yes, sir. 159 Q. And if a colored person has a second-class ticket, that is at 2 cents per mile, he is compelled to ride in the same Jim Crow car, is he not? A. Yes, sir. Q. Now, then, if a white person has a 2-cents per mile [fol. 297] ticket, you say he can only ride in the Jim Crow car? A. In his part of it. Q. In his half of it? A. Yes, sir. Q. And if he has a 3 cents per mile ticket, he is entitled to use the Pullman, the diner and the observation car? A. Yes, sir. Q. That is what you call a first-class ticket, is it not? A. Yes, sir. Q. And the use of the Pullman car, and the dining car, and the observation car, is what you call first-class accom modation; is that not correct? A. Yes. Q. But you have no such first-class accommodation for negroes who are holding first class tickets on the Rock Island Railway, have you? A. No, sir. Q. Now, during the 32 years you said you worked over there they have never had any first-class accommodations for negroes available, have they? A. No. Q. What is the answer? A. No, sir. Q. They have not. A. No, sir. [fol. 298] Q. And they haven’t that now, have they? A. Not in sleeping cars, no, sir. Q. They haven’t any first-class accommodations for them------ Mr. Taylor: Just a moment, I object to the characteriza tion of “ first-class accommodations.” That is relative. Mr. Westbrooks: Well, now------ Mr. Taylor: Ask him specifically------ Mr. Westbrooks: Pardon me. Mr. Taylor: —whether we have this, that or the other thing, without using a broad characterization. 160 Mr. Westbrooks: I am only using counsel’s own words. Counsel used the expressions “ tiptop shape,” “ first-class condition,” and so forth. Those are counsel’s own words. By Mr. Westbrooks: Q. You haven’t any accommodations for passengers, col ored passengers, paying a 3-cent fare, permitting them to use your observation car on the Rock Island, have you? A. No. Q. What is the answer! A. No. Q. No. And they cannot use the dining car, can they? A. No, sir. Q. No. And they cannot use the sleeping car, can they? A. No, sir. [fol. 299] Q. Now------ Exam. Disque: But they can use the compartments in the sleeping cars, though. The Witness: That is, if they have any. Exam. Disque: If they have any. The Witness: Yes. Mr. Westbrooks: Well------ By Exam. Disque: Q. What do you mean by “ if they have any” , Mr. Jones? Suppose there are four seats in a compartment, or six seats, or whatever it is. When is that full, when there are three in there, or when there are four in there, or five ? A. Four. Q. What do you call “ full” ? A. There are four seats in a compartment. Q. Yes. A. (Continuing) And you can seat about six in a state room. Now, I said—and I want to correct that a little bit there. I said “ if available” . Now, this man going down to Hot Springs, if he makes application, from Hot Springs to Chicago, he can get it, if it is not sold. They do not hold it, to wait and see if some white man is going to buy it. They will sell it to him. By Mr. Westbrooks: Q. Now, Mr. Jones, do you recall the kind of ticket that Congressman Mitchell had on the 20th of April, 1937 ? 161 [fol. 300] A. Yes. Q. Or, the 21st of April, 1937. A. Yes, sir. Q. What kind of a ticket was that, sir ? A. Three cents per mile ticket. Q. That is a first-class ticket, is it not? A. Yes, that is a first-class ticket, what they call a first- class ticket. Q. Now, then, there was room in the observation car, in the back of the observation car, was there not? A. Yes, plenty of room. Q. Plenty of room? A. Yes, sir. Q. You did not inform Congressman Mitchell that, his ticket being a first-class ticket, a three-cents per mile ticket, he haA i right to occupy part of that first class accommoda tion vVhich was furnished to white persons paying the same fare, did you? A. No, sir. Mr. Taylor: I object to that because there is no evidence that the Congressman ever applied to ride in the parlor car, or the observation car, or any part thereof. Mr. Westbrooks: He did not have to apply. He bought a first class ticket. [fol. 301] Mr. Taylor: My remarks are addressed to the Examiner. Mr. Westbrooks: I am addressing myself to the Exam iner also, counsel. Exam. Disque: Are you through, Mr. Westbrooks? Mr. Westbrooks: No, sir. Now, then, if the Examiner please, the proposition is that he has paid a first-class fare, and the railroad company has received his money, or part of it— Thd Rock Island Railway. The Railway Company has complete charge. That is their observation car, where persons who own first-class tickets, three-cents per mile tickets, tickets designated as first-class tickets, have the right to use and occupy the accommodations. The evidence is that the complainant asked—or attempted to purchase first-class accommodations in the sleeper, in the Pullman car, where other first-class passengers would have purchased accommodations had they not been colored persons. 11—577 1 6 2 Mr. Jones was in charge of that train; he knew that there were first-class------ Mr. Hughes: Are we arguing the case at this time, if the Examiner please? Exam. Disque: What is the purpose of this ? Mr. Westbrooks: No, I am just making my statement as to why I asked the question. This observation car being part of the railroad equip ment, it was the duty under the law, of Mr. Jones to have [fol. 302] furnished Congressman Mitchell with a first-class ticket, or first-class accommodations. That was the reason for the question. Exam. Disque: All right. By Mr. Westbrooks: Q. Now, Mr. Jones, how much are your tickets—or seats, in the observation car, from Memphis to Hot Springs? A. 90 cents. Q. Then, this dollar which Congressman Mitchell had in his hand at that time, would have been more than adequate to have paid for a seat in the observation car; is that correct? A. Yes. Q. Now, then, how much were the seats in the Pullman car from Memphis to Hot Springs, Arkansas ? A. 90 cents. Q. The same fare? A. Yes, sir. Q. Now, then, you said that the Congressman was sitting in section 3? A. Somewhere along in there; I am not positive. Q. Somewhere in there? A. Yes, sir. Q. There was nobody else sitting in that section? A. No, sir. Q. Nobody else but the Congressman, was there? [fol. 303] A. No, sir. Q. And as a matter of fact, do you not know, Mr. Jones, that no one else occupied that section 3; no one had bought section 3 from Memphis to Hot Springs on April 21st? A. Well, I didn’t know whether they had or not. I didn’t have the diagram, and I couldn’t tell. The porter had it. Q. Pardon me? A. The porter handled the diagram. 163 Q. Yes. A. And I didn’t know whether that berth had been sold or not. Q. Well, whether it had been sold or not, you would not have sold a seat in section 3, or any other space in that Pullman car, to Congressman Mitchell, would you? A. No, sir. Q. Because he was a colored person; is that correct? A. Yes, sir. Q. You saw his ticket was an interstate ticket from Chicago, did you not ? A. Yes, sir. Q. To Hot Springs and return? A. Yes, sir. Q. A round-trip ticket. A. Yes, sir. Q. Now, you said that you know the law of Arkansas. A. I have read it. [fol. 304] Q. The separate coach law? A. Well, I have read it. Q. You stated to your counsel that you knew it. A. I have read it. Q. But you do not know it, though, do you? A. No. I am not any lawyer. Q. No. Now, do you know that the first clause of that Sep arate Coach Law says that all railway companies carrying passengers shall provide equal accommodations for colored and white ? A. Yes. Q. Do you know that? A. That is what it says. Q. You know that? A. Yes, sir. Q. Now, then, that second-class coach up there, the Jim Crow coach, which is called the Jim Crow car down there, has “ For Negroes” or “ For Colored” , or something like that, does it not? A. Yes, sir. “ For Colored.” Q. “ For Colored.” A. Yes, sir. Q. Would you say that that is equal to the accommoda tions furnished in the observation car by The Rock Island Railway to white passengers holding first-class fares ? 164 [fol.305] A. No. Q. It is not? A. No, sir. Q. Would you say that the Jim Crow accommodations are equal to the facilities and accommodations furnished in the Pullman car, to white passengers who pay first class fares? Mr. Taylor: That is objected to because of the word ‘ ‘ equal. ” If he means by ‘ ‘ Equal ’ ’ similar in kind, all right. But the word “ equal” is a very indefinite and relative kind of term, and may depend upon a great many things. Exam. Disque: The record will show a description of the cars, and the Commission can determine whether or not they are equal. Mr. Westbrooks: Yes. Exam. Disque: The witness—just a moment. Mr. Westbrooks: Pardon me. Exam. Disque: The witness should state in what way a Pullman car is better, or provides any better accommoda tions, than the new coach which now runs, if it is better. Mr. Westbrooks: I perfectly agree with you. I was merely using the language of counsel, Mr. Taylor, in speak ing about first-class, as being equal in every respect; and even better; equal to and better than, I was just using his language. I understand that the facts should be adduced. By Mr. Westbrooks: Q. Now, Mr. Jones, will you describe the difference [fob 306] in the toilets that are in the observation car of train 45, run by the Rock Island, and the toilets in the Jim Crow car, that colored men and women occupy, or use. A. Well, the toilets in the parlor car, and in the middle partition of the Jim Crow car, are about the same. The same as the toilets in the observation car? i. Yes, sir. They have a washbasin and towels. The same kind of washbasin ? L. Practically; I wouldn’t say just exactly. Q. Well, now, what is the difference in the washbasins in the observation car and in the Jim Crow car? There is a difference, isn’t there ? A. Well, I couldn’t say whether there is or not. I know they all answer the same purpose, but whether they are made out of the same material or not, I couldn’t say. 165 Q. Now, then, is there any porter service in the observa tion car ? A. Yes, sir. Q. Is there any porter service, the same kind of porter service, in the Jim Crow ear, or the Jim Crow section? A. No, sir. Q. What is the answer? A. No. Q. Now, then, Mr. Jones, I believe you stated that on this train, the first car, I believe is the Jim Crow car; is that correct? [fol. 307] Mr. Hughes: Following the baggage car. A. Yes. By Mr. Westbrooks: Q. And you said there are two or three partitions------ A. The car we have now has two partitions,—or one partition. Q. One partition? A. Yes, sir, and two compartments. Q. Two compartments. A. Yes, sir. Q. Now, then, this car that was in use in April of 1937: you recall that vividly, do you not? A. I recall it. Q. Will you describe that car. How many partitions were in that car ? A. Three compartments. Q. Three partitions? A. Two partitions; three compartments. Q. Now, I believe you said, sir, that there was a toilet on the front end. A. Yes, sir. Q. That is, for smokers—for colored men? A. Yes, sir. Q. And there was no running water in that, in April ? [fol. 308] A. No. Q. And no washbasin, or towels? A. No. Q. And the smoker, on the back end, for white men------ A. The same way. Q. There was no running water, and no towels in there ? A. Right. 166 Q. Now, then, Congressman Mitchell, I believe you said, was occupying the smoker—or the compartment where the ladies were? A. The compartment where the ladies were. Q. Did you say that there was running water in April, 1937, in that toilet, in that middle compartment? A. Yes, sir. Q. Were there towels that were furnished? A. Yes, sir. Q. Hand towels? A. Paper towels. Q. Paper towels? A. Yes, sir. Q. Now, what kind of towels were there in the observa tion car—what kind of towels were furnished in the ob servation car at that time? A. Paper and linen both. Q. Paper and linen? [fol. 309] A. Yes, sir. Q. Now, you said that the toilet in the part where the Congressman was sitting, with the ladies, was a ladies’ toilet ? A. Yes sir. Q. Did it have up there “ For Ladies” ? A. “ For Women.” Q. “ For Women.” A. Yes sir. Q. Now, then, the man who was sitting in there who wanted to use some water, where would he have to go,— a colored man? A. He didn’t have any. Q. He did not have any. A. No, sir. Q. Now, then, you said that you sat in the colored car, the colored coach, that is, the Jim Crow portion there, from Forrest City to Little Rock; is that correct? A. Yes. [fol. 310] Q. Now, there was room in the smoker, was there not, Avhere the colored men were? A. Yes sir. Q. You did not have your things in there, did you? A. Where. 167 Q. The smoker in front where the colored men smoked. A. Yes, sir, that is where I sat. Q. That is where you sat? A. Yes sir. Q. Now, where was a white smoker in the back, was there not? A. Yes sir. Q. You never used that one, did you? A. No, sir. Q. You were up in the colored part all the time? A. Yes sir. Q. That takes up two seats, does it not? A. Yes sir. Q. How many seats were occupied at that time? A. Oh, I think they had about five or six passengers at that time. Q. Well, how many seats did that leave, when you were occupying two whole seats? A. Well, I think there are 22 in that end of the car. Q. Is that now, or then ? A. Then. [fol. 311] Q. 22? A. Yes sir. Q. 22 seats. A. In that one compartment. Q. Now, in the next compartment? A. 20. Q. Now, in the third compartment? A. 22. Q. Then that would make 64 seats, would it? A. Yes sir. Q. In that Jim Crow car. A. Yes sir. Q. Now, then, the seats which you have at the present time: Are they upholstered in the same manner as the seats in the observation car? A. Yes, sir—practically the same material. Q. No. Is it the same material? A. They are just as nice. Q. No. Just answer the question, if you know. A. I couldn’t say. Q. Do you know whether it is the same material or not? A. I don’t know. 168 Q. Now, then, the carpet on the floor: Do you have a carpet there, a runner, in the colored section? A. A runner. [fol. 312] Q. A runner. A. Yes. Q. What if you know—what is on the floor of the Pullman car of that train? A. Carpet. Q. That is covered all over with carpet, is it not? A. Yes sir. Q. And your observation car? A. Yes sir. Q. That is covered all over with carpet, is it not? A. Yes sir. Q. So that there is a difference in the covering of carpet on the floor, is there not? A. Yes sir. Q. Now, then, you said that they have leather seats now—leather backs, or something. A. In the cars that they have now ? Q. That is the car that Congressman Mitchell was in. A. Yes. Q. That he was riding in. A. Yes, leather seats. Q. Now, you said—counsel asked you if something was in first class condition. Do you recall—-I believe you said that meant that it was clean. A. Yes. [fol. 313] Q. That is all you meant by “ first class condi tion” ? A. Yes sir. Q. Now, then, you were asked about the volume of busi ness there, and you said that in thirty-two years you only had ten or twelve persons, colored persons, riding in Pull man cars, in that time. A. That is all. Q. Did you sell them that accommodation ? A. No, sir. Q. Did you ever sell any colored man any accommoda tions ? A. No, sir. Q. Now, you said that one or two had applied to you— about one per year, or something like that, for accommo dations ? 169 A. Yes. Q. And you refused them on account of their color, did you not? A. On account of the law. Q. Well, on account of their color; that is the idea, it it not? A. That is the law. Q. Yes. Now, Mr. Jones, you were not sitting near the toilet in the ladies’ room, were you? A. No. I was in the other compartment. Q. In the women’s room, I mean. A. No. I was sitting back from that partition. Q. That was how many seats from the toilet? [fol. 314] A. That would be about ten or eleven seats; about ten. Q. Did you notice that men who were in there were using the toilet between Memphis and Hot Springs—or Little Rock? A. No, I didn’t notice anybody using it. We didn’t have very many to use it. Q. You did not go in there and use it, did you? A. I don’t think so. Q. Then you do not know what the fumes were that were in the toilet, or whether it was in odorous condition or not, so you? A. I didn’t smell any where I was sitting. Q. You did not go and look and look into it and inspect it, did you? A. Well------ Q. To see whether it had been used or not? A. I did before I left Memphis. Q. Well, now, after the toilet was used there, where there was no water, how was it cleaned out, and by whom? A. Well, they have a kind of disinfectant that they put up in a can over it, that comes down in it.' Q. Well, that slowly drops down. A. Yes sir. Q. Drop by drop, does it not? A. Yes, sir—it drops down. Q. But I mean, to wash the toilet out; it is not washed out------ A. No. [fol. 315] Q. —from the time it leaves Memphis until the time it reaches its destination, is it? 170 A. No, sir. Q. Now, you say that you have seen ten or twelve col ored people riding in a Pullman car from Memphis to Hot Springs in thirty-two years? A. In compartments. Q. In compartments? A. Yes. Q. You did not put them out, did you? A. No, sir. Q. Now, you have nothing to do with the charge that is made by the Pullman Company for Pullman service, have you? A. Nothing. Q. And when you said that you would put—that you would have put the Congressman in there at the expense of the Pullman Company, just what did you mean? A. I meant that it was up to the porter to collect what ever he wanted to. Q. Well, now, then, the Congressman was sitting in sec tion 5, and no one was there. Did you tell the porter to collect his fare from there on, the Pullman fare? A. No. Q. For the seat in section 3, at least? A. No. [fol. 316] Q. Now, then, counsel asked you if you had any instructions from the Rock Island Railway Company, or the trustees, or anything like that. As a matter of fact by virtue of your being the conductor of that train, you have charge of the entire train; is that not correct ? A. Yes. Q. And being the conductor for the Rock Island Rail way Company—that is what you were—it is your duty to enforce the law as you think it is? A. Yes. Q. The law of Arkansas—is it not? A. Yes. Q. And as such conductor you were trying to enforce the law------ A. Yes. Q. (Continuing) —when you had Congressman Mitchell leave that first class accommodation, and go to the Jim Crow car, were you not? A. Yes. 171 Q. The answer is “ yes” ? A. Yes. Q. Now, you said, sir, that after Congressman Mitchell left, or had been put out of the Pullman and put into the Jim Crow car, he did not come to you and complain? A. No, sir. Q. He did complain about having to leave this Pullman [fol. 317] car, did he not? A. Well, that is the complaint that he stated. Q. He protested? A. As I stated. Q. He showed you his ticket? A. Yes. Q. And he told you that he was able to pay for the accommodation, did he not? A. Yes. Q. But you told him that he was a colored man------ A. Yes. Q. —and that he couldn’t ride in there ? A. Right. Q. Now, sir, if there had been a white passenger with a first class ticket who had boarded your train at Memphis for Hot Spi’ings, and had asked for a berth or a seat in that car, where there were vacant seats, or a seat in the observation car, would you have sold him a seat? A. Yes sir. Q. Now, you have no knowledge yourself, have you, of how many colored people apply for Pullman tickets in the ticket office there in Hot Springs, to ride back to Chicago, and are refused, have you? A. No, sir. Q. You never have over one drawing room and one com- [fol. 318] partment in that Pullman car, have you? A. We have two compartments and one stateroom. Q. Two compartments? A. Yes sir. Q. And one stateroom. A. Yes sir. Q. If one person takes that stateroom and one person each takes a compartment, then only white persons are sold—or permitted to ride in the body of the sleeping car. A. Yes sir. Q. That is, the Pullman car. 172 A. Yes sir. Q. And no colored persons are allowed by you to ride even on first class tickets, in the observation car? A. Right. Q. Is that correct? A. Yes sir. Q. As passengers. A. Yes sir. Q. Those are your orders from the Rock Island Railway Company, are they not? A. Those are the rules of the railway. Q. Those are the rules? A. Yes sir. Q. And you were following the rules of the company? [fol. 319] A. Yes, sir. Q. Now, when you said that you would have permitted him to ride in the Pullman car for nothing, you did not mean that? A. Oh, no. Q. No. A. I have nothing to do with that part of it. Q. That is correct. You have nothing to do with the Pullman Company’s collection for that? A. The only thing is, if he had a Pullman ticket all the way to Hot Springs you could put him in a compartment, and he is not charged any extra fare for that, from there on. Q. Well, when you put them in a compartment, you leave the door open, and sell other seats in there, do you not, to colored persons? A. Not necessarily. We leave the door open. Q. Well, in other words, when you put a man who only has a seat from Memphis to Hot Springs in there, you put other passengers in there, do you not, colored passengers? A. (No answer.) Q. If you have got a colored man in there, and you sell him a seat, sell it to a colored passenger------ A. I didn’t sell him anything in there. Q. No, but I mean, now, if there is a colored person who has a through ticket, as you say, and you put him in one of the compartments, that is onlv for a seat, is it not? [fol. 320] A. That is all. 173 Q. And if other colored passengers want a seat, they have to go into the same compartment that the first colored man is in ; is that correct? A. Yes. Mr. Taylor: Did you say “ yes” ? The Witness: Yes. By Mr. Westbrooks: Q. Now, then, when you say you do not sell colored people anything, who sells the tickets for the observation car that is run by the Rock Island Railway? A. The ticket agent. Q. The ticket agent. A. Yes, sir. Q. You never sell them, I understand you to say? A. Oh, yes, sometimes. Q. Then you do sell tickets on that train for observation seats—seats in the observation car? A. If a fellow gets on there without a seat, and has got a first class ticket, I sell him a parlor ticket— or seat. Q. I see. But you would not sell a colored man a parlor car ticket? A. No. Q. I f lie got on with a first class ticket? A. No, sir. Q. And the white people and colored people are charged [fol. 321] the same for that three cents per mile ticket, are they not? A. Yes. Q. There is no difference, simply because a man is col ored? A. No. Q. Now, you said you made a white person leave the colored car in enforcing that law? A. Yes, sir. Q. If he had a first class ticket, and was in the Jim Crow car, he could go out into the Pullman car and sit down, by paying the Pullman fare, could he not? A. Yes. Q. The Pullman car is a better equipped car than the Jim Crow car, is it not? A. Yes. 174 Q. Now, then, if he went in there—if you put him out of the Jim Crow car, and he went into the Pullman car, you sent him into the Pullman car, he would not have to pur chase a compartment, he would not have to occupy a com partment, would he? A. No, sir. Q. Or a drawing room? A. No, sir. Q. He could buy a seat? A. Yes, sir. Q. In the Pullman car. A. Yes. [fol. 322] Q. Or in the parlor car? A. Yes. Q. The only requirement is, his having a first class ticket? A. Yes. Q. A three cents per mile ticket. A. Yes, sir. Q. Now, you were asked something about bankruptcy. You said you knew about the road going into bankruptcy? A. Yes. Q. You have got your pay regularly, have you not? A. Yes, sir. Q. Now, I believe you said something about the equipment of this train, sir, that there is a combination coach—you said there was a day coach. What does that day coach consist of? A. A straight car, without any partitions in it. Q. Who occupies that? A. White people. Q. What kind of tickets do they hold? A. Two cents per mile, two cent tickets. Q. That is, second class tickets? A. Well, that is what they call them. Q. Yes. A. Two cents. Q. And then they occupy the entire car, do they? [fol. 323] A. Yes, sir. Q. Colored people cannot ride in that car? A. No, sir. Q. On second class tickets? A. No. Q. Nor on first class tickets? A. No, sir. Q. But all of the colored people must stay in that half of the car, the Jim Crow car, if they ride on your train? A. Yes. Q. No matter what kind of ticket they have? A. Yes. Q. Now, then, I believe you said that under the new ar rangement, in that one car, you only have one partition in it now? A. Yes, sir. Q. And the front end is for------ A. Colored. Q. For whom? A. Colored. Q. Colored people. A. Yes, sir. Q. Men or women? A. Both. Q. Both. A. Yes, sir. [fol. 324] Q. The back end is for what? A. White people. Q. White. A. Yes, sir. Q. Men or women. A. Either one. Q. Either one. A. Yes, sir. Q. But mostly men? A. Well, anybody can ride there who wants to. It doesn’t make any difference to me. Q. It does not? A. No. Q. And it may be men or women? A. Yes, sir. Q. But they must have a ticket. A. Yes, sir. Q. Now, then, where do the colored people go to smoke now, since they have only got one compartment for men and women, and they are all together in that same compartment? A. Right there. Q. They must smoke right there, the men and women, under the arrangement that you have? A. Yes. They do that over the train now, anyway. 175 176 Q. Well, I mean there is no place provided for a colored [fol. 325] woman to smoke in! A. Except------ Q. Except in the smoker, where men are smoking, and chewing tobacco, or anything else? A. Yes, sir. Q. And that is the only accommodation you have for colored people who pay a first class fare? A. That is all. Q. Three cents per mile. A. Yes, sir. Q. Now, then, that day coach that you spoke of for white people: Does that have a smoker in it? A. No. Q. How many toilets has it? A. One in each end. Q. One in each end? A. Yes. Q. For men and for women? A. Yes, sir. Q. What seats? A. They are plush seats. 'Q. How about carpet? A. Yes, sir, there is carpet on the floor. Q. Carpet all over the floor? A. No, it is a runner. [fol. 326] Q. Is that called a chair car? A. A day coach. Q. A day coach. A. Yes, sir. Q. And you have hand towels in there, have you ? A. Paper towels. Q. Only paper towels in there? A. Yes, sir. Q. And those white people who are compelled to ride in that car, only pay two cents per mile, do they not? A. Yes, sir. Q. And those who pay three cents a mile, where do they ride? A. Well, they can ride in there, too, if they want to. Q. But do you not have any other accommodations for them? A. They can ride in the sleeper, or in the parlor car, by paying the extra fare. 177 Q. By paying the extra seat fare? A. Yes, sir. Q. Now, yon have a dining car in that train, do you not? A. Yes, sir. Q. Who is permitted to go into the diner now? A. White people. Q. Only white people? A. Yes, sir. Q. And that is operated by the Rock Island Railway, is it not? [fol. 327] A. Yes, sir. Q. It runs from Memphis to the end of your run at Hot Springs? A. Yes, sir. Q. By the way, is that train 41-51—is that called the 41-51 train that leaves Memphis at 8:30? A. 45-50. Q. 45-51? A. 45-50. Q. 45-50. A. 51 has nothing to do with that. 51 goes from Little Rock west. Q. Yes. A. 45 goes to Hot Springs. Q. But that goes out of here with 45? A. Yes, sir. Q. And it takes some of the cars off 45 on west? A. No, sir. Q. It just makes a connection there? A. Makes the connection. Q. At Little Rock. A. Yes, sir. Mr. Westbrooks: All right. That is all. Exam. Disque: Is there anything further? Mr. Taylor: Just a moment further. Are you through? Mr. Westbrooks: Yes. [fol. 328] Redirect examination. By Mr. Taylor: Q. Now, about the present provision for smoking com partments on that train 45: Is there any separate smoking 12— 577 1 7 8 compartment for white passengers in the white coaches, the coaches assigned to white people? A. Well, they have a partition in this front car, if they want to go up there, and if they do not, they smoke where they are. Nine times out of ten they will never move out of their seats. They smoke there in the day coach. Q. On that train, in view of the present vogue, people smoke wherever they please? A. Yes. Q. All over the train, do they? A. Yes, sir, and I never question it. Q. No objection is made to it? A. I never question them any more. Q. I want to ask you again, because I may have mis understood one of your answers: Have you ever been given any instructions or directions, or any rules with reference to how you shall treat colored passengers in Pullman coaches, by the railway company? A. No, sir. Q. I understood you, and maybe I misunderstood you, somewhere in your examination to answer counsel that something was according to the rules of the company. Were you referring there, or did you intend to refer there, [fol. 329] to your practice of undertaking to enforce the Arkansas Separate Coach law? A. Oh, I get what you mean now. No. I meant, I was enforcing the law, not the rules of the company. It is not the rules of the company. It is the law, that I am enforcing, and not the rules of the company, because I have never had any instructions from any one on the railroad as to just how to handle these cases, so that it was left up to me. Mr. Taylor: That is all. Recross-examination. By Mr. Westbrooks: Q. Now, Mr. Jones, in order that we may all clarify the situation, if you were not the conductor, and an employe of the Rock Island Railway, you wouldn’t undertake to be moving colored people out of anything on the train, would you? A. If I wasn’t what? Q. I f you were not the conductor. A. No. 179 Q. And had charge of the train. A. No. Q. But as the conductor and in charge of the train, that is one of your duties as conductor, and in charge of that train, to keep the colored people and the white people sep arate? A. Yes, sir. Q. Now, then, you spoke about smoking a few minutes ago. [fol. 330] A. Yes. Q. In the body of the Pullman car they do not allow smoking, do they? A. No. Q. In the body of the car. A. No. Q. They have separate smoking rooms, have they not? A. Yes, sir. Mr. Westbrooks: That is all. Redirect examination. By Mr. Taylor: Q. Do you know whether they smoke in the body of a Pullman car or not? A. I don’t think they allow that. Q. You do not know? A. Yes. Q. Or do you know? A. Well, I know that I was run out of one the other night. They don’t allow that. Q. Well, I have had a similar experience—to the con trary. A. Well, that is just my experience. I am not familiar with the rules of the Pullman Company. Mr. Taylor: All right. That is all. Mr. Westbrooks: That is all. (Witness excused.) Exam. Disque: Call your next. [fol. 331] Mr. Taylor: Mr. Scott: Exam. Disque: Be sworn. 1 8 0 W. S. Scott, was sworn and testified as follows: Direct examination. By Mr. Taylor: Q. Mr. Scott, give the reporter your full name and address. A. W. S. Scott; 201 Mill Street, Malvern, Arkansas. Q. In April------ Mr. Westbrooks: What town? The Witness: Malvern. Mr. Hughes: Malvern. By Mr. Taylor: Q. In April of 1937, were you employed by the trustees of the Chicago, Rock Island & Pacific Railway Company? A. Yes, sir, I was. Q. In what capacity, working for them? A. Brakeman. Q. Were you in your work assigned to train 45 on that day? A. I was. Q. Were you the head brakeman? A. Yes, sir. Q. Did you ride that train from Memphis to Little Rock on that day? A. Yes, sir. [fob 332] Q. This is April 21st, 1937. A. Yes, sir. Q. During the course of that journey from Memphis to Little Rock on that morning, do you recall having seen this man over there, Congressman Mitchell? (Indicating.) A. Yes sir. Q. Where did you see him? A. In the middle compartment of the Jim Crow car. Q. In the middle compartment of what?; A. The Jim Crow car, they call it, or the combination car, —whatever you term it. Q. That is a car assigned to colored people? A. Yes sir. Q. On that train. A. Yes sir. 1 8 1 Q. Now, how much time—or, what is the time of that train between Memphis and Little Rock? A. Two hours and forty-five minutes. Q. How much of that time did you spend in the smoking car with Congressman Mitchell? A. Well, I would say two hours. Q. Do you recall the condition of that car on that morn ing with respect to its general layout? A. Yes sir. Q. And its cleanliness ? [fol. 333] A. It was clean. Q. I say, do you recall it? A. Yes, sir. Q. Do you remember what it looked like? A. Yes sir. Q. Was the floor of that car clean that morning? A. Yes, sir, it was. Q. Were the cuspidors in that car clean? A. They were. Q. Do you know whether the toilets were clean or not? A. Yes sir. Q. Were they? A. Yes sin Q. Did you experience, or smell any foul or obnoxious odors------ A. No. Q. (Continuing:) —while you rode in that car that morn ing? A. I did not. Q. Was that car crowded with people? A. No, sir. Q. How many colored people would you say were in that car that morning on that trip ? A. I don’t remember exactly, but there was three or four, or probably five, or something like that. Q. Plenty of seats for everybody? A. Yes sir. [fol. 334] Q. What kind of seats were in that car? A. Leather seats. Q. Were there any linen backs on the seats? A. Yes sir. Q. Were those linen backs clean? A. Yes sir. Q. Where were they put on? 182 A. At Memphis. Q. Is that the starting point of the run of that train? A. Yes sir. Q. And was it on that morning? A. That is the starting point, yes, sir. Q. Do you know whether or not that combination or colored car is cleaned between trips at Memphis ? A. Yes sir. Q. Is it so cleaned? A. It is cleaned every trip, at Memphis, and cleaned at Hot Springs, also. Q. Did Congressman Mitchell at any time that you saw or observed him in that car, make any complaint of any kind or character to you or to anybody else within your hear ing— A. I didn’t hear him say a word. Q. (Continuing:) —about the condition of that car? A. I didn’t hear him say a word to anybody. Q. He did not to you, did he? [fol. 335] A. No, sir. Q. You had on your regular uniform, did you not? A. Yes sir. Q. At that time ? A. Yes sir. Q. The uniform of a hrakeman on a passenger train? A. Regular passenger uniform. Q. A cap and blue coat? A. The regular uniform. Q. Was there any passenger in that car that day who made any complaint to you about odors ? A. No. Q. Or any unsanitary condition? A. No, sir. Mr. Taylor: That is all. Exam. Disque: Cross examine. Cross-examination. By Mr. Westbrooks: Q. Now, let me get your name correctly, sir. What is the name again ? A. W. S. Scott. Q. W. S. Scott? A. Yes. 1 8 3 Q. Now, that number again; 201—I did not get the street. A. Mill. Q. Mill Street. [fol. 336] A. Yes, sir. Q. And what town? A. Malvern. Q. Malpern? Mr. Hughes: Malvern. By Mr. Westbrooks: Q. Malvern, Arkansas? A. Yes sir. Q. Now, how long have you lived down in Arkansas? A. In Arkansas? Q. Yes. A. About thirty-one years. Q. And you never lived any other place, did you ? A. Oh, yes. Q. Where was that? A. Tennessee. Q. Tennessee also? A. Yes, sir,—France, Germany, Belgium, and all around. Q. You have traveled all around? A. Yes. Q. Have you ever been to Chicago? A. Yes. Q. Before this time, I mean? A. Yes, I have been there during the war. Q. I see. That was some time ago. A. It was. [fol. 337] Q. Now, then, you have been a brakeman down there on the Rock Island for how long? A. Well, it has been twenty-nine years last Christmas day. Q. Twenty-nine years last Christmas day? A. Yes sir. Q. That you have been a brakeman down there? A. Yes sir. Q. And have you been running on 45 all the time, or most of the time ? A. I have been on there since September of 1936. Q. Now, this run is every day, from Memphis to Hot Springs ? 184 A. One way. Q. One way? A. Yes sir. Q. Then where do you get off? A. Well, the first day I get out of Little Rock to Hot Springs, and back to Memphis that night. Q. Yes. A. And the next day I come from Memphis to Little Rock, and I am relieved then for 24 hours, and catch the same train the next day. Q. Now, then, you do not have anything to do with clean ing the toilets in the Jim Crow car, do you? A. Not other than to report them when they are dirty. Q. You do not do that yourself? [fol. 338] A. How? Q. You do not clean them? A. No. Q. You said there were four or five colored people, or colored ladies, in the compartment where the Congressman was riding? A. I said I couldn’t say just exactly how many, but I would say there were something like four or five. Q. How many compartments were in that car? A. Three. Q. There were three in the car? A. Yes. Q. And he was in the middle one, you say? A. He was in the middle, yes. Q. Did you ride in the middle compartment? A. I rode in the front compartment. Q. Then you were not in the compartment where Con gressman Mitchell was riding? A. Just passing through. Q. Well, I say you were not riding in that compartment? A. No, I did not ride in there. Q. No. You were in another compartment? A. I rode up where the conductor was. Q. And that was up in the smoker? A. In the smoking end for colored passengers. Q. In the smoking end for colored passengers. [fol. 339] A. Yes, sir. Q. There was no running water in the toilet up there, was there ? A. No, sir. 185 Q. So that if a colored man there, using the toilet, found it dirty, would it stay dirty until it got to Hot Springs, where it was washed up again, did it not! A. Yes. Q. Is that correct? A. Well, I don’t know if they wash them in Hot Springs; they do in Memphis. Q. It stayed dirty until it got back to Memphis, then, where they do wash the toilets; is that correct? Mr. Taylor: No, he did not say that. Mr. Westbrooks: Just a moment. Let the witness answer. Mr. Taylor: Do not assume that the witness said some thing— Mr. Westbrooks: All right. Mr. Taylor: —that the witness did not say. By Mr. Westbrooks: Q. Mr. Scott, you say you know that the cars are washed in Memphis,— or the toilets ? A. They are washed in Memphis, and thoroughly cleaned. Q. After they make the round trip—is that correct? A. Yes sir. Q. But they are not washed in Hot Springs, or Little Rock, or some other place, are they? [fol. 340] A. No. They just have a coach cleaner who goes through and cleans the inside of the coaches. Q. But the toilets are not washed until they — back to Memphis ? A. Back at Memphis. Q. Not until they get back to Memphis. A. That is right. Q. So, now, with reference to those four or five or six men there using that toilet: You did not go in there to see whether they used it or not, did you? A. No, sir. Q. You had no occasion to? A. No. Q. Your business was outside, as a brakeman? A. Yes, sir. Q. To flag the train, and such as that; is that correct? A. I f necessary, yes. Q. Now, then, did you notice anybody else sitting in this middle compartment, except the Congressman? 186 A. I f my memory serves me correctly, I think there was one or two colored ladies in there. Q. Now, who told you that that was a Congressman sit ting in there? A. No one told me. Q. You did not know him, did you? A. No, I didn’t. [fol. 341] Q. You had never seen him before? A. No. Q. You just guessed that he was a Congressman? A. No. Q. How? A. I didn’t know who he was at that time. I just saw it in the paper; that was the first I knew of it. Q. You saw it in what paper ? A. The Arkansas Gazette, I believe. Q. Well, then, you did not see anything happen on that train, did you? A. No. Q. Who told you that the man sitting in that middle com partment was a Congressman? A. I saw it in the paper. Q. When? A. A few days after that. Q. It did not say that he was sitting in the middle com partment, did it? A. No, but I knew his picture. Q. Oh, you knew his picture ? A. Yes, sir. Q. I see. Well, now, then, after he sat in the compart ment there, during the two hours that you said you were riding inside of the car—that was up in some other com- [fol. 342] partment, in the front compartment, you said? A. Yes. Q. You rode in the back smoker, too, did you not? A. Well, I have sat down there, but very few------ Q. But you mostly rode up in the colored end? A. I rode up in the front part all the time, except only when I was going back and forth through the train. Q. I see. And when you go back and forth through the train, you open the door where the smokers are at both ends, do you not? A. Yes. 187 Q. Where the colored ladies and the Congressman were sitting, was right between the two smoking compartments, was it not? A. Yes. Q. And you went through there quite often,— every time the train was stopped, did you not? A. Oh, yes. Q. And you had to open the door, going through? A. Yes. Q. To get out on the platform. A. Yes. Q. And that was the platform between this Jim Crow combination car and the next car ? A. Yes. Q. Now, then, there is no colored porter up there in the [fol. 343] combination car, is there? A. No. Q. There is nobody to help the colored ladies move their baggage, and so forth, is there? A. No—if they are crippled, yes. Q. They do it themselves? A. No, they don’t. Q. I say, ordinarily they do it? A. Oh, yes; they move it around in the car. Q. But not you. You were the brakeman. A. Yes. Q. You were busy looking after your brakeman’s duties. A. Yes. Q. Now, then, do you ever have occasion to go back into the observation car? A. I go back there, as a rule, three or four times in going over the road. Q. There is a colored porter back there, to help those pas sengers, is there not? A. The porter has charge of that car. Mr. Taylor: I object to that, primarily to save time, but technically because it is not proper cross examination, and does not relate to anything asked on direct examination. Mr. Westbrooks: Well, if I may reply, while primarily it would not be technically germane to the direct examination, [fol. 344] since there has been so much testifying by coun sel on both sides, I would say, I think it is. 188 It is bringing out the truth, and I understand that is what the Commission is looking for. Exam. Disque: That is correct, except that when you go beyond the direct examination, on your cross, you make him your own witness. Mr. Westbrooks: Well, he is telling the truth, so that is all right. Exam. Disque: All right. By Mr. Westbrooks: Q. Now, Mr. Scott, you say that you had your uni form on? A. Yes. Q. When you were passing through those cars. A. Yes. Q. And nobody complained to you? A. No, nary a word. Q. Now, in fact, the conductor is in charge of the train, is he not? A. Yes, sir. Q. And he came through there, did he not? A. Yes. Q. And he is the man to whom complaints are made, is he not? A. Well, he is not the man that complaints are made to every time. Somebody is always hollering about something or other. [fol. 345] Q. Somebody is always hollering? A. It seems like it. Q. In all the cars, they are complaining about something- all the time? A. No, I am not saying all the time. Q. Now, you said that these backs were cleaned at Mem phis ? A. Yes. Q. The backs of the seats—or the covers, that is ? A. Y es; they were linen. Q. Was that now, or back then? A. Back then. Q. Then. A. And now, too. Q. Now, what do they have in the observation car? A. (No answer.) Q. On their seats? 189 Mr. Taylor: I object to the question for the same reasons. I did not ask him a question about the observation car. Mr. Westbrooks: All right. Mr. Taylor: This man is trying to go back to Arkansas at six o ’clock tonight. Mr. Westbrooks: Well, I will excuse him, then, so that he may go right now. You may go back to Arkansas, Mr. Scott. Mr. Taylor: All right. (Witness excused.) [fol. 346] Mr. Taylor: Mr. McGuire. A. G. M cGuire was sworn and testified as follows: Direct examination. By Mr. Taylor: Q. Give the reporter your full name and place of resi dence, please. A. A. C. McGuire; Little Bock, Arkansas. Q. Are you employed by the trustees of the Bock Island Bailway? A. Yes, sir. Q. Were you so employed in April of 1937? A. Yes, sir. Q. In what capacity were you employed in April, 1937 ? A. I was mechanical foreman at Memphis, Tennessee. Q. Tell the Examiner what the mechanical foreman at Memphis, Tennessee, does, in a general way? A. I had charge of all of the equipment operating out of Memphis. Q. Passenger equipment? A. Passenger equipment, with reference to maintaining it, repairing it, supplying it, cleaning it, and so forth. Q. You are familiar with train 45, are you? A. Yes, sir. Q. Also train 50? A. Yes, sir. Q. Did you have actual supervision of the cleaning of the [fol. 347] cars at the end of each trip of those two trains? A. Yes, sir. 190 Q. Will you just describe the routine that you followed? A. Well------ Q. What was done. A. When the train arrives------ Q. At Memphis? A. At Memphis. Q. Yes. A. (Continuing) —the soiled linen is all removed from the seats. The cuspidors are all taken out and put on a steam table,—from both cars,—and cleaned with steam; sterilized. Q. What do you mean when you say “ both cars” ? A. I mean, the day coach, the straight day coach, and the combination coach. Q. Yes. A. They both carry cuspidors. We take them all out, remove them from the cars, and clean them, and what we use is a steam table, to sterilize, clean and sterilize them in. The windows are raised, and the cars------ Q. Just before you go any further. A. Yes? Q. Are those cleaned and sterilized with steam? A. Yes, sir. Q. All right. Is there any difference between the cus- [fol. 348] pidors that belong in one car or the other? A. (No answer.) Q. Are they all alike or not? [fol. 349] A. They are all standard Rock Island cuspidors, and they all are assembled together on the table; and the ones that come out of one car, probably part of them will go back into another car, so far as that is concerned. They are not assigned to any special car. Q. All right. A. They are just simply all assembled on the cleaning rack, and cleaned. Q. All right. Go ahead. Exam. Disque: They do not have any cuspidors in the observation car, do they? Mr. Taylor: I do not know. A. (Continuing) The windows are raised, and the cars blown out; and the interior of the cars is wiped down. The floor is mopped with disinfectant, and so are the toilets. The car is supplied with a fresh supply of towels,—those 191 toilets that are so equipped—and liquid soap, and drinking cups. The coolers are removed also and sterilized. The coolers are of the standard railroad type, with a partition sep arating the ice and the water. They are freshly iced and watered. Before the train leaves, new, fresh-laundered linen is placed on the seat backs. By Mr. Taylor : Q. Now, directing your attention to April 21st, 1937; was that method of cleaning followed with reference to the com- [fol. 350] bination car in train 45? A. It was. Q. Do you yourself make a personal inspection of each train as it is made up before it begins its trip ? A. I do, yes, sir—or I did, rather, at that time. I am not on that job at the present time. Q. I mean, all of my questions relate to April 21st, 1937. A. Yes, sir. Q. At the time what is called the combination car, the car assigned to colored people in train 45 on April 21st—at the time that car left Memphis, were the toilets of that car clean? A. They were perfectly clean. Q. Were the cuspidors clean? A. Yes, sir. Q. Was the floor of that car clean? A. The floor was perfectly clean. As I stated, it was mopped; after the car had been thoroughly cleaned and wiped down on the inside, the floors were mopped and the cuspidors replaced. Q. Was there clean linen on the back of each seat? A. Yes, sir. Q. In that particular car? A. Yes, sir, throughout the car. Q. Was there anything in that car that was either foul or unsanitary? [fol. 351] A. No, sir, there positively was not. Q. Were there electric fans in that car? A. Yes, sir, there were electric fans in there, a 12-inch electric fan in each compartment. Q. How about lights? A. Electric lights. 1 9 2 Q. Now, will you describe the toilets that were located in that car? A. Yes, sir. Q. Just do that for the record. A. In each end of the end compartments, is a toilet, what we call a dry toilet. The center toilet, in the center compartment, is a flush toilet, with a washbasin, liquid soap and paper towels. Q. And the two dry toilets, the one at the one end, and the one at the other, are------ A. Identical. Q. —of identical type? A. Yes, sir. Q. The one at one end is for colored passengers? A. Yes. Q. The one at the other end is for white passengers? A. Correct. Q. And the flush toilet in the middle----- A. Is for colored women. [fol. 352] Q. For colored women? A. Yes, sir. Q. Now, has there been any change since April 21, 1937, in the equipment of train 45? A. Yes. Q. What change? A. Some time in the early part of July we put on a new------ Q. July, 1937? A. Yes. Q. Yes? A. (Continuing:) We placed a new air-conditioned car, combination car, in that train, which is the same identical car as the day coach that is used exclusively for white pas sengers. Q. Will you describe this new car that the colored people now use on train 45 ? A. This new car that is used on train 45, is an all-steel car, six-wheel trucks, with a partition about one-third from the end of the car. The large end is that used for colored passengers. In each end of the car there have been placed toilet facilities, flush toilets, washbasins, liquid soap and towels. Q. How many in each end, how many toilets? A. Two in each end. 193 Q. Yes. A. (Continuing:) And on the doors of those toilets, one [fol. 353] is stenciled “ Women” , and the other, across the aisle is stenciled “ Men.” This car is an air-conditioned car, turned out of our Shawnee shops, with the general Waukesha air-conditioned equipment which is being used by many railroads over the country at the present time. The car has plush seats, that are new. The floors are covered with a heavy linoleum, which makes them perfectly sanitary at both ends; and the floor is mopped each and every trip. Q. Do you have any linen seat-backs in that car? A. The seat-backs are supplied each trip before it de parts—laundered linen. Q. Is that car electrically lighted? A. Yes, sir. Q. At the time that car left Memphis on train 45 on April 21, 1937, it had been thoroughly cleaned prior to any pas sengers getting into it, had it? A. Yes, sir. Q. I f that car got dirty between Memphis and Little Bock, or Hot Springs, Arkansas, the passengers made it dirty, did they not? A. (No answer.) Q. I f it was------ A. It certainly wasn’t dirty out of Memphis. [fol. 354] Mr. Taylor: I will withdraw that question. The Witness: It wasn’t dirty leaving Memphis. Mr. Taylor: All right. The Witness: If it was dirty, I can’t say what happened to it after it left Memphis. Mr. Taylor: No. The Witness: But I am positive it was clean when it left Memphis in 45. By Mr. Taylor: Q. You saw that car in person? A. Yes, sir. Q. After it was put into the train? A. Yes, sir. 13—577 1 9 4 Q. At Memphis'? A. Yes, sir. Mr. Taylor: That is all. Exam. Disque: Cross-examine. Cross-examination. By Mr. Westbrooks: Q. Now, Mr. McGuire, is it A. C. McGuire? A. Yes. Q. What is your street address in Little Rock? A. 1315 McGowan. Q. 1315 McGowan? A. Yes. Q. How long have you lived in the state of Arkansas, sir? [fol. 355] A. I was transferred from Memphis to Little Rock December 1st. Q. Of what year? A. 1937. Q. You lived in Memphis prior to that time, did you? A. I did. Q. And how long did you live in Tennessee? A. Well, prior to going to Tennessee, I was in Arkansas. However------ Q. Were you born in Arkansas------ A. No. Q. — or Tennessee? A. I am a Tennessean. Q. A Tennessean. A. I f that is of any information to you. Q. Yes, I am glad to know that. Now, Mr. McGuire, you were in charge of all of the equipment there? A. Yes. Q. At Memphis? A. Yes. Q. Did you have any help? A. What do you mean by “ help” now? Q. Well, I mean, do you do all of the cleaning of all of those cars yourself------ A. No. Q. — individually? [fol. 356] A. I don’t do any of it myself. 195 Q. Well, now, what position did you occupy, did you say; mechanical foreman? A. Yes. Q. And did you have people under you? A. Yes. Q. That is, help. A. I did. Q. Or employes. A. Yes. Q. How many did you have, sir, to do the actual cleaning? A. I had 8. Q. 8 employes ? A. Yes. Q. Who did the actual cleaning? A. Right. Q. And how many trains were your employes cleaning per day? A. I believe at that time we were cleaning about 13 or 14 per day. Q. Now, did you have an assistant, sir? A. I did. Q. An assistant foreman? A. Correct. Q. Who was your assistant foreman? A. At that time I believe it was an employe by the name [fol. 357] of Browner. I am not positive about that. Q. Mr. Browner. A. Yes. Q. That was in April of 1937. A. Yes. Q. What were the duties of your assistant foreman, Mr. McGuire ? A. My assistant foreman did some work himself. Q. Yes. A. But he didn’t do any actual cleaning. He helped supervise the force, and assisted me. Q. Well, now, what else, if anything did he do? A. (No answer.) Q. You say he did not do very much of the cleaning,— or no actual cleaning at all? A. No. Q. What else did he do? A. Well, he inspected the trains, and so forth. Q. Was that before or after the cleaning? 1 9 6 A. Well, in some instances that would be during the time that the cleaning was in operation, or in process. Q. And while he was inspecting the trains, what work would you be performing, Mr. McGuire? A. I was the foreman in charge. Q. Yes, but what work, what actual work for the com pany would you be doing ? [fol. 358] A. I don’t do any work. Q. You drew your pay though, did you? A. Surely. Q. Now, did you look at that train on the 20th of April, 1937? A. When? Q. April 20th? A. April 21st? Q. No, April 20th. A. Yes. Q. You saw train 45? A. Yes. Q. Did you see it on the 18th? A. I saw that train every day of the year. I made it a special duty to inspect that train inside. Q. And the only cars that you inspected were that day coach, and that Jim Crow combination ear? A. No. Q. Or was it------ A. The entire train. Q. Did you clean the observation car also? A. Right. Q. Now, the observation car had different carpet than this Jim Crow car up there, did it not? A. Yes, it did. Q. It had different kinds of washbowls; is that correct? [fol. 359] A. Than the Jim Crow car? Q. Yes, different than the Jim Crow car had? A. This combination car------ Q. Where the colored passengers, men and women, were? A. This combination car had a white washbowl, as I re call it. Q. Yes. I am speaking now about the observation car, where ladies and gentlemen who paid the first class fare rode ? They had a different kind of equipment in that car, did they not ? 1 9 7 A. It was a different style of washbasin, because it was placed------ Q. Yes. A. —in a different position. Q. Yes. And they bad different kinds of towels back there, did they not? A. There were paper towels, in both cars. Q. They did not have any linen towels in the parlor car? A. Yes, they did. Q. But they had no linen towels in the Jim Crow car, did they? A. This combination car only had------ Q. No, answer the question, yes or no. A. —paper towels. Q. I say, they had no linen towels in the Jim Crow car, sir, did they? A. They only had paper towels in the Jim Crow car. [fol. 360] Q. I see. Now, then, they had liquid soap you said, in the Jim Crow car, did they? A. I said they had liquid soap in the center toilet, the one where they had running water, a flush toilet. I said that had liquid soap, a washbasin and paper towels. Q. Now, that was the only place where—well, now, did you examine the Pullman car ? A. I did not. Q. That was in that train ? A. No, I did not examine the Pullman car. Mr. Taylor: I object to this examination for the same reasons as before stated. My questions were all restricted to this particular car, and its condition. The cross-exami nation should be confined to the same subject matter. Mr. Westbrooks: He was the foreman, mechanical fore man of the entire train. That is the only reason I am asking him about it on this examination. Mr. Taylor: But you are cross-examining. Mr. Westbrook: That is cross-examination. Our point is not limited to the Jim Crow car. If he knows, or has information------ Mr. Taylor: But your cross-examination under the rules should be limited to the Jim Crow car. That is the rule of law. [fol. 361] Mr. Westbrooks: I agree with you that it should be limited to matters strictly testified to by him------ 198 Mr. Taylor: I submit that to the Examiner. I do not intend to argue back and forth with counsel. Mr. Westbrooks: Well, when counsel has finished making his objection, then I will reply. Exam. Disque: Proceed with the examination. By Mr. Westbrooks: Q. Now, the cuspidors that were used in the observation car, s ir ; did you clean those, or did you have them cleaned? A. They were cleaned. Q. And they were a different kind of cuspidor than was up in the Jim Crow car, were they not? A. Yes, they were. Q. Did you ever have anything to do with the cleaning of the cuspidors used in the smoking room of the Pullman car that was on that train, sir? A. Not at all. Q. You have seen them, have you not? A. (No answer.) Q. As you made your observation through the train? A. No, I didn’t see them. Q. You do not recall having seen any cuspidors in the Pullman car? A. The car------ [fol. 362] Q. Answer the question. A. The Pullman car comes in on the Illinois Central, and is placed in the Rock Island train, and goes out, and I do not examine the interior of the Pullman car; but I do of the Rock Island cars. I do that before the Pullman car arrives. Q. Now, then, you said that the chairs in the observation car, sir, are upholstered. Are they? A. I didn’t say that, did I? Q. Well, are they upholstered? A. Yes. Q. And they have smoking stands in the observation car —or, will you describe the observation car, sir. You made the inspection of i t ; it was under your supervision. A. Describe it in what manner, now? Q. As to its equipment, that is used in the observation car. A. Well, the chairs are upholstered, yes. Q. Is there any writing desk in the back there? 1 9 9 A. Yes, there is a small writing desk. Q. A radio? A. We placed a radio in the parlor car, but I do not just recall whether we had done it—whether we had placed it in the car at that time or not. Q. Now, what would you say, sir, as to the comparison between this Jim Crow car, and the parlor car, insofar as [fol. 363] the comfort of the passengers riding in it was concerned, sir? Would you consider it an equal comparison with the Jim Crow car? Mr. Taylor: I object to this witness expressing any opin ion on that question. He can describe the condition and layout of each car, but the conclusion should be drawn by the Commission. Mr. Westbrooks: Well, my only reason is that counsel was permitted quite a leeway, and he finally got to the point where he stopped himself, and I said nothing, because we find out that the Commissio- will consider only competent evidence. This man was the mechanical foreman, and this is a ques tion as to the condition, the comfort and so forth, of the two cars. I am asking this man as an expert. He has been in that business, and he knows. I will qualify him, if there is any question about it. By Mr. Westbrooks: Q. Mr. McGuire, how long have you been a mechanical engineer ? A. I am not a mechanical engineer. Q. Or, mechanical foreman? Mr. Hughes: He stated that. A. Well, I was mechanical foreman on this particular job from 1932 to 1937. By Mr. Westbrooks: Q. And you have had charge of—as mechanical foreman, [fol. 364] have you had charge of any other roads? A. N o; I have been on the Rock Island quite a long while. 2 0 0 Q. I see. That was a promotion in 1932, was it? A. No. Q. How? A. Not necessarily. Q. Were yon working before, for the Rock Island, in some other capacity? A. I was. Q. In what capacity was that? A. I was roundhouse foreman. Q. Now, then, as mechanical foreman, why, you have had occasion to inspect the observation cars, the parlor cars, and the Jim Crow combination cars, have you not? A. Yes. Q. During that 32 years you have made repairs, and so forth, to all kinds of equipment of the road, have you not? A. Yes. Q. Now, sir, would you say that the Jim Crow car was equal in comfort for the passengers------ Mr. Taylor: Just a moment. Mr. Westbrooks: Let me finish. Mr. Taylor: I object for the reasons previously stated, and because he is calling for a conclusion, a matter of opin ion of this witness. Mr. Westbrooks: If the Examiner please, this is directly [fol. 365] based on his direct examination. Mr. Taylor: He can describe the condition of the cars, but the conclusion is for the Commission. Mr. Westbrooks: This man is an expert, and that is why he received his promotion. By Exam. Disque: Q. Have you ever sat in the seats of both cars? A. How is that? Q. Have you ever sat in the seats of both cars, so that you can say whether they are equally comfortable? A. Well, the combination car has a leather seat, and the other cars are plush seats which are built and sold for a different price, and naturally I would say that they are in tended to be more comfortable, anyway, whether they are or not. Mr. Westbrooks: That is all. 2 0 1 Redirect examination. By Mr. Taylor: Q. The plush seats are hotter in the summer than the leather seats, are they not? A. (No answer.) Q. How? A. Possibly so. Mr. Taylor: That is all. Exam. Disque: That is all, sir. You are excused. (Witness excused.) Mr. Taylor: That is all we have. [fol. 366] Exam. Disque: Is there any rebuttal? Mr. Westbrooks: Is there any evidence from The Pull man Company? Mr. Roemer: No. As far as The Pullman Company is concerned, we want to renew our motion, made at the con clusion of the complainant’s case in this matter, to dismiss the case as to The Pullman Company. We do not intend to offer any evidence, or present any testimony. Our motion is on the ground that there was no violation, as far as The Pullman Company is concerned, of any of the rules of the Interstate Commerce Commission. Mr. Mitten: We want to renew the motion, as far as the Illinois Central Railroad is concerned, on the ground that the complainant has offered no evidence which would indi cate that the Illinois Central Railroad violated the Inter state Commerce Act in any way. Mr. Taylor: I renew the formal motion made on on the part of the Rock Island Railway and its trustees. Exam. Disque: Of course, you people may be jointly guilty with the Rock Island. Is there any rebuttal? Mr. Westbrooks: I would like to recall Congressman Mitchell just for a few questions. 2 0 2 [fol. 367] A rth u r W. M itch ell , recalled, previously sworn and further testified as follows: Direct examination. By Mr. Westbrooks: Q. Your name is Arthur W. Mitchell? A. Yes, sir. Q. You are the same Arthur W. Mitchell, complainant in this case, who was previously sworn and testified? A. Yes, sir. Q. You heard Mr. Jones state that there was no complaint made, and also the brakeman stated that there was no com plaint made ? A. Yes. Q. What, if anything, did you tell Mr. Jones at the time that you were ejected from the car, this Pullman car? A. As I testified this morning, I told him that I was a first-class passenger, and I was entitled to first-class accom modations. He said that they had no first-class accommodations that colored people could get on the train. Mr. Taylor: That is mere repetition. That was testified to this morning in chief. The Witness: That was their testimony. Exam. Disque: He is rebutting it. Mr. Westbrooks: Yes. The Witness: (Continuing) And during the controversy, when he threatened to have me arrested, I told him that I was going to bring suit against his railroad just as quick as [fol. 368] quick as I could get back to Chicago; and he told me to bring suit, that he didn’t care. Mr. Westbrooks: That is all. Take the witness. Mr. Taylor: No, thank you. (Witness excused.) Mr. Westbrooks: Nothing further to offer. Exam. Disque: Who else desires to be heard; any one ? (No response.) Exam. Disque: Off the record. (Discussion off the record.) 203 Exam. Disque: Back on the record: briefs in this case will be due April 20th, 1938. The free copy of the transcript will go to Mr. West brooks? Mr. Westbrooks: Yes. Exam. Disque: For the complainant; and for the defend ants to whom? Mr. Hughes? Mr. Hughes: Yes. Exam. Disque: If there is nothing further, the hearing is closed. (At 5:00 o ’clock p. m., March 7th, 1938, hearing closed.) 2 0 4 (Here follow 2 photolithographs, side folios 369-370) is s u e d av ILLINOIS CENTRAL R A I L R O A D C O . Nan-Tranttaahlo R O U N D T R f f l f t u C K E T SoW Subject to tariff n SX n am When officially stamped G O O D F O R O N E P A SS A G E V r , HOT SPRIHGS^Oik, A N D R E T U R N Not good for passage after midnight of date punched in margin. In selling this ticket and checking bag gage hereon, the selling carrier acts only as agent and is not responsible beyond its own Una,' except as such responsibility may be imposed by law with respect to baggage. VALIDATING AGENT agrgstitmi SdTf fMCSt! Jte Fsfifaj W tfejju Wf Dot RetjDte 1 2 1 3 4 5 8 7 8 9 10 1112 13 1416 ie 1718 10 H 2 1 22 23124. 25 2® 27 28 2930 X X |31 1900 All 36 38 3M33 4 0 4 1 42 43 44 Stamp Date f Not (oog for return . unless sifned by the, original purchaser and ve|0Msad and stamped W A gdnt ef Carrier at an autWbe* satidatlen point. foumty mutt be begun • — J— gfeonped or Pets tSignature of Validating Agent) >. the original purchuor, agree to' ute this ticket in accordance with conditions hereon. (Signature of Purchaser at time of Sale) F o r m — X 1 5 0 4 Pmndiit T n f lo I L L I N O I S C E N T R A L R A I L R O A D Z L c c M E M P H I S TO If Oat-Half PanctiHert CHICAGO. .... ...................... |1 I % F o r m X 1 *5 0 4 laggsie ★ hscHHareVia I f . CH14P C H I C . , R O C K I S L . A P A C . R Y . H O T S P R I N G S % T ° ^ M E M P H I S A satsage ★ fuscHHere ” u S B J l 1 6 0 4 C t H O T ? ^ y i G S , A r k . A N D R E T U R N 7 Z H U H * * e w n u u . * .« .# • , tf dsa-Ialt NtacMart jxu/viixjdx i x lx l CJZ- a S £ S i i 5 L 2 - f i » «.r>~*T-. . r£ s o ui!: c*- ui*r CC c-oli C**1 D_ ■2T ”. < csj/ L . -Jr- r v i W <r> 1 - _r— o C\J CX; CC c 3 j CL. < x j m j S c*- CNJK l 369 2 0 4 A 20415 EXHIBIT 2 PUL4-,M̂W COMPANY — Passengers Check. To identffy accommodations purchased. I Chicago toMEMPH!Sr JEfilR.,.jS C O M P A R T M E R T C A F ^ . . FOR / --------------------------- ' . . - - AF O R .... /■■......... p a s s e n g e r s use Prawn? l» .n l«t»cirwlll be tnllrelr it owner'! rlik 25-23 ««« 300-5i - - 370 2 0 5 [ fo ls . 371-372] E x h ib it 3 3 Daily The Louisiane ......... 6.05 PM ......... 3.30 AM ......... 8.20 AM 45 ......... 8.30 AM ......... 11.15 AM ......... 1.05 PM Chicago, Little Rock and Hot Springs 4 Table D Daily Central Standard Time The Louisiane Lv.................Chicago, 111..................Ar 8.30 AM Lv. .North Cairo, 111. (See Note A). .Ar 12.06 AM Ar . ........... Memphis, Term............ Lv 7.40 PM (C. R. I. & P.) 50 Lv. ........... Memphis, Term............ 7.30 PM Ar . ......... Little Rock, Ark.......... .Lv 4.45 PM Ar . ......... Hot Springs, Ark.......... .Lv 3.05 PM [fols. 373-377] T h e L o u isian e (Daily) No. 3— Chicago to New Orleans— Table 1 No. 103-3—Louisville to New Orleans— Table 6 Sleepers (Regularly assigned, as described, are air-con ditioned) Chicago to New Orleans-Houston, Tex., 12-Sec.-D. R. (S. P. No. 3 New Orleans to Houston— Table A) Chicago to Hot Springs, Ark., 10-Sec. 2 Comp.-D. R. (R. I. No. 45 Memphis to Hot Springs—Table 33). Cincinnati & Louisville to New Orleans, 10-Sec. 2 Comp. D. R. (B. & O. No. 63 Cincinnati to Louisville—No. 103 Louisville to Memphis, No. 3 to New Orleans— Table 6). Louisville to Paducah, Ky., 12-Sec.-D. R. (May be occupied at Paducah until 7 :00 a. m.) Diners (Air-conditioned). Chicago to Carbondale, 111. Fulton, Ky., to New Orleans. Buffet-Lounge Car (Air-conditioned). Radio. Chicago to New Orleans. Chair Cars (Air-conditioned). Chicago to New Orleans. Louisville to New Orleans. Coaches (Air-conditioned). 206 (Here follow 3 photolithographs, side folios 378, 379, 380-393) Illinois Central System ZEAD DOWN 9 Daily 117 Dally 3 5 Dally 3 Daily PM • 11.05 m11.11 11.14 11.17 m11.26 ml 1.33 PM zx 8.45 PM 7.30 7.36 7.39 7.42 7.51 f 7.58 PM 6.05 6.13 6.17 6.21 zf6.31 zf6.40 f g l f i t " k S g s r a a *x 8.52 zx 8.56 s ® The 3 Through train from Floridan (See T able 10) 9 f8.08 zm6.53 rs 3 H ! • O 12.12 f8.15 t-8.22 t8.30 E h• r » • 3• 7.268.45 ............ f 8.54 f 8 59 f 9.04 f 9.09 9.15 9.15 f 9.20 ........... h S 3 * 3 s * ' . . . . . . . f 9.29 f .9 .36 9.43 f 9.50 9.59 1.30 1.37 zxii.05 zx11.10 © - S 10.20 PM 8.55 9.06 HTo2.03 ak9.29 h9.38 ' *2!33 2.33 zr11.63 zrll.53 = 3 *i6!08* 10.08 V. .’ . 3^04 7v.p9k zr 12.20 g I 10.65 . . ........... ........... ........... g ii.34 ........... ? zx 1.28 zx 1.33 I 3 zx 2.33 zx 2.43 I§ o £VS zx 3.51 h11.43 gi2.05 12.25 12.35; ; ; ; ; ; ; 4.08 4.13 : : : : : : :From St. Louis. W ag?? See table 2. -g n 12.55 . . . . . . . 1.26 1.26............. 5.13 5.23 i.55 2.05 kg5.51 2.50 .............. ............. 6.39 3.20 3.34 Co nnectin g Motor twe Service en Nort j r o v i n Cairo 3.30 ded by and C '6.4b zx 3.56 ............. 3.42 .............. : : : : : : : : : * *........ *7*60* AM ' ' AM ' ' **4*40* AM *i:45* AM 7.60 PV Chicago, Cairo, Memphis and New Orleans PM 1.00 1.08 1.11 + i.S« 3 a. a a2.07 OS 5"° 3.30 3.35 6.00 6.06 7.10 7.18 8.35 Illinois 8.40 Dally Exlsur rfaSy Mis. AH AM AM 9.00 7.30 1.29 0 f9.07 f7.37 3.8 9.10 7.40 5.1 9.13 7.43 6.5 e9.22 7.51 13.1 9.32 7.58 18.6 * 8.06 22.1 O . 8.13 26.8 •* H S J f8.15 27.9 8.21 32.7 8.29 39.0 abl0.03 8.37 45.3 49.4 8.46 52.8 10.i7 8.57 2.42 54.4 58.9 9.09 62.9 67.7 9.21 71.6 9.27 75.9 ab 10.47 9.40 3.25 79.7 abl0.47 9.40 3.25 79.7 83.3 f9 52 86.2 91.6 97.3 a b ll.li 10.20 3.55 101.4 106.8 ab 11,23 10.38 4.14 112.3 117.3 121.1 11.40 11.00 4.35 126.4 11.50 AM 4.50 120.4 f4.57 130.8 5.07 135.7 f5.14 140.4 144.2 12.16 5.30 148.4 f5.37 152.6 g12.26 f5.55 162.1 f6.02 166.0 12.47 6.10 170.9 12.47 6.30 170.9 /.LV 1.23 7.25 197.8 A . . . f7.36 204.3 . . . .'j$. 7.46 210.1 7.53 213.2 f8.00 217.1 8.10 221.7 8.21 227.5 8.31 232.2 f8.40 237.6 9.00 242.3 2.29 9.18 250.9 2.33 9.28 250.9 f9.39 257.3 f9.46 261.4 2.53 9.58 264.8 . . . . f . . 268.6 flO 11 272.3 10.20 278.3 3.19 10.33 287.0 3.19 10.33 287.0 f 10.43 291.7 10.49 294.0 f 10.59 300.5 3.47 11.08 306.7 4.02 11.28 306.7 310.5 f 11.40 314.8 11.51 321.9 4.32 12.01 327.3 331.8 12.17 336.5 339.4 12.29 343.2 347.6 351.6 12.52 354.8 5.24 1.00 360.2 Central System be- 363.6 363.6 5.35 f5.53 1.34 368.9 1.47 377.1 1.68 382.9 2.10 391.2 f2.24 398.9 6.50 2.40 405.0 PM PM 9.15 8.00 921.2 AM AM Table 1 Central Standard Time Lv C H IC A G O .. .111. An Lv 43d Street. . . . “ lv Lv 63d Street.. . . “ Lv Lv 63d Street. . . . * Lv Kensington.. . * Lv Harvey............. • Lv Homewood. . . * Lv Matteson......... a (Chicago Heights) Lv Rich ton........... * Lv Monee.............. * Lv Peotone........... • Lv Manteno......... • Lv Indian Oaks.. * Lv Bradley........... " Lv Kankakee___ • Lv Otto.................. • Lv Chebanse........ • Lv Clifton............. • Lv Ashkum........... * Lv Danforth......... “ {j}Gllman...... *{ Lv Onarga............. * Lv Del Rey........... * Lv Buckley........... • Lv I ' ■ Lv ........... • Lv Ludlow............ • Lv Rantoul. . . . Lv Thomasboro. Lv Leveret ally ARlChampaign. Lv/_ ( Urbana) M attoon. . f Centralla. (P. O.— Du Bois) > Carbondale. (Jonesboro) fl]c .111. Lv LV • LV • LV ' Lv • LV • Lv - Lv • Lv • Lv • LV • Lv ./L v \ Ar • Lv • Lv • Lv " LV “ Lv “ Lv “ Lv ‘ Lv • Lv ; lv \ Ar “ Lv • Lv “ Lv ‘ Lv • Lv • LV - LV • LV • LV . / Lv1 Ad . / LVl A* • Lv • LV • Lv ' Lv “ Lv “ Lv ■ Lv • Lv • Lv -/ L V 1 AR • LV - Lv Lv Lv LV LV . / Lv A AR • LV • LV • LV ./LV \ *R • LV • LV • LV • LV • LV ■ Lv ' Lv • LV • Lv • Lv • LV • Lv Tlv AM 4.00 3.4t- 3.46 3.41 U3.28 DaS: 4 y I Dally f3.10 2.15 1.33 1.33 1.22 12.37 12.15 11.55 11.38 f11.28 11.15 10.67 f10.47 l AR . .K y . At New Orlean's. La. Lv 10.35in 9.40 9.40 9.18 9.10 9.04 f8.59 8.52 8.43 8.32 f8.24 8.178.00 7.45 7.36 7.25 7.13 . . f . : 6.54 6.41 6.26 6.266.11 6.05 5.54 5.436.20 . . f . • 6.05 4.49 4.35 4.22 4.11 f4.04 3.57 3.47 3.37 3.30 3.22 Con /*. 7.15 7.03 6.69 6.54 W&42 W6.33 H 6.40 * I 5.05 6.05 ►-P co y4.37 y4.25 4.10 4.00 y3.30 AM ■8.30 8.17 8.138.10 n7.59 ae7.51 « 8 Dally AM 8.50 8.40 8.36 o IS2.HO.T0) O r t f i y AM 9.00 8.46 8.43 + r*u 3a» •3 X7.40 t 6.40 5.30 3.05 2.26 2.26 1.201.12 12.20 12.20 11.52 11.42 3.12 2.50 2.30 2.18 2.03 1.51 1.40 PM 6 .10 PM necting 10726“ 9.10 PM y4.49 zt 6.15 zt 6.08 3.58 3.58 2.55 2.46 xl.57 xl.57 1.31 1.21 5.23 R 9,3 4.5 b 4.55 zt 4.00 zt 3.55 zt 2.55 zt 2.50 12.11 zt 1.44 Motor Service between No 12.06 zt 1.39 X11.48 X11.3 4 X11.25 X11.15 10.50 PM 8.30 AM 3 6 Daily 3.45 3.40 2.30 2.25 __ 1.20 provided rth Cair IAS w 1.00 PM 9.50 9.39 9.35 9.32 9.22 f9.15 f9.06 :x3 i u PM 4.10 3.66 3.60 3.39 3.28 3.23 3.18 f8.58 3.10 f8.50 3.01 f8.43 2.53 8.30 f8.16 f8.10 f8.05 f8.00 7.56 7.56 f7.51 f7.41 f7.35 7.30 f7.24 ■7.18 2.42 2.37 So5 go"Cn 2 4 Dally AM 7.28 f7.19 f7.16 7.00 2.23 2.16 2.09 2.02 1.56 1.66 1.49 1.44 1.38 1.31 1.24 1.17 1.10 1 .0 2 f 12.57 12.50 PM Dally PM 9.30 9.18 9.14 9.10 8.68 8.51 h 7.10 7.10 6.40 6.23 6.05 6.55 6.18 16 Dally AM 4.05 by Illinois Cen o and Clalro ------ :Z755 1.50 AM 4.05 4.06 y3.34 za3.27 3.09 2.55 2.46 1.51 1.61 1.20 1 .10 12.39 11.59 11.60 tral Sy 11.46 dd1126 o | S|Iow O ✓ O « 10.25 AM Explanation of Slant will be found on pages 19 and 20. 16 For train equipment, see pages 6, 6. 7. 8 and 9. 16 378 \ Illinois Central System Chicago, Cairo, Memphis and New Orleans—Continued. 4- - m 3 1 0 3 15 + 5 1 2 5 Dally Daily Daily Daily Daily Daily PM PM AM AM 6.05 1.00 9.00 1.29 AM AM AM PM PM 5.10 5.00 4.55 7.05 2.50 + 2.55 -0 . . . f . . . d5.25 C/)q) 7.20 3.05 5.31 ® tt r+ q 3.12 f3.17 3.20 d5.45 O’ " d7.41 3.28 0 u. d7.47 3.34 d7.57 . f. . . d6.02 3.49 6.18 k5.55 k5.50 » a 8.11 4.10 4.15 d6.30 p _ d8.25 4.25 - 7 4.28 4.36 y o 6^8 5.3 0 a 8.45 4.44 4.50 T4.57 7.10 k6.38 k6.33 9.10 5.07 a a 5.19 r 0 rt 6.25 0 $ 12.0 P go o ’S®. a z? T h e -ou islan F rom ouisvillc F rom t. L ou is hrough c l, page 6 • r 0 5.28 5.33 5 40 5.45 15.55 58 £ r* 1*6.00 . 03 8.14 8.20 7.30 7.35 7.25 7.30 12.10 10.15 6.13 6.20 AH AM AM AM' S I 1̂ —, . ' J0D i t 3^ AM ft.OO + 5 AM 12.20 1 PM 1 0 .4 5 2 5 PM 6 .5 0 « <2, 2 7 Daily AM 4.45 . . f . . f4.55 fo.00 5.07 5.33 f5.40 5.52 f5.59 6.08 f6.14 6.30 6.30 6.43 6.53 7.05 f7.13 7.30 3.35 PM ve9.39 ve 9.54 vel0.04 velO.i5 10.26 vei0.40 v e ii.Y i * 1*1.43 ‘ 11.53 ’. . .g . . . gg12.11 * i2:.30' ee 12.43 ’ T.id' 1.10 e e l '.29* ” 2 .6 6 ' PM 7.60 PM J- 11.55 2.22 2.27 1.02 1.17 1.53 Central Standard Time Lv C H IC A G O . .111. ab 405.0 407.7 410.3 414.0 418.5 421.8 423.8 429.2 433.0 437.0 440.6 449.3 453.5 456.2 460.1 462.8 466.6 469.1 472.8 478.9 482.7 487.5 492.5 495.3 499.4 502.4 505.7 509.2 512.7 515.9 519.9 521.3 525.9 527.4 f7.25 7.33 17.40 7.47 8.00 . f 8.21 8.30 f8.37 8.47 f8.56 8.59 . . f. f9.09 9.16 19 21 1*9.27 f9.34 9.45 1 0 .0 0 j f10.55 2.35 2.35 , f 11.09 i i r.30 ■ 11.30 f 11.42 f11.52 4.18 AM m 545.f 549.0 554.9 555.4 564 2 568.3 571.6 577.C 581.8 586.3 590.2 592.0 593.9 596.5 601.0 605.9 611.2 614.7 619.3 622.5 626.6 626.6 630.2 631.2 634.3 635.5 642.7 646.6 649.5 653.0 656.0 660.1 664.5 670.1 673.7 679.6 679.6 657.5 694.5 701.2 705.6 709.2 714.8 9.15 AM 8.00 AM Table 1— Cont’ d Lv Fulton.. Lv Pierce. . . . Lv Harris. . . . Lv Gibbs. . . . Lv Rives........ Lv M offatt.. Lv Polk------ Lv Obion. . . Lv Trimble. . Lv Templeton Lv Newbern. LV Dyersbur Lv Fowlkes. Lv South For Lv Halls___ Lv Gates. . . Lv Curve. . . Lv Flippin. . Lv Ripley. . . Lv Henning. Lv Rialto. . . Lv Covingto Lv Melrose.. Lv Brighton. Lv Atoka. . . Lv Tipton. . Lv Kerrville. Lv Millington Lv Lucy. . . . Lv Woodstock Lv Felts------ Lv Frayser.. Ar Poplar Ave. AR M EM PH IS Grand Central Station .K y. Ar T enn. Lv “ Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv Lv LV Lv Lv Lv Lv Lv Ar riaSy 4.00 PM 1.151.00 . . . f 12.51 12.43 f12.38 12.35 12.28 12.22 . . . f . . 12.12 11.57 11.42 . . . . f . . 11.33 11.26 11.21 i i ' . i s 10.58 f 10.53 10.45 4 Daily Lv Me m phis . . t» AWen....... .. . Lv Nesblt........... Lv Hernando.. . Lv Love.............. Lv Coldwater. . Lv Senatobia. . . Lv McGehee. . . Lv Como............ Lv Sardis............ Lv Tallahatchie. Lv Batesville.. . Lv Shiloh........... Lv Courtland... Lv Pope ........... Lv Nelson.......... Lv Enid.............. Lv Oakland. . . . Lv Tillatoba. . . Lv Scobey.......... Lv H ardy.. . . . . Lv Riverdale. . . L y | G re n a d a . . . Lv Tie Plant----- Lv Glenwild. . . . Lv Elliott............ Lv Duckbill........ Lv Eskridge. . . . Lv Sawyer........... Lv Winona.......... Lv Foltz............... Lv Wood............. Lv Valden........... Lv Beatty............ Lv West............... Lv Hoffman........ Ar\_Lvj Durant . . . . Lv Goodman----- Lv Pickens.......... Lv Vaughan. . . . Lv W ay................ (Far Allisons Wells) Lv Davis................ “ Lv AR Canton-----Miss. LV (Cont’d on Page 19) a Ly “ LV “ Lv “ Lv “ Lv • LV “ Lv " Lv “ Lv “ Lv “ Lv “ Lv • Lv „JLV\ ar • Lv • LV • LV • LV “ Lv• Lv • Lv “ Lv “ LV • Lv • LV • Lv • Lv ./LVAb LV Lv Lv LV ggE<S.P cr<2 ?! a — * zOi® PM 10.40 qIO.20 q10.01 q9.48 9.37 q9.02 8.40 2 4 Daily 511.00 . . . f . .. no.52 fl0.47 10.40 10.20 fl0.08 10.32 10.27 10.18 10.12 10.06 10.00 9.55 f9.49 . . . f . . 9.35 9.30 AM 26 8.30 . r. f7.50 7.40 f7.29 7.23 7.15 . . f . 7.05 6.55 f6.42 6.35 f6.246.21..f.. f6.11 6.05 f5.56 f5.50 fo.42 £H 1 0 4 Daily AM 12.15 5.30 3.40 T3.28 f3.23 2.55 f2 349.55 f9.45 , . . . . . . . 9 35 ! f2.17 f9.25 9.15 9.15 8 55 8.13 8.30 f823 vf6.20 vf6.12 vfS.01 5.51 vf5.36 4.37 4.32 ZC4.19 * i.’oi’ zm3.48. Ar New O rleans La. Lv 8.05 AM 12.10 AM 1.48 1.48 1 23 1.12 fl.OU C12.50 5.10 PM 3.24 3.24 8.30 AM +6 16 Daily Dally AM 9.00 + a ST3er»• r o | « •■O Q.• •2-> 0) - — Tl S o < § o a ifn • id a ■o o « c ® ct • 7 9.30 PM +6 C 11.20 PM 7.17 7.12 ! 6.3a PM 1.00 PM Daily PM 9.30 10.10 p8.38 j>S20 7.30 7.25 4.38 4.33 3.10 3.10 Explanation o f signs will be fo u n d on pages 19 and 20. ________________________________________________ _____________ _______—----------------------------*' * j \ 17 For train eguipment. see pages 5. 6, 7. 8 and 9 ( 3 * 7 9 0 9 0 3 '-i- Illinois Central System Chicago, Cairo, Memphis and New Orleans— Cont’d. 3 Daily 2 7 Daily + 5 Dally Dally 2 5 Daily ' PM 6.05 PM 1.00 AM 9.00 AM 1.29 PM 2.05 AM 7.35 f 7 .51 AM 4.21 AM 3.30 AM 12.30 7.58 8.03 8.08 2.52 3.10 8.30 8.50 f9 .02 f 9 .10 5.00 5.05 + 4.10 4.20 1.30 1.50 9.22 9.40 f9 .47 9.55 flO . 03 flO . 12 10.20 OTJ 3.46 I S 4.50 2 .25 3.58 | 3 d r 5.05 2.40 a — 4.17 CD 3. 5.20 3.03 4.30 | ?■ - 5 36 3 .2 s f l l .13 11.23 S § 6.05 5.10 11.30 11.45 6.31 6.36 II 6.10 6.15 4.00 4.10 11.52 4.18 tx 5 .26 12.1C CD g XXU. i.j 4.38 12.18 .. f ass. 4.5C yy5.40 12.31 f I t Z16.45 5.05 . . . .f .. f . . . .f .. 12.42 12.50 f 12.58 “ TO 5 . 1£ 5.26CD Q f 5 .31 < s 5.35 yy5.58 1.08 f s Z17.03 5.41 f a- CC f SI1 25 1.35 1.40 1.55 2.07 f2 .22 2.26 5.58 6.08 6.12 6.20 tx 6 .27 7.39 7.30 6.30 6.38 ■g s f6.5C sr 0 f 6 .54 P 0 c f2 .37 f2 .45 f2.4£ S s ' & S H TO f7.03 f7 .08 f 7 .13 a> CD O tx 7.12 f 2 .57 O O f7 .20 3.12 7.37 7.40 7.50 PM 3.25 3.35 PM 8.50 9.00 AM 9.05 9.15 AM 7 50 8.00 AM Miles Tablo 1 — Cont’ d. Central Standard Tim e I Lv C H IC AG O ............111. Ar ; LV C anton ...................Miss. Ar ! Lv Gluckstadt............ “ Lv i Lv Madison................ “ Lv i Lv Ridgeland.............. “ Lv i Lv Tougaloo................ “ Lv ! Lv North view............. “ Lv Lv Asylum................... “ Lv . Ar\ . . « / LvLvj Jackson..................... \ Ar Lv Elton....................... “ Lv ! Lv Byram.................... “ Lv i Lv Terry...................... “ Lv i Lv Crystal Springs.. . Lv ’ Lv Gallman................. „ Lv i Lv Hazleh urst......... Lv (For Brown's Wells) Lv Martinsville.......... “ Lv Beauregard........... “ Lv Wesson................... “ 1 Lv Montgomery “ ok ha\ 816.8 B ro o k h a v e n . Lv Hartman. . . . Lv Thayer........... -v Cold Springs. Lv Johnston. . . . Lv Summit......... Lv} M cC om b. . . Lv South McComb. . Lv Fernwo 829.0 832.9 835.4 838.0 838.7 840.5 842.4 845.9 848.7 849.8 852 5 853.3 855.3 857.5 858.8 863.0 865.1 867.9 872.7 881.0 883.3 884.1 889.4 894.0 896.2 898.8 900.0 900.5 901.8 906.5 910.7 913.4 915.8 918.8 921.2 2 4 Daily AM 7.55 {7 .3 5 7.27 7.20 7.15 . . .f . s6 .50 *5.40 f5.28 f 5 .22 5.12 5.00 f 4 .50 4.41 f 4 .30 f4 .23 4.20 f 4 .10 4.00 * LV “ LV LV Ar Lv LV Lv Lv agnoi Lv Chatawa Lv Osyka..................Miss. Lv Lv Greenlaw................La. Lv Lv Kentwood. Lv Kent’s Mill........... Lv Oak H ill................. Lv Tangipahoa........... Lv Fluker..................... Lv Areola..................... Lv Roseland................ Lv Amite...................... Lv Gullett.................... Lv Shiloh...................... Lv Velma..................... Lv Independence. . . . Lv Tickfaw.................. Lv Natalbany............. Ar H am m ond........... Lv Ponchatoula......... Lv Strader.................... Lv Manchac................ Lv Galva...................... Lv Ruddock................ Lv Napton................... Lv Frenier.................... Lv 23Vi Mile P ost... Lv 21 % Mile P ost... Lv Tunity.................... Lv LaBranch.............. Lv Fallon..................... Lv Kenner................... Lv Harahan Junct... Lv Shrewsbury........... Ar Carrollton A v e .. Ar New O rleans.. . .La. Lv 13 3 3.17 3.12 4 Daily AM 8.30 PM 2.30 1.50 1.30 12.55 12! 40 12.21 1 2 0 1 +6 Daily AM 9.00 PM 5.25 4.45 4.40 gc 9? 3 cd 3 3.02 f2 .51 ze. . f2 .37 r l l . 2 '2 8 rlO. 47 1.37 1.27 12.17 12.10 11.25 1 1 .2 0 10.25 rlO .13 9.59 . ..u. 8.37 8.30 AM £ • • — 1 2 6 Daily AM 4.00 AM 12.25 f l 2 .12 f 12.05 f11.59 f11.55 11.35 11.15 f10.59 f10.47 10.32 f10.23 10.15 f10 .05 f9 59 9.55 3.08 3.03 p o a” cr m p 0£3 2.07 •a “p %$ < 1.07 1 . 0 0 PM Dally PM 9.30 AM 2.05 1 .201.00 12.28 12.10 bb1150 fa .'do........... 9 00 cc1110 - " - .11.05 11.008 55 8.50 8.38 8 32 f8 . 20 8.12 . . .f . 8 .0 0 . . . { . . . .{ . 7.45 f7 .37 f7 .31 7.27 7.22 . . .f . . . . f . . . . f . 7.10 f7 .00 6.56 6.50 6.40 f 6 .26 f6 .22 . .be. f6 .11 f6 .04 f 5 .59 ZJ10.50 Z10.13 f 5 .49 . .be. 5.31 5.17 5.10 PM 8 37 8 30 PM E xplanation o f s ig n s o p p o s i t e f ig u re s In t h e s c h e d u le s on p i 3 8 0 “ 3 9 3 15 1, inclusive. 206C 2 0 7 [fols. 394-405] 45 Rock Island Lines 50 AM PM n 8.30 0 Lv Memphis............. . .Tenn. Ar 7.30 5 9.32 44.8 Ar Forest City.......... . . . Ark. Lv 6.21 g 10.00 69.2 Ar Brinkley............... i t Lv 5.52 o 11.15 & 11.25 132.9 132.9 ^ jL ittle Rock.......... 11 /Lv \Ar 4.45 4.40 wl2.04 159.5 Ar Benton................. u Lv f 3.54 1.05 193.4 Ar HOT SPRINGS.. i t Lv 3.05 PM PM Explanation of Signs Note A—Connecting Motor Service provided by Illinois Central System between North Cairo and Cairo. Note B—Rock Island train No. 45 stops at any station south of Little Rock, to leave passengers holding tickets from Illinois Central trains. a Stops to discharge revenue passengers from points beyond Champaign. d Stops to receive revenue passengers for Champaign, 111., and scheduled stops beyond. e Stops on signal to receive revenue passengers for Memphis and beyond. f Stops on signal to receive or discharge revenue passengers to or from scheduled stops. w Stops to discharge revenue passengers from Memphis and points beyond. y Stops to discharge revenue passengers from south of Cairo. Ft. Freight train carrying passengers. Mx. Mixed train carrying passengers. C. T. Central Time E. T. Eastern Time [fols. 406-410] E xhibit 4 [fols. 411-416] No. 45— Chicago-Hot Springs Limited— Daily Observation-Parlor Car * Memphis to Hot Springs Sleeping Car * Memphis to Hot Springs, 10 Sec., 1 D. R., 2 Comp. (From Chicago I. C. No. 3) Dining Car * Serving all meals Coach * Chicago to Memphis (I. C. No. 3) * Memphis to Hot Springs [fols. 417-428] Changing Class of Tickets Passengers holding coach tickets (not special coach) who desire to use sleeping ear or parlor car may have their rail tickets made valid for passage in sleeping cars or parlor cars on payment of difference between the one way first class rail fare and the one way coach fare applying between the points between which sleeping or parlor car service is availed of. Approximately the same charge will he made on intermediate class tickets when standard sleeping cars or parlor cars are used. In addition, passengers will be charged the sleeping car or parlor car rate for the space occupied. Tickets designated “ special coach” will not he honored in sleeping cars or parlor cars under any circum stances. (Here follows 1 photolithograph, side folio 429-436) 2 4 A . M . tim e show n in LIG H T face type; P. M . tim e show n in D A R K face type 2 0 8 A T a b l« 5 “ Route of the JVmphis-Californian’’ M em phis, Little Rock, O klahom a Citym arillo, Tucum cari, El Paso and Los Angeles R E A D DOW N READ DOWN R E F E R E N C E N O T E S t Except Sunday, n N o agent receive T] El Paso * Dally. S Meals. a Stops passengers beyond. b Stops to discharge pay pas sengers from east of Little Rook and to receive for west of Hask- ali. /Stops on signal ff Stops to receive pay pas sengers for stations where train is scheduled to stop. 1 Stops to receive pay pas sengers for Oklahoma City and beyond where scheduled to stop. t Stops to discharge pay pas sengers from station where train is scheduled to stop. m Stops to discharge pay pas sengers from points east of but not Including McAlester. n Stops to receive pay pas sengers far McAlester or beyond. r Stops to receive pay pas sengers for stations west of but not including Amarillo. t Stops to discharge pay pas sengers from west of Amarillo. v Stops to receive pay pas sengers for stations east of but not Including McAlester. A All Pullman. B Tourist and Chair Cars. C Stops to receive pay pas sengers far El Reno and beyond or to discharge pay passengers from Amarillo. D Stops to receive pay pas sengers for Amarillo or to dis charge pay passengers from El Reno or beyond. Q Stops to discharge pay pas sengers from west of Amarillo. V Stops to discharge pay pas sengers from El Paso or beyond. Note 1— All trains will stop at any station in Arkansas to discharge pay passengers tick eted through by foreign lines except No. 45 will not stop at stations Bridge Jet. to North Little Rock, inclusive. Note 2— No. I l l will stop at any station from Memphis to Booneville to take on pay pas sengers for points west of Boone ville where scheduled to stop. No. 112 will stop at any station Booneville to Memphis to dis charge pay passengers from points west of Booneville. Note 8— No. 50 will stop at any station between Little Rock and Memphis to discharge rev enue pzoaengerz from points west of Little Rock and from stations on Hot Springs branch. T a b U S 41 D a ily / 5.17 PM BOO / 5 24 / 5 28 / 5 34 ok. 5 43 ok /• 5 52 / 5 54 / 601 / 6.05 6.11 / 6 23 / 6 33 6 40 6 48 / 6.55 0k Ok 45-51 Daily AM 8.30 9.32 / 7 05 7 12 / 7 15 7 2 3 / 7 -30 7 4 7 7 5 5 . 8.01 / 8 07 k 7 35 8.25 PM 10.00 111 Daily Mis PM 11 00 12.08 12.47 11.15 2.05 11.2511 05i 11.45 11.59 12.11 1215 1220 12 26 1239 1244 12 48 1255 1 06 115 1 28 135! 1 4 5 d 2 ! 0 lv.MEMPHIS, TENN. Mississippi River 3 . .BRIDGE JCT., ARK 9 ............HULBERT 11.......... RICEVILLE........ nj 14............MOUNDS......... n 16.......EDMONDSON...ni 20...........PROCTOR......... n 24............JONQUIL..........n 26..............H E TH .............. 31 .WHITMORE.n 32 .BLACKFISH..n 34.......ROUND POND., n 38..........WIDENER............ St. Francis River 41..........MADISON... 45......FORREST CITY 49............. BECKS............ n L'AnquiUe River 52........PALESTINE .. 59.......... GOODWIN......... n 64.........WHEATLEY. 69 Lv . BRINKLEY 58 . . . Ar 74.............. EDEN.............n 76..........D A G M A R ... 81..........BRASFIELD.. Cache River 83............ BISCOE........ White River Dev ALL'S BLUFF .........HAZEI . . SCREETON. .. 100'....PRAIRIE CENTER 1031............ CARLISLE 106 112 117 121 125 132 133 Lv LITTLE ROCK 6-7- ArHOTSPRINGS.NAT S’ ! 2.20 133 139 142 150 153 / 2 .0 5 /4 .4 3 4.25 6.05 2.15 2 2 5 / 4.58 2.35 2 45 2 5 5 3 1 0 3 1 5 3 2 8 3 35i 3 4V 3 4 9 401 4 1 2 5.40 5.45 6.17 / 6.29 214220 224 229 235 240 245 252 252260 264 269 271 . . McCREANOR ......... LONOKE ...........METO...............n ............ KERR...............n .. GALLOWAY.. , .n NORTH LITTLE ROCK Arkansas River hr LITTLE ROCK 6-7-58 Lv Lv LITTLE ROCK 6~7-58 Ar Lv . TENTH ST. STA. . . .n PULASKI ........ MAUMELLE......... n ., ...B IN N A C L E ........n ■ Little MavmeUe River ~~ Big MaumeUe River ...NATUFAL STEPS ..n ............ROLAND............ n .........LEDWIDGE..........n ............ KENNEY............ n ...........BIGELOW ..........HOUSTON...........n ..............PERRY................. .............ADONA..............n ............... C A S A ... ............. BIRTA.. ............ OLA 65..! ■ .DARDANELLE.. . LvAr. M ic k l e s ........DANVILLE... Petit Jean River ...BELLEVILLE ..........HAVANA ....W A V E L A N D . .BLUE MOUNTAIN, r ....... MAGAZINE. BOONEVILLE. .{ £ ...BARBER.... . . . ECHO..............r ...ABBOTT . MANSFIELD 2801___HARTFORD, ARK. 2881... MONROE. OKLA. £}" Alt. AMARILLO 59 3666 k ............SONCY..............>>3732 « . BUSHLAND . . . ..nS830 0 WILDORADO...........13925 ■« . ..V E G A ................ 4036 ^ .........ONTARIO........... n4036 ...........ADRIAN................{4045 V ............ BOISE...............n3999 l .........GLEN RIO............... 3854 Lv. ENDEE. N. M . .n Ar:3826 . BARD.............. n3950 SAN JON.............. 4027 Barancos River Reve Ho River ................LESBIA............ .n3995 hr TUCUMCARKC.T.) Lv4075 112 D aily AH 8.05 / 7.51 / 7.43 7.33 7.16 4075 6.57 / 6 39 6.25 6.18 / 6.06 5.59 f 5.39 5.25 A 4 Lv TUCUMCARI (M .T.if Ar Southern Pacific SANTA ROSA.. TORRANCE...........6433 CARRIZOZO...........5438 Ar .ALAMOGORDO 2 ..4320 U .....EL pASO..... Ar........DOUGLAS...............13966 hr........... TUCSON...........Lv2386 CHANDLER..........H73 Ar..........PHOENIX..........Lvl082 Ar.YUMA. .(P .T .) Lv 139 LOS ANGELES...Lv 293 TT5 4599flJfc3.01 B 44 4 05 0k2 .45 11 45 10 19 8.10 r 11.30 /9 .1 1 8.25 4.30 815 11 30 10 04 7 55 7 30 2 32 11.10 / 8.51 8.051 4 1018 io! ffJ. 3 3 Little Rock, Hot Sp rin gs and M alvern (SEE n o t e 1) STATIONS Dally PM 4 4 0 M EM PH IS........Ar 7 30 LITTLE ROCK ...Lv 4,45 Lv LITTLE ROCK 5-7-58 Ar VIMY RIDGE.......n BAUXITE BENTON............../ 3 5 4 Saline River HASKELL 7 FRANCWAY........n /3 43' Ar.BUTTERflELD 66 nLv/3 32 Lv.'BUTTERFIELD 56.nAr 11.00 Ar..........CAMDE N ..........Lv t^0 0 Lv Lv CAMDEN...........Ar MALVERN........hr hr. BUTTERFIELD 56 nLv Lv.BUTTERFIELD 66.nAr COVE CREEK. ...n Cove Creek ..............PRICE..................n ...L A K E CATHRINE. .n ..............GULPH A............ n ArHOT SPRINGS MAT.PK.Lv /3 20 . .k . 3-05 689- 632 Dally 7 3 0 4.45 “PM 4 20 / 3 -48 3 S 3 2 9 3 2 1 PM __ Mix. 9 .0 5 E*. Bu 4.30 t4TX) /3T32 ic 7.20 7.00 7.00 / 6.05 5.30 3CL THE HOT SPRINGS at Hot SpringB National Park, Ark., are owned and controlled by the U. S. Government and recommended to its people. All Bath Houses and Attendants are under Government supervision. Ask near est Rock island representative for descriptive ' Mature or address W. J. Leahyr.Pass. Traf. Mgr., 723 La salle Street Station, Chicago, 111. 4 2 9 - 4 3 6 **r>? 2 0 9 [fol. 437] Changing Class of Tickets—Passengers holding coach tickets (not special coach) who desire to use sleeping car or parlor car may have their rail tickets made valid for passage in sleeping cars or parlor cars on payment of difference between the one way first class rail fare and the one way coach fare applying between the points between which sleeping or parlor car service is availed of. Ap proximately the same charge will be made on intermediate class tickets when standard sleeping cars or parlor cars are used. In addition, passengers will be charged the sleep ing car or parlor car rate for the space occupied. Tickets designated “ special coach” will not be honored in sleeping cars or parlor cars under any circumstances. 14— 577 2 1 0 (Here follows 1 photolithograph, side folios 438-441) PULLMAN SLEEPING CAR RATES OF FARE At quoted by the Pullman Company and subject to ohange without notice. P U L I "*AN S L E E P I N G C A R S are owned and i ied by the Pullman Company, are hault \ our trains under contract and we are not responsible for the conduct of same or its employes. Our agents in selling Pullman tickets act simply as agents for the •Pullman Company. BETW EEN Cedar Rapids and St. Louis.............................. Chicago and Cedar Rapids................................ Chicago and Chickasha...................................... Chicago and Colorado Springs and Denver.. Chicago and Council Bluffs and Omaha • . . Chicago and Des Moines • ............................... Chicago and El Paso........................................... Chicago and Fort Worth and Dallas............. Chicago and Iowa C ity....................................... Chicago and Kansas C ity.................................. Chicago and Lincoln............................................ Chicago and Los Angeles, San Francisco, San Diego, Santa Barbara and Sacramento Chicago and Palm Springs................................. Chicago and Moline, Rock Island, Davenport Chicago and Peoria----- •„.......................... Chicago and Phoenix............................... . Chicago and Salt Lake C ity.................. Chicago and St. Paul and Minneapolis Chicago and Topeka and McFarland. . Chicago and Tucson.................................... Chicago and Washington........................ Chicago and West Liberty........................ Chicago and West Yellowstone (via D. <fe R. O. W .) ............................................. •Chicago and Wichita......................... Chicago and Yuma............................. Dallas, Ft. Worth and Des Moines Dallas, Ft. Worth and St Paul-Mlnneapolis Denver and Colorado Springs to Davenport and Rock Island........................................... Denver and Colorado Springs to Topeka and Omaha..................................................... .. Des Moines and Denver and Colo. Springs Des Moines and Houston................................ Des Moines and Kansas City......................... Des Moines and Omaha................................... Des Moines and Omaha (Local Sleeper). . . Des Moines and San Francisco, Los Angeles and San Diego.......................................... El Paso and Rock Island and Davenport Excelsior Springs and Chicago......................... Excelsibr Springs and Minneapolis-St. Paul. Excelsior Springs and Ft. Worth-Dallas Excelsior Springs and El Paso................. Excelsior Springs and Los Angeles......... Hot Springs and Chicago.......................... Hot Springs and Denver............................ Hutchinson and Chicago....................... . Kansas City lind Chandler....................... Kansas City and Dallas and Ft. Worth. Kansas City and Davenport and Rock Island Kansas City and Denver and Colo. Springs. Kansas City and El Paso Seat Fares Standard Car $1.45 1.00 *2.00 1.40 .85 2 00 Kansas City and El Reno Otty_______y atra jLosAligCies, »an r ranewco and San Diego................• •........................... Kansas City and Oklahoma City.................... Kansas City and Phoenix.............................. Kansas City and St. Paul and Minneapolis . Kansas City and Tucson------• ■ ■ • ■ • - ............. Kansas City and Wichita and Hutchinson.. Little Rock and Chicago.................................... Little Rock and El Paso. . . ............................. Little Rock and Kansas City............................ Little Rock and Los Angeles............................. Maricopa and Chicago......................................... Maricopa and Kansas City................................ 1.00 .75 1.55 Double Lower Berth Double Upper Berth Sect’n two Pass engers See Note 1 Sect’r one Pass enger only Draw ing Rood See Note Corn part- ment See Note 2 $2.50 $2.00 $4.00 $3.50 $9.002 00 1.60 3.20 2.80 7 00 S 00 480 9.60 8.40 21.00 $17.00 7.25 5.80 11 so 10.1b 26.00 20 50 3.00 2 40 4 80 4.20 1100 8 50 2 50 2.00 4.00 3 50 9.90 7.00 10 25 8.20 16 40 14.35 36 00 23.00 7 00 5.60 11.20 9.80 25.002 00 1 GO 3 20 2 80 7.00 6.00 3.00 2 40 4 80 4 20 11.00 8 50 3.b0 2.80 560 4.30 13.00 10.00 15.75 12.60 25.20 22 05 58 00 44.50 15.00 12.00 24 00 21 00 53 90 42.002 00 1.60 3 20 2.80 7.00 6.002.00 1.60 3.20 2 30 7 00 14.00 11.20 22-10 19.60 49.00 39 50 10.26 8 20 16.40 14.35 36.00 29.00 2 50 2.00 4 00 3 60 9 00 S.lb 3.00 6.00 5.25 14.00 10.5012.00 9.60 19.20 16.80 42 00 34.00 2.25 1.80 3.60 3 15 8.002.00 1.60 3.20 2.80 700 6.00 1025 8.20 16 40 14 35 36.00 29.00 5.50 4 40 8.80 7.70 20 00 14.00 11.20 22. h0 19.60 49.00 39 50 6.75 5.40 10 80 9.45 24 00 19 00 800 6.40 1280 11.20 28 CO 22.50 6.00 4.80 9.60 8.40 21.00 17.00 4 25 3.40 6.80 5 95 1500 12.00 5.50 4 406 60 8 80 13.20 7.70 11.55 20 00 15.50 2.50 2 00 4 00 3 50 9 00 7.002.00 1 60 3.20 2.80 7 00 6.00 2.50 14.25 9.50 3.00 3.75 4.75 725 13 25 5.00 7.25 6 “ 1 1 425 7.25 2.75 13.25 2 75 11 00 3 75 9 75 2.50 4.25 7.50 3.75 13.25 13.25 10.25 2.00 4.00 37.50 29 00 • sffi^Bedroom'befweea Chicago and Omaha *5.40 pkjcagoa8 ? and ^rofa^whlch bTconvertedTnto i is a private room with an upper and lower berth, and toilet facilities In the same :room. A section is a lower and upper berth with only the lower made down for occupancy .T h e nurchaser of a drawing-room, compartment, or berth, either upper or lower, has right to its occupaney. It is necessary, however.when drawing-room is JjjBfiS individual, to present one and one-fourth railway tickets. ^ e n compmTment ^ occupied bv a single individual one full fare and one-tenth railway ticket are required. Only one adult railway ticket is required for exclusive occupancy of a section. NOTE 1— Fares shown in this column are charged when two persons occupy tne sec tion with only the lower berth made down. . _____ n^m ied bvNOTE 2— Fares shown apply when compartment or drawing-room is occupied py._. General Information (Continued) H O N O RIN G AR R A N G EM EN TS V IA C. R. I. & P- R Y- One-way and round trip Interline tickets, good for paesage^twM n ChlctMlo, Kansas City and beyond will be honored via direct line through Washington, Io , or via Dee Moines, Iowa, This arrangement also applies on o n e - w a y t n p tickets of C. R. I. & P. issue good for passage via C. R. I. &• r . trom L-tucago, to Lawrence, Kan., and points beyond (or the reverse). Kansas Citv Round trip tickets good for passage between Chicago, St. Louis, Kansas OBy ̂ St. Joseph, Omaha and stations east and Tucumoan, N. M v a“ K ' nr„ , bef f f ‘ will be honored via Texhoma or Texola Okla., or Oklahoma City a ^ Texola O k ^ Tickets good for passage between Chicago or Peoria and Denver or Col Springs and beyond, will be honored via Council Bluffs, Omaha, .St- / ° 8eP? ° p S i ditv (Applies only on tickets to or from points in California (not via Portland or Seattle), Colorado, Nevada, New Mexico, Utah or Wyoming.) r o , S t eKa“ El dre s»n a tg °b ey 1 gd, good f^tra na^rtatfon via P U L L M A N S L E E P I N G C A R S are owned and operated by the Pullman Company, aie hauled on our trains under contract, and we are not responsible for the conduct of same or its employes. Our agents in selling Pullman tickets act simply as agents for the Pullman Company. Be t w e e n Memphis and Amarillo................................. Memphis and El Paso.................................. Memphis and Hot Springs^........................ Memphis and Los Angeles......................... Memphis and Oklahoma City.................... Memphis and Tucson.......................................... Minneapolis-St. Paul and Cedar Rapids. . . . Minneapolis-St. Paul and Chandler............... Minneapolis-St. Paul and Phoenix................. Minneapolis. St. Paul and Des Moines......... Mlnneapjlis-St. Paul and Houston................ Minneapolls-St. Paul to Rock Island, Dav enport and West Liberty........................... Minneapolis-St. Paul to Las Angeles, San Diego................................................................ MInneapolls-St. Paul and St. Louis................ Oklahoma City and Dallas and Ft. Worth.. Oklahoma City and El Paso...................... Oklahoma City and Los Angeles..................... Omaha and Denver and Colo. Springs.......... Omaha and McFarland and Herington......... Omaha and Wichita............................................. Omaha and Caldwell........................................... Rock Island and Omaha.................................... Rock Island and Des Moines........................... San Fran, and Los Angeles to Columbus Jet. San Francisco and Los Angeles to Muscatine, Davenport and Rock Island.................... San Francisco and Los Angeles to Topeka.. Santa Rosa and Chicago.................................... Santa Rosa and Topeka..................................... St. Louis and Alamogordo................................. St. Louis and Chandler....................................... St. Louis and Denver and Colorado Springs8t Louis and El Paso......................................... St. Louis and Hutchinson.................................. St. Louis and Kansas City................................ St. Louis and McFarland................................... St. Louis and Phoenix......................................... St. Louis and Sacramento, San Francisco, Los Angeles and San Diego...................... St. Louis and Palm Springs............................... St. Louis and Topeka.......................................... St. Louis and Tucson.......................................... St. Louis and Wichita......................................... Wichita and Ft. Worth and Dallas................ Wichita and Rock Island and Davenport.. . Wichita and Houston.......................................... Standard Car Seat Far 68 .90 $ 1.10 LOO 1.25 .90 Double Lower Berth Double Upper Berth Sect’n two Pass engers See Note 1 Sect\i one Pass- enaer only Draw ing Room See Note 2 Com part ment See Note 2 3 8 80 3 7 70 320 00 8.50 6 80 13.60 11.90 30 00 2.50 2 00 4 00 3 50 9 00 14.50 11 60 23.20 20 30 51 00 3.75 3 00 6 00 5.25 14.0011.00 8 80 17 60 15.40 39.002 00 1 GO 3 20 2 80 7 00 13 75 11.00 22.00 19.25 49.00 338 50 14.50 11 60 23 20 20 30 51 00 41 00 2 50 2.00 4 00 3 b0 9.00 700 15 60 13 65 2 50 2.00 400 3.50 9.00 15.75 12.60 25.20 22.05 56 00 44.50 3.75 3 00 6 00 5.25 14.00 2.50 2 00 4 00 3 50 9 00 5.50 4 40 880 n o 20 00 11 50 9.20 18.40 16.10 41 00 4 25 3 40 6.80 5 95 15.00 12 00 2 50 2 00 4 00 3 50 9 00 3.00 4 80 4 20 11 00 3 60 2 80 5 60 490 13.00 4 00 3.50 3 20 2 80 1450 1160 23 20 20 30 51.00 41-00 15 00 12 00 24 00 21 00 53.00 42.00 13.25 10.60 21 20 18.55 47 00 37.508 00 6 40 12 80 11 20 28 00 22 50 5 00 4 00 8 00 7 00 18 00 14 008 50 S 80 13 60 11 90 30 00 24.0012.00 9 60 19.20 1680 42 00 34.00 6.75 5 40 10 80 9 45 24.00 9 00 7.20 14.40 12.60 32 00 25.50 400 3.20 6.40 5.60 14 00 11 50 2 50 2 00 4 00 3 50 9 00 7 00 3 00 2 40 4 80 4 20 11.00 8 50 12.50 10 00 20.00 1750 44.00 35.00 15.00 12.00 24.00 21 00 53.00 42 00 14.50 11.60 23.20 20 30 51 00 41 00 2 76 2 20 4 40 3 85 10 00 8 00 11 50 9 20 18.40 16 10 41 00 32.50 3.75 3 00 6 00 5 25 14.00 3 00 2 40 4 80 4 20 11 00 4.25 3 40 6 80 5.95 15 00 5 00 4 00 8 0 7 00 TOURIST CAR Lower Berth B ETW EEN Chicago and El P&ao........................ ................ Chicago and Kansas City............................... Chiraso and Lo« Annr«!e»■ uiubku auvi i ................................................ Chicago and Phoenix......................................... Chicago and Yum a. ........................................... El Paso and Rock Island and Davenport.. Excelsior. Springs and Chicago..................». Excelsior Springs and El Paso........................ Excelsior Springs and Los Angeles................ Hutchinson and Chicago............................................................. I Kansas City and Chandler................. • • • • • • • • Kansas City and Davenport and Rock Island Kansas City and El Paso...................................... Kansas City and Los Angeles............................. Kansas City and Phoenix...................................... Kansas City and Tucson...................................... Los Angeles to Columbus Junction.. . . . . . - • . . Los Angeles to Muscatine, Davenport and Rock Island. Los Angeles to Topeka. . Santa Rosa and Chicago Santa Rosa and Topeka----------- --------- — l Sloping Cars and three seat fares tor compartment. $5 2515? 7.25 7.26 5.0“ i : 4 0 7.00 2 76 5.50 1.26 4.00 7.00 575 5 00 7 60 8 00 6.75 4 25 2.75 $4.20 in 6.10 5 M 4 00 1 20 3 20 6.60 2.20 4 40 1 00 3.20 5.60 4.60 4 00 6 00 6 40 5 40 3 40 2 20 Sect'n c Pass. $7.352 M i l 2 10 5 60 9 80 3 85 7 70 1.756 60 9 80 8.05 700 10 50 11 20 9 45 5 95 3 85 Texhoma, Okla.. and Santa R o sa ,-n d -N io^o 'c* R ^ I ^ ’ P^Agent'a? Wichita!* passenger and from Hutchinson. Kan. On application to c . it. . •t„ Hutchinson without extra will be furnished ticket reading via A. V. .I. from " w m ta ^ ^ u tc o u ™ ^ wffl ^ charge. The same arrangement wm apply in the R . i * P. Agent at K f n s o n . ™ ^ ! ^ ^ ^ T l r o m Hutcffinson to Wichita will be furnished without extra charge. _K_f p.hiraco St Louis, Kansas City, St. Jose*phUIOmaha f e ^ t ’ a K t « or A o and points beyond wli. be h° nRoun(?atr?p'tickets % T T p % % f g Z £ l £ S $ . J210A 2 1 1 [fol. 442] E xhibit 5 A rkansas Separate Coach L aw (Digest of Statutes of Arkansas, Crawford & Moses (1921) Sections 986-997) Sec. 986. Equality of accomodations. All railway companies carry ing passengers in this State shall provide equal but separate and sufficient accommodations for the white and African races by providing two or more passenger coaches for each passenger train; provided, each railway company carrying passengers in this State may carry one partitioned car, one end of which may be used by white passengers and the other end by passengers of the African race, said partition to be made of wood, and they shall also provide separate waiting rooms of equal and sufficient accommodations for the two races at all their passenger depots in this State. Sec. 987. Exception as to street cars. The foregoing section shall not apply to street railroads. In the event of the disabling of a passenger coach, or coaches, by accident or otherwise, said company shall be relieved from the operation of this act until its train reaches a point at which it has additional coaches. Sec. 988. Passengers to occupy places assigned. No person or persons shall be permitted to occupy seats in coaches or waiting rooms other than the ones assigned to them on ac count of the race to which they belong; provided, officers in charge of prisoners of different races may be assigned with their prisoners to coaches where they will least inter fere with the comfort of other passengers; provided, further, tiiat section 986 shall not apply to employees of a train in the discharge of their duties, nor shall it be construed to apply to such freight trains as carry passengers. Sec. 989. Separate sleeping and chair cars. Carriers may haul sleeping or chair cars for the exclusive use of either the white or African race separately, but not jointly. 2 1 2 [fol. 443] Sec. 990. Short lines. On all lines of railway less than thirty miles long, passenger coaches may be divided by partition. — 991. Duty of officers. The officers of such passenger trains and the agents at such depots shall have power, and are required to assign each passenger or person to the coach or compart ment or room used for the race to which such passenger or person belongs. Sec. 992. Penalty. Any passenger or person insisting on going into a coach or compartment or room to which by race he does not belong shall be liable to a fine of not less than ten dollars nor more than two hundred dollars, and any officer of any railroad company assigning a passenger or person to a coach or compartment or room other than the one set aside for the race to which said passenger or person belongs shall be liable to a fine of twenty-five dollars. Sec. 993. Duty of passenger. Should any passenger refuse to occupy the coach or compartment or room to which he or she is assigned by the officer of such railway company, said officer shall have the power to refuse to carry such passen ger on his train, and should any passenger, or any other person not passenger, for the purpose of occupying or wait ing in such sitting or waiting-room not assigned to his or her race, enter said room, said agent shall have the power, and it is made his duty, to eject such person from such room, and for such acts neither they nor the railway company which they represent, shall be liable for damages in any of the courts of this State. Sec. 994. Railroad’s noncompliance—penalty. All railway com panies that shall refuse or neglect to comply with the pro visions and requirements of this act shall be deemed guilty of a misdemeanor, and shall upon conviction before any court of competent jurisdiction, be fined not less than one hundred dollars nor more than five hundred dollars, and 213 every day that such railway company shall fail to comply with the provisions of this Act and every train run in viola tion of the provisions hereof, shall be a separate offense; and any conductor or other employees of such passenger train having charge of the same or any agent at such depot who shall refuse or neglect to carry out the provisions of this act shall, on conviction be fined not less than twenty- [fol. 444] five dollars nor more than fifty dollars for each offense. Sec. 995. Posting law. All railroad corporations carrying pas sengers in this State, other than street railroads, shall keep this law posted up in a conspicuous place in each passenger coach and waiting room. Sec. 996. Paces defined. Persons in whom there is a visible and distinct admixture of African blood shall, for the purposes of this act, be deemed to belong to the African race; all others shall be deemed to belong to the white race. Sec. 997. Freight trains. The railroad companies shall not be re quired to furnish separate coaches in freight trains for the white and African races. [fols. 445-453] Report proposed by Wm. A. Disque, ex aminer omitted. Printed side page 16, ante. [fols. 454-463] Report of Commission Omitted. Printed side page 26 ante. [fol. 464] Order of Commission Omitted. Printed side page 44 ante. [fol. 465] Order denying petition for rehearing etc. Omit ted. Printed side page 45 ante. [fol. 465%] And on, to wit, the 27th day of May, A. D. 1940, came the Defendant by its attorneys and filed in the Clerk’s office of said Court its certain Exhibit No. 1, in words and figures following, to w it: [fols. 466-467] D efendants’ E xhibit 1 Interstate Commerce Commission, Washington I, W. P. Bartel, Secretary of the Interstate Commerce Commission, do hereby certify that the attached is true copy of Reply of Frank 0. Lowden, et ah, Trustees, filed June 4, 1938, in Docket No. 27844, Arthur W. Mitchell v. Chicago, Rock Island & Pacific Railway Company Trustees et al., the original of which is now on file and of record in the office of said Commission. In Witness Whereof I have hereunto set my hand and affixed the Seal of said Commission this 20th day of May, A. D. 1940. W. P. Bartel, Secretary of the Interstate Commerce Commission. (Seal.) 2 1 4 [fol. 468] B efore the I nterstate C ommerce Commission Docket No. 27844 A rthur W. M itchell, Complainant, vs. F rank 0 . L owden, James E. Gorman, and Joseph B. F lem ing, Trustees of the Estate of The Chicago, Rock Island & Pacific Railway Company, a Corporation; Illinois Cen tral Railway Company, a Corporation; and Pullman Company, a Corporation, Defendants R eply of F rank 0 . L owden, James E. Gorman, and J oseph B. F leming , T rustees of the Chicago, R ock I sland and Pacific R ailw ay Company, to Com plainant ’s E xcep tions—Filed June 4, 1938 Complainant’s Exception I, which excepts to the Ex aminer’s failure to sustain a motion to strike the answer of The Chicago, Rock Island and Pacific Railway Company, is of no importance. Defendants deny that their answer failed to comply with Rule IV (e). The rule is so worded as to make it impossible to “ state fully the grounds relied upon, ’ ’ except in the form of an explanation of a preliminary 2 1 5 admission of allegations in the complaint. Defendants made no such admission, but denied the allegations. Such denial is a statement in full of the grounds relied upon. Were there merit to the complainant’s contention and the answer were stricken, the result would be a nullity. With no answer on file, the issue would still be joined (Rule IV [fol. 469] (b )) and the case would proceed. See Vol. 3, Interstate Commerce Acts Annotated, p. 1774. In Exception II, complainant objects to the Examiner’s finding that complainant accepts segregation under the Arkansas Statute, and he declares that the record fails to show that complainant has accepted segregation. The Ex aminer is correct in his finding and he is supported by the record. He could make no other finding in view of the ex plicit statement (p. 143) by the complainant himself that “ the question of segregation is not involved,” and the succeeding colloquy between the Examiner and complainant. The finding is further supported by the introduction in evi dence by complainant of the Arkansas Statute requiring segregation of races. The Examiner’s statement, which is made the subject of Exception III, is also supported by the colloquy, above refer red to, beginning on page 143. Complainant’s Exception IV is a mere quibble over words and requires no elaboration. Complainant’s Exceptions V, VI, V II and V III are so related that they may be appropriately considered together. Much of complainant’s discussion is a reiteration of testi mony and argument presented in his initial brief, and it was fully analyzed and considered in the brief of these defend ants. There is here no intention to reprint or to review the details and arguments contained in that brief. They were before the Examiner when he studied the case and reached his conclusion, and they are still before the Commission [fol. 470] for its attention. In a number of instances com plainant, in his exceptions, refers to “ undisputed testi mony” . The record and defendants’ brief will disclose that much of the so-called undisputed testimony met, in fact, substantial rebuttal. In his exceptions complainant appears to place great emphasis upon McCabe vs. A. T. & S. F. Ry. Co., 235 IT. S. 151. That case did not arise under the Interstate Com merce Act. Nor did it involve any question of undue dis crimination, as defined by the Act and various decisions of 2 1 6 this Commission and of the courts. It did not touch upon the exercise by this Commission of the powers defined and limited by that statute. The McCabe Case originated in an effort by a group in Oklahoma to enjoin in court, before it became effective, the enforcement of a segregation act passed by the legislature of Oklahoma. The question pre sented was strictly judicial, and the attack was upon a state statute as being, among other things, repugnant to the 14th Amendment. The lower courts denied the injunction, and the Supreme Court of the United States affirmed that de nial. The language from that opinion, cited by complain ant, was mere obiter. It related wholly to a discussion of an abstract idea advanced in that particular case and, as the conclusion of the opinion showed, had nothing to do with the determination of the case. Four Justices signified their concurrence in the result only. That the Court did not itself regard the language as [fol. 471] conclusive is proved by a later case. In South Covington, etc., Railway Company vs. Kentucky, 252 U. S. 399, decided April 19, 1920, the court held that the segrega tion statute of Kentucky was enforceable against an inter- urban line with an interstate service across the Ohio River, between Kentucky and Ohio. Justices Day, Van Devanter and Pitney dissented. In their dissent (p. 406) occurs this language: "H ow could this separate car or compartment statute be complied with? It is first suggested a separate car could be put on for the accommodation of colored passengers for the distance of the intrastate run on the Kentucky side of the river. In view of the nature of the transportation and the meager patronage compared with the expense of such an undertaking, this method would he impracticable without interrupting travel and entailing a great loss upon the company. ’ ’ The Justices who thus gave weight to the meager patron age and expense to the company were, six years before, three of the five Justices responsible for the majority opinion in the McCabe Case. It is clear that within the court itself the utterance quoted by complainant was not regarded as an authoritative statement of law. That it cannot be so regarded is further supported by the decision of the Supreme Court in Chiles vs. C. & 0. R. R. 217 Co., 218 U. S. 71, discussed in the defendants’ initial brief. Although the case is earlier, it is directly pertinent. In that case the Supreme Court sustained the action of the railroad in transferring a colored passenger from a white coach into a colored compartment coach. The coaches were not iden- [fol. 472] tical, but the court found them substantially equal in quality, convenience and accommodation. It is obvious that the car, divided by board partitions into three com partments, was assigned to colored passengers because the volume of colored travel did not justify the assignment of an entire coach. The arrangement met the tests of law. But whether the comments of the Supreme Court in the McCabe Case, as quoted in complainant’s exceptions, are regarded as obiter dicta or are accepted as conclusive law, they do not justify the satisfaction which the complainant appears to derive from them. The Oklahoma statute, which complainants in that case sought to enjoin, provided that nothing contained in that Act should be construed to pre vent railway companies “ from hauling sleeping cars, dining or chair cars attached to their trains to be used exclusively by either white or colored passengers, separately but not jointly.” Bear in mind that the subject matter was a state statute. The Attorney General of Oklahoma, in the brief filed by him in support of the law, urged that “ the plaintiffs must show that their own travel is in such quantity and of such kind as to actually afford the roads the same profits, not per man, but per car, as does the white traffic, or, suffi cient profit to justify the furnishing of the facility. ’ ’ It was contended (p. 161) that the meaning of the clause was that that the carriers might provide sleeping cars, dining cars and chair cars exclusively for white persons and provide [fob 473] no similar accommodations whatsoever for negroes. It was this argument which the court described as being without merit. “ Whether or not particular facil ities shall be provided,” said the court, “ may doubtless be conditioned upon there being a reasonable demand there for; but, if facilities are provided, substantial equality of treatment of persons traveling under like conditions cannot be refused.” It is to be noted that the contention urged was that under that statute the carriers were not required to provide for colored passengers any of the described accommodations, if the travel did not afford the carriers the same profits per car as were afforded by white occupancy. But, in its com 218 ment, it should be emphasized that, while rejecting the At torney General’s argument, the opinion recognized that substantial equality of treatment, not identical, was suffi cient under the State statute. The furnishing of particular facilities was regarded by the opinion as being properly conditioned upon a reasonable demand therefor. It neces sarily follows that the volume, or capacity, of the facilities furnished may properly be controlled by, or adapted to, that demand. Certainly, if these defendants have provided sub stantial equality of accommodations, of sufficient capacity to meet the reasonable demand therefor, neither the argu ment of the Attorney General of Oklahoma nor the comment of the Supreme Court on it can be tortured into a discussion or judgment of the present proceeding. [fol. 474] If this case presents a constitutional question (which defendants deny), such a question is for judicial determination. The 14th Amendment lays its impositions upon State governments. Its interpretation does not be long to a regulatory body exercising authority under stand ards and practices prescribed by a Federal statute. It is for the Commission to determine whether, under the Inter state Commerce Act, complainant has been subjected to an undue prejudice. The evidence, which need not be elaborated, shows that on the day complainant applied for a seat in a pullman car space ordinarily used for such an accommodation had been sold. It is the evidence that the assignment of a drawing-room or a compartment in a pullman car is sufficient to accommo date the occasional and meager demand for such service by colored passengers. One of complainant’s own witnesses (p. 68) testified that he had ridden in pullman cars in Arkansas. Others had never sought such accommodations. There is no law requiring’ identical accommodations, either for white passengers as among themselves, or for white and colored passengers, considered separately. White passengers are given varied services. In some instances they ride on “ mixed” trains, carrying freight. In others, cabooses or freight trains afford their only accommodations. Some trains carry diners; others, over the same routes, stop for meals at station eating-houses. There are trains of solid pullmans, others with none. In some trains are lounge and buffet cars, but not in others. Speeds differ widely, [fol. 475] No racial factor is involved. Volume and de- 2 1 9 mand determine such services. Defendants know of no con tention that such varied treatment constitutes unlawful discrimination or a denial of equal protection. In providing pullman accommodations for colored travel, defendants have provided accommodations equal to any other luxury accommodations, whether they are called parlor cars or are given some other name. In doing so they have complied with every obligation laid upon them. The evidence establishes that coach accommodations pro vided for colored passengers are substantially equal to those for white passengers, and they are sufficient. There fore, no allegation of undue prejudice can be properly sus tained. It is obvious from the exceptions that complainant is persisting in an effort to manufacture an issue where none exists, and to magnify the experience of a single individual on a given day into a national spectacle. The Commission, of course, is concerned only with the merits of the case presented to it. The recommendation by the Examiner that the complaint be dismissed is sound. The record will support no other conclusion. Daniel Taylor, Wallace T. Hughes, Attorneys for Defendants, Frank 0. Lowden, James E. Gorman, Joseph B. Fleming, Trustees of The Chicago, Rock Island and Pacific Railway Company. Chicago, 111. June 3, 1938. [fols. 476-477] Certificate of Service I hereby certify that I have this day served a copy of the foregoing upon all parties of record, by mailing a copy thereof to each party, properly addressed. Dated at Chicago, 111., this 3rd day of June, 1938. Wallace T. Hughes, Of Counsel for Defendants. [fol. 478] [F ile endorsement om itted] 2 2 0 [fol. 479] Isr U nited States D istrict Court eor N orthern D istrict of Illinois E astern D ivision at Chicago In Equity. No. 500 A rthur W. M itchell, Complainant, vs. U nited S tates of A merica, F rank 0. L owden, James E. Gorman, and J oseph B. F leming , Trustees of the Estate of the Chicago, Rock Island and Pacific Railway Com pany, a corporation; Illinois Central Railway Company, a corporation; and Pullman Company, a corporation, Defendants. Statement of Evidence—Filed November 14, 1940 Report of proceedings had and evidence taken at the hearing of the above-entitled cause before the Honorable William M. Sparks, one of the Judges of the United States Circuit Court of Appeals, sitting as a Judge of said District Court, and the Honorable Charles E. Woodward and Michael L. Igoe, Judges of said District Court, sitting in banc, on Monday, May 27, A. D. 1940. [fol. 480] Present: Mr. Richard E. Westbrooks, and Mr. Arthur W. Mitchell, Pro Se, appeared on behalf of plaintiff; Mr. J. Stanley Payne, Senior Assistant Chief Counsel of the Interstate Commerce Commission, appeared on behalf o f the Interstate Commerce Commission; Mr. Wallace T. Hughes, and Mr. Daniel Taylor, appeared on behalf of Frank O. Lowden, James E. Gorman and Jos eph B. Fleming, Trustees of the Estate of the Chicago, Rock Island and Pacific Railway Company, a corporation, defendants; Messrs. Elmer A. Smith, Herbert J. Deany and Robert Mitten, by Mr. Robert Mitten, appeared on behalf of Illi nois Central Railway Company, a corporation, defendant; Mr. L. M. Greenlaw, Mr. C. S. Williston, and Mr. Erwin W. Roemer, appeared on behalf of Pullman Company, a corporation, defendant. 2 2 1 The Court: (Judge Sparks): Is this the case of Mitchell vs. United States, gentlemen? Mr. Westbrooks: Yes, may it please the Court. The Court (Judge Sparks): What is pending here? Mr. Westbrooks: This is a review of an order of the [fol. 481] Interstate Commerce Commission, in which a petition was filed before that body complaining of discrim ination. In April, 1937, Congressman Mitchell bought a round-trip ticket between Chicago------ The Court (Judge Sparks): Tell me what is before the Court. Mr. Westbrooks: A petition to review that final order. The Court (Judge Sparks): Are you introducing evi dence ? Mr. Westbrooks: Yes, I shall. T hereupon the P laintiff, to M aintain the I ssues on H is Behalf, I ntroduced the F ollowing E vidence, to w it : Mr. Westbrooks: I want to introduce a certified copy of the proceedings before the Interstate Commerce Commis sion. The Court (Judge Sparks): Is there any objection to that, gentlemen ? Mr. Payne: None, except, your Honors, that included amongst the papers here are the petition to the Interstate [fol. 482] Commerce Commission, the transcript of the tes timony and a few exhibits, the Examiner’s proposed report, but not the exceptions. Therefore, I wish to introduce the exceptions to the Ex aminer’s report, a certified copy of those exceptions. The Court (Judge Sparks): I believe you are a little out of order. As I understand it, the plaintiff is now intro ducing his evidence. Mr. Westbrooks: Yes. The Court (Judge Sparks): Plaintiff’s Exhibit 1 will be received in evidence. (Which said document, so offered and received in evi dence, was marked Plaintiff’s Exhibit 1 and is returned herewith and made a part hereof.) 2 2 2 Mr. Payne: I will offer these in evidence later. The Court (Judge Sparks): Yes. Mr. Westbrooks: That is all the evidence we have to produce. The Court (Judge Sparks): All right. [fol. 483] T hereupon the Defendants, to M aintain the I ssues on T heir B ehalf, I ntroduced the F ollowing E vidence, to wit : Mr. Payne: Your Honors, I wish to introduce the excep tions of Arthur W. Mitchell to the Examiner’s proposed report and the reply of defendants to those exceptions. The Court (Judge Sparks): They may be admitted in evidence. (Which said documents, so offered and received in evi dence, were marked, respectively, Defendants’ Exhibits 1 and 2, and are returned herewith and made a part hereof.) The Court (Judge Sparks): Very well. Are you ready for argument? Mr. Mitchell: Yes. I am Arthur W. Mitchell. The Court (Judge Sparks): You are the plaintiff here? Mr. Mitchell: I am the plaintiff and also an attorney of record. I wish to begin, if the Court please, by reviewing briefly was has happened in the case. The offense complained of [fol. 484] here was committed by the defendants on April 21, 1937. The Complaint was filed before the Interstate Commerce Commission on September 2, 1937. On Decem ber 4, 1937, the Complaint was assigned for hearing by the Commission and all the parties were duly notified. Said hearing was set for March 7,1938, and was held in the City of Chicago, Illinois, the Commission being represented at the hearing by Examiner W. A. Disque. On May 5, 1938, Examiner Disque submitted his report to the Commission and recommended that the Complaint be dismissed. On May 24, 1938, complainant before the Com mission filed exceptions to the report and recommendations of the Examiner and requested oral arguments before the 2 2 3 full Commission. Oral arguments were heard in Washing ton on July 6, 1938, before the full Commission, and on November 7, 1938, decision was handed down by the Com mission. On January 21, 1939, a petition was filed with the Com mission praying for a re-hearing before that body. On March 6, 1939, the Commission handed down an order de nying a re-hearing before the Commission. On April 20, 1939, suit was filed in the United States [fol. 485] District Court, and that is the suit we are now proceeding with. The Court: (Judge W oodward): What was the Complaint originally? Mr. Mitchell: The Complaint consisted of these facts: That on April 21, 1937, while plaintiff was a passenger traveling on a first-class ticket which had been bought here at the Illinois Central Railway Company entitling plaintiff to first-class passage from Chicago to Hot Springs, Arkan sas, he was traveling in a Pullman car on accommodations which he had paid for here, as far as within a few miles of Memphis, Tennessee; that before reaching Memphis, Ten nessee, plaintiff was informed that the Pullman car in which he was riding would not go to Hot Springs but that there was a car attached to that train which would go to Hot Springs, and that there were ample accommodations in that car to take care of plaintiff. Plaintiff accordingly sent for the Pullman porter of this particular car which was going to Hot Springs and ar ranged with this Pullman porter, in charge of this car (as there was no Pullman conductor going over that line) to [fol. 486] take plaintiff and assign space in this car to plain tiff, which was done, on the morning of April 21, 1937, sev eral miles before the train arrived at Memphis, Tennessee. After the train reached Memphis, Tennessee, and this particular car which was going to Hot Springs was switched around and taken over by Rock Island passenger train No. 45, the plaintiff, who had been in this car and had traveled several miles into the State of Arkansas, from Memphis, Tennessee, proceeded on his journey to Hot Springs in that direction. But when the conductor came around to take up the fares he noted that plaintiff was a colored man and he explained that the plaintiff could not ride in a Pullman car in the State of Arkansas notwithstanding the fact that plaintiff 224 had purchased first-class passage and had already arranged with the Pullman porter in charge of that car for space and was traveling in that space. Following objection by plaintiff to the conductor, the plaintiff was ejected from the car and was forced to ride to Hot Springs in a second-class car. The original petition before the Interstate Commerce [fol. 487] Commission prayed that the Rock Island Railway be compelled to comply with the laws of the State of Arkan sas which provide that races traveling in that state must be separated, but with equal accommodations. We alleged that while the accommodations are separate they are in no wise equal; in other words, that a negro traveling as a passenger on the Rock Island Railway in the State of Arkansas has no opportunity to enjoy first-class accommodations notwithstanding the fact that he might he in possession of his first-class ticket, that there is gross dis crimination because of race, and that is the essence of this suit. Now, the uncontroverted facts in this case are these: On the 20th of April, 1937, plaintiff purchased a railroad ticket at the Illinois Central Railway Station in Chicago which entitled him to travel first class from Chicago, Illinois, to Hot Springs by way of Memphis, Tennessee, over the Illinois Central Railway from Chicago to Memphis, Ten nessee, and over the Rock Island Railway from Memphis, [fol. 488] Tennessee, to Hot Springs, Arkansas; and that plaintiff paid the agent of the Illinois Central Railway Com pany in the City of Chicago the sum of $27.50 for this trans portation, which was a first-class fare for the round-trip between Chicago and Hot Springs. On April 20, 1937, plaintiff boarded an Illinois Central train known as passenger train No. 3 which left Chicago for Memphis, Tennessee, and other points south at 6:05 o ’clock p. m., and used the railroad ticket I have referred to and arrived in Memphis, Tennessee, early the following morning, April 21, 1937. It is further contended, and it has not been disputed, that plaintiff traveled on said train from Chicago to within a few miles of Memphis, Tennessee, occupying a compartment in a Pullman car for which plaintiff had paid an additional sum of $9.15. It is also uncontroverted that on the morning of April 21, and before the train on which plaintiff was traveling reached Memphis, Tennessee, the plaintiff arranged with the Pull man porter who was in charge of a Pullman car going direct from Chicago to Hot Springs for space in the Hot Springs car, and plaintiff with his baggage was transferred from [fol. 489] the car in which he had traveled from Chicago to the Pullman car which was bound for Hot Springs, and that plaintiff proceeded to Memphis, Tennessee, in the Pullman car to which he had been transferred and to which he had been assigned by the Pullman porter in charge. The plaintiff continued on his journey to Hot Springs, Arkansas, traveling in this Pullman car until he had gone several miles from Memphis, Tennessee, into the State of Arkansas, traveling from Memphis over the Rock Island Railway. The train conductor in charge of Rock, Island passenger train No. 45 running between Memphis, Tennessee, and Hot Springs, Arkansas, on April 21, 1937, refused to allow the plaintiff to continue his journey to Hot Springs in the Pullman car in which he was then riding, but ejected plain tiff from the Pullman car and compelled him to complete his journey to Hot, Springs traveling in the Jim Crow car which did not have the furnishings and the equipment of the Pullman car from which plaintiff had been ejected, and the accommodations were in no wise equal. That passenger train No. 45, to which the Pullman car was attached in Memphis, Tennessee, and carried over the [fol. 490] Rock Island Railway to Hot Springs on April 21, 1937, was in charge of Conductor Albert W. Jones of 711 East Sixth Street, Little Rock, Arkansas, and it was Con ductor Albert W. Jones who ejected plaintiff from the Pull man car in which he was traveling. At the hearing before Examiner Disque there appeared a large number of witnesses, but the main witness for the defendants was Conductor Albert W. Jones, the gentleman to whom I have already referred, and it appears that the Interstate Commerce Commission, in reaching its decision, had full consideration of the evidence which was submitted by Mr. Jones, and that is without doubt the evidence on which all of the defendants have relied to sustain their con tention in this case. I first want to call your Honor’s attention to the fact that there is no question about the plaintiff having been ejected 15—577 226 from tlae Pullman car by Conductor Jones, and it is our contention that he was ejected solely because of race. In that connection I wish to refer to the evidence taken before the Examiner, found on pages 154, 168 and 169, which evi dence I will read. The Court (Judge Sparks): If you have the evidence [fol. 491] here do not read too much. It will occupy too much time. We have the record and we will read it. Mr. Mitchell: I thank the Court. In the evidence I have referred to it is made plain by the witness already referred to, Mr. Jones, that there was no reason in the world why the plaintiff was ejected from this car except that he was a colored man. The Court (Judge Sparks): They do not contend any thing different, do they? Mr. Mitchell: They do not. He admitted that the car in which the plaintiff was forced to ride was an inferior car without first-class accommoda tions. He admitted that in the evidence. He stated further, and I want to argue this, that he had been a conductor on that road for thirty-two years and during that time he had never sold space to a colored man to ride first class. In fact he admitted further, and the Court will have it before it in the evidence which has been filed, that during his thirty-two years on the Rock Island Rail way that road had never had first-class accommodations for colored people. [fol. 492] The defendant Rock Island Railway attempted to make much of the fact that the bulk of the travel of negroes over that line in that state is not sufficient to justify the contention that negroes should have these accommoda tions. To sustain that position Mr. Jones testified he had been a conductor for thirty-two years and he had had per haps one application each year from some colored man who wanted first-class accommodations, but that he denied them. Defendants attempt to use that as proof that the bulk of the travel of negroes, or that the number of colored passen gers seeking first-class accommodations in that state is so small as not to be justified, but you can understand that if it is their custom to deny these accommodations to colored people, and he admits it is the custom, then these were pretty bold people who would go to him, after knowing the custom, and ask for these accommodations. There is no proof that these were the only people that wanted these 227 accommodations, but be admitted he does not know bow many people applied at the window in Little Bock, Arkan sas, and Hot Springs, Arkansas, for these accommodations that were denied these accommodations. [fol. 493] He also admits he does not know how many negroes wishing to travel first class applied for such accom modations at Memphis, Tennessee, over this line and were denied them. Those of us who travel know it is impossible for a con ductor on a passenger train to know who applies for that train and who do not, and we seriously challenge the state ment that a sufficient number do not apply. In fact, we submit that the constitutional rights of individuals to have and enjoy these same privileges do not depend upon the number of people who apply for them. The Supreme Court of the United States has said on more than one occasion that the constitutional rights of indi viduals are individual and personal, and they are not to be considered in bulk. They said that in a decision in 1916 handed down, I believe, by our present Chief Justice Hughes, and as late as 1939 this rule was repeated in the case of Gaines vs. Canada, et al., by the same Justice. In 1916 Mr. Justice Hughes was an associate Justice. He is now our Chief Justice and he quoted those same words. It is our contention that this is rank discrimination [fol. 494] because of race. The Court (Judge Sparks:) What relief did you ask of the Commission? Mr. Mitchell: We asked a rule that the railroad be com pelled to desist from its practice and to give these things to the colored people that the law of the State of Arkansas provides they shall have. I wish the Court would remember that they enforce rigidly that part of the law which provides that they must travel separately. As a group who have to suffer the in conveniences of such a law, we contend that if you are going to “ Jim Crow” us and put us off, then we are entitled to the benefits of the law that we at least ought to have equal accommodations. There is no question of segregation in volved. We have not said to the railroad that it must let us ride together with the white people. I care as little about riding with white people as they care about riding with me, but if I buy first-class passage to ride on the Rock Island or on any other railroad in the United States, under my 2 2 8 constitutional rights I am entitled to the same treatment as any man is entitled to regardless of color. [fol. 495] The Court (Judge W oodward): What are the provisions of the statute? Mr. Mitchell: What I have recited, that they must travel separately, but that accommodations must be equal. The Court (Judge W oodward): Are you invoking the Arkansas statute? Mr. Mitchell: I am saying that I was traveling in inter state commerce as a passenger, and that the railroad had no right to discriminate against me because I went into that state. I also stated to the Commission that the State of Arkansas was violating its own law. They have a law there providing for equal accommodations for negro pas sengers but they violated that law and they are violating that law. I asked the Commission to enforce that law but they refused to do so. I wish to call to the attention of this Court the fact that the decision denying us that relief for which we prayed was a six-five decision of the Commission, and I also wish to call this Court’s attention to a remark made in the dissenting opinion of Commissioner Eastman. I might say that there were three dissenting opinions. One of them was agreed [fol. 496] to by three members of the Commission and the other two dissenting Commissioners rendered their own decisions. On page 15 of the decision, Commissioner Eastman, in handing down his dissenting opinion, said this, and this was the opinion of three of the judges: “ * * * The f a(qs are that white passengers were and are given adequate opportunity to obtain seats, berths, compartments, or rooms in Pullman cars, together with the right to use any dining car or observation car that may be attached to the train, whereas colored passengers have no opportunity to obtain seats or berths in the body of the car or to use dining or observation cars, but may obtain; accom modations in a compartment or room, provided one can be found that has not previously been taken by a white pas senger. # * Then he makes this significant statement and I think it is a shame such a statement lias to be made and was made by Commissioner Eastman, but it is true and was agreed to by the other Commissioners: 2 2 9 “ * * * If the conditions were reversed, I cannot be lieve that the white passengers would regard this as equal- [fol. 497] ity of treatment and opportunity.” Now, I am in the Congress of the United States, working with the men who make the laws of this country, and I have been there for the last six years. I know the tendency in this country is to deny negroes their rights. I do not be lieve there is a Avell thinking white man in the United States to deny when a negro comes to bat, whether it is in the eco nomic world seeking an opportunity to make a living, or wherever it is, he comes to bat with two strikes against him. We feel that if we are going to maintain this democracy we say so much about, both in Congress and out of Con gress, we have come to a court of justice, our last resort, when our rights are taken from us and trampled upon by the strong of this nation. After having been denied these rights by the Commission that had all the facts before it and could possibly offer no excuse worth listening to except that the controversy in volved a negro, we have now come to a court of justice that is supposed to be blind to color and that looks only at the rights of the individuals. That is why we are here. [fol. 498] I have come to this court at great expense. I come here because I still have confidence in the laws of this country and in those who administer them. I know it takes a courageous white man to stand up where the controversy is between a negro and a white man and say to the negro: “ These are your rights and I will stand by you.” As I say, I am with the law makers of this country and I talk to them confidentially, and I agree with Clarence Barrow, that it is a most difficult thing to find a white man that does not start out with some prejudice. I wish to call attention to the fact that Conductor Jones in his testimony before the Commission, stated that he told me that it did not make any difference about my being a member of the Congress of the United States, that I would have to take the same treatment that all other negroes take in the State of Arkansas. He didn’t nse just those words but that is just exactly what he meant. I want to close my appeal to this Court by saying we have brought you all the facts. We are not asking for any [fol. 499] mercy; we are asking for justice. We have no fancier appeal to make. 2 3 0 There are at this moment fifteen millions of American citizens with their ears and their eyes turned toward this Court believing in their hearts that we have already been seriously wronged by a body set up by our Government, the Interstate Commerce Commission, but believing, as I be lieve, that in the courts the facts will not be ignored. We bring you no new facts. We bring you the truth, the ad mitted truth, and all we are asking is that the color of the litigants be forgotten, that the facts be considered and that we keep in mind the fact that, while democracy is trembling and shaking the world over, we believe that that condition has been brought about by a disregard for the rights of people. Our little group here number fifteen millions of the most loyal people we have in America today, a group that has never raised its hand against our Government and does not intend to do so. I stood on the floor of the House the other day and con demned the Communistic followers. I said to the Congress of the United States that the negroes in this country take [fob 500] their medicine whether it is bitter or sweet, and we are loyal. I said further that we have gone with you through all your battles and we have given you our blood and our lives. We ask you to treat us as citizens and do not push us around when our rights are being trampled upon ruthlessly. Give us the same consideration that you give the Chinaman, the Filipino, the Jew or anybody else. We ask no m ore; we are entitled to no less. The Court (Judge Ig o e ): What is the Arkansas statute? Mr. Mitchell: That will be recited by Mr. Westbrooks, who will argue the law in this case. Mr. Westbrooks: May it please your Honors: It is indeed quite embarrassing at this late day and age for an Amer ican citizen to be compelled to appeal to courts to get simple justice, that which has been decreed by the courts of the United States, the enforcement acts, the 14th Amendment, the Acts of Congress and the Laws of the United States made pursuant to that constitution. But we find ourselves bringing before this Court a fact that is undisputable; that is, that Mitchell in this case was discriminated against [fol. 501] merely on account of his color. In my petition I set out the evidence of Mr. Jones; that is, a part of the evidence of Mr. Jones. The full evidence 2 3 1 is set out in the transcript there. But Mr. Jones stated that that was the only reason he did not recognize Con gressman Mitchell’s ticket. The Congressman stated he had a first-class, round-trip ticket to Hot Springs which entitled him to the same first-class accommodations as every other citizen who paid a first-class fare under similar cir cumstances. I hardly think it is necessary to state our claim in this case is based upon the sections of the Commerce Act which, in the creation of the Commerce Commission, your Honor will recall, followed the old Commerce Court. That Act provided that the Interstate Commerce Commission shall have control of the transportation of passengers and propT erty wholly by railroad or partially by railroad. That may be found in Title 14 of the U. S. C. A. It, is also provided that just and reasonable charges are required. Section 5 of Title 49 holds that all charges made for any [fol. 502] services rendei’ed or to be rendered in the trans portation of passengers or property shall be just and rea sonable, and that every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful. In this case they charged a first-class fare; he paid it. He bought a round-trip ticket and the Commission found that after he had completed a part of his journey he was taken from the first-class car and he was denied the right and privileges that other passengers enjoyed. It was ad mitted that the other passengers who held first-class tickets were allowed the use of the observation car and allowed the use of the sleeping cars or any other part of the train, but he was compelled to go up in a little Jim Crow car where persons who were only required to pay second-class fares of two cents a mile were placed. A ticket purchased at the rate of three cents a mile entitled one to have the facilities of the sleeping car, the observation car and other facilities, but Mr. Jones said that Congressman Mitchell could not have those privileges and the only reason he gave was that [fol. 503] he was a colored man. There was plenty of room in the sleeper and in the ob servation car and had hei been a white man he would have been allowed to use those cars. It is admitted in the plead ings and in the evidence here that there was plenty of space, unoccupied space, if you please, in the Pullman car. The baggage of the Congressman was carried in the Pull 2 3 2 man car but tlie Congressman himself was compelled to ride in tlie Jim Crow car. The Interstate Commerce Commission and the Examiner found that this Jim Crow car was the same kind of a des picable, dirty, filthy car that was described in Councill v. Western & A. E. Co. 1 I. C. C. 339. That was one of the early cases, and the Commission stated at that time that was discrimination and a cease and desist order was given to the railroad company involved. That was followed in the case of Heard v. Georg*e E. Co., 1 1. C. C. 428 where they found a similar and identical situation to be unjust dis crimination. Those two cases are followed out in the case of Edwards v. Nashville, C. & St. L. Co., 12 I. C. C. 247. [fol. 504] The dissenting opinions said that the Commis sion could not be consistent and hold this case not to he dis crimination when those other cases were discrimination. This is not a new matter. It has been before the courts in the early days, but the Federal Courts in which these cases have been brought, mostly suits for damages, have always held that if there was a first-class fare paid the party was entitled to first-class accommodations, and it is fundamental that state laws do not apply to interstate com merce. Our suit is based upon that fact. That is the law, and the volume of traffic makes no difference. The Court (Judge Sparks): Do you contend the Arkan sas law is not before us, then? Mr. Westbrooks: No, not as far as interference with interstate commerce is concerned. That question was brought up and we were therefore compelled to meet it by saying that even the Arkansas law provides for equal ac commodations. All of the southern states where they have these separate-car laws, regardless of right or wrong or whether they are valid or invalid, provide for equal accom- [fol. 505] modations but our contention, in this case is that this was an interstate journey and as such the state laws have no application. The leading case on that subject is McCabe v. Atchison, T. & S. F. E. Co., 235 U. S. 151. In the State of Oklahoma they passed a separate-car law and suit was brought to enjoin its enforcement. Judge Sanborn wrote the opinion in that case in the Circuit Court of Appeals. The questions were certified 2 3 3 to the Supreme Court of the United States where Mr. Jus tice Hughes delivered the opinion that the action was brought prematurely, that nobody had been hurt. You and I both realize that sometimes they say you should not wait until you are hurt before you come into court for relief because after you are hurt you may not be able to ask for it. But in this McCabe case they laid down the fundamental principles which have been the law of this nation. The conclusions of the Court, as stated in its opinion------ The Court (Judge Sparks) : Don’t refer so much to the [fol. 506] opinions. We will read those. Just make a short statement. Mr. Westbrooks: All right. I want to state that in that case they held the state laws did not apply to interstate passengers, though state laws may be valid so far as operations within the state. The Court (Judge Sparks) : Intrastate? Mr. Westbrooks: Intrastate. There is no quarrel about Arkansas having its own laws. The only point here is that this case involves an interstate passenger, in interstate commerce, and the state laws had no application whatsoever to this traveler. In that case the Attorney General of the State of A r kansas made the same argument as is made here, that there were only a few people that wanted those accommo dations. The Congressman has covered that point, but the conductor could not tell about the demand, and there is no evidence on that point. The Supreme Court said it is without merit, referring to the argument about the volume of the demand, for such a rule would make constitutional rights depend upon the number of people who may be dis- [fol. 507] criminated against. Whether or not particular facilities- shall be provided is a question for the company, but if they are provided then substantial equality cannot be refused and each individual entitled to first-class accommodations may not be refused them. Very similar cases are the Councill and Heard cases, which I have cited. Then there is the case of Grey v. Cincinnati, reported in 11 Fed. 683. That case supports the proposition that where a person conducts himself in a proper manner after buying a first-class ticket he is en titled to equal accommodations. 234 The case of Murphy v. Western & A. B. C. 0. in Tennes see held the same thing, that if you have a first-class fare you are entitled to first-class accommodations. Ilauck v. Southern Pacific held the same thing. Some question arose before the Commission with respect to this being just a particular transaction involving just one man, but I think the McCabe case covers that. The McCabe case is followed by the Gaines case which is of recent origin. [fol. 508] Mr. Justice Sanborn in the McCabe case said that the state law does not apply to interstate passengers. Certainly not, because Congress has the exclusive power to regulate interstate commerce and when they place that in the hands of the Interstate Commerce Commission that takes it out of the hands of the state to interfere, and the Commission has provided that there shall be no discrimi nation, no unjust preferences and that there shall be equal accommodations. There can be no question about it, and the cases so hold, that if a person pays a first-class fare he is entitled to first-class accommodation. In this case Congressman Mit chell was given second-class accommodations because of a difference in race. He had to ride and accept accom modations given to those who paid only the second-class fare. There was only the Jim Crow car which was divided into three parts. The middle part was for ladies and gentle men, one part for white smokers and the other part for colored smokers, but they all paid two cents a mile. ̂Con gressman Mitchell paid three cents a mile but he was ejected [fol. 509] from the observation car for no reason except that he was colored. Before the Commission we said that our constitutional rights had been violated. The Commission said they had nothing to do with constitutional rights, but the Supreme Court in the McCabe case said that your constitutional rights are involved in such a case, that when you pay a first-class fare you are entitled to have such service. There are cases in the 75 Arkansas, 93 Arkansas, 112 Arkansas and 120 Arkansas which hold that the accom modations must be equal. Therefore it would be no excuse, even applying the Arkansas law, to say that this man who paid a first-class fare may be put out because he is colored I also want to cite the case of Dickerson v. L. & N., in the 199 Fed.; and the American Sugar case in the 207 Fed. 2 3 5 The Court (Judge Sparks): Are you going to hand in a brief? Mr. Westbrooks: We will submit you a brief on these things. We also rely upon Section 2 of Article IV, that “ the [fol. 510] Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several States.” That is supplemented by Section 1 of the 14th Amendment: “ * * * No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ’ ’ We claim that, being a citizen of the United States and having paid a first-class fare, Congressman Mitchell Avas denied the equal protection of the laws. At the time of the passage of the 14th Amendment Con gress was given the power to pass appropriate legislation, and that may be found in Title 8, Chapter 3, U. S. C. A. An interesting case along that line may be found in 100 U. S., In re Virginia. In the case of Buchanan v. Warley, reported in 245 U. S., there AAras involved an ordinance that prohibited colored people from occupying certain places, and the old Enforce ment Act was upheld. [fol. 511] In this case we have a contract to be carried as a first-class passenger from Chicago to Hot Springs and return. That contract was broken. That contract was violated. There was a discrimination solely on account of color and race of that citizen of the United States, when the Supreme Court of the United States, every Federal Court and the laws and Constitution of the United States prohibit the very thing that was done here and admittedly done. We submit, may it please the Court, that under the law and under the facts which are admitted and in justice to Citizen Mitchell, the order of the Interstate Commerce Com mission be annulled and set aside as being contrary to law and not supported by evidence. Mr. Payne: I f the Court please, I appear primarily for the Interstate Commerce Commission. However, I am also 236 authorized to state that the United States submits this case on the strength of my statements. It seems to me it will be most helpful to the Court, first to refer to the facts as found by the Commission, for the purpose of emphasizing one or two matters that were not emphasized in the previous [fol. 512] argument; next, to take up the findings or hold ings of the Commission and then to take up several law points. I know the Court will read this report but nevertheless I would like to emphasize one or two things. I f the Court will turn to page 704 of the report it will be noticed that the Commission finds that the Complaint filed with the Commission mentions but a single incident of alleged discrimination and prejudice— the one described in this report. The facts were that the complainant made a trip from Chicago to Hot Springs, Arkansas; he applied to the Illinois Central ticket agent. ITe testified that either that day or the day before he applied for through Pullman accommo dations, but unfortunately there were no through Pullman accommodations to Hot Springs. The train out of Chicago is an Illinois Central train destined primarily for New Orleans, but there is a sleeper on that train that is trans ferred over to the Rock Island Railway at Memphis and goes on Rock Island train No. 45, Memphis to Hot Springs, [fol. 513] He wanted a drawing room on the Hot Springs sleeper, but there was no drawing room available. They had all been taken. He was given a compartment in a car destined to New Orleans. Upon approaching Memphis his baggage and he himself were transferred into the Hot Springs sleeper. The train with this sleeper on it left Memphis at 8 :30 a. m., crossed the Mississippi River into Arkansas where there is the segregation law. There was no Pullman conductor on the train. The one Pullman car was in charge of the porter. The train con ductor in full charge of the train, when seeing Congressman Mitchell sitting in a seat in the body of a Pullman car first of all inquired of the porter whether there was a drawing room available. Unfortunately both had been taken. Prior to that the porter had told the Congressman, while he was still in the New Orleans car, that if there was a drawing room available in the Hot Springs sleeper he would be given that drawing room. Unfortunately they were both 237 taken and, in view of the Arkansas segregation law, the complainant was asked to move into the combination car. [fol. 514] As has been described, that was a combination coach of three sections: one for colored men smokers, one for colored women non-smokers and the third for white smokers. The Court (Judge Sparks): Although he paid the rail road the full fare for the Pullman? Mr. Payne: Yes, he had paid the through fare. The Court (Judge Sparks): Clear through to Hot Springs ? Mr. Payne: No, sir. The Pullman was paid for only to Memphis. He had bought the compartment to Memphis only, but he did have a refund coming to him on the railroad ticket. The Court (Judge Sparks) : Why? Mr. Payne: He had purchased a three-cent-a-mile ticket. The Court (Judge Sparks) : What did they sell it to him for if they knew they could not give him accommodations clear through to Hot Springs? Mr. Payne: It was assumed, perhaps, that he could get Pullman accommodations west of Memphis. The porter told him if the drawing room out of Mem phis was not taken he would be given that drawing room [fol. 515] in which event, of course, the three-cent-a-mile ticket would be the proper rate. The Court (Judge Sparks) : He did not tell him that until after they got his money, isn’t that so? Mr. Payne: They stand ready to make a refund of one cent a mile for the distance west of Memphis, but in the proceeding before the Commission there was no request or pleading asking for any reparation for damages of any kind, so that the question of whether he was overcharged is not involved in this suit. The Court (Judge Sparks): It is just a question of mistreatment? Mr. Payne: Yes. In other words, the Commission, if it finds a violation of the Interstate Commerce Act, is author ized to award damages, but none was asked for in this case. The Court (Judge Sparks): They are also authorized to award any correction when one of our citizens has been abused. He was sold parlor accommodations------ Mr. Payne: The Commission found that he was sold those 238 accommodations because be wanted them and asked for them. [fol. 516] The Court (Judge Sparks): They would do the same to me, because I want them and ask for them. Mr. Payne: Yes, sir. The Court (Judge Ig o e ): How else would they know he wanted it, if he did not ask for it? Mr. Payne: They would not, of course, but they sold him the Pullman accommodations to Memphis. The Court (Judge Ig o e ): But he had a first-class ticket to Hot Spring's. Mr. Payne: Yes, assuming he could get accommodations. The Court (Judge Sparks) : They didn’t tell him any thing different. He asked for parlor car accommodations to Hot Springs, Arkansas, and that is what they sold him, didn’t they? Mr. Payne: Yes. The Court (Judge Sparks): Yes, and nothing was said about the possibility of his having to transfer when they got down to a certain place. Mr. Payne: At least there is no testimony about it at all. The Court (Judge Sparks): That is what happens, of course. The Court (Judge Ig o e ): They sold him a first-class ticket. [fol. 517] Mr. Payne: Three cents a mile. The Court (Judge Ig o e ): I understand they sold him a Pullman car ticket. Mr. Payne: No. The Court (Judge Ig o e ): The first-class ticket would entitle him to ride in the Pullman car if he paid the extra Pullman fare. Mr. Payne: Yes. West of Memphis he rode the day coach, which was two cents a mile, so that he had a refund coming of one cent a mile which the railroads stand ready to refund, but that issue was not before the Commission. The Court (Judge Ig o e ): But he did pay for a first- class ticket from Chicago to Hot Springs? Mr. Payne: Yes. The Court (Judge Ig o e ): And part of the way down there they put him into this other car? Mr. Payne: Yes, and they say that he can get a refund 239 any time he wants it, but that was not before the Com mission. After all, this is a suit on a review of a Commis sion order. The Court (Judge Ig o e ): To review a Commission or der about what? [fol. 518] Mr. Payne: Simply dismissing his Complaint. The Court (Judge Ig o e ): The Complaint is based on al leged discrimination only? Mr. Payne: Yes. The first paragraph of the Complaint did allege that there was an unreasonable charge because they sold him a three- cent fare through and only gave him two-cent accommoda tions west of Memphis, but the Commission said that no reparation or refund was sought before the Commission and noted that the railroads stand ready to make the refund, so that took Section 1 out of the case, leaving Sections 2 and 3. There was also an allegation of the violation of Section 13, but the Commission found there was no violation of that section because that simply relates to the relationship be tween intrastate fares and interstate fares, and here the reasonableness of the Arkansas fares are not in issue at all. So there was no violation of Section 13, leaving for decision only the question of whether there was an unjust discrimination in violation of Sections 2 and 3. Now, at the time this particular journey was made the [fol. 519] combination coach was an old affair and perhaps was not in the very best condition. All the testimony given by the complainant, who is the principal witness, and five other colored men who testified on behalf of the complainant before the Commission, all relates to that old accommoda tion ; whereas the evidence shows and the Commission found that a few months after this transaction occurred the Rock Island put on a new coach on its train No. 45 west of Memphis. Mind you, this case relates only to that train. There was no general allegation, but the evidence was directed to train No. 45 of the Rock Island, which is scheduled to leave Memphis at 8:30 a. m. and arrive at Hot Springs, Arkan sas, at 1 :05 p. m. the same day, a run of a little over four hours. It was shown that this new combination coach is of all- steel construction with six wheel trucks, divided by a parti tion into two sections; one for colored and the other for 240 white passengers. It has comfortable seats, a linoleum floor covering, and is air conditioned. In each section there is a [fol. 520] wash basin, running hot and cold water, free paper towels and drinking cups and separate flush toilets for men and women. While there is no smoking section, smoking nowadays gen erally is permitted in all sections of the coach, and some times in the Pullman cars. The combination coach is as desirable in all its appoint ments as the coach used entirely by white passengers trav eling at second-class fares. As for the Pullman, all they do down there is to put the negro in the drawing room. They leave the door open, and they charge him only the same fare. That was shown by the evidence and is found by the Commission. The evidence further showed that that accomplished seg regation and also complied with the state law. Now, the Commission found and concluded that the pres ent colored passenger coach and the Pullman drawing rooms meet the requirements of the A ct ; that is, the Inter state Commerce Act. Mind you, this is here on review of a negative order of the Commission and, therefore, the only question before the [fol. 521] Commission and hence before this Court is whether there is a violation of the Interstate Commerce Act. This complainant could not appeal to the Interstate Com merce Commission to enforce his constitutional rights. The question of the 14th Amendment is not here involved. That applies to the states. It says that no state shall do thus and so, and obviously whether there is a violation of the 14th Amendment is not a question for the Interstate Com merce Commission. It has no duties to perform in refer ence to the enforcement of the 14th Amendment. Its sole duty is to enforce the Interstate Commerce Act so that the sole question is whether there was a violation of the Inter state Commerce Act, and the sole question before this Court is whether the Commission committed any error of law, or in any other wise made an order dismissing a complaint which was beyond its authority. That is the sole and nar row question. The Court (Judge Ig o e ): Is the Commission concerned with seeing that passengers get the accommodations for which they pay ? 241 Mr. Payne: Oil, yes, if it is pleaded. [fol. 522] The Court (Judge Ig o e ): W asn’t it pleaded here? Mr. Payne: No, sir. The Court (Judge Ig o e ): Do you mean they did not set up in their Complaint that this man who bought a first-class ticket was put in a second-class car ? Mr. Payne: The Commission found that the railroads stand ready to make the refund and when that refund is made, why, his rights under Section 1 are------ The Court (Judge Ig o e ): Just what does a contract with a railroad company mean? Mr. Payne: I f you are charged more than you should pay you will get a refund. The Court (Judge Ig o e ): Suppose he buys first-class pas sage and wants his first-class passage instead of a refund? What would you do about that? What will the Commis sion do about it? The Court (Judge Sparks): That is the point here. Mr. Payne: This plaintiff here made this one trip only, as far as the record shows. The Court (Judge Sparks): What is the difference? I don’t blame him for not going more than once. Mr. Payne: Suppose he would be charged five cents a mile instead of three cents. That might happen through an error. Then, if a refund is made his rights are wholly [fol. 523] given to him. The Court (Judge Sparks): Why assume an error? There was no error here. He paid three cents because they charged it to him. Mr. Payne: Yes, but they are now ready and willing at any time to make a refund. The Court (Judge Sparks): And that answers the whole thing? Mr. Payne: That answers any question of overcharge. The Court (Judge Sparks): It is not a question of over charge. It is a question of getting the accommodations. Mr. Payne: It is a question of whether the accommoda tions furnished on that train to white passengers, as com pared with those furnished to colored passengers, is an un just discrimination and in violation of the interstate com merce provisions. The Court (Judge Sparks): Unjust or unequal, aren’t they the same thing? 16— 577 242 Mr. Payne: No, sir. That is just the point I want to make, your Honors. The Interstate Commerce Act does not provide for equality of accommodations. The Court (Judge Sparks): At least from what the [fol. 524] gentleman said I thought so. Mr. Payne: That is the Arkansas State law. The Court (Judge Sparks): Do you agree that the Arkan sas State law has nothing to do with this ? Mr. Payne: I do not think so. The Court (Judge Sparks): They say so, so we will admit that. Mr. Payne: This is what the Commission found on that score. I would rather call your Honors’ attention exactly to what the Commission held. Reading from the Commission’s decision: “ * * * Complainant also relies on the Supreme Court’s conclusion in McCabe v. Atchison, T. & S. F. R. Co., Supra, to the effect that the Oklahoma statute had to be construed as applying only intrastate because there had been no construction to the contrary by the state court. Be that as it may, the present case arose out of the apparent assumptions of the parties that the Arkansas statute was applicable to interstate traffic,, and while it is not for us to construe the statute, we think, in view of its general terms, that until further informed by judicial determination, de fendants are justified, as a matter of self-protection, in as- [fol. 525] suming that it applies to interstate, as well as intrastate, traffic. What we are here dealing with is the practice of the carriers in assumed compliance with the statute, a practice which they could follow even if there were no statute. ’ ’ So we come hack to the only statute which the Interstate Commerce Commission is authorized to enforce, and that is the Interstate Commerce Act which provides, in Sections 2 and 3, that discriminations shall not be unjust and preju dices shall not be undue. Now, there are many decisions of the Supreme Court which point out that not every discrimination is violative of the Interstate Commerce Act, but only those which are unjust or undue. The Commission finds here that, in view of the fact that colored passengers are put into the draw 2 4 3 ing room and charged only the seat fare, there is no dis crimination, no unjust discrimination. Apparently he is not satisfied here with being given the privilege of riding in the drawing room at no extra fare, but he says further he ought to have the range of the train, [fol. 526] In view of the Arkansas statute there must he segregation, so that he could not have the range of the train while in Arkansas. There must he segregation, and the only way, therefore, to cure the situation, the Commis sion found, would be to run extra cars—two dining cars, two sleeping cars and two observation cars, if that were possible, or to construct partitions. But the Commission said the demand for these first-class accommodations is so light that it would be an unnecessary expense to provide these extra cars, or even partitions and, therefore, the discrimination is not unjust or unreasonable. The Court (Judge Sparks): A colored man gets on at 8:30 and rides until 1:00 o ’clock without dinner, isn’t that so? Mr. Payne: There is no evidence to that effect. The Court (Judge Sparks): I am assuming that. Mr. Payne: There is not a word of evidence on that. The Court (Judge Sparks): I am not talking about the evidence. You know what I mean. I am talking about a person getting anywhere near equal opportunities. I do not know what you mean by equal protection, but I mean the same, or approaching the same. [fol. 527] Mr. Payne: If you are going to go outside of the record you can assume------ The Court (Judge Sparks): Not any more than you are. Mr. Payne: He can send into the dining car for lunch if he wants to. The Court (Judge Sparks): I am not talking about that phase of it. Go ahead. Mr. Payne: I want to call your Honors ’ attention to the fact that while there is talk in the dissenting opinions about the dining car, there is no evidence in the record that this complainant wanted to buy a meal in the dining car. There is clear evidence he would have been given the drawing room, if available, and it is not held for white per sons. Had he applied for it he could have reserved it in advance. There would have been no case at all if com plainant had been more diligent and had reserved the draw ing room. Then the whole case disappears. Drawing rooms 244 are usually considered to be better accommodations than a seat in the body of the car, but this complainant is not satisfied with being in the drawing room although given [fol. 528] superior accommodations at the seat fare. The Commission holds that is not an unjust discrimina tion. That is, it is not violative of the Interstate Commerce Act and, as this Court knows, since the Transportation Act of 1920, Congress has had a policy for the development and maintenance of national adequate transportation service. So that in considering or applying every provision of the Interstate Commerce Act the Commission must keep that general congressional policy in mind. The question is whether there is an undue or unjust dis crimination, and that depends always on the volume of traffic. For instance, a shipper on a branch line where the traffic is light may pay a higher freight rate than the shipper on the main line. In the northeastern part of the country freight rates are the lowest because of the heavy volume. In the south the rates are higher, and in the southwest, where traffic is light, the rates are still higher. Volume of traffic is something that affects the cost of the service and has always been held to be a factor in determining whether a discrimination is unjust or undue. [fol. 529] That was the view of the Commission here. The Commission finds, that so far as coach passengers are concerned, there is now no discrimination whatsoever because of this new modern air conditioned coach which is divided, two-thirds for the colored passengers and one-third for white passengers. The accommodations in that new car are just as good, the Commission finds, as the accommo dations for the white passengers. In that respect there is absolute equality as between white and colored. Now, what about the colored passengers that want Pull man accommodations'? The conductor said there have only been a few in the thirty-two years that he has been on this run—ten or twelve in that whole time—that have applied for Pullman accommodations. In view of the light demand and in view of the fact that ordinarily the drawing room takes care of the colored passengers, the colored passengers are given virtual equal ity by being given a superior accommodation at only the seat fare. 245 On the question of whether there should be two dining cars, two observation cars, or whether expensive partitions [fol. 530] should be constructed, I want to point out that the Rock Island is the only one that is the principal defend ant, and it is in the hands of receivers. They cannot afford to construct a lot of expensive partitions to take care of the very slight demand of colored passengers. The Court (Judge Sparks): If there weren’t any discrimi nation maybe there would be more demand than there has been in recent years. They knew they couldn’t get the ac commodations even if they wanted them. Now, that does not teach us much, does it? Mr. Payne: I do not know. You might as well assume that ordinarily they cannot afford it. If there were a great demand for Pullman accom modations they would get it. They are not denied Pullman accommodations in the north. You gentlemen have traveled. I have traveled about 200,000 miles in the United States on Government business, in all sections of the country, and I think it is a general experience that the volume of colored passengers is very light. Imagine having to give all those separate accommoda- [fol. 531] tions on the western transcontinental trains run ning to the coast. You would have to have two soda foun tains, and so forth. This is a question within the power of the Commission. It is within the discretion of the Com mission to say as a matter of fact------ - The Court (Judge Sparks): If that is so then we have nothing to do with it, is that right? Mr. Payne: That is really------ The Court (Judge Sparks): That is your argument, isn’t it? Mr. Payne: You have something to do with it, your Honors, but I say that the review is limited, and I say that the question of whether a discrimination is unjust or undue and therefore in violation of the Interstate Com merce Act is a question of fact for the Commission and not a question of law. Your Honors review all questions of law or questions of statutory authority and the question of whether there is a sufficiency of evidence. You recall the Rochester Telephone decision which held a negative order is reviewable, but the Court said only questions affecting constitutional power, statutory author- 2 4 6 [fol. 532] ity and the basic prerequisites of proof can be raised. I f these legal tests are satisfied, the Supreme Court said, the Commission’s order becomes incontestable. Later on the Court said that the judicial function is ex hausted when there is found to be a rational basis for the conclusions approved by the administrative body. I point out to your Honors that here there is a rational basis for the Commission’s action. The Court (Judge Sparks): Is that a question of fact or a question of law? Mr. Payne: Well, I think that is a question of law. The Court determines whether there is a rational basis for the Commission’s act, but I say here there is a rational basis because the Commission finds that the use of the present coach and the use of the drawing rooms in the Pullman is a compliance with the Interstate Commerce Act. What rights this plaintiff may have under the 14th Amendment is not before this Court. It perhaps is for some other judicial body, but this is a court of special jurisdic tion to determine these questions as to whether the Com mission’s order violates any of these matters that I have [fol. 533] referred to. The Court (Judge Sparks): Then this would hardly be a three-judge case, would it? Mr. Payne: That is why you are a three-judge court. I want to call attention to another thing that supports the Commission’s finding of lack of demand. The Complaint to the Commission did not allege that the complainant did ever have occasion to make this trip to Hot Springs again. The record shows he went down there because he was ill, he had a low blood pressure and he went down there for treatment. There has been no show ing that he has a law office down there, that he has property there or that he has occasion to make that trip from time to time, but there is only evidence of just that one trip. Now, he asks for an order for the future applying not for two years, as the Commission’s orders formerly applied, but now the Commission’s orders operate indefinitely in the future, and all because he made the one trip, without any showing of an intention to make another trip. On that basis [fol. 534] he asks for a permanent order against the carriers. Furthermore, there is nothing in this record, either in the Complaint or elsewhere, to show that he is authorized to speak for anyone else. 247 The Court (Judge Ig o e ): What kind of an order does he want against the carrier? Mr. Payne: He wants an order requiring the alleged discrimination to be removed for the future, and the Commission found the only way it could be removed would be by the running of extra cars or by the construction of partitions on all cars run—an order operating indefinitely in the future, without any showing that he is going to use it. He cannot champion the rights of the colored race in gen eral. He can speak only for himself, and that was the basis of the decision in this very McCabe case that he refers to. The Supreme Court held that there were five negroes who were the plaintiffs, but there was no showing they had ap plied for accommodations and had been denied equal accom modations. There was a further allegation there that there would be a multiplicity of suits, because there were 50,000 [fol. 535] negroes in Oklahoma. But the Supreme Court said that the particular complain ants in that case cannot speak for the 50,000 negroes in Oklahoma, they can only speak for themselves, and their case was dismissed because of a lack of showing of an interest in the matter. That is another point I have here, closely connected with the question of lack of demand. There were five witnesses before the Commission who testified they had made trips down there from time to time, but they all referred to the condition of the old coach. Not one of them mentioned the new coach, although Congress man Mitchell’s trip was April 20 and 21, 1937, and the hearing before the Commission was held March 7, 1938, nearly a year afterwards. None of those witnesses, nor the complainant himself, even knew that they had put this new car on. Another thing, although there was no testimony that he ever intended to make this trip again he did find occasion to say that if the law puts a burden on them and puts them to an expense he wants that expense put on them. Has he a standing to put that expense on the railroads when everyone [fol. 536] knows the condition of the railroads? Everyone knows of the Congressional policy to let the railroads live if they can under private ownership. Never theless he would put that expense on them, that extra bur den, even though he utterly failed to make any showing he would ever have occasion to use the service again. 248 He is seeking to invoke the extraordinary remedies of equity. Has he a standing here to invoke that remedy when he fails to show that he will have occasion to use that train again? One of the five witnesses who testified before the Com mission said the last trip he made was in 1926, eleven years previously. Another witness said that he had always traveled in the coach and never traveled in the Pullman and, asked if he ever tried in travel in the Pullman, he said: “ No, certainly not.” He said he never made any attempt to ride in the Pullman. I say those things all support the findings of the Com mission that there was a lack of demand, and there is no requirement of absolute equality. The Supreme Court has held over and over again that they are interested only in [fol. 537] discriminations which are unjust. Here the discrimination, if there is any, is not substantial. Ordinarily drawing rooms are considered more desirable accommodations. The plaintiff here has a sentiment. That is about all. He has no legal right. There is no legal right to maintain a suit, and that is something that goes to the merits, as decided by the Supreme Court in the General Investment case. The Court has jurisdiction to hear the case and, therefore, the decree of dismissal should be for want of equity rather than for want of jurisdiction. There are many, many Supreme Court cases where direct suits have been instituted to maintain constitutional rights, and the Court has held the party must show that he is af fected. The Supreme Court has said that the plaintiff can not succeed just because somebody else may he hurt. There are many other cases I could cite in a brief, if the Court desires it. I think that is all, unless your Honors have some further questions. The Court (Judge Sparks): Is there anything further, gentlemen ? [fol. 538] Mr. Hughes: Your Honors, will you care to hear from the trustees of the Chicago, Rock Island and Pacific Railway Company? The Court (Judge Sparks): I am not expressing what we care to hear. How many arguments do you want to present? Do you want to consume much time? Mr. Hughes: Not very much. 2 4 9 The Court (Judge Sparks): Have you any other argu ments you are expecting to make? Mr. Roemer: I appear for the Pullman Company but in all probability we will make no oral argument at this time. The Court (Judge Sparks): We do not want you to re peat anything that Mr. Payne has covered. Mr. Roemer: We will try not to. The Court (Judge Sparks): I f you have anything addi tional we will hear that. Mr. Hughes: I am appearing for the trustees of the Chi cago, Rock Island and Pacific Railway Company, which railway has been referred to more than once this morning, I think I should say, and it is appropriate for me to say, that a railroad like the Rock Island does not make and has nothing to do with the segregation laws. They are imposed [fol. 539] upon the railroad by the respective states in the expression of the legislative policies of those states. The Rock Island serves fourteen states. Nine of them have no such laws and the question of segregation or of accommodations does not arise in those states. In the other five, including Arkansas, such laws do prevail as an expres sion of the state legislative policy. Necessarily the trustees of the Rock Island have no views to express whatsoever upon the merits or demerits, the right or wrong, of the legislation involving public sentiment, public policy, controversy and the delicacy of the interracial feeling. The railroad is a subject and has nothing that it can do with respect to those laws. I am saying that in order that you may realize the viewpoint immediately of the railroad in a case of this sort. Therefore I caution the Court and urge it not to consider anything that I may say on this subject as an expression of opinion on the right or wrong of this very delicate question. I confess a confused state of mind as to just what course the plaintiff’s case has taken here this morning. In his [fol. 540] Complaint before the Interstate Commerce Com mission the complainant alleged a violation of various sec tions of the Interstate Commerce Act and also alleged a violation of the 14th Amendment— a rather peculiar allega tion in a Complaint before the Commission. I need not remind the Court that the 14th Amendment is a direction against the states and it has nothing to do with 2 5 0 the powers of the Interstate Commerce Commission whose functions are determined and restricted by the Interstate Commerce Act. I do not know whether the 14th Amend ment is in the case here today or is not. In the petition filed with the Court it is alleged that the findings of the Commission constitute a denial to plaintiff of due process of law as guaranteed by the 14th Amendment of the United States Constitution. It is alleged, on page 47 of the petition, that the order and findings of the Commission are a denial of the equal pro tection of the laws to the plaintiff as guaranteed by the 14th Amendment of the United States Constitution. Now, this petition before your Honors is attacking on [fol. 541] various grounds an order of the Commission in which it exercised a judgment that had been invoked by this plaintiff. He might have proceeded in other ways if the 14th Amendment were involved. Most cases involving this delicate subject of segregation go through the state courts in which the states interested themselves are heard. I f this plaintiff thought the Arkansas statute was an in fringement upon the 14th Amendment he might have pro ceeded in a court to enjoin its enforcement and there might have had a determination of his right under that amend ment. He might have, if he thought that the state law of Arkansas requiring equal accommodations was being vio lated by the Rock Island or any other railroad, tested the question in an Arkansas State Court. The State Court of Arkansas has the determination as to what constitutes equal or unequal accommodations within the meaning of the Arkansas statute. Now, it was obvious from the direction of the case be fore the Commission, and the Commission report refers to it, that the major objective of this proceeding is not so much a question of accommodations as it is an overthrow [fol. 542] of the segregation statute of Arkansas. I f it is invalid under the 14th Amendment it cannot be tested before the Interstate Commerce Commission. I have mentioned various court proceedings which he might have adopted to test it out, but one other method is by congressional legislation. It is well settled that Fed eral Courts will take judicial notice of the journals of Congress. Congressman Mitchell introduced into the House on January 5,1938, House Bill 8821, and on January 3, 1939, a different Congress, he introduced House Bill 2 5 1 182, each of which Bills was respectively referred to the House Committee on Interstate and Foreign Commerce. In those Bills he undertook to have Congress legislate on this subject and prohibit the segregation of any inter state passengers on railroads by virtue of any creed, color or race. Those Bills, so far as I am advised, are still in the hands of the committee. A very serious national question is in volved. It involves, as your Honors well know, the public policy of probably a quarter of the states of the Union. [fol. 543] The 14th Amendment especially empowers Con gress to enact legislation to enforce that amendment. Per haps Congressman Mitchell is on the right and sound track when on a question of such enormous popular importance he is appealing to Congress itself. Congress may give con sideration to the question as to whether it desires to adopt as a national policy the views that Congressman Mitchell is urging. Certainly I think the judiciary, state legisla tures, the Congress and the state attorneys general and law yers generally would receive a start if some day they found the Interstate Commerce Commission making such a find ing as this: “ We find that the statute of the State of Arkansas in fringes the 14th Amendment of the Constitution of the United States and is, therefore, null, void and invalid.” Of course, a railroad may not infringe the 14th Amend ment. It is subject to the state law. The question is whether or not that law infringes the 14th Amendment, and that is not for the Interstate Commerce Commission to determine. Its jurisdiction is Avholly within the limits of the Interstate Commerce Act. [fol. 544] I would like to refer, if I may, to two cases cited by the plaintiff, because those two cases rather illus trate what I meant by my previous remarks. He referred to the Gaines case in the State of Missouri. That was the case where a colored student undertook to enter the University of Missouri, a state institution, and under the state law he was not admitted. The State of Missouri had a Segregation Act. Now, that was a case in which the attack was made directly upon the statute, and in that attack the state itself was heard. The denial of en trance to the university was continuous. It was not a casual incident such as you have before you here. It was con tinuous, and so this young student sought a writ of man 2 5 2 damus for admission to the University of Missouri Law School which was exclusively for white students. When that case reached the Supreme Court of the United States that Court held the state law infringed the 14th Amendment and it directed the issuance of a writ of man damus to admit this individual to the state university. I mention that because there is a case where the state itself [fol. 545] was heard on its statute. It was a party to the case. The State of Arkansas cannot be brought into this case because it is not a common carrier engaged in interstate commerce and is not subject to the Interstate Commerce Act. Nor in the Gaines case, which I have mentioned, was there a Commission charged with the duties of passing on questions of that sort as we have here. Congress has set up the Interstate Commerce Commis sion to pass upon these questions of discrimination and Congressman Mitchell invoked that Commission, not some other court. He invoked that Commission and the Com mission heard his evidence and has acted upon it. I will not quote literally because I haven’t the decision before me, but the Supreme Court has said the Commission is in formed by the experience of the years and the due consid eration of the question before i t ; and in the case of United States v. The Chicago Heights Trucking Company, decided just a week ago, the Court said, with respect to the Com mission’s order: “ The judgment so exercised being sup ported by ample evidence is conclusive.” Your Honors, I might say incidentally that this record [fol. 546] here shows that the plaintiff here has pending in the Circuit Court of Cook County a tort action for $50,000 against the carrier defendants as a result of this incident. The facts before the Commission have been rather fully presented by counsel for the Government. The Rock Island Railroad does provide accommodations for colored passen gers, and that is really the final conclusion of the Inter state Commerce Commission and it finds on the record and the evidence before it that those accommodations are ade quate and meet the requirements of the Act. We may not assume, the Commission cannot assume, that because this one incident happened three years ago, it is happening every day. There is no proof that it has hap pened at any time either before or since. That train runs every day, and there have been a thousand trips of that 2 5 3 train since this incident and since there is a failure of proof we may assume there have been no further incidents of this kind. At least the accommodations are found by the Com mission to he ample. I f this plaintiff had shown some diligence in making reservations there we would have a different proposition, [fol. 547] The capacity of a train, as we all know, is limited. For the colored passengers provisions are made in the draw ing room, which complies with the state statute. That, the Commission says, is an adequate provision. We have all had the experience of being unable to get accommodations at the last minute. That is a common, human experience. Capacity is not unlimited, and Con gressman Mitchell asked for reservations late in the after noon of the day on which he left for Hot Springs, late in the afternoon of April 20, and the train left around 6 :00 o ’clock. If we are going to do some assuming we may just as well assume that if he had waited until the next day the accom modations would have been available to him. There is no proof, as I have said, and I repeat, that there has not been a single incident of this sort before or since and therefore the Commission found no occasion for issuing a cease and desist order and dismissed the Complaint. The Court (Judge Spai’k s ) : Is that what they sought, a cease and desist order? [fol. 548] Mr. Hughes: A cease and desist order, requir ing the railroads to cease and desist. As an individual proceeding, the question arises, what was it that the carriers were to cease and desist doing? As the counsel for the Government has explained to you, Con gressman Mitchell has made that one trip. Are we to be required by the Interstate Commerce Commission, which has dismissed his Complaint, to cease and desist discrim inating against Congressman Mitchell? I do not believe, your Honors, that you may find any error of law in the Commission’s report. In any event the Com mission said it was not considering a constitutional ques tion, but rather questions under the Act, that is, the Act to regulate commerce, and that is true. That is the only juris diction the Commission has. Again, the Commission said it was not for it to construe the statute of the State of Arkansas and at the hearing Congressman Mitchell—and I have the transcript here— 2 5 4 said he asked the Commission to enforce the Arkansas statute. He explicitly said that and you will find it in the record. [fol. 549] This morning Congressman Mitchell, arguing the case himself, repeated that statement that he had asked the Commission to enforce the Arkansas statute requiring equal accommodations, which answers itself. The Com mission has no such power. It was later, your Honors, when counsel was arguing, that the question arose as to whether the Arkansas statute was in or out. I think he said it was out. The Court (Judge Sparks): Mr. Westbrooks said that. Mr. Hughes: Yes. I am in a state of confusion as to whether it is in or is not. At any rate we think your Honors should not set the Com mission’s order aside because there is no error in it. The judgment of the Commission, we believe, on the evidence before it is conclusive if there is no error in law. The plaintiff has had his day before the Commission, the body whose jurisdiction he invoked. The Commission has acted and there is no error in its reports and we submit you should dismiss this petition before you. The Court (Judge Sparks): Is there anything further? [fol. 550] Mr. Westbrooks: Yes, sir. We would like ten minutes between us, Judge. Mr. Mitchell: If the Court pleases, in the first place I should like to know from counsel—not now, but he can an swer me privately, how many times must a colored man apply for equal accommodations before he is entitled to complain about not receiving those accommodations ? Must I make twenty-five trips to Hot Springs, Arkansas, before I can come to a Commission that is supposed to guarantee the rights of those who travel as interstate passengers, before I have the right to come to the Commission that is set up for that purpose and say to them: “ This law which you are supposed to enforce has been violated and I am entitled to relief and you are the body to administer that relief ’ ’ ? This without doubt is one of the most pathetic scenes I have seen. My Government, with its representatives, say to my race and to my people that it does not make any dif ference, that conductors can operate on railroads for thirty- two years and they can go into court and say that they have 2 5 5 denied us first-class accommodations every time and that they will continue to deny them. [fol. 551] That is what the conductor said. My Govern ment, represented by the Attorney General’s office, comes to me and says: “ This is your portion in a democracy.” He stands before a court that is supposed to enforce the laws of our country and that is the way he talks. I saw an inscription on the wall in Judge Wilkerson’s room this morning saying that justice should be administered without fear or favor. Then my Government argues that these treatments must be constant before I can complain. The point also was made that I must make an applica tion for accommodations several days in advance. Is that discrimination? Would a white man have that to do? There were many discrepancies in the facts as recited here, but your Honors will find those points in the evidence. As a matter of fact, I have been down to Hot Springs several times since this thing happened. Of course, I have not gone down there on the Rock Island Railroad. I have gone down on the Missouri Pacific, which is a little more liberal and where you can get accommodations and some thing to eat. I know what happened. After I filed this Complaint the [fol. 552] Rock Island Railroad did junk the old car that should have been junked many years before the Complaint was filed and did put on a car which provides second-class accommodations for negroes. But at this very moment it is impossible for a negro whether you are one or five hun dred, to get first-class accommodations on that Rock Island Railroad down there, and these gentlemen know it. The conductor said that at least one negro applied for first-class accommodations every year, that he turned them down and that he will continue to do that. That was the testimony of the agent of the Rock Island. How can there be a big demand for such accommodations if you turn a man down every time he asks for such accommodations? I wish these gentlemen would place themselves in our posi tion. I wish they could be black for a moment and know what a black man has to suffer here. I do not believe that the railroad would then listen to the puny statements made by these gentlemen who have joined, I am almost ready to say, the Nazis in enforcing these terrible things upon a race that is loyal to their country. [fol. 553] That is all. 2 5 6 Mr. Westbrooks: Your Honors, in order to get a cease and desist order, which was our only remedy, we had to file a complaint with the Commission in accordance with the Interstate Commerce Act. Then after the hearing before the Commission, in order to follow out the procedure, we had to come into this court. As to whether this involves a constitutional question, the Supreme Court of the United States in the McCabe and the Gaines cases has said it is a constitutional question. The Interstate Commerce Commission has heretofore, in the Heard and Councill cases, said it was a constitutional question. I would like to have the Court’s permission to file a copy of my initial brief. I will have three copies of it for your Honors. The Court (Judge Sparks): All right. Mr. Hughes: May we have leave to file our briefs? The Court (Judge Sparks): Yes, sir. We expect you to have briefs. I am sorry you do not have them here today, because these things ought to be gone into immediately. Mr. Payne: The case has been pending for a year. Was a [fol. 554] brief filed? I have not been served with a copy of it. The Court (Judge Sparks): We do not have a brief from anybody yet. Mr. Hughes: I understand that plaintiff’s counsel would ask for leave to file briefs. The Court (Judge Sparks): Mr. Westbrooks, you will have to have enough for these counsel so that they may re spond to your brief. Mr. Westbrooks: We will give them each a copy. Mr. Hughes: I f they are going to be permitted to file their brief that they filed before the Commission, including the exceptions and all that, may we have leave to file our reply to whatever they present to your Honors ? The Court (Judge Sparks): Yes. Mr. Westbrooks: I understand they have filed copies of the exceptions. The Court (Judge Sparks): What exceptions? Mr. Payne: Exceptions to the Examiner’s proposed re port, and they are in evidence. The Court (Judge Sparks): Is the brief in evidence? Mr. Payne: The brief is not filed as evidence. Mr. Westbrooks: Counsel obtained leave to file our ex- 2 5 7 [fol. 555] ceptions before the Commission, and they are in evidence. Therefore I want to file the rest of the papers that we had before the Commission as our brief and con tentions of Uw. Mr. Pay he: Do you want to file the brief as a brief or as evidence ? Mr. Westbrooks: What do you want to file the exceptions for? Mr. Payne: As evidence. Mr. Westbrooks: How can you file my exceptions as evidence ? Mr. Payne: Well, they were. Mr. Westbrooks: Well, then I ask leave to submit the whole thing. The Court (Judge Sparks): Put them in, and they will have an opportunity to answer. When can yon file them ? Mr. Westbrooks: I can file them today. Mr. Hughes: What he is asking to file is not a new brief for the Court, but the brief he filed before the Interstate Commerce Commission before the submission of the case to that body. The Court (Judge Sparks): Were the same questions involved as were presented here this morning? [fol. 556] Mr. Westbrooks : Yes. This will help your Honors because in the Commission we are compelled to abstract the evidence and submit our law, and these matters which I desire to file contain the law be fore the Commission and which we now urge. The Court (Judge Sparks): Then you want to file them in lieu of a brief now? Mr. Westbrooks: Yes. Mr. Payne: May the Court please, the United States and the Interstate Commerce Commission naturally were not defendants before the Commission. So if the plaintiff files his brief before the Commission I should like to file our brief on behalf of the United States. The Court (Judge Sparks): He is filing today, and you can take it with you. How long will it take you? Mr. Payne: It is a question of mechanics mostly. Would a mimeographed brief be satisfactory? The Court (Judge Sparks): Yes. 17—577 258 Mr. Payne: We will get that here in ten days, two days for mailing and two days for mimeographing. The Court (Judge Sparks): Now, gentlemen, how about [fols. 557-558] special findings? Mr. Payne: I suggest that findings be filed within ten days, if requested. The Court (Judge Sparks): Yes, I think we should have special findings. Mr. Hughes: Will your Honors want those in advance of your decision of the case? The Court (Judge Sparks): Yes, and your findings also. Mr. Westbrooks: Yes. The Court (Judge Sparks): All right. (Which were all the proceedings upon the hearing of the above-entitled cause). [fob 559] I n U nited S tates D isteiot Court [Title omitted] D ependants ’ P recipe eor T ranscript of R ecord— -Filed September 9, 1940 To the Honorable Hoyt K ing; Clerk: In preparing the transcript of record in the above-en titled cause on appeal to the Supreme Court of the United States, please include therein, in addition to the matter specified in the plaintiff’s praecipe, the following: 1. Certified copies of the following documents from the record before the Interstate Commerce Commission in Arthur W. Mitchell v. Chicago, Rock Island & Pacific Rail way Company et al., Commission’s Docket No. 27844, in troduced in evidence before the District Court as plaintiff’s Exhibit No. 1: (a) Complaint filed September 2, 1937, (b) Transcript of the stenographer’s notes of the hear ing held March 7, 1938, at Chicago, 111., before Examiner W. A. Disque, and all exhibits filed at said hearing, (c) Report proposed by William A. Disque, Examiner, filed May 5, 1938, (d) Report and order of the Commission filed and en tered November 7, 1938, (e) Order of the Commission entered March 6, 1939. 2. Certified copy of exceptions filed with the Interstate Commerce Commission by complainant Arthur W. Mitchell to the Examiner’s proposed report and the reply of defend ants to those exceptions, introduced in evidence before the District Court as defendants’ Exhibit No. 1. [fols. 560-561] 3. Transcript of oral argument before the District Court May 27,1940. 4. Intervention of Interstate Commerce Commission. Prank Coleman, Solicitor for United States; J. Stan ley Payne, Solicitor for the Interstate Commerce Commission. Dated at Washington, D. C., September 7, 1940 [fols. 562-565] D efendant ’s E xhibit 2 Interstate Commerce Commission Washington I, W. P. Bartel, Secretary of the Interstate Commerce Commission, do hereby certify that the attached is true copy of Exceptions on behalf of Plaintiff, filed May 26, 1938, in Docket No. 27844, Arthur W. Mitchell v. Chicago, Rock Island & Pacific Railway Company Trustees et al., the original of which is now on file and of record in the office of said Commission. In witness whereof I have hereunto set my hand and af fixed the Seal of said Commission this 20th day of May, A. D. 1940. W. P. Bartel, Secretary of the Interstate Commerce Commission. (Seal.) 260 [fol. 566] B efore the I nterstate Commerce Commission Docket No. 27844 A rthur W. M itchell, Complainant, vs. F rank 0. L owden, James E. Gorman, and Joseph B. F lem ing, Trustees of the Estate of the Chicago, Bock Island & Pacific Bailway Company, a corporation; Illinois Central Bailway Company, a corporation; and Pullman Company, a corporation, Defendants. E xceptions on B ehalf of P laintiff to B eport P roposed b y W illiam S. D isque, E xaminer— Filed May 26, 1938 Comes now the complainant, Arthur W. Mitchell, in the above entitled proceeding, and excepts in the following particulars to the findings and conclusions in the report proposed by William S. Disque, Examiner. I The failure of the Examiner to sustain the motion of the complainant to strike the answer of the Chicago, Bock Is land & Pacific Bailway Company, hereinafter called the Bock Island. Because the answer of the Bock Island violates the specific rules of this Commission: [fol. 567] (a) In that it does not fully and clearly advise the Commission and the complainant of the nature of the defense. (b) It does not specifically deny each material allegation of the complaint. (c) The answer merely denies the alleged discrimination is unjust. (d) The answer merely denies that the prejudice is un due. (e) The answer merely denies that the prejudice and discrimination is unreasonable. (Tr. 5-6). II The complainant excepts to the statement of the Ex aminer on page 8, paragraph 1 of the proposed report which states: 2 6 1 “ For the purposes of this proceeding the complainant accepts segregation under the Arkansas Statute, but urges that defendants, to remove and avoid unjust discrimination, and prejudice, are bound to provide the same equipment and accommodations for colored passengers as for white passengers.” Because the complainant does not accept segregation under any conditions, and the record fails to show that com plainant has accepted segregation under the Arkansas statute. I l l The complainant excepts to the remaining portion of page 8, paragraph 1 of the said report, which is as follows: “ In other words he says that if defendants are to con tinue the Pullman sleeper, dining car and observation-par- [fol. 568] lor car for white passengers, they must provide similar facilities, three extra cars, for colored passengers paying first-class fares plus the additional charges pro vided by tariff for seat space.” Because there is no claim that extra cars must be provided to accommodate colored passengers paying first-class fares plus additional charges provided by tariff for seat space as the Pullman sleeper, dining car and observation-parlor car were traveling in interstate commerce and contained sufficient first-class accommodations and facilities for all first-class passengers. IY The complainant excepts to the statement in the proposed report (p. 8, par. 2) which is as follows: “ It is sufficient to say that a first-class ticket was fur nished and charged for because complainant wanted it, and after it developed that the first-class 'accommodations west of Memphis were all taken by other passengers, defendants offered to refund the difference.” Because there is no evidence in the record to substantiate this statement as there were sufficient unoccupied seats in the Pullman car and in the observation-parlor car, both of which were traveling in interstate commerce and provided for the accommodation of all first-class passengers with the exception of colored passengers traveling in interstate commerce who had paid first-class fares. 262 [fol. 569] V The complainant excepts to the entire paragraph 3 on page 9, and particularly to the following findings: (a) The present colored coach meets the requirements of the law. (b) As there is comparatively little colored traffic and not likely to be such demand for Pullman, dining, and ob servation-parlor car accommodations by colored passengers as to warrant the running of any extra cars the discrimina tion and prejudice is plainly not unjust nor undue. (c) “ The complaint should be dismissed.” Because it is undisputed that the so-called “ colored coach” provides only second-class accommodations (p. 7, par. 1 of the proposed report) and the requirements of the law governing interstate commerce are that persons paying first-class fares must receive first-class accommodations. Because the statement contained in the proposed report of the Examiner concerning “ comparatively little colored traffic” makes the constitutional right of the complainant depend upon the number of persons who may be discrim inated against, whereas the essence of the constitutional right to substantial equality of treatment of persons travel ing under like conditions is a personal one and the complain ant as an individual was entitled to the equal protection of the laws. McCabe v. Atchison, Topeka & Santa Fe Railway Co., 235 U. S. 151, 161-162; 35 Sup. Ct. 59; 59 L. Ed. 169; [fol. 570] Aff. 186 Fed. 966; 109 C. C. A. 110. Because the undisputed testimony shows that first-class accommodations and facilities were denied to the complain ant although he had paid for a first-class ticket which en titled him to first-class accommodations, and that he had received first-class accommodations as far as a point slightly beyond Memphis, Tennessee, and further that he was denied first-class accommodations and facilities by the Rock Island for a portion of his interstate journey, as alleged in his complaint. VI The complainant excepts to the finding of the Examiner that the discrimination and prejudice charged in the com plaint and substantiated by uncontradicted evidence is not unjust nor undue. 263 The complainant excepts to the finding of the Examiner, page 7, paragraph 2, of the proposed report, which is as follows: ‘ ‘ Only about one Negro to 20 white passengers rides this train from and to points on the line between Memphis and Hot Springs and there is hardly ever a demand from a colored passenger for Pullman accommodations; the con ductor recalled but ten or twelve in the past 32 years of his service on the train.” [fol. 571] Because this statement of finding is not sup ported by the evidence and further, because the witness, A. W. Jones, conductor for the Rock Island, states that he had never sold any colored person any space or accommodations in the Pullman car during his entire service (Tr. 164; initial brief of complainant, p. 46). He further states: “ I told him he was a colored man and could not ride in those first-class accommodations” (Tr. 168; initial brief of complainant, p. 46). He further states: “ No colored persons are allowed to ride in the observation car even if they have first class tickets” (Tr. 169; initial brief of complainant, p. 46). He further states: “ I do not know how many colored people apply for Pullman tickets in Hot Springs for Chicago and are refused” (Tr. 169; initial brief of complainant, p. 46). He further states: “ All of the colored people who ride on my train must sit in the Jim Crow car no matter what kind of a ticket they have.” Because the Supreme Court of the United States has held that such discrimination and prejudice is unjust and undue and violates the constitutional rights of the individual in terstate passenger. McCabe v. Atchison, Topeka & Santa Fe Railway Co., 235 U. S. 151, 161-162. Because the undisputed evidence shows that it would be an idle gesture for a colored person holding a first-class [fol. 572] ticket which called for an interstate journey to apply for first-class accommodations in the Pullman car or observation-parlor car. Because the uncontradicted testimony shows that colored persons holding first-class tickets and traveling on an in terstate journey are refused all first-class accommodations, V II 2 6 4 although white persons holding similar tickets and traveling on identical interstate journeys are provided with all first- class accommodations, including the Pullman car and the observation-parlor cars. Because it is a matter of common knowledge that the Rock Island Railroad and other railroads operating in in terstate commerce in the southern part of the United States openly and flagrantly violate the constitutional rights of colored persons holding first-class tickets and traveling in interstate journeys and that such violation is a discrimina tion which is unjust, undue, and unlawful and would not, under any circumstances, be tolerated by members of any other race. V III The complainant excepts to the final sentence of the pro posed report of the Examiner, page 9, which is as follows: “The complaint should be dismissed.’’ (a) Because it is admitted that the complaint charges un just, undue, unreasonable and unlawful discrimination. [fol. 573] (b) Because the undisputed and uncontradicted testimony of each and every witness, both for the complain ant and for the Rock Island Railroad substantiated the charges contained in the complaint, and moreover clearly shows that for more than thirty-two years this discrimina tion has existed and continues to exist to the present day, and further shows that unless this Commission enters an order in accordance with the prayer of the complaint of the petitioner and the initial brief of the complainant, this un lawful and nefarious discrimination against persons of color paying first-class fares will continue. [fol. 574] A rgument in S upport of E xceptions I Error in denying motion to strike answer of Rock Island. Page 3, paragraph 2, the Examiner finds that Rule IY, (d) (e), of the rules of practice before the Commission were violated by the answer of the Rock Island in failing to com pletely advise the parties and the Commission of the nature of the defense; in failing to specifically admit or deny the 2 6 5 facts alleged in the complaint; in merely denying that the alleged discrimination is unjust under Section 2 of the Act, and that the alleged preference and prejudice was undue and unreasonable under Section 3 of the Act, and failed to state fully the grounds relied upon in making such denial. Whether the Commission will permit the rules promul gated by it to be ignored or disregarded we believe to be a question for decision by the Commission. No argument is as strong as the mere reading of the complaint and the an swer, to show that the motion of the complainant to strike the answer should have beeu sustained (Tr. 5-6). No question is raised that the motion to strike the answer was not properly made before the hearing. The require- [fol. 575] ments of the Rule are best obtained from the read ing of the rule itself. We believe that the Rock Island should not have been permitted to have openly and flag rantly violated the rule of this Commission and that this Commission will sustain its own rule. II Discrimination and segregation are not accepted by the complainant We regret very much that the Examiner made a finding that “ For the purposes of this proceeding the complainant accepts segregation under the Arkansas statute.” This is not true and the complainant does not accept segregation under the Arkansas statute nor any other statute. Dis crimination and segregation are abominable and we do not believe any fair minded American citizen can honestly place the stamp of approval upon the diabolical system. It is only necessary to state that the mere fact that if any member of this Commission was placed in a similar situa tion he would protest the unjust and un-American system of segregation and discrimination of American citizens solely by reason of race, color or creed. The Arkansas statute is not applicable to interstate commerce and is lim ited to intrastate commerce only. This has been decided by the United States Supreme Court, so that the question can no longer be considered an open one and in McCabe v. [fol. 576] Atchison, Topeka & Santa Fe Ry. Co., 235 U. S. 151, at p. 160 the doctrine is again stated: “ That the Act, in the absence of a different construction by the state court, must be construed as applying to trans 2 6 6 portation exclusively intrastate and hence did not contra vene the commerce clause of the Federal Constitution. Louisville, etc., Ry v. Mississippi, 133 U. S. 587, 590; Chesa peake & Ohio Ry. Co. v. Kentucky, 179 U. S. 388, 391; Chiles v. Chesapeake & Ohio Ry., 218 U. S. 71.” The Examiner (p. 8, par. 3) finds that the /complainant was an interstate passenger and states: “ There was no break in complainant’s journey at the Tennessee-Arkansas state line. He was engaged in through interstate travel from Chicago to Hot Springs.” We do not believe argument is necessary to emphasize the law as the same is so well stated by the United States Su preme Court as to admit of no controversy about the same. In McCabe v. Atchison, Topeka & Santa Fe Ry. Co., supra, the contention of the complainant is again sustained and the Supreme Court, at page 161, states: “ * * * I f facilities are provided, substantial equal ity of treatment of persons traveling under like conditions cannot be refused. It is the individual who is entitled to the equal protection of the laws, and if he is denied by a common carrier, acting in the matter under the authority of state law, a facility or convenience in the course of his [fol. 577] journey which, under substantially the same cir cumstances is furnished to another traveler, he may prop erly complain that his constitutional privileges has been in vaded.” A mere reading of the complaint and the uncontradicted testimony of the conductor, Albert W. Jones, who was a witness for the Rock Island, clearly establishes unjust, un due, unlawful and unreasonable discrimination. We believe it will be useless to repeat the testimony con tained in the transcript of record and abstract of evidence of this witness because his experience of 32 years entitles his testimony to some weight. We will only refer to his testimony to say that the unjust discrimination and preju dice should be removed. (Initial brief of complainant, pp. 40-48.) An interstate passenger, whether colored or white, pay ing a first-class fare in entitled to first-class accommoda tions. This is axiomatic and we do not believe that there are any authorities in the United States holding to the con 2 6 7 trary. The authorities cited in the initial brief of the com plainant fully cover the principle of law governing this case and we do not believe any good purpose will be served to again reiterate the same. The complainant was entitled to substantial equality of treatment of persons traveling in interstate commerce, and having paid first-class fares. Mc Cabe v. Atchison, Topeka & Santa Fe By. Co., supra. It is conceded that first-class accommodations in the Pullman [fol. 578] sleeping car, observation-parlor car and dining car were furnished white passengers traveling in interstate commerce paying the identical first-class fare which had been paid by the complainant, and the denial and refusal of the Rock Island to equal accommodations and treatment of the complainant violated his constitutional rights and was unjust, undue, unlawful discrimination and preference. McCabe v. Atchison, Topeka & Santa Fe By. Co., supra, pages 161, 162, and violated the Interstate Commerce Act and the 14th Amendment of the United States Constitution which guarantees the equal protection of the laws. I l l The furnishing of equal facilities and accommodations as required by law does not necessitate the furnishing of extra cars. It is not claimed that “ three extra cars must be provided for colored passengers paying first-class fares, plus the additional charges provided by tariff for seat space, but it is contended that if a common carrier engaged in interstate commerce provides the accommodations and facilities of a Pullman sleeper, dining car, and observation-parlor car for white passengers paying first-class fare plus the additional charges provided by tariff for seat space, then the law re quires similar accommodations for colored passengers pay ing first-class fares plus the additional charges provided by tariff for seat space. Whether this requirement of the [fol. 579] law is by extra cars or by a partition in the cars now being furnished is to be determined by the common carrier but if such accommodations are furnished to any in terstate passengers paying first-class fares, then similar accommodations must be furnished to all interstate passen gers paying first-class fares who apply for such accommo dations. Common decency requires of a common carrier that sells a first-class ticket to an interstate passenger that 2 6 8 it furnish to such passenger the kind and class of accom modations paid for. The proposed report of the examiner (p. 7, par. 2) makes the following finding: “ The present colored coach takes care of colored second class passengers but there is no Pull man, dining or observation-parlor car for colored first-class pasengers.” This finding is in accord with the allegations of the complaint and the uncontradicted testimony and is an admission that the law is being openly violated by this un just, undue, unlawful and illegal discrimination and prefer ence. The U. S. Supreme Court, in McCabe v. Atchison, Topeka & Santa Fe, supra, at pages 161, 162, holds that this failure to provide these accommodations for all first- class passengers is a violation of the equal protection of the laws as guaranteed by the 14th Amendment. In view of the allegations of the complaint, the undisputed testimony contained in the record, and the finding of the Examiner that only second-class accommodations are furnished for [fol. 580] colored passengers paying first-class fares, we are somewhat at a loss to reconcile the recommendation of the Examiner that the complainant be dismissed as to the Rock Island, and that the discrimination against colored in terstate passengers paying first-class fares is not unjust and undue discrimination. IV First-class passenger entitled to first-class accommodations. The Examiner states (p. 8, par. 2) “ That a first-class ticket was furnished and charged for because complainant wanted it, * * * ” Every American citizen financially able to travel first- class has the right to pay for first-class transportation and receive first-class accommodations and facilities throughout his journey. This Commission has held in Edwards v. Nash., Chat. & St. Louis Ry. Co., 12 I. C. C. R. 247-249 that: “ I f a railroad provides certain facilities and accommoda tions for first-class passengers of the white race, it is com manded by the law that like accommodations be provided for colored passengers of the same class. The principle that must govern is, that carriers must serve equally well all passengers, whether white or colored, paying the same fare. Failure to do this is discrimination and subjects the 2 6 9 passenger to undue and unreasonable prejudice and disad vantage. ’ ’ [fol. 581] The complainant had a right to request, pay for, and receive a first-class ticket and first-class accommoda tions on his interstate journey. The Examiner further states (p. 8, par. 2 ): “ * * * and after it developed that the first-class accommodations west of Memphis were all taken by other passengers, defendants offered to refund the difference.” There is no evidence that the first-class accommodations were all taken but, on the contrary, it is uncontradicted and undenied that there were sufficient unoccupied sections in the Pullman sleeping car to have accomihodated the complainant. In addition to the testimony of each of the witnesses that sufficient unoccupied space in the first-class accommodations were available, there was a stipulation (Tr. 49; initial brief of complainant, p. 32) that at the time the complainant was ejected from the Pullman car by the train conductor there were vacant and unoccupied seats in the Pullman car. The porter informed the complainant that he had plenty of space in the other car (initial brief of complainant, p. 20; Tr. 15-16). The testimony of the complainant (initial brief 23-24; Tr. 23-24) reads as fo l lows : “ When the porter returned I requested that he talk with the train conductor and see if arrangements could not be made to permit me to ride in the smoking room of the Pull man car in which I was riding. There was nobody occupy ing the smoking room of the Pullman car. There were at least four or five sections in this Pullman car in which I was riding which were unoccupied. ’ ’ [fol. 582] The testimony of Albert W. Jones, conductor for the Eock Island and a witness called by the Eock Island (initial brief p. 44, Tr. 151): “ There was plenty of room in the observation car on that day” (initial brief of complainant, p. 45, Tr. 154). ‘ ‘ Congressman Mitchell was sitting in Sec. 3 of the Pull man Car alone. I do not know if any one occupied Sec. 3 from Memphis to Hot Springs on April 21, but whether the space had been sold or not I would not have sold a seat in Sec. 3 or any other space in the Pullmm car to Congress man Mitchell because he was a colored person.” 270 To further show that the discrimination against the com plainant was not because all of the first-class accommoda tions had been taken by other passengers is the statement of the conductor, Albert W. Jones (initial brief of complain ant, p. 23, Tr. 23): “ It don’t make a damn bit of difference who you are, as long as you are a ‘ nigger’ you can’t ride in this car.” We do not believe it is necessary to continue to point out the failure of the evidence to sustain the finding or state ment of the Examiner that the first-class accommodations were all taken by other passengers. [fol. 583] V Only second-class accommodations are furnished by the Rock Island to colored passengers traveling in interstate Commerce and paying first-class fares. The finding or statement of the Examiner, page 9, para graph 3 of the proposed report: “ The present colored coach meets the requirements of the law” is unsupported by any evidence but on the contrary is contradicted by each and every witness who testified at the hearing, in particular the witnesses for the Rock Island. We will briefly set out a few excerpts from the testimony of the witness, Albert W. Jones, 32 years a railroad conductor and employed by the Rock Island on this identical train in question (Initial brief of complainant, p. 44; Tr. 149). “ The Rock Island Railroad Company has no such ac commodations for Negroes, although the Negroes may have first-class tickets on the Rock Island Railway or ‘ three-cent per mile’ tickets. During the 32 years I have worked over there in Arkansas for the Rock Island Railroad Company it has never had any first-class accommodations for Ne groes and haven’t any first-class accommodations in the sleeping cars for Negroes now.” The Rock Island Railroad Company does not at this time have any first-class accommodations for colored passengers paying the three-cent-a-mile fare, permit them to use the observation car which belongs to the Rock Island, nor can [fol. 584] they use the dining car nor sleeping car, although they may hold first-class tickets. On page 45 of the initial brief of the complainant the wit ness states: 2 7 1 ‘ ‘ The accommodations furnished to Negro passengers in the jim crow car where Congressman Mitchell was com pelled to ride are not equal to the accommodations fur nished in the observation car by the Rock Island Railway to white passengers holding first-class tickets.” The same witness at page 46, initial brief of complainant, states: “ He showed me his ticket and offered to pay for the accommodations. But I told him he was a colored man and could not ride in those first-class accommodations.” This same witness for the Rock Island at page 47, initial brief for complainant, states: “ All of the colored people who ride on my train must sit in the jim crow car, no mat ter what kind of ticket they have.” The Examiner himself, on page 7, paragraph 2 of the proposed report, states: “ The present colored coach takes care of colored second-class passengers, but there is no Pullman, dining or observation-parlor car for colored first- class passengers.” We believe this statement, alone, is sufficient to show that there are no first-class accommodations for colored passen gers paying first-class fares and making an interstate jour- [fol. 585] ney. This is clearly a violation of the rights of the colored passengers paying first-class fares and travel ing in interstate commerce. McCabe v. Atchison, Topeka & Santa Fe Railway Co., 235 U. S. 151, 160. We have fully covered the law sustaining the contention of the complain ant in the initial brief of the complainant under points and authorities (p. 50, 56). A restatement of the provisions of the law we believe to be unnecessary. The Examiner states, on page 9, paragraph 3 of the pro posed report: “ As there is comparatively little colored traffic and not likely to be such demand for Pullman, dining and observa tion-parlor car accommodations by colored passengers as to warrant the running of any extra cars, the discrimination and prejudice is plainly not unjust nor undue.” The U. S. Supreme Court in McCabe v. Atchison, Topeka & Santa Fe Ry. Co., supra, holds that discrimination on ac count of the volume of traffic is without merit. In the Mc Cabe case the separate coach law of Oklahoma contains al 2 7 2 most identical provisions as the Arkansas separate coach law and the attorney general of the state contended that the volume of traffic did not warrant the furnishing of first- class accommodations to colored passengers paying first- class fares and traveling in interstate commerce. Mr. Jus tice Hughes, delivering the opinion of the U. S. Supreme Court, beginning at pages 160, 162, states: [fol. 586] “ With the third1 relating to Sec. 7 of the statute we are unable to agree. It is not the question that the meaning of this clause is that the carriers may provide sleeping cars, dining cars and chair cars exclusively for white persons and provide no similar accommodations for Negroes. The reasoning is that there may not be enough persons of African descent seeking these accommodations to warrant the outlay in providing them. Thus, the attor ney general of the state, in the brief, filed by him in support of the law, urges that ‘ the plaintiffs must show that their own travel is in such quantity and of such kind as to actu ally afford the roads the same profits, not per man, hut per car, as does the white traffic, or, sufficient profit to justify the furnishing of the facility, and that in such case they are not supplied with separate cars containing the same. This they have not attempted. What vexes the plaintiffs is the limited market value they offer for such accommoda tions. Defendants are not, by law, compelled to furnish chair cars, diners nor sleepers, except when the market of fered reasonably demands the facility.’ And in the brief of counsel for the appellees, it is stated that the members of the legislature ‘ were undoubtedly familiar with the character and extent of travel of persons of African descent in the State of Oklahoma and were of the opinion that there was no substantial demand for Pullman car and dining- car service for persons of the African race in the intrastate travel’ in that state. 1 3. That the provision of Sec. 7 above quoted, relating to sleeping cars, dining cars and chair cars did not offend against the 14th Amendment as these cars were, compara tively speaking, luxuries, and that it was competent for the legislature to take into consideration the limited demand for such accommodations by the one race, as compared with the demand on the part of the other. McCabe v. Atch ison, Topeka & Santa Fe Ry. Co., 151, 160. 2 7 3 [fol. 587] This argument with respect to volume of traf fic seems to us to be without merit. It makes the constitu tional right depend upon the number of persons who may be discriminated against, whereas the essence of the con stitutional right is that it is a personal one. Whether or not particular facilities shall be provided may doubtless be conditioned upon there being a reasonable demand there for, but, if facilities are provided, substantial equality of treatment of persons traveling under like conditions cannot be refused. It is the individual who is entitled to the equal protection of the laws and if he is denied by a common car rier, acting in the matter under the authority of a state law, the facility or convenience in the course of his journey which under substantially the same circumstances is fur nished to another traveler he may properly complain that his constitutional privilege has been invaded.” (Italics ours.) We do not believe any argument made by the complain ant will be as forceful as the decision of the United States Supreme Court and therefore the question of the amount of colored traffic has no bearing upon the discrimination practiced against the complainant who was a first-class passenger having paid a first-class fare and entitled to first-class facilities and accommodations in his interstate journey from Chicago, Illinois, to Hot Springs, Arkansas. The recommendation of the Examiner is “ that the com plaint be dismissed.” In view of the undisputed evidence clearly showing a course of unjust, undue, and unlawful and illegal discrimination and preference over a period of [fol. 588] thirty-two years against colored passengers pay ing first-class fares and traveling in interstate commerce, we are unable to reconcile the recommendation of the Ex aminer with the evidence contained in the record and the law as enunciated by this Commission and the United States. In so far as the Pullman Company and Illinois Central Railway Company are concerned, it appears that they are not guilty of discrimination in this particular case but the evidence clearly shows that the Rock Island is guilty of the charges contained in the complaint and the testimony of the conductor, Albert W. Jones, alone, is sufficient to show that not only has this unlawful discrimination existed for thirty-two years but that on the day of the hearing the 18—577 274 undue, unjust and illegal discrimination was in existence. The cases cited in points and authorities of the initial brief of the complainant in connection with McCabe v. Atchison, Topeka & Santa Fe, supra, we believe to be sufficient to sus tain the exceptions of the complainant to the proposed re port of the Examiner and to warrant this Commission in granting the relief prayed for in the complaint of the peti tioner and the “ Request for Special Findings” (initial brief of complainant, pp. 56-59). V I The discrimination and prejudice is unjust and undue. The Examiner, in his proposed report (p. 5, par. 2) de scribes the colored coach or Jim Crow car, and his descrip- [fol. 589] tion o f this coach, which is the only accommoda tion furnished colored passengers journeying in interstate commerce, whether they pay first or second-class fare, is almost identical with the description of the Jim Crow cars in Councill v. Western & Atlantic Ry. Co., 1 1. C. C. R. 339; Heard v. Georgia Railway Co., 1 I. C. C. R. 428; Heard v. Georgia Railway Co., 3 I. C. C. R. I l l , which Jim Crow accommodations were condemned in the preceding cited cases by this Commission. The Examiner finds in said par agraph that the colored coach (1) was next to the baggage car; (2) was an old combination affair; (3) was divided by partitions into three main parts, one end for colored smok ers, one end for white smokers, and in the middle, between the two smoking compartments, surrounded by the smoke and fumes, is the only accommodation provided for colored female passengers; (4) that the car was poorly ventilated and not air conditioned; (5) that in the women’s section there was only one toilet equipped with flushing facilities and this was for the exclusive use of colored women; (6) that the car was without washbasins, soap, towels, or run ning water, except in.the women’s section. Such condition was held, in Edwards v. Nash. Chat. & St. Louis Ry., 12 I. C. C. R. 247-249, by this Commission to be unjust discrimination and subjected the colored passengers to undue and unreasonable prejudice and disadvantage. Has the Commission changed its ruling and can any fair minded person honestly state that the above described ac- [fol. 590] commodations, which are the only accommoda 2 7 5 tions furnished colored passengers paying first-class fares, are substantially equal to the accommodations and facilities furnished to white passengers paying first-class fares in the Pullman cars, dining cars, and observation-parlor cars'? We think not and we submit, to hold that such accommodations furnished to colored interstate passengers paying first-class fares to be equal to the first-class accommodations furnished white interstate passengers paying first-class fares would prostitute sound reasoning. The uncontradicted testimony of the complainant that the toilet facilities furnished colored men traveling as in terstate passengers on the Rock Island Train No. 45 and who had paid first-class fares, was filthy and foul-smelling is corroborated by the fact that the toilets contained no water nor flushing facilities and had been used during the journey. Page 6, paragraph 2 of the proposed report of the Ex aminer finds that the uncontradicted testimony of witnesses for the complainant who had traveled from Memphis to Hot Springs over the Rock Island showed that for many years there was only a single common toilet for colored men and women holding first-class tickets and traveling as interstate passengers while much more desirable accommo dations were provided for white passengers traveling in coaches on the same train. The Examiner does, however, state this flagrant and continued undue and unjust discrim- [fol. 591] ination should be condemned. V II Volume of traffic is no basis for discrimination in accommo dations and facilities in interstate commerce The Examiner, on page 7, paragraph 2 of the proposed report, attempts to justify the unjust and undue discrim ination and preference practiced against colored passengers paying first-class fares and traveling in interstate com merce by the small volume of traffic, and states that ‘ ‘ There is hardly ever a demand from a colored passenger for Pull man accommodations.” In view of the testimony of the conductor, Albert W. Jones, that he would not permit any colored person to ride in the Pullman car and observation car, although they held first-class tickets (Tr. 171, initial 276 brief of complainant, p. 47); that during his thirty-two years as a conductor on the Rock Island he had continu ously refused to sell first-class accommodations in sleeping cars and observation cars to colored people; the uncontra dicted testimony of the complainant that although he held a first-class ticket entitling him to the first-class accommo dations furnished in the Pullman car, dining car, and ob servation-parlor car, he was denied the right to exercise the same privileges exercised by white persons traveling- in interstate commerce on the same train and paying the same fare paid by the complainant; that the Rock Island ticket agent in Hot Springs had refused to sell him first- [fol. 592] class accommodations in the Pullman car from Hot Springs to Chicago (initial brief of complainant, p. 29); the uncontradicted testimony of the witness, Edward H. Carey that he had been refused first-class accommoda tions solely because he was a colored person (initial brief of complainant, p. 36); the uncontradicted testimony of William Harrison that he had been refused first-class ac commodations by the Rock Island Railroad solely on ac count of bis being a colored man (initial brief of complain ant, p. 37); the uncontradicted testimony of the witness John J. Pullen (initial brief of complainant, p. 39) that he had paid first-class fare and was compelled to accept sec ond-class accommodations by the train conductor, and the continued refusal of the Rock Island Railway Company to furnish first-class accommodations for colored passengers holding first-class tickets and traveling on interstate jour neys, we do not believe the Commission will disregard the fundamental principle of law that “ the law will not require a person to do a useless thing. ” It is is clear that a demand by a colored passenger holding a first-claSs ticket and traveling in interstate commerce, for Pullman accommoda tions, dining car service, observation-parlor car accommo dations and facilities, and all other first-class service fur nished by the Rock Island on Train 45, would have been useless. The case of McCabe v. Atchison, Topeka & Santa Fe Ry. Co., supra, we believe settles the question that the volume [fol. 593] of traffic does not justify discrimination in the furnishing of first-class accommodations to all passengers holding first-class tickets and traveling in interstate com merce. 277 The complaint should not be dismissed as to the Rock Island It is conceded that the complaint filed in this case suffi ciently sets forth facts charging unjust, undue, unreason able and unlawful discrimination and preferences as well as violations of the Interstate Commerce Act. The recommendation that the complaint be dismissed as to the Rock Island, subjects the complainant and all other colored persons paying first-class fares and traveling as interstate passengers on the Rock Island, to actual and continued illegal injury and unless an order is entered by the Commission against the Rock Island to desist from the undue, unlawful and illegal discrimination and preference as shown by the uncontradicted evidence in the record, the complainant and all other such colored persons will continue to be subjected to illegal injury, Edward Hines Yellow Pine Trustees, et al. v. U. S., et al., 263 U. S. 143; 44 S. Ct. 72, 73. The complainant having alleged in his complaint against the Rock Island and having established the allegations con tained in his complaint showing conclusively the unjust dis crimination practiced by the Rock Island continuously for [fol. 594] the past thirty-two years, is compelled to seek redress by proceeding before the Interstate Commerce Com mission. Edward Hines Yellow Pine Trustees, et al. v. U. S., et al., supra. In McCabe v. Atchison, Topeka and Santa Pe Railway Company, 186 Fed. 966, the dissenting opinion of Sanborn, Circuit Judge, fully discusses various phases of discrim ination against citizens of color and the rights of colored citizens to enjoy privileges and immunities guaranteed by the 14th Amendment equally with all other citizens. It further discusses and illustrates the prohibition of the clause contained in the 14th Amendment of the Constitu tion of the United States which prohibits any state to deny to any person within its jurisdiction the equal protection of the laws. The views expressed by Judge Sanborn concerning the right of every citizen white or black to equal accommoda tions and facilities while traveling as an interstate passen ger were fully sustained in McCabe v. Atchison and Topeka Santa Pe Railway Company, 235 U. S. 151 at pp. 161-162. It is to be noted that the identical defect pointed out by V III 2 7 8 the United States Supreme Court in McCabe v. Atchison and Santa Fe Railway, supra, does not exist in the case at bar because the complainant in the case at bar did travel over the Rock Island lines; that he requested first-class ac- [fol. 595] commodations and facilities during his continu ous journeying as an interstate passenger, being a first- class fare from Chicago to Hot Springs; that this request that he be furnished with sleeping car, dining car and ob servation car accommodations during said journeying was made of the Rock Island and denied to him; that such first- class accommodations were furnished to other white pas sengers paying the same first-class fare on the same jour ney with the complainant; that the complainant offered to pay the customary charge in addition to the first class fare which he had paid for the accommodations of the sleeping car, dining car, and observation car privileges, and that these first-class accommodations were refused him, al though, they were furnished to other white passengers who were traveling under like circumstances as the complainant. It is further alleged in the complaint and proven by the testimony of witnesses for the complainant of the Rock Island that the complainant was compelled to accept sec ond-class accommodations from the Rock Island, although he had paid a first-class fare and was on a continuous jour ney as an inter-state passenger and was entitled to the en joyment of equal accommodations of the sleeping car, din ing car and observation parlor car which were furnished to other white passengers traveling in the identical situa tion as the complainant. We believe that a mere reading of the evidence in the case at bar will clearly demonstrate that the proposed report of [fol. 596] the examiner which recommends that the com plaint against the Rock Island be dismissed is contrary to the undisputed and uncontradicted evidence in the record and his conclusions and recommendations are indefensible. They should be stricken from the report. The proposed report of the examiner is dated May 5, 1938. A copy of the same was served upon the attorney for the complainant in Chicago by mail, May 7, 1938. Rule XIV , paragraph 4 of the Rules of practice provides that 20 days after service of the proposed report the complainant is entitled to file Exceptions. A stamp on the proposed re port limited the filing of the Exceptions to May 25, 1938, which is only 18 days after the service of the proposed re port. [fol. 597] Conclusion It is clear that the examiner’s recommendation of dis missal is not based upon the uncontradicted and undisputed facts contained in the record and is contrary to the law. His conclusion should be rejected and an order entered in accordance with the prayer of the complainant, “ Request for Specific Findings Contained in the Initial Brief of the Complainant (P. 56-59).” Respectfully submitted, Richard E. Westbrooks, 3000 S. State Street, Chicago, Illinois. Arthur W. Mitchell, Pro Se, 417 E. 47th Street, Chicago, Illi nois, Attorneys for Complainant. May 24, 1938. Certificate of Service In hereby certify that I have this day served the forego ing document upon all parties of record in this proceeding by mailing a copy thereof properly addressed to each party of record. Dated at Chicago, Illinois, this 24th day of May, 1938. Richard E. Westbrooks, Of Counsel. 279 [fol. 598] Clerk’s Certificate to foregoing transcript omitted in printing. [fol. 599] U nited S tates S upreme Court Statement oe P oints U pon W h ich A ppellant I ntends to R ely and op the P art of the Record N ecessary for Consideration T hereof— Filed December 2, 1940. T o : Charles Elmore Cropley, Clerk: Pursuant to the provisions of General Rule 13, Paragraph 9 thereof, the appellant files this, his designation of points upon which he intends to rely and of the parts of the record he regards necessary for the consideration thereof: 1. The points upon which the appellant will rely are as follows: 280 The District Court for the Northern District of Illinois, Eastern Division erred in making the final order and de cree in this cause, and in dismissing the petition herein for lack of jurisdiction at the costs of the plaintiff in the fol lowing respects: (1) It erred in finding that the Commission’s findings of fact were all supported by substantial evidence. (2) It erred in finding that the findings of the Commis sion are not erroneous. (3) It erred in finding that the order of the Commission [fol. 600] is not contrary to law. (4) It erred in finding that the order of the Commission contravenes no provisions of the Federal Constitution. (5) It erred in finding that the order of the Commission is supported by findings. (6) It erred in finding that the court was without juris diction to grant the relief sought in the complaint or any part thereof and that the complaint should be dismissed. (7) It erred in dismissing the cause for lack of jurisdic tion at the costs of the complainant. (8) It erred in failing to find, as it should have done, that the plaintiff was an interstate passenger on the Rock Island Railroad, holding a first-class round trip ticket for which he had paid a first-class fare from Chicago, Illinois, to Hot Springs, Arkansas. (9) It erred in failing to find, as it should have done, that the plaintiff as such first-class passenger, making a continu ous interstate journey and travelling in interstate Com merce, was entitled to equal first-class accommodations and comforts identical with the first-class accommodations and comforts furnished all other white passengers holding first- class tickets and travelling in interstate commerce. (10) It erred in failing to find, as it should have done, that it was the lawful duty of the Rock Island to furnish to the plaintiff, as a first-class interstate passenger, such equal accommodations and comforts as were furnished to first-class white passengers travelling on the same train as interstate passengers. (11) It erred in failing to find, as it should have done, that the Rock Island wilfully failed to furnish to the plain tiff such equal accommodations and comforts as was its law ful duty to so furnish, but on the contrary compelled the 2 8 1 plaintiff to occupy, during a part of his interstate journey, second-class accommodations. (12) It erred in failing to find, as it should have done, that such conduct on the part of the Rock Island was in vio lation of the Interstate Commerce Act. (13) It erred in failing to find, as it should have done, that the Rock Island received from the plaintiff a first- class fare but compelled him to occupy second-class accom modations in violation of the Interstate Commerce Act. [fol. 601] (14) It erred in failing to find, as it should have done, that the conductor of the Rock Island, in furnishing first-class accommodations to all white passengers holding first-class tickets and travelling as interstate passengers, and refusing to furnish the same to the plaintiff who held a first-class ticket and was travelling as an interstate pas senger, was unduly and unreasonably prejudicial to him and was unduly and unreasonably preferential to the white passengers to the disadvantage of the plaintiff and violated the Interstate Commerce Act. (15) It erred in failing to find, as it should have done, that the Rock Island, in charging and receiving a greater compensation for services rendered in transporting the plaintiff as a first-class interstate passenger, than was charged and collected from other persons for doing for them a like and contemporaneous service, did unjustly dis criminate against the plaintiff in violation of the Interstate Commerce Act. (16) It erred in failing to find, as it should have done, that the conduct of the Rock Island, in receiving a charge from the plaintiff and contracting to furnish first-class ac commodations and comforts during the entire interstate trip of the plaintiff from Chicago, Illinois, to Hot Springs, Arkansas, and in failing and in refusing to furnish such first-class accommodations, although such first-class ac commodations were available, was unjust, unreasonable, unlawful and in violation of the Interstate Commerce Act. (17) It erred in failing to find, as it should have done, that the conductor of the Rock Island, in having practiced unjust discrimination against all colored persons travelling- in interstate commerce for the past 32 years has caused, is causing and will cause undue and unreasonable advantage to white persons, and undue and unreasonable prejudice to the plaintiff and all colored persons travelling in interstate 2 8 2 commerce and is in violation of the Interstate Commerce Act. (18) It erred in failing to find as it should have done, that the conduct of the Rock Island towards the plaintiff as above set forth, is in violation of the 14th Amendment of the United States Constitution in denying to the plaintiff the equal protection of the law. (19) It erred in failing to find, as it should have done, that the conduct of the Rock Island towards the plaintiff as above set forth, is in violation of the statutes and laws en acted by the Congress of the United States, known as the Enforcement Act or Civil Rights Act. [fol. 602] (20) It erred in failing to find, as it should have done, that it is a lawful duty which the Rock Island owes to white and colored passengers on this line, in interstate travel, to make them equal in comforts, accommodations, and equipments, without discrimination where the same price is charged and paid for. (21) It erred in failing to find, as it should have done, that it is the lawful duty which the Rock Island owes to the travelling public over its line engaged in interstate travel, that its train officers should refrain from practices against all such passengers without regard to race, color or sex, which result in und-e prejudice and disadvantage. (22) It erred in failing to find, as it should have done, that there is no equality of service, when the money of white first-class interstate passengers purchase- luxurious accom modations, and comforts and the same amount of money purchases for the colored first-class interstate passengers inferior quarters on the same interstate journey. (23) It erred in failing to find, as it should — done, that common carriers are bound to provide for colored inter state passengers, holding first-class tickets, accommoda tions and comforts precisely equal in all respects to those provided for white interstate passengers holding a similar ticket. (24) It erred in failing to find, as it should have done, that common carriers are bound to provide such first-class accommodations and comforts to an interstate passenger without regard to race or color, as the first class interstate passenger has contracted and paid for. (25) It erred in failing to find, as it should have done, that the separate coach law of the State of Arkansas, has no 2 8 3 application to interstate passengers making a journey in interstate commerce. (26) It erred in failing to find, as it should have done, that the plaintiff, as a native born citizen of the United States, was entitled to all privileges and immunities of citizens in the several states, and a denial to the plaintiff solely on account of his race by the Rock Island, under a claim of custom or local State law, while all other citizens under like conditions are granted the same privilege and immunity, is in violation of the Constitution of the United States. (27) It erred in failing to find, as it should have done that the order entered by the Interstate Commerce Commis sion dismis-ing the proceedings filed by the plaintiff before the Interstate Commerce Commission and the findings upon [fol. 603] which said order is based, are arbitrary and un just. (28) It erred in failing to find, as it should have done, that said order and findings are contrary to the evidence of record. (29) It erred in failing to find, as it should have done, that said order and findings are without support of any substantial evidence in the record. (30) It erred in failing to find, as it should have done, that said order and findings were without support of any evidence in the record before the said Commission in the proceedings in which they were made. (31) It erred in failing to find, as it should have done, that said order and findings are against the indisputable character of the manifest weight of the evidence. (32) It erred in failing to find, as it should have done, that in making the order and findings the Commission dis regarded the undisputed and uncontradicted evidence con tained in the record. (33) It erred in failing to find, as it should have done that there are no findings of fact to support the order of the Commission. (34) It erred in failing to find, as it should have done, that the Commission proceeded under erroneous construc tions of law and misapprehensions in respect of its powers. (35) It erred in failing to find, as it should have done, that said order and findings are contrary to the laws of the United States of America. 2 8 4 (36) It erred in failing to find, as it should have done, that said order and findings conflict with the former deci sions of the Interstate Commerce Commission in cases in volving the identical situation as the case at bar. (37) It erred in failing to find, as it should have done, that said orders and findings are contrary to any conflict with the United States Constitution and all Amendments thereto. (38) It erred in failing to find, as it should have done, that the order and findings of the Commission conflicts with, and is contrary to the decisions of the Supreme Court of the United States, the United States Circuit Courts of Appeal and the United States District Courts, in cases involving the identical situation as shown by the undisputed and un contradicted evidence appearing in the record. [fol. 604] (39) It erred in failing to find, as it should have done, that said orders and findings are contrary to and conflict with the Enforcement Act or Civil Rights Act of the United States. (40) It erred in failing to find, as it should have done, that said orders and findings are a denial of the plaintiff of the due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution. (41) It erred in failing to find, as it should have done, that said orders and findings are a denial of the equal pro tection of the laws to the plaintiff as guaranteed by the Fourteenth Amendment of the United States Constitution. (42) That the order of the Interstate Commerce Commis sion and the judgment of the United — District Court are contrary to the basic principles upon which this Government was founded, and judicially approves unjust discrimination against a native born American Citizen, solely on account of his race and color and said order and judgment is unjust and un-American. (Where the Name “ Rock Island” is Used in the Above Designated Points, the Defendants, Frank 0. Lowden, James B. Gorman and Joseph B. Fe fining, Trustees of the Estate of the Chicago, Rock Island and Pacific Railway Company, a Corporation, Are Designated in the Fore going Points Upon Which the Appellant Intends to Rely as Rock Island.) 2 8 5 2. The portions of the record which he thinks necessary for the consideration thereof are as follows: 1. Petition of Arthur W. Mitchell, plaintiff in the United States District Court. 2. Answer of the United States of America. 3. Separate Answer of Frank 0. Lowden, James E. Gor man and Joseph B. Fleming, Trustees of the Chicago, Rock Island and Pacific Railway Company, a corporation. 4. Separate answer of Illinois Central Railroad Company, a corporation. 5. Answer of Interstate Commerce Commission. 6. Separate Answer of the Pullman Company, a corpora tion, to the Petition of Arthur W. Mitchell. 7. Order of March 23,1940, setting cause for May 27,1940, before three judge court. [fol. 605] 8. Proceedings of May 27,1940, showing trial of cause. 9. Findings of fact, conclusions of law and final order and decree of three judge court entered June 27,1940. 10. Notice of Appeal, Petition for Appeal, Assignment of Errors and Proof of Service. Filed August 23, 1940. 11. Order granting appeal to United States Supreme Court and fixing appeal bond entered August 23, 1940. 12. Order approving appeal bond entered August 24, 1940. 13. Appellant’s Praecipe for Record for use in United States Supreme Court on appeal and proof of service filed September 3, 1940. 14. Appellee’s Praecipe for Record. Filed, September 9, 1940. 15. Jurisdictional Statement and Affidavit of Service. Filed September 11, 1940. 16. Citation and Proof of Service, filed September 17, 1940. 17. Notice to Attorney General of the State of Illinois and Proof of Service, filed September 20, 1940. 18. Order extending time to settle Narrative Statement of Evidence for docketing the cause in the Supreme Court of the United States and to complete the Transcript of Rec ord for certification by the Clerk of the United States Dis trict Court, to and including November 21, 1940. Filed, September 21, 1940. 2 8 6 19. Order directing Clerk of District Court to include in the Transcript of Record, for use on appeal to the Supreme Court of the United States in this cause, all original exhibits introduced on the hearing in the United States District Court and that Plaintiff Exhibit No. 1, (a), (b), (c), (d), (e), and Defendant’s Exhibit No. 1, stand in lieu of a Nar rative Statement of the Evidence and be so certified to the Supreme Court of the United States by Clerk of this Court, entered November 14, 1940. 20. Order directing Clerk of District Court to send as an original exhibit to the Clerk of the Supreme Court of the United States and to include as a part of the record on this appeal, a transcript of oral argument made May 27, 1940, by counsel for the respective parties entered November 14, 1940. 21. Notice of Motion, Suggestions in Support of Motion and Proof of Service, filed November 14, 1940. 22. Plaintiff’s Exhibit No. 1 admitted on the hearing in the United States District Court in this cause May 27, 1940, [fol. 606] which consists of the following: a. Complaint filed September 2, 1937, before the Inter state Commerce Commission and appearing in the Petition filed in this cause April 20, 1939 (p.p. 3-9 of the petition filed in the United States District Court in this cause). b. Transcript of the stenographer’s notes of the hearing held March 7, 1938, at Chicago, Illinois, before Examiner W. A. Disque, and all exhibits filed at said hearing, duly certified by the secretary of the Interstate Commerce Com mission as provided by law. c. Report proposed by William A. Disque, Examiner, filed May 5, 1938, with the Interstate Commerce Commis sion and appearing in the petition filed in this cause, April 20, 1939 (p.p. 12-21 of the Petition filed in this cause). d. Report and order of the Interstate Commerce Com mission filed and entered November 7, 1938, including all dissenting opinions filed with said report and appearing in the petition filed in this cause April 20, 1939 (p.p. 22-41 of the Petition filed in the United States District Court in this cause). e. Order of the Commission entered March 6, 1939, deny ing the complainant’s petition for rehearing and reargu ment and appearing in the petition filed in this cause April 2 8 7 20, 1939 (p.p. 41-42 of the Petition filed in the United States District Court in this cause). 23. Defendant, United States of America’s, Exhibit No. 1 : a. A certified copy of the Exceptions filed with the In terstate Commerce Commission by complainant Arthur W. Mitchell to the Examiner’s proposed report and the reply of the defendants to those Exceptions. 24. Certain exhibits attached to transcript of stenogra pher’s notes before the Interstate Commerce Commission at the hearing on March 7, 1938, at Chicago, Illinois, Examiner W. A. Disque presiding as follows: a. Exhibit No. 1, return of railroad ticket from Hot Springs, Arkansas to Chicago, Illinois, stamped April 20, 1937, #C-2649. b. Exhibit No. 2, Pullman stub from Chicago, Illinois, to Memphis, Tennessee, Compartment C, Car 27, Ticket No. 951. c. Table D, page 1, of Exhibit No. 3, from Illinois Central time table showing train # 3 daily, the Louisiane leaving Chicago 6 :05 P. M.— Memphis, Tennessee 8 :30 A. M., there connecting with Rock Island train # 4 5 ; Table No. 1, page 15, showing train # 3 ; from page 5, showing equipment of [fol. 607] train # 3 ; Table #33, page 47, showing Rock Island equipment of train #45, Memphis to Hot Springs. d. From Exhibit #4 , Rock Island time table January 1937, on Page 6, the equipment of through car train #45 of the Rock Island; page 12, the paragraph entitled Chang ing Class of Tickets; page 24, table # 5 , showing through train Nos. 45-51; page 32, paragraph concerning Changing Class of Tickets; page 33, showing sleeping car fares from Chicago to Hot Springs, Arkansas, including seat fares. Respectfully submitted, Richard E. Westbrooks, and Arthur W. Mitchell, Pro Se, Attorneys for Appel lant, 3000 South State Street, Chicago, Illinois. Dated: December 1, 1940. State oe I llinois , County of Cook, ss.: Gladys E. Page, first being duly sworn, deposes and says that at the request of the attorneys for the appellant, she served the above and foregoing designation of points upon which appellant intends to rely and of the part of the record necessary for consideration thereof upon the attorneys for all parties of record, by placing a copy of the same in a sealed envelope with the proper amount of postage attached to said envelope and addressed to each of the attorneys for the parties of record in this cause, and depositing each of the said envelopes in the United States Post Office, Chicago, Illinois, on this the 1st day of December, 1940. Gladys E. Page, Affiant. Subscribed and sworn to before me this 1st day of De cember, A. D. 1940. Richard E. Westbrooks, No tary Public. (Seal.) [fol. 608] [File endorsement omitted.] [Endorsed on cover:] Enter Richard E. Westbrooks. File No. 44,926, N. Illinois, D. C. U. S., Term No. 577. Ar thur W. Mitchell, Appellant, vs. The United States of America, Interstate Commerce Commission, Frank 0. Low- den, et al. Filed November 18, 1940. Term No. 577, O. T. 1940. (1948) IN THE SUPREME COURT OF THE UNITED STATES O ctober T erm , A. D. 1940 No. 577 ARTHUR W. MITCHELL, vs. Appellant, THE UNITED STATES OF AMERICA, INTERSTATE COMMERCE COMMISSION, FRANK 0. LOWDEN, e t ax,., Appellees. APPEAL PROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN' DISTRICT OF ILLINOIS, EASTERN DIVISION. Brief for Appellant. R ichard E . W estbrooks, Chicago, Illinois and A r th u r W . M itc h e ll , Pro Se, Chicago, Illinois Attorneys for Appellant. P R I N T E D B Y C H I C A G O L A W P R I N T I N G C O . FILED NOVEMBER 18, 1940 PROBABLE JURISDICTION NOTED DECEMBER 16, 1940. SUBJECT INDEX. PAGE Opinions below ......................— .............. ..................... 1 Jurisdictional Statement................................... 2 Statutory Jurisdiction .............................................. 2 Proceedings before the Interstate Commerce Com mission ....................................... 2 Proceeding's before United States District Court.... 4 Constitutional Jurisdiction ....................................... 6 Jurisdiction by Judicial Interpretation of the Law 9 Statutes Involved......... ......................... —.................. . 10 Statement of the C ase..................................................... 11 Specification of Errors ...................................... 15 Summary of Argum ent...... ................................. 18 Argument: I. The Appellant, an American citizen, was en gaged in through interstate travel from Chi cago, Illinois, to Hot Springs, Arkansas, as a first-class passenger, he having paid a first- class fare and the separate coach law of the State of Arkansas was inapplicable to this interstate journey............... ............. ................. 22 A. A case in point................. .......... ...... ........... 32 II. Volume of traffic cannot be used as a basis for discrimination against an interstate passen ger holding a first-class ticket___!.................... 34 III. The claim by the defendant, Bock Island, that it was attempting to follow the separate coach law of Arkansas and disregard the plain provisions of the Constitution of the United States, and the laws made in pursuance there of, is untenable, and the report of the Com mission shows its misconception of the law.... 47 11 Argument (continued) : IV. Personal rights .................................................. A. Personal rights include personal liberty PAGE 49 51 V. Personal rights include the equal protection of the laws and the right to contract for first-class services, accommodations and fa cilities in interstate commerce, and further includes the right to enforce the contract in the event of its violation by the common car rier ........................................................................ 53 VI. The Interstate Commerce Act contains a na tional comprehensive system for the regula tion of interstate commerce, which excludes the application of the local separate coach law of the state....... ................................. ......... 58 VII. Congress has prohibited discrimination, un due prejudice, unreasonable and undue ad vantage and preference in relation to citizens traveling as interstate passengers......... ......... 64 VIII. The appellant having suffered direct injury to his rights guaranteed by the Constitution of the United States and laws made pursuant thereof has the absolute right to prosecute these proceedings ............................... „ .......... . 66 IX. What is unjust discrimination prohibited by the Interstate Commerce A c t ................. ......... 67 X. Custom does not justify continued unjust dis crimination ................................................ ........ 69 XI. Erroneous holding of the Commission con cerning the right of the appellant to purchase and use first-class accommodations in inter state commerce 69 I ll Argument (continued): XII. Refund of money is not adequate redress for the wrongful exclusion by a common carrier of an American citizen engaged in an inter state journey as a first-class passenger.... ...... 73 XIII. Judicial notice ....... ............................................. 74 XIV. Questions not involved in this appeal..... ....... . 75 XV. The order of the Interstate Commerce Com mission and the decree of the District Court should be reviewed by this Court and set aside 77 A. The order rests on an erroneous appli cation of the law .............. ............................ 77 B. The order is without any support of evi dence .............................................................. 78 XVI. Cases which have been cited by some of the defendants in prior stages of this proceed ing which we claim are not in point..... ........... 79 Conclusion ....... .......................................... ........... .......... 89 T able of Cases. Alabama Ry. Company v. Morris, 103 Miss. 511; 60 So. 11; Ann. Cas. 1915-B, 613....................................... 85 American Express Company v. United States, 212 U. S. 522, 523, 29 S. Ct. 315...................................... 69 Anderson v. L. & N. Ry. Company, 62 F. 46................. 30 Armour & Company v. The Alton Ry. Company, 293 October Term, 1940, Op. February 3, 1941............ . 9 Arthur W. Mitchell v. Chicago, Rock Island & Pac. Railway Co., 229 I. C. C. 703..................................... 14, 50 PAGE Atchison T. & S. F. Ry. Company et al. v. United States et al., 279 U. S. 768, 770; 49 S. Ct.' 494; 73 L. Ed. 947.................................................................. 10 IV Baltimore & Ohio By. Company et al. v. United States et al., 4-9 S. Ct. 492; 73 L. Ed. 954; 279 U. S. 781, 783... .......... .................................................. 9 Baltimore & Ohio R. R. Company v. United States, 277 U. S. 291, 300, 301.................................................. 78 Barbier v. Connolly, 113 U. S. 27, 5 S. Ct. 357.... ...... 53 Berea College v. Commonwealth of Kentucky, 211 U. S. 45, 53, 54; 29 S. Ct, 33, 35; 53 L. Ed. 81 (1908) ............................................................................ 83 Brown v. Memphis & C. Ry. Company, 7 F. 51, 63 (C. C. Tenn.) .......................................................... 57,73,86 Buchanan v. Warley, 245 U. S. 60, 74, 75, 76, 77, 78, 79, 80; 38 S. Ct. 16 (1917).... ...................... 38,46,66,82,83 Case of the State Freight Tax, 15 Wall. (82 U. S.) 232 ............. 6,32,62 C. & O. R. R. Company v. Kentucky, 179 U. S. 288... 30 C. B. & Q. Railway Company v. Iowa, 94 U. S. 155; 24 L. Ed. 94................. 29 Chesapeake & Ohio R. Company v. Kentucky, 179 U. S. 388, 391; 45 L. Ed. 244, 246; 21 S. Ct. 101.... 23,25 Chiles v. Chesapeake & Ohio R. Company, 218 U. S. 71; 54 L. Ed. 936, 30 S. Ct. 667; 20 Ann. Cas. 980 ............................................................... 23,33,83 Cohens v. Virginia, 6 Wheat. 264, 379......... ................. 8 Cooley v. Board of Wardens, 12 How. 299............. ..... 32 Councill v. Western & Atlantic R. R. Co., 1 I. C. C. 339 .................................................... 55,57 Cozart v. Southern Ry. Co., 16 I. C. C. 226, 230, (1909) ....................... 88 Dent v. West Virginia, 129 U. S. 114, 9 S. Ct. 231....... 53 Denver & R. G. R. Company v. Baer Brothers Mer cantile Company, 187 F. 485; 109 C. C. A. 337; 34 S. Ct. 641; 233 U. S. 479; 58 L. Ed. 1055 ...... 58 Duncan v. Missouri, 152 U. S. 382; 14 S. Ct. 570....... 53 PAGE T able of C ases (C o n t in u e d ). V T able op C ases (C o n t in u e d ). page Edwards v. Nashville, Chattanooga & St. Louis Ry. et al., 12 I. C. C. 247................................................55, 57, 88 Ex Parte Virginia, 100 U. S. 339.................................. 53 Florida East Coast Ry. Company v. United States, 234 U. S. 167................................................. „ .............. 78 Gaines v. Seaboard Airline Ry. et al., 16 I. C. C. 471 (1909) ..... -..................................................................... 88 Gibbons v. Ogden, 9 Wheat. 1, 196.................30, 31, 32, 33, 62 GoldWashing & Water Company v. Keyes, 96 U. S. 199, 201...............- .......................................................... 9 Gray v. Cincinnati Ry. Co., 11 F. 683, 686................. 57 Hall v. DeCnir, 95 U. S. 485............................................ ........................................... 24, 29, 30, 31, 32, 33, 45, 53, 54, 86 Harriman v. Interstate Commerce Commission, (N. Y. 1908), 29 S. Ct. 115, 118; 211 U. S. 407, 418; 53 L. Ed. 253....... .............................................................. 58 Hart v. State, 60 Atl. 457, 463; 100 Md. (March 22, 1905) ........................... - ......................................28, 29, 33, 86 Hartness v. Iberia, etc., Ry. Company (D. C. La. 1924), 297 F. 622, 624.................................................. 59 Haskell v. Cowhan, 187 F. 403, 408............... ..... ......... 32, 62 Heard v. Georgia R. R. Co., 1 I .C. C. 428................... 55, 57 Heard v. Georgia R. R. Co., 3 I. C. C. 111................... 57 Hines et al. v. Davidowitz et al., Op. January 20, 1941, No. 22, October Term 1940.....................26, 32, 46, 62 Huff v. Norfolk & Southern R. R. Co., 88 S. E. 344, 345; 171 N. C. 203 (March 22, 1916)....../.................. 29 In Re Grice, 79 F. 627, 645............................................ 52 Interstate Commerce Commission v. Cincinnati N. O. & Texas Pacific Ry. Company, 167 U. S. 479; 17 S. Ct. 896; 42 L. Ed. 243............................................ 58 VI PAGE T able of C ases (C o n t in u e d ). Interstate Commerce Commission v. Diffenbaugh, 242 U. S. 42.................................................................... 78 Interstate Commerce Commission v. Louisville & Nashville R. R. Co., 227 U. S. 88, 91.......................... 78 Johnson v. Southern Pacific Company, 196 U. S. 1; 25 S. Ct. 158; 49 L. Ed. 363...................................... 59 Lehigh Valley Ry. Company v. Public Service Com mission, Second District of the State of N. Y. (D. C. N. Y. 1921), 272 F. 753, A ff ’d. (1922); 42 S. Ct. 239; 256 U. S. 591; 66 L. Ed. 385......... ................... 61 Logwood and Wife v. Memphis & C. Ry., 23 P. 318, 319 ................................- ................................................ 57 Loomis v. Lehigh Valley Ry. Company, 240 U. S. 43, 48, 50, 59, (1915).......................................................... 9 Louisville N. 0. & T. R. Company v. Mississippi, 133 U. S. 587, 590 L. Ed. 784, 785; 2 Inters. Comm. Rep. 801; 10 S. Ct. 348.................................... ......... 23, 25 Macon Grocery Company v. Atlantic Coastline Ry. Company, 215 U. S. 501, 506, 507, 508....................... 8 Manufacturers Ry. Company & St. Louis Southwest ern Ry. Company v. United States and Interstate Commerce Commission, 246 U. S. 456, 457.........- 9, 76, 77 McCabe v. Atchison T. & S. P. Ry. Company, 235 U. S. 151, 161, 162 (1914); 59 L. Ed. 169; 35 S. Ct. 69 16, 23, 24, 30, 34, 35, 38, 41, 46, 49, 50; 58, 71, 75, 77 Merchants Warehouse Company v. United States, et al., 283 U. S. 501, 508.............................................. 76 Minnesota Rate Case, 230 U. S. 352; 33 S. Ct. 729; 57 L. Ed. 1511; 48 L. R. A. (N. S.) 1151; Ann. Cas. 1916 A-18 ........ „............................................................ 6> 9>32 Munn v. Illinois, 94 U. S. 113; 24 L. Ed. 77............... 29 Murphy v. Western & A. R. R. Co., 23 P. 637, 639, 640 57 New England Divisions Case, 261 U. S. 184, 204. 76 vu Northern Pacific Ry. Company v. Solum, 247 U. S. 477, 483, 484................................................................. T able of C ases (C o n t in u e d ) . PAGE 9 Ohio Bell Telephone Company v. Public Utilities Company of Ohio, 301 U. S. 292, 301........................ 75 Osborne v. Bank of United States, 9 Wheat. 738, 822 8 Patton v. Brady, 184 U. S. 608, 611.............................. 8 Pearson v. Dunne, 4 Wall. 605...................................... 73 Peik v. Chicago & N. W. R. R. Co., 94 U. S. 164, 24 L. Ed. 97........................................................................ 29 Pennsylvania Company v. United States, 236 U. S. 351; 35 S. Ct. 370; 59 L. Ed. 616............................ 67,76 Plessy v. Ferguson, 163 U. S. 537.................30, 51, 79, 80, 82 Railway Company v. Illinois, 118 U. S. 557; 7 S. Ct. 4; 30 L. Ed. 244............................................................ 29 Railroad Commission of Louisiana v. T. & P. Ry. Company, 229 U. S. 336; 35 S. Ct. 837; 57 L. Ed. 1215 ........ ......................................... .............................. 33 Railway Company v. Mississippi, 133 U. S. 587; 10 S. Ct. 348; 33 L. Ed. 784............................................ 9,33 Rochester Telephone Company v. United States et al., 307 U. S. 125, 130, 135.......................................... 9, 78 Seaboard Airline Ry. Company v. United States, 254 U. S. 57, 62............................................................ 76 Skinner & Eddie Corporation v. United States, 249 U. S. 557, 562............. ............... .................... ......... . 76 Smith v. Tennessee, 100 Tenn. 494..........„ .............. 29, 85, 86 Smith v. Texas, No. 33, October Term 1940, United States Supreme Court, Op. November 25, 1940..... 57, 80 South Covington & Cincinnati S. T. Ry. Co. v. Ken tucky, 252 U. S. 399; 40 S. Ct. 378, (Decided April 19, 1920).......................................................................... 86 South Covington Ry. Co. v. Covington, 235 U. S. 537, 35 S. Ct. 158, 59 L. Ed. 350, L. R, A. 1915 F. 792.... 8 8 Vlll Southern Pacific Ry. Company v. Interstate Com merce Commission, 219 U. S. 498; 31 S. Ct. 279; 55 L. Ed. 310.................................................................. 33 Southern Ry. Company v. Norton, 73 So. 1; 112 Miss. 302, (December 4, 1916)...................... ................... 30,85,86 Southern Railway Company v. Primrose, 73 So. 2..... 85 State ex rel Abbott v. Hicks, 44 La. Criminal........... 30 State of Missouri at the relation of Lloyd Gaines, Petitioner v. I. W. Canada, Registrar of the Uni versity of Missouri and the Curators of the Uni versity of Missouri, 305 U. S. 337, 350...................... 43, 46 Strauder v. West Virginia, 100 U. S. 303, 306; 25 L. Ed. 664.................................................................. ..... 71, 75 The Chicago Junction Case, 264 U. S. 258, 44 S. Ct. 317, 320 ...................................................... ........ ........... 67, 78 The Daniel Ball, 10 Wall. 557; 19 L. Ed. 999............... 33 The Sue, 23 P. 843, 844, 845, 846, 848..... ..................... 57 Tennessee v. Davis, 100 U. S. 257....................... .......... 9 Texas & Pacific Ry. Company v. Abilene Cotton Oil Company, 204 U. S. 426, 439; 27 S. Ct. 350; 51 L. Ed. 553.................................... - ............................. 58 Texas & Pacific Ry. Company v. Interstate Com merce Commission, (N. Y. 1896), 162 U. S. 197; 16 S. Ct. 666; 40 L. Ed. 940......... ....... ........... ......... 6, 60, 62 Truax v. Raich, 239 U. S. 33, 38.................................... 66 United States v. Chicago Heights Trucking Com pany, et al., 310 U. S. 344, 351, 352 (1939)...........6,47,68 United States ex rel Weinberg v. Scholtfeldt, etc., 26 F. Supp. 283, 284...............................................74 United States v. P. W. Darby Lumber Co., et al., 82 October Term 1940, Op. February 3, 1941........... 6, 62 United States v. Louisville & Nashville R. R. Com pany, 235 LT. S. 314, 3201..... ............. ......................... PAGE T able of C ases (C o n t in u e d ). 76 IX T able of C ases (C o n t in u e d ). page United States v. Maher, 307 U. S. 148, 152................... 9 United States of America v. Appalachian Electric Power Company, Op. December 16, 1940, No. 12, October Term 3940, Supreme Court........................ 32 Wabash, St. Louis & Pacific Railway Company v. Illinois, pp. 557, 573, 575, 576, 577.......................... 30 Washington B. & A. Electric R. Company v. Waller, 289 F. 598, 600 (C. C. A. D. C. May 7, 1923)....... 32,33 West v. Kansas National Case Company, 221 U. S. 229; 31 S. Ct. 564; 55 L. Ed. 716; 35 L. R. A. (N. S.) 1193 .......... - ........................................................... 32 West v. Kansas Natural Gas Company, 221 U. S. 229; 31 S. Ct. 564; 55 L. Ed. 716; 35 L. R. A. (N. S.) 1193 ................................................................................. 6, 32 White v. Greenhow, 114 U. S. 307.................................. 9 Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064....... 53 Statutes, Constitutions and T extbooks. Separate Coach Law of the State of Arkansas (Pope’s Digest, Chap. XX , Sections 1190 to 1201) ........................................8,11,13,15,18, 22, 26, 28, 35, 47, 50 Title 8, U. S. C., Chap. 3, See. 41— Civil Rights ................................................... 6,10,15, 48, 52, 57, 64, 66, 74 Title 8, U. S. C., Chap. 3, Sec. 43— Civil Rights ......... ................................................6,10, 48, 52, 57, 64, 66, 74 Title 28, U. S. C., Sec. 41, Sub. Div. 14.......................... 4, 8,10 Title 28, U. S. C., Sec. 41, Sub. Div. 28...... .'................. 4,10, 68 Title 28, U. S. C., Sec. 43...................................... ........... 4,10 Title 28, U. S. C., Sec. 45.................................................. 4, 5,10 Title 28, U. S. C., Sec. 47......................... ............. ....... 1, 2, 5,10 Title 28, U. S. C., Sec. 47-a. ...................................... 1, 2, 4,10 Title 28, U. S. C., Sec. 48.................................................4,10,15 X Title 49, U. S. C., Sec. 1, Par. 1.............................. 6,10,15, 65 Title 49, U. S. C., Sec. 1, Par. 2.................................... 6,10, 65 Title 49, U. S. C., Sec. 1, Par. 5_..............3, 6,10,15, 57, 65, 68 Title 49, IT. S. C., Sec. 2................................ 6,10,15, 57, 65, 68 Title 49, U. S. C., Sec. 3, Par. 1.............. 3, 6,10,15, 57, 65, 68 Title 49, IT. S. C., Sec. 4.................................................. 6,10,15 Title 49, U. S. C., Sec. 13, Par. 1.....................2, 6, 9,10, 65, 67 Title 49, U. S. C., Sec. 13, Par. 4.............................. 4, 9,10, 65 Title 49, U. S. C., Sec. 15, Par. 1................................. -4 , 6,10 Title 49, U. S. C., Sec. 15, Par. 2............................... .....4, 6,10 Article I, Sec. 8, Cl. 3, United States Constitution ............................................................................6,11,15, 45, 63 Article I, Sec. 10, Cl. 1, United States Constitution.... 11 Article IV, Sec. 2, Cl. 1, United States Constitution .......................................................................8, 11,15, 44, 57, 62, 66, 74 Article VI, Cl. 2, United States Constitution------7,11,15, 78 Fourteenth Amendment to the Constitution of the United States, Sections 1 and 5...............8,11,15, 57, 66, 74 Oklahoma Statute, Section 7.......................................... 26, 35 Alien Registration Act.................................................... 26 The Federalist.................................................................... 27 1 Bl. Com. 134.................................................................... 51 5 Wigmore Evidence, Pars. 2571, 2580, 2583......... 75 Thayer Preliminary Treatise on Evidence, pp. 277, 301 .............. 75 PAGE S t a t u t e s , C o n s t it u t io n s a n d T extb o o k s (C o n t in u e d ). APPENDICES PAGES A ppendix A— Statutes involved ......... ........................................... 1-11 Constitutional provisions involved ........ .............. 12-13 A ppendix B— Separate coach law of Arkansas ..................... -.... 15-18 A ppendix C— Abstract of evidence before the Commission....... 19-50 IN THE SUPREME COURT OF THE UNITED STATES October T erm, A. D. 1940 No. 577 ARTHUR W. MITCHELL, vs. Appellant, THE UNITED STATES OF AMERICA, INTERSTATE COMMERCE COMMISSION, FRANK 0. LOWDEN, et a l ., Appellees. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION. Brief for Appellant. OPINIONS BELOW. The District Court, specially constituted under Sec. 210 of the Judicial Code, as amended, (Title 28 U. S. C. A., Secs. 47 and 47-a), for the Northern District of Illinois, Chicago, Illinois, entered an order and decree, June 27, 1940, dismissing the petition, without an opinion, said order and decree, is found in the record, p. 52, attached to the order and decree were the findings of fact and conclusions of law (R. 52). The order of the Interstate Commerce Commission, dismissing the complaint is reported in 229 I. C. C. 703, and is found in the record, pp. 18-34. 2 STATEMENT OF THE GROUNDS ON WHICH THE JURISDICTION OF THIS COURT IS INVOKED. Statutory Jurisdiction. The jurisdiction of this Court is based upon Sec. 210 of the Judicial Code, as amended (Title 28, U. S. C., Secs. 47 and 47-a) (Judicial Code and Judiciary) (Appendix A, pp. 4-6). These sections provide for a hearing hv a special 'Court composed of three Judges and for a direct appeal to the Supreme Court of the United States from a final judgment or decree of the Court. Proceedings Before the Interstate Commerce Commission. Arthur W. Mitchell, the appellant, a citizen of the United States and a person within the jurisdiction thereof filed Ms verified complaint with the Commission under the Inter state Commerce Act (Title 49, U. S. C., 13 (1) ) (Appendix A. p. 9) (R. 3-9). The complaint charged among other things, that the defendants1 by their conduct towards the appellant had violated certain provision of the Inter state Commerce Act. After due notice to the defendants answers were filed to the complaint by each of the defendants (R. 7-9). The complaint alleged that the complainant was a passenger, traveling in interstate commerce on a continuous journey 1 The original defendants to the complaint were Frank 0. Lowden, James E. Gorman, and Joseph B. Fleming, trustees of the Estate of the Chicago, Rock Island and Pa cific Railway Company, a corporation; Illinois Central Railway Company, a corporation; and Pullman Company, a corporation. 3 between Chicago, Illinois and Hot Springs, Arkansas; that the defendants were common carriers engaged in the trans portation of passengers between Chicago and Hot Springs, and were subjected to the provisions of the Interstate Commerce Act. That certain provisions of the Interstate Commerce Act, the Constitution of the United States and the Amendments to the United States Constitution had been violated by the acts of the defendants towards the com plainant (now the appellant) while on this interstate journey (Title 49, U. S. C., Sec. 1, Cl. 5) (Appendix A, p. 7); (Sec. 2) (Appendix A, p. 8), (Sec, 3, Cl. 1) (Appendix A, pp. 8-9) and (Sec, 13). The complaint further charged that the rights of the complainant guaranteed by the Four teenth Amendment (Appendix A, p. 12), of the United States Constitution had been violated and that he had been denied the equal protection of the laws by the conduct of the defendants. He further alleged that the defendants were claiming to justify their conduct towards the complainant by virtue of the Separate Coach Law of the State of Arkansas (Ap pendix B, pp. 15-17). A hearing was had and evidence taken before an Ex aminer of the Commission (R. 9) who made his proposed report to the Commission (R. 10-17). The Examiner found that the material facts alleged in the complaint had been proven by indisputable evidence but recommended that the complaint be dismissed (R. 17). Exceptions were duly filed by the complainant (R. 17, 260, 279).2 2 The exceptions filed by the complainant, hereinafter called the appellant, were introduced and admitted in evi dence Ijy the District Court -teLthe Interstate Commerce Commission had marked Exhibit/l (R. 222). 4 The cause came on for hearing before the full Commis sion for oral argument3 (R. 18) and subsequently the re port of the commission was filed (R. 18-33).4 The report of the Commission was in accordance with the proposed report of the Examiner and the findings of the facts alleged in the complaint, were found to he fully proven but, the report of the six Commissioners contained erroneous conclusions of law and the complaint was dis missed. The five dissenting opinions find that the provisions of the Interstate Commerce Act had been violated (R. 30-33). A petition for rehearing and re-argument was duly filed by the appellant with the Commission (R. 34) which peti tion was denied (R. 35). Proceedings Before United States District Court. A petition was filed in the District Court of the United States for the Northern District of Illinois, Eastern Divi sion, under the provisions of the Interstate Commerce Act (R. 3-40).5 In the District Court the suit was brought against the United States and others6 were made defendants as pro- 3 Title 49, U. S. C., Secs. 13 (4) (Appendix A, p. 9); Sec, 15 (1) (Appendix A, p. 10); Sec. 15 (2) (Appendix A, p. 11). 4 Dissenting opinions were filed by five members of the Commission and only six members of the Commission con curred in the report. 5 Section 24 of the Judicial Code (Title 28, U. S. C., Sec. 41) and (Title 28, U. S. C., Sec. 41 (28) ) (Appendix A, p. 2 ); (Title 28 U. S. C., Sec. 43) (Appendix A, p. 3); (Title 28 U. S. C., Sec. 45). 6 The defendants in the District Court were United States of America, Frank 0. Lowden, James E. Gorman, 5 vided by law. Answers were filed by all defendants (R. 41-42) and the cause was set for hearing before a specially constituted Court of three Judges.7 The District Court filed its finding of fact and conclu sions of law (R. 52, 53) and entered an order and final decree dismissing the cause for lack of jurisdiction at the cost of the complainant (R. 53), June 27, 1940. Notice of appeal was served and filed in the District Court, August 23, 1940 (R. 53, 54), accompanied by a petition for appeal (R. 55) and assignment of errors (R. 55-61). An order was entered granting the appeal (R. 61) and approving the appeal bond (R. 62). A praecipe for transcript of record was filed (R. 64) and various orders were entered extending the time to file the transcript of record in this Court, to and including November 21, 1940 (R. 63). An order was entered hy the Court that all original peti tions be included in the transcript of record and that the same stand in lieu of a narrative statement of evidence and be so certified to this Court (R. 63). This procedure was in accordance with the provisions of the Judicial Code.8 The transcript of record was filed in this Court Novem ber 18, 1940. The appellant claimed that the acts of the defendants by their conduct during his journey as an interstate pas- and Joseph B. Fleming, Trustees of the Estate of the Chicago, Rock Island and Pacific Railway Company, a corporation; Illinois Central Railway Company, a corpora tion; and Pullman Company, a corporation. The Interstate Commerce Commission intervened under the provisions of Title 28, U. S. C., Sec. 45-a (R. 42). 7 Title 28, U. S. C., Sec. 47 (Appendix A, p. 4) (R. 52, 66-258). 28 8 Title 28, U. S. C., Sec. 47-a (Appendix A, p. 6 ); Title , U. S. C., Sec. 48 (Appendix A, p. 7). 6 senger, had deprived him of his civil rights tinder the Constitution of the United States and was made in pursu ance thereof, the further claim that this Honorable Court has jurisdiction of this cause is based upon the Civil Rights Act also known as the Enforcement Act.9 Constitutional Jurisdiction. The Constitution of the United States conferred ex clusive jurisdiction upon Congress to regulate interstate commerce.10 In pursuance of this constitutional provision Congress enacted the Interstate Commerce Commission Act,11 which act is of a national character and contains a comprehen sive national system regulating interstate commerce in tended by Congress to operate without favoritism.12 9 Title 8, U. S. C., Chap. 3, Sec. 41— Civil Rights (Appen dix A, p. 1 ); Title 8, U. S. C., Chap. 3, Sec. 43—Civil Rights (Appendix A, p. 2). 10 Article I, Section 8, Cl. 3, United States Constitution (Appendix A, p. 12). 11 Title 49, U. S. C., Secs. 1-156; the sections pertinent to the issues involved in this case are Sections 1 (1) (2) (5), (Appendix A, p. 7 ); 2 (Appendix A, p. 8 ); 3 (1) (Appendix A, p. 8) ; 4 (Appendix A, p. 8 ); 13 (1) (4), (Appendix A, p. 9 ); 15 (1) (2) (Appendix A, pp. 10-11). 12 See U. S. et al. v. Chicago Heights Trucking Company, et al., 310 U. S., 344, 353; Minnesota Rate Cases, 230 U. S. 352, 33 S. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151 Ann. Cas., 1916 A-18. West v. Kansas Natural Gas Company, 221 U. S. 229, 31 S. Ct. 564, 55 L. Ed. 716; 35 L. R. A. (N. S.) 1193; Case of the State Freight Tax, 15 Wall. (82 U. S.) 232; 21 L. Ed. 146; Texas and Pacific Railroad Company v. Interstate Commerce Commission, 162 U. S. 197, 211, 212. See recent opinion of this Court U. S. v. F. W. Darby Lumber Company, et al., No. 82, Oct. Term 1940, Decision Feb. 3, 1941 (Op. 5, 6, 7). 7 The issues involved in this proceeding necessitated a construction of Article I, Sec. 8, of the United States Consti tution, under which the rights of the appellant were alleged to have been violated.13 The claim of a violation of his rights under the Consti tution and laws made in pursuance thereof, were again asserted in the petition filed in the District Court by the appellant (E. 1-40). These same constitutional rights of the appellant were again urged in the Assignment of Errors filed in the Dis trict Court on this appeal (E. 55-61). In the Statement As To Jurisdiction filed in this Court the appellant again urged that his rights under the Constitution and statutes made in pursuance thereof had been violated by the acts of the defendants.14 In the Statement of Points Upon Which Appellant In tends to Eely filed December 2, 1940, in this Court the appellant again urges that his rights under the United States Constitution and laws made in pursuance thereof had been violated (E. 279, 284). Article VI, Clause 2, United States Constitution, in un ambiguous language states that the Constitution and laws of the United States which shall be made in pursuance thereof, etc., shall be the “ supreme law of the land.” 15 As a native born citizen of the United States, a resident of the State of Illinois and a Eepresentative in Congress 13 Complaint filed before the Interstate Commerce Com mission by the appellant and upon which these proceedings are based (E. 3-7). 14 See Statement As To Jurisdiction filed in this case, pp. 11, 12, 13, 14, 15, 16, 17, 18, 19, 20. lj Article VI, Clause 2, United States Constitution (Ap pendix A, p. 12). 8 of the First Congressional District of the State of Illinois,16 the appellant claimed all privileges and immunities of citizens of the several states, while in this interstate journey,17 claiming a violation of his rights, privileges and immunities secured by the Constitution and laws of the United States and that such violation and deprivation had been brought about under color of the Separate Coach Law of the State of Arkansas and under claim by the de fendant, Bock Island,18 19 that the discrimination practiced against the appellant, by it, was under color of the Separate Coach Law of Arkansas (R. 178), the District Court had jurisdiction under Title 28, Section 41 (14).10 This claim by the appellant that his constitutional rights had been violated by the acts of the defendant, gave rise to a case arising under the Constitution and laws of the United States.20 16 Fourteenth Amendment to Constitution of United States, Sections 1, 5 (Appendix A, p. 12). 17 Article IV, Section 2, Clause 1, United States Constitu tion (Appendix A, p. 12). 18 For brevity sake Frank 0. Lowden, James E. Gorman, and Joseph B. Fleming, Trustees of the Estate of the Chicago, Rock Island and Pacific Railway, a corporation, is designated in this brief as the “ Rock Island.” 19 See (Appendix A, p. 2). 20 See Macon Grocery Company v. Atlantic Coast Line Railway Company, 215 IT. S. 50i, 506, 507, 508, in which case at page 506 the Court quotes from Patton v. Brady, 184, U. S. 608, 611 and states “ It was said by Chief Justice Marshal that ‘ a case in law or equity consists of the right of the one party, as well as the other, and may truly he said to arise under the Constitution or a law of the United States whenever its correct decision depends on the con struction of either,’ Cohens v. Virginia, 6 Wheat. 264, 3/9; and again, when ‘ the title or right set up by the party may be defeated by one construction of the Constitution or law of the United States and sustained by the opposite con struction.’ Oshorne v. Bank of United States, 9 Wheat. 9 Jurisdiction by Judicial Interpretation of the Law. This Honorable Court in a recent decision held that it is imperative that any person who claims that his rights secured by the Interstate Commerce Act have been violated while traveling as an interstate passenger, on a common carrier, must pursue and exhaust his remedies before the Interstate Commerce Commission before applying to the District Court for redress.* 21 The District Court in dismissing the petition of the appellant for lack of jurisdiction, although a negative order, in form was a denial of the rights, privileges and immunities claimed by the appellant and in effect was an affirmative order. Such order and decree is final and appealable directly to this Court.22 738, 822. See also Gold-Washing & Water Company v. Keyes, 96 U. S. 199, 201; Tennessee v. Davis, 100 U. S. 257; White v. Greenhow, 114 U. S. 307; Railroad Company v. Mississippi, 102 U. S. 135, 139.” 21 Armour and Company v. The Alton Railroad Company, 293, Oct. Term 1940, Opinion rendered Feb. 3, 1941, in which the Court states (Op. 1) “ The ground on which the Circuit Court affirmed was that the issues involved pre sented administrative problems, necessitating primary resort to the Interstate Commerce Commission. The sole question we find it necessary to decide is whether the Circuit Court was correct in this conclusion. * * * (Op. 6). The principles making up the so called primary jurisdiction doctrine are well settled. This is obviously a case for their application.” See Loomis v. Lehigh Valley Raihvay Com pany, 240 IT. S. 43, 48, 50, 51 (1915); Northern Pacific Raihvay Company v. Solum, 247 U. S. 477,' 483, 484. Title 49 U. S. C., Sec. 13 (1) (4) (Appendix A, p. 9). Minnesota Rate Cases, 230 IT. S. 352, 419. 22 Rochester Telephone Company v. United States, et al., 307 U. S. 125, 130, 135; 77. S. v. Maher, 307 U. S. 148, 152; Baltimore & Ohio Railroad Company, et al. v. United States, et al, 49 S. C t, 492, 73 L. Ed.‘ 954; 279 U. S. 781, 783; Manufacturers Raihvay Company and St. Louis South western Railway Company v. United States and Interstate Commerce Commission, 246 IT. S. 457, 456. 10 A direct appeal to tliis Court is authorized from the final order and decree entered in this cause by the three Judge Court June 27, 1940.23 Statutes Involved. The statutes involved are so lengthy that for convenience they are included in Appendix A and B of this brief. The constitutional provisions are also included in Appendix A. Bequest is made that the statutes and the constitutional provisions be read as a part hereof. The statutes are: Appendix A— Title 8, U. S. C., Chap. 3, Sec. 41— Civil Bights. Title 8, U. S. C., Chap. 3, Sec. 43— Civil Bights. Title 28, U. S. C., Sec. 41, Sub. Div. 14. Title 28, U. S. C., Sec. 41, Sub. Div. 28. Title 28, IT. S. C., Sec. 43. Title 28, U. S. C., Sec. 45. Title 28, U. S. C., Sec. 47. Title 28, U. S. C., Sec. 47-a. Title 28, U. S. C., Sec. 48. Title 49, U. S. C., Sec. 1, Par. 1. Title 49, U. S. C., Sec. 1, Par. 2. Title 49, U. S. C., Sec. 1, Par. 5. Title 49, U. S. C., Sec. 2. Title 49, U. S. C., Sec. 3, Par. 1. Title 49, U. S. C., Sec. 4. Title 49, U. S. C., Sec. 13, Par. 1. Title 49, U. S. C., Sec. 13, Par. 4. Title 49, U. S. C., Sec. 15, Par. 1. Title 49, U. S. C., Sec. 15, Par. 2. 23 Title 28 U. S. C. Sec. 47-47a (Judicial Code, Section 210); Atchison Topeka and Santa Fe Railway Company, et al. v. United States, et al., 279 U. S. 768, 770, 49 S. Ct. 494, 73 L. Ed. 947. 11 The Constitutional provisions are: Appendix A— Article I, Sec. 8, Cl. 3, United States Constitution. Article I, Sec. 10, Cl. 1, United States Constitution. Article IV, Sec. 2, Cl. 1, United States Constitution. Article VI, Cl. 2, United States Constitution. Fourteenth Amendment to the Constitution of the United States, Sections 1 and 5. Appendix B— Separate Coach Law of the State of Arkansas (Pope’s Digest, Chap. XX, Sections 1190 to 1201) . STATEMENT OF THE CASE. On September 2, 1937, the appellant filed a complaint (E. 1-7) with the Interstate Commerce Commission (here inafter called the Commission) naming as defendants Frank 0. Lowden, James E. Gorman, and Joseph B. Fleming, trustees of the Chicago, Rock Island and Pacific Railway Company (hereinafter called the Rock Island), the Illinois Central Railway Company (hereinafter called the Illinois Central), and the Pullman Company, alleging that the defendants had violated the provisions of the Interstate Commerce Act, Sec. 1, Clause 5 (R. 6), Sec. 2 (R. 4), Sec. 3, Clause 1 (R. 4, 5), and Section 13. (See Statement of Jurisdiction pp. 2-7.) He further claimed that he had been denied the equal protection of the laws under the Fourteenth Amendment. He prayed for a cease and desist order (R. 7). The acts complained against were alleged to have oc curred while the plaintiff was engaged on a continuous interstate journey from Chicago, Illinois, to Hot Springs, Arkansas, as a first-class passenger in interstate commerce holding a first-class railroad ticket for which he had paid 12 the regular first-class fare (three cents per mile) according to the established and published tariff filed with the Com mission by the carriers (R. 3, 4, 5, 6, 7). The complaint alleged that the defendants were common carriers and subject to the provisions of the Interstate Commerce Act. The specific acts of the defendants were set up in the complaint (R. 3, 4, 5, 6, 7). The defendants answered the complaint (R. 7-9). The Pullman Company claimed that it had furnished without discrimination, the first-class accommodations to the appellant for which he had paid and that it did not own nor control the inferior accommodations which the appellant was compelled to occupy between Memphis, Ten nessee, and Hot Springs, Arkansas, during a part of his interstate journey (R. 8, 9). The Illinois Central admitted that the plaintiff pur chased the first-class round trip ticket from Chicago to Hot Springs from that company and that he paid for it the regular fare charged all other first-class passengers, and that it did furnish to the appellant equal accommoda tions with all other white passengers holding first-class tickets for this interstate journey while appellant was traveling on the railroad from Chicago to Memphis (R. 8). The Rock Island admitted the substance of the complaint by the appellant hut denied that such acts stated were a violation of the Interstate Commerce Act and the Four teenth Amendment to the United States Constitution, and further claimed to have acted under the Arkansas separate coach law (R. 7-8). The undisputed and uncontradicted testimony of the chief witness, Albert W. Jones, a conductor employed on the Rock Island for 32 years, fully sustains the allegations contained in the complaint. An excerpt from the abstract of his testimony is found in R. 36, 37, 38. The testimony 13 abstracted is found (R. 158-159, 159-160, 162) (R. 163-164, 165, 166, 170, 171, 172, 173). (See “ Statement of Juris diction,” pp. 7, 8, 9.) A bearing was held before an Examiner of the Com mission at Chicago, Illinois, March 7, 1938 (R. 9). The complete transcript of the evidence is contained in the R. 67-213. For the convenience of the Court we have included in the Appendices to Brief for Appellant as Ap pendix C, appendices pp. 19-50, and the abstract of the evidence contained in the initial brief filed with the Com mission and upon which evidence the Commission made its findings. The testimony of Arthur W. Mitchell, appellant (A p pendix C, pp. 19-35); Edward H. Carey, a witness for the appellant (Appendix C, pp. 35-37); William Harrison, a witness for the appellant (Appendix C, pp. 37-39); John J. Pullen, a witness for the appellant (Appendix C, pp. 39-40); Elias A. Morris, a witness for the Appellant (Ap pendix C, pp. 40, 41); Thomas Price (Appendix C, pp. 33-35). The separate car law of Arkansas which permitted the carriers to haul sleeping or chair car for the exclusive use of either white or African race separately, but not jointly, was introduced in evidence (Appendix C, p. 41) (R. 127, 211-213) (Appendix B, pp. 15-17). The defendants offered as witnesses Albert W. Jones, a conductor employed by the Rock Island for 32 years, who had charge of the train between Memphis and Hot Spiings at the time of the eviction of the appellant from the first-class accommodations, although the appellant held a first-class ticket and was engaged in an interstate jour ney (Appendix C, pp. 41, 42, 43, 44, 45, 46, 47, 48, 49); William S. Scott, employed as brakeman for the Rock Island, who testified as a factual witness for the defense 14 (Appendix C, p. 49). The testimony of A. C. McGuire for the defense is found (Appendix C, pp. 49-50). The appellant also testified that Conductor Jones, at the time of the ejection of the appellant stated that there “ are no first-class accommodations for colored people on this train.” We will not repeat a description of the first-class accom modations as the same have been substantially described in the report of the Commission (R. 22), and the second- class, or “ jim crow” car is also fairly described in the report of the Commission (R. 22-23). The Examiner also describes the first-class accommodations for white citizens traveling in interstate commerce (R. 13). After the Commission had dismissed the complaint, a petition for rehearing and reargument was denied (R. 35). The report of the Commission, including the five dissenting opinions, was filed (R. 18-33). (See Arthur W. Mitchell v. Chicago, Rock Island & Pacific Raihvay Company, 229 ICC 703, which contains the finding of fact and conclusions of law.) April 20, 1939, a petition was filed in the District Court for the Northern District of Illinois, Eastern Division, in equity, as provided by the Urgent Deficiencies Act, Title 28, Section 41 (27) and (28), and Sections 43-48. The petition requested the district Court to set aside, annul, and vacate the order of the Commission. The United States and the three original defendants were made par ties to the suit in the District Court and the Interstate Commerce Commission intervened. Answers were filed. The United States (R. 41), the In terstate Commerce Commission (R. 42-44), the Rock Island (R. 44-45), the Pullman Company (R. 46-50), the Illinois Central (R. 50-52). These same issues were raised by the plaintiff and by defendants as were raised by Jh«Coin- 1 5 mission. The District Court heard the matter as a three- judge court and without opinion dismissed the complaint for want of jurisdiction (R. 53). The findings of fact and conclusions of law filed with the order of dismissal are found in this record (pp. 50-53). An appeal was prosecuted to this Court pursuant to the statute and probable jurisdiction was noted December 16, 1940. The questions presented are contained in our Specification of Errors herein filed. Specification of Errors. The final order and decree of the District Court dis missing the petition at the cost of the appellant and sus taining the order of the Interstate Commerce Commission was erroneous and should be reversed for the following- reasons : 1. In holding that the separate coach law of Arkansas applied to the appellant who was an interstate passenger and traveling in interstate commerce, is contrary to the plain provisions of the Constitution of the United States, Article I, Section 8, Clause 3; Article IV, Section 2, Clause 1: Article VI, Clause 2; and the Fourteenth Amendment to the Constitution of the United States, and denied to the appellant the equal protection of the laws. a. It was contrary to the Interstate Commerce Com mission Act passed by Congress in the exercise of its exclusive jurisdiction over interstate commerce. Title 49, U. S. C., Sections 1-156 and in particular, Section 1, paragraphs 1, 2, 5, Section 2, Section 3, paragraph 1, and Section 4. b. It was contrary to the laws passed by Congress under the Fourteenth Amendment to the Constitution and known as the Enforcement Act or Civil Rights Agt Title 8, U. S. C. Chapter 3, Sections 41 and 43. 16 c. It was contrary to tlie decisions of the Supreme Court of the United States which held that the sepa rate coach laws of the several states do not apply to Interstate Commerce. McCabe v. Atchison, Topeka and Santa Fe Railway, 235 U. S. 151, 35, and cases cited under Point 1 of the argument in this brief. 2. In holding that the common carriers could deny to the appellant, an American citizen of color traveling as an interstate first-class passenger, the equal accommoda tions and facilities furnished all white persons traveling as first-class interstate passengers on the same continuous journey and who had paid the same rate of fare because the volume of traffic of American citizens of color did not warrant the providing of equal accommodations was a denial of the equal protection of the laws to the appellant in violation of the Constitution of the United States, the laws made in pursuance thereto, and the decisions of this Honorable Court heretofore pronounced. ( See above cited authorities.) 3. In sustaining the claim of the defendant Rock Island that it was attempting to follow the separate coach law of Arkansas by the ejection of the appellant from the first- class accommodations afforded by the carrier and occu pied by the appellant for part of his interstate journey, was a denial to the appellant of the equal protection of the laws guaranteed by the Constitution and laws of Con gress made in pursuance thereof, and contrary to the deci sions of this Honorable Court heretofore promulgated. (See authorities above cited.) 4. In holding that American citizens of color traveling in interstate commerce who have paid for first-class ac commodations and facilities for a continuous journey were not entitled to the equal accommodations and facilities furnished white citizens traveling as first-class passengers on the same interstate journey solely on the ground of '1 17 color denied to the appellant the equal protection of the laws enjoyed hy all white citizens and violated his Consti tutional rights. 5. In holding that the ejection of the appellant who was traveling in interstate commerce as a first-class passenger and occupying first-class accommodations furnished to all white interstate passengers holding first-class tickets on the same journey, and the failure to furnish the appellant s with equal first-class accommodations for his entire jour ney, and for which he had paid, was unjust and undue dis crimination and was contrary to the Constitution and the laws of the United States, the decisions of this Honorable Court, the decisions of the lower Federal Courts, the State Supreme Courts, and the former decisions of the Inter state Commerce Commission and was a denial of the equal protection of the laws to the appellant. Such holding hy the District Court was a denial of the due process of law to the appellant. 6. The appellant having contracted with the defendant and paid for first-class accommodations and facilities on an interstate journey, and having been accepted as such first-class passenger for part of the interstate journey, the holding of the District Court that the carrier could eject the appellant from the first-class accommodations and facilities on the sole ground of his race and color was a violation of the Interstate Commerce Act and denied to the appellant the equal protection of the law. 7. In holding that the finding and order of the Inter state Commerce Commission was supported by the evidence when the record shows that the findings and order of the Commission are contrary to the undisputed and uncontra dicted evidence of the witnesses for the defendant Eock Island and wholly unsupported by any evidence appearing m the record when the report of the Commission on its face shows that its holdings are contrary to the Constitu- 1 8 tion and laws made pursuant thereto, and the decisions of this Honorable Court. 8. In holding that the order of the Commission is sup ported by the findings when the undisputed evidence in the record shows that the findings clearly show a violation by the defendants of the Constitutional rights of the appel lant. 9. In holding that the District Court was without juris diction to grant the relief sought in the complaint or any part thereof, and dismissing the complaint when the un disputed evidence contained in the record showed a viola tion of the Interstate Commerce Act by the defendant, and a violation of the Constitutional rights of the appellant. SUMMARY OF ARGUMENT. I . The Separate-Coach Law of Arkansas was not applicable to the appellant who was a first-class passenger engaged in a continuous interstate journey. II. Volume of traffic is no legal defense when a carrier bases its right to refuse first-class accommodations to an American citizen traveling in interstate commerce and wffio has paid for a first-class ticket entitling him to such accommodations where it appears that all white persons traveling on tbe same journey and having paid the same rate of fare were being furnished with first-class accommodations by the carrier during their entire journey. 19 III. A carrier is not legally justified in ejecting an American citizen of color traveling as a first-class passenger in in terstate commerce and who has paid for and been accepted as such first-class passenger for a part of his journey, from the first-class accommodations and compel the in terstate passenger to complete his journey in a jim crow car which afforded only second-class accommodations in ferior to the first-class accommodations and the carrier’s claim that it was attempting to follow or comply with the separate-coach law of a state and disregard the mandate of the United States Constitution and the decisions of the United States Supreme Court, -tho-earrier’s claim i.s with out merit. IV. Personal Eights— The constitutional right of the appel lant was invaded by the defendant, Rock Island, in being wrongfully ejected from first-class accommodations while engaged in a continuous interstate journey and for which first-class accommodations the appellant had paid the reg ular fare and been accepted as a first-class passenger for part of the journey, the Rock Island by its acts, (a) violated the Interstate Commerce Act; (b) breached its contract of carriage with the appel lant and disregarded the laws of Congress made to enforce the Fourteenth Amendment of the Con stitution and ignored the decisions of this Honor able Court. V. American citizens of color have the same rights to con tract for first-class service in interstate commerce and when a first-class ticket has been purchased by an Ameri can citizen of color he has the constitutional right to be 20 furnished by the common carrier engaged in interstate transportation of passengers, with first-class accommoda tions equal to the first-class accommodations by the car rier to all white citizens traveling as first-class passengers in interstate commerce. VI. The Interstate Commerce Act is a national comprehen sive system and excludes the Arkansas Separate-Coach law from applying to a citizen traveling in interstate commerce. VII. Congress has prohibited discrimination, undue prejudice, unreasonable and undue advantage and preference in re lation to citizens traveling as interstate passengers. VIII. The appellant having suffered direct injury by the con duct of the defendant Rock Island, had the absolute right to begin and prosecute these proceedings. IX. Unjust discrimination prohibited by Interstate Com merce Act defined. X. Custom does not justify continued unjust discrimination. XI. The erroneous holding of the Commission concerning the right of the appellant to purchase and use first-class ac commodations in interstate commerce should not be sus tained. 21 XII. A refund to the appellant for the wrongful violation of bis constitutional rights is not adequate redress. XIII. The Court will take judicial notice of matters of common knowledge. XIV. Questions not involved in this appeal. XV. The order of the Interstate Commerce Commission and the decree of the District Court should be reviewed and set aside. XVI. Cases which have been cited by defendants in prior stages of this proceeding and which we claim are not in use. 2 2 ARGUMENT. I . The appellant, an American citizen, was engaged in through interstate travel from Chicago, Illinois, to Hot Springs, Arkansas, as a first class passenger, he having paid a first class fare and the separate coach lav/ of the State of Arkansas was inapplicable to this interstate journey. The inapplicability of the Separate Coach Law of the State of Arkansas24 to the continuous interstate journey of the appellant was urged in the Exceptions filed by the appellant to the proposed report of the Examiner.25 The complaint alleged that the appellant was a first- class passenger engaged in an interstate journey from Chicago, Illinois, to Hot Springs, Arkansas, and that he had contracted and paid for, at the rates demanded by the defendants a first-class round trip ticket for this interstate journey (R. 3). This fact is undenied and therefore stands admitted.26 The proposed report of the examiner also states that the appellant was an interstate passenger.27 24 Appendix B, pp. 15-17. 25 R. 265-266-267, under title “ Discrimination and Segre gation not Accepted by Complainant.” 26 See answers filed by each of the defendants (R. 7-8) for the Rock Island (R. 8), for the Illinois Central Railroad Co. (R. 8-9), for the Pullman Company. 27 (R. 10, Statement of Facts), (R. 12-13, Statement of Findings based upon indisputable evidence), (R. 16, “ There was no break in complainant’s journey at the Tennessee- Arkansas State Line. He was engaged in through inter state travel from Chicago to Hot Springs” ). 2 3 The report of the Commission also supports the contin uous interstate journey of the appellant.28 The allegation that the appellant was engaged in a con tinuous interstate journey from Chicago to Hot Springs, was proven by undisputed and uncontradicted evidence. This Honorable Court in McCabe v. Atchison, Topeka & Santa Fe Ry., 235 U. S. 151 at page 60 conclusively set tled the question as to the inapplicability of a separate coach law of a state to interstate passengers and at page 160, succinctly and in language which is unambiguous states as follows: Fifth. “ That the act, in the absence of a different construction by the state court, must be construed as applying to transportation exclusively intrastate, and hence did not contravene the commerce clause of the Federal Constitution. Louisville, N. 0. & T. R. Co. v. Mississippi, 133 U. S. 587, 590, L. Ed. 784, 785, 2 Inters. Comm. Rep. 801, 10 S. Ct. Rep. 348, Chesa peake & O. R. Co. v. Kentucky, 179 U. S. 388, 391, 45 L. Ed. 244, 246, 21 S. Ct. Rep. 101; Chiles v. Chesapeake & 0. R. Co., 218 U. S. 71, 54 L. Ed. 936, 30 S. Ct. Rep. 667, 20 Ann. Cas. 980. * * * In view of the decisions of this court above cited, there is no reason to doubt the correctness of the first, second, fourth, and fifth of these conclusions.” We believe it can be safely said that all Federal and State Courts, familiar with the doctrine above enunciated by this Honorable Court in the McCabe case, supra, and which doctrine has been the law applicable to interstate 28 (R. 29, “ There was no break in the complainant’s journey at the Tennessee-xirkansas State line. He was engaged in through interstate travel from Chicago to Hot Springs.” ) 2 4 commerce since the days of Chief Justice Marshall, have consistently sustained the same. It makes no difference whether the highest court of the state has passed upon the applicability of a state statute and construed it as applying only to intrastate commerce because the decisions of this Honorable Court are final on all matters involving federal questions. This Honorable Court in McCabe v. Atchison, Topeka & Santa Fe Ry., 235 U. S. 151, 59 L. Ed. 169, 35 S. Ct. 69, 70, adopts as the law the conclusions of the Circuit Court of Appeals for the Eighth Circuit,29 in its statement of the law concerning the non-application of a separate coach law to passengers traveling in interstate commerce. We think it is ŵ ell to consider the opinion of Circuit Judge Adams, of the Eighth Circuit, in his treatment of the well settled principles of law concerning the non-ap plicability of a state statute to citizens traveling in inter state commerce (186 F. 966) at page 972: “ (5) Is this statute an invasion of the exclusive prerogatives of Congress over interstate commerce? It may be conceded that, if it applies to interstate transportation, it is a regulation of interstate com merce within the meaning of the Constitution. We think this follows from the doctrine laid down by the Supreme Court in Hall v. He Cuir, 95 U. S. 485, 24 L. Ed. 547. In that case a law of Louisiana as inter preted by its highest judicial tribunal required car riers of interstate commerce when operating within the limits of the state to receive colored passengers into cabins set apart for white persons. The court said: 29 (C. C. A. 8, 186 Fed. 966, 972), (109 C. C. A. 110.) 25 ‘ It (the statute) does not act upon the business through the local instruments to be employed after coming within the state, but directly upon the business as it comes into the state from without or goes out from within.’ This, it was held, interfered directly with the free dom of interstate commerce, and therefore encroached upon the exclusive power of Congress. See, also Louis ville, .etc., Ry. Co. v. Mississippi, 133 U. S. 587, 590, 10 S. Ct. 348, 33 L. Ed. 784, and Chesapeake <& Ohio Ry. Co. v. Kentucky, 179 U. S. 388, 391, 21 S. Ct. 101, 45 L. Ed. 244. For like reasons, the Oklahoma law, if, as properly construed, it embraces or relates to interstate com merce at all, would also be a regulation of that com merce. It compels carriers when operating in that state to exclude colored persons from cars or com partments set apart for white persons. The only difference between the Louisiana and the Oklahoma law is that the one compels carriers to receive into and the other to exclude colored persons from cars or compartments carrying white persons. They act alike directly upon the carrier’s business as its pas sengers cross the state line. Hence, if one is a regu lation of interstate commerce, the other must be. The contention, therefore, that the provisions of the Okla homa statute do not amount to a regulation of inter state commerce, if they concern that conimerce at all, is untenable.” The Court was considering the proviso to Section 7, that part of the Separate Coach Law of the State of Okla homa, which is identical in substance, with the section of the Arkansas Separate Coach Law now under considera- 2 6 tion, both of which operate the regulation of sleeping cars and other first-class accommodations within the states.30 The decisions of this Honorable Court were presented to the Examiner31 and to the Commission.32 These deci sions were commented upon by the Commission in its report,33 but were misunderstood by the Commission as shown by the misapplication of the law to the facts in the case at bar. This Honorable Court in Hines, etc., et al. v. Benard Davidoivitz, et al.,3i held that the Alien Registration Act35 was a comprehensive plan enacted by the Federal Gov ernment and operated on all aliens within jurisdiction of the United States; that all previous local state laws concerning the registration of aliens, yielded to the Act of Congress and were no longer applicable to the subject of 30 The Oklahoma Statute, proviso to Section 7, is recited 186 Fed. 966-970 and is as follows: “ Provided that nothing herein contained shall be construed to prevent railway companies in this state from hauling sleeping cars, dining or chair cars at tached to their trains, to be used exclusively by either white or Negro passengers, separately, but not jointly. Laws 1907-1908, c. 15.” Separate Coach Laws of Arkansas, Appendix B, pp. 15- 17, is as follows: 1193 “ Separate sleeping and chair cars. Carriers may haul sleeping or chair cars for the exclusive use of either the white or African race separately, but not jointly” (R. 126). 31 See Exceptions on behalf of plaintiff to report pro posed by Examiner (R. 260-279 particularly page 265, under title, Discrimination and Segregation are not Ac cepted by the Complainant). 32 By Petition for Rehearing and Reargument filed by the appellant. 33 See (R. 24, 25). 34 No. 22, Oct. Term 1940, Opinion Jan. 20, 1941. 35 Public Act No. 670, 76th Congress, 3rd Sess., c. 439. 27 which Congress had been given power to act under the Constitution. We believe that this Honorable Court had in mind the comprehensive system governing national transportation enacted by Congress and known as the Interstate Com merce Act, when holding in the various cases heretofore decided by this Court, that local separate coach laws of the various states were not applicable to American citi zens traveling in interstate commerce. The necessity for exclusive jurisdiction to regulate inter state commerce was recognized by Hamilton as early as 1783, in his resolutions for a general convention.36 We believe the Commission overlooked the law concern ing separate coach laws of the several states in relation to Interstate Commerce and has misunderstood the pro vision of the complainant in relation thereto. On page 12 of the report (Par. 2) it is stated (R. 27): “ At the hearing complainant stated that segregation was not involved and apparently for the purposes of this case he accepted it, regarding the Arkansas statute as requiring it in that State for all passengers, both interstate and intrastate.” The appellant does not wish to be understood as accept ing segregation in Interstate Commerce under any state law as the Constitution of the United States (Fourteenth Amendment) and the laws enacted to enforce the provi sions of the same, prohibits any state from denying to any citizen, white or black, the equal protection of the 36 The Federalist, Hamilton in 1783, Page 6, Par. -Eighty , and again by Madison in 1788, Federalist Paper No. 42, r" ‘General View on Powers Proposed to be Vested in the Union,’ pagu 332. “ The powers included in the third class are those which provide for the harmony and proper inter course among the states.” See p. 333. “ 2 8 laws and prohibits any state from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States. The Enforcement Act passed by Congress provides that all citizens black and white are entitled by law to the same rights, privileges and immunities in every state, and any law of any state which denies to a black citizen the same protection of the law received by a white citizen is in conflict with the Con stitution and laws of the United States. No self respect ing white citizen, we believe would accept segregation solely on account of his color or race and the same applies to any self respecting black citizen. It would be contrary to the decisions of the Supreme Court to accept the Arkansas separate-coach law or any other separate-coach law as applying to passengers trav eling in Interstate Commerce. We believe the Commission disregarded the law as laid down by the Supreme Court of the United States and consistently followed by all Federal Courts which hold that, “ the Separate Coach Laws of the several States do not apply to interstate commerce,” and follow the two decisions from the State of Tennessee and Mississippi, and which have not been followed nor approved by other jurisdictions. The Supreme Court of Maryland, in Hart v. State, 60 Atl. 457, 463, 100 Md. (March 22, 1905), refused to follow Smith v. Term., supra, after stating that the Supreme Court of the United States on analogous questions had held ; to the contrary. Mr. Justice Boyd in a well rendered decision, reviews many authorities and concludes that the Separate Coach Law of Maryland was invalid as to interstate passengers under the Commerce Clause of the Federal Constitution. 2 9 The opinion quotes Mr. Justice Miller of the United States Supreme Court which is as follows (p. 461): “ In Railway Company v. Illinois, 118 U. S. 557, 7 Sup. Ct. 4, 30 L. Ed. 244, Justice Miller, after stating that in the cases of Munn v. Illinois, 94 IT. S. 113, 24 L. Ed. 77; C. B. & Q. RR. v. Iowa, 94 U. S. 155, 24 L. Ed. 94, and Peik v. Chicago & N. W. R. R. Co., 94 U. S. 164, 24 L. Ed. 97, some questions did not receive full consideration, said, in the headnotes prepared by him: ‘ Notwithstanding what is there said, this court holds now, and has never consciously held otherwise, that a Statute of a State intended to regulate or to tax, or to impose any other restriction upon, the trans mission of persons or property or telegraphic mes sages from one State to another is not within that class of legislation which the States may enact in the absence of legislation by Congress; and that such statutes are void even as to that part of such trans mission which may he within the State.’ In that case the court quoted at length from the opinion in Hall v. DeCuir, 95 U. S. 485, to sustain the doctrine an nounced. ’ ’ Hart v. State of Maryland, 100 Md. 595, 60 Atl. 457, is identical with the case at bar. In Huff v. Norfolk & Southern Ry. Co., 88 S. E. 344, 345, 171 N. C. 203 (March 22, 1916), the Supreme Court of North Carolina refused to follow the Smith v. Tenn., supra, and followed the decisions of the Supreme Court of the Lnited States. Mr. Justice Hoke in delivering the opinion of the court states (p. 205): “ While there is learned and forcible decision to the contrary, Smith v. Tenn., 100 Tenn. 494, it seems to be the trend of opinion and the decided intimation of the Supreme Court of the United States on the 3 0 subject that State Legislation of this character may not extend to a case of interstate traffic. C. & 0. R. R. v. Ky., 179 U. S. 288; Plessy v. Ferguson, 163 11. S. 537; Hall v. DeCuir, 95 U. S. 485; Anderson v. L. & N. Ry., 62 Fed. 46; State ex rel. Abbot v. Hicks, 44 La. Crimi nal.” A careful search of Shepard’s S. W. Reporters Citations and Shepard’s Southern Reporters Citations fail to dis close that the Smith v. Tenn., supra, and Southern Ry. Co. v. Norton, supra, cited by the defendants have been fol lowed or approved. The United States Supreme Court having stated the law in McCabe v. Atchison, T. & S. F. Ry. Co., 235 U. S. 151, 35 S. Ct. 69, 59 L. Ed. 169, hy a full court in 1914, which decision must have been overlooked by the Mississippi Supreme Court in 1916, when it decided the Southern Ry. Co. v. Norton, supra, contrary to the decision of the United States Supreme Court rendered two years previous. In Wabash, St. Louis and Pacific Ry. Co. v. Illinois, 118 U. S. 557, 573, 575, 576, 577, this Honorable Court in hold ing that the exclusive jurisdiction over Interstate Com merce was placed by the Constitution in Congress states: (p. 573) : ‘ ‘ The argument in this subject can never be better stated than it is by Chief-Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 195, 196. He there demonstrates that commerce among the states like commerce with foreign nations is necessarily commerce which crosses state lines and extends into the states, and the power of Congress to regulate it exists wherever that com merce is found.” (p. 575) : “ We must, therefore, hold that it is not and never has been a deliberate opinion of the majority of this 31 court that a statute or a state which attempts to regu late the fares and charges by a railroad company within its limits for a transportation which consti tutes a part of commerce among the states is a valid law. ’ ’ This doctrine is supported by numerous cases decided by this Court by an unbroken line of decisions.37 Repeated decisions of this Court have determined that the power to regulate commerce embraces all the instru ments by which such commerce may be conducted; and it is settled law that when the state to which the power applies is national in its character, or of such a nature as to admit of uniformity of regulation, the power is ex clusive of all state authority. Whatever subjects of this power says Mr. Justice Curtiss, are in their nature na- 37 Gibbons v. Ogden, 9 Wheat. 1, 211; in which Chief Jus tice Marshall delivered an opinion which has been followed by this Honorable Court to the present time; Hall v. DeCuir, 95 U. S. 485, 488, Mr. Chief Justice Waite states: “ But we think it may safely be said that the state legislature which seeks to impose a direct burden upon Interstate Commerce or to interfere directly with its free dom, does encroach upon the exclusive power of Congress. The statute now7 under consideration, in our opinion occu pies that position. It does not act upon the business through the local instruments to be employed after (489) coming within the state, but directly upon the business as it comes into the state from without or goes out from within. While it purports only to control the carrier when en gaged within the state, it must necessarily influence his conduct to some extent in the management of his business throughout his entire voyage. His disposition of passengers taken up and put down within the state, or taken up within to be carried without, cannot but affect in a greater or less degree those taken up without and brought within and sometimes those taken up and put down without.” (See Concurring Opinion by Mr. Justice Clifford—pp. 491, 495, 497.) 32 tional, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. Mr. Justice Clifford in Hall v. De Cuir, 95 U. S. 485 at page 497. He cites Cooley v. Board of Wardens, 12 How. 299.38 We believe a further extended argument on this point to be unnecessary as this Honorable Court has recently sustained the doctrine contended for by the appellant, i. e., that state laws are inapplicable to interstate commerce under the condition shown hy the record in the case at bar.39 a. A Case in Point. The United States Circuit Court of Appeals for the District of Columbia has rendered a decision in a case which we believe to be in point. Washington, B. & A. Elec tric R. Co. v. Waller, 289 F. 598, 600 (C. C. A. D. C. May 7, 1923). 38 Case of the State Freight Tax, 15 Wall. 232 (82 U. SQ. -Vm 21 L. Ed. 146. Wherever the statedover which the power _ , to regulate commerce is anncrfinn7 in thQir natnvQ "e- 1 tional, or admit of one uniform system or plan of regula tion, they may justly be said to be of such a nature as to require exclusive legislation by Congress. Surely, transportation of passengers or merchandise through a state or from one state to another is of this nature. See Minn. Rate case 230 U. S. 352, 33 Sup. Ct. 729; 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916 A 18; Haskell v. Cowham, 187 Fed. 403, 408, 109 C. C. A. 235, 240; West v. Kansas, National Gas Co., 221 U. S. 229, 31 Sup. Ct. 564, 55 L. Ed. 716, 35 L. R. A. (N. S.) 1193. 39 The U. S. of America v. Appalachian Electric Power Co. Opinion Dec. 16, 1940, No. 12, Oct. Term 1940, S. Ct. of the U. S .; Lewis G. Hines, Secretary of Labor, et al. v. Benard Davidowitz, et al., Opinion Jan. 20, 1941, No. 22 Oct. Term 1940, U. S. Supreme Ct. See U. S. v. F. W. Darby Lum ber Co. Opinion rendered Feb. 3, 1941, No. 82, Oct. Term 1940. 3 3 In Washington, B. & A. Electric R. Co. v. Waller, 289 Fed. 598, 600 (C. C. A. D. C. May 7, 1923), a colored citizen had purchased a round trip ticket from Washington, D. C., to Annapolis, Maryland, on his return he was ejected by the conductor of the company, who claimed that the Mary land Statute requiring segregation of white and colored passengers applied to an interstate passenger. A judg ment recovered in the District Court was affirmed by the Court of Appeals and Mr. Justice Barber in delivering the opinion of the court of appeals states (p. 600): “ We think that the appellee was an interstate pas senger, and that the Maryland Statute requiring segre gation of white and colored passengers was not ap plicable to him. The Daniel Ball, 10 Wall. 557, 19 L. Ed. 999; So. Pac. Ry. Co. v. 1. C. C., 219 IT. S. 498, 31 S. Ct. 279, 55 L. Ed. 310; R. R. Comm, of La. v. T. & P. Ry. Co., 229 U. S. 336, 33 S. Ct. 837, 57 L. Ed. 1215; Chiles v. C. & O. R. R. Co., 218 U. S. 71, 30 S. Ct. 667, 54 L. Ed. 936, 20 Ann. Cas. 980; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23; Hall v. DeCuir, 95 U. S. 485, 24 L. Ed. 547; Railway Co. v. Mississippi, 133 U. S. 587, 10 S. Ct. 348, 33 L. Ed. 784. In Hart v. State of Maryland, 100 Md. 595, 60 Atl. 457, the court made an exhaustive examination of the authorities, state and federal, and in an able opinion concluded that a Maryland statute apparently enacted prior to the one invoked here, but of similar import, providing for the segregation of white and colored passengers, while valid so far as it affected commerce wholly within the state, was invalid as to interstate passengers, as in conflict with that part of Article I, Section 8, of the Constitution of the United States, known as the Commerce Clause.” 3 4 II. VOLUME OF TRAFFIC. The contention by the defendants that the rights of the appellant to first-class accommodations and facilities, during his journey as an interstate passenger, to equal accommodations and facilities furnished all other first- class interstate passengers traveling on the same journey and having paid the same fare as the plaintiff depends upon the volume of traffic is without merit. In McCabe v. Atchison, T. & S. F. Ry. Co., 235 U. S. 151, 161, 162 (1914), 59 L. Ed. 169, 35 S. Ct. 69, this honorable Court conclusively set at rest the contention of all common carriers, subject to the Interstate Commerce Act that vol ume of traffic determined the kind of service to he rendered interstate passengers and held that the argument with re spect to the volume of traffic to be without merit. Contrary to this decision of this Honorable Court the Commission on p. 8, par. 1 of its report (R. 24) states40 In view of the undisputed and uncontradicted testimony of Albert W. Jones, the conductor on the Rock Island for 32 years and a witness for the defendant, Rock Island as abstracted (R. 36, 37, 38), it is obvious why he had received little or no requests from citizens of color for first-class 40 Only about 1 Negro to 20 white passengers rides this train from and to points on the line between Memphis and Hot Springs, and there is hardly ever a demand from a colored passenger for Pullman accommodations; the con ductor recalled but 10 or 12 instances, in the past 32 years of his service on the train, wherein colored passengers who had entered Pullman cars were required by him to move into the colored passenger coach. He estimated that the demand for Pullman accommodations did not amount to one per year. What demand there may have been at ticket offices does not appear. 35 accommodations, although they held first-class tickets and were traveling as interstate passengers. The contention concerning the volume of traffic as the basis for a failure to furnish citizens of color with first-class accommodations in interstate commerce was made by the state of Oklahoma. In McCabe v. Atchison, T. <& S. F. Ry. Co., 235 U. S. 151, in which case the Circuit Court of Appeals for the 8th Circuit had sustained the argument concerning the volume of traffic as a basis for the services and accommodations to he rendered interstate passengers of color, (McCabe v. Atchison R. & S. F. Ry. Co.), it is significant that the sec tion of the Oklahoma Statute under consideration by the Circuit Court of Appeals,41 is identical with Section 1193 of the Arkansas Separate Coach Law now under consider ation by this honorable Court.42 Judge Sanborn, one of the Circuit Judges of the 8th Circuit rendered a dissenting opinion (McCabe v. Atchison T. & S. F. Ry. Co., 186 F. 966 beginning at p. 977 and end ing p. 989), which dissenting opinion we believe to have been adopted by this Court concerning the volume of traffic. In the McCabe case, supra, the Attorney-General of the State contended that the volume of traffic did not warrant the furnishing by the common carrier, of first- 41 The Oklahoma Statute, Section 7, is as follows: “ Provided that nothing herein contained shall be construed to prevent Railway companies in this state from hauling sleeping cars, dining or chair cars at tached to their trains to be used exclusively by either white or Negro passengers, separately, but not'jointly, Laws 1907-08, c. 15.” 42 Section 1193, Separate Coach Law of Arkansas, Ap pendix B., pp. 15-17, is as follow s: “ Separate Sleeping and Chair Cars.— 1193. Car riers may haul sleeping or chair cars for the exclusive use of either the white or African race separately but not jointly.” 3 6 class accommodations to colored passengers paying first- class fares and traveling in interstate commerce. Mr. Justice Hughes, delivering the opinion of this Court states, pp. 160, 161: “ With the third43 relating to Sec. 7 of the statute we are unahle to agree. It is not the question that the meaning of this clause is that the carriers may provide sleeping cars, dining cars and chair cars exclusively for white persons and provide no similar accommoda tions for Negroes. The reasoning is that there may not he enough persons of African descent seeking these accommodations to warrant the outlay in providing them. Thus, the attorney general of the state, in the brief, filed hy him in support of the law, urges that ‘ the plaintiffs must show that their own travel is in such quantity and of such kind as to actually afford the roads the same profits, not per man, but per car, as does the white traffic, or, sufficient profit to justify the furnishing of the facility, and that in such case they are not supplied with separate cars containing the same. This they have not attempted. What vexes the plaintiffs is the limited market value they offer for such accommodations. Defendants are not, by law, compelled to furnish chair cars, diners nor sleep ers, except when the market offered reasonably de mands the facility.’ And in the brief of counsel for the appellees, it is stated that the members of the legislature ‘were undoubtedly familiar with the char- 43 That the provision of Sec. 7 above quoted, relating to sleeping cars, dining cars and chair cars did not offend against the 14th Amendment as these cars were, com paratively speaking, luxuries, and that it was competent for the legislature to take into consideration the limited demand for such accommodations by the one race, as com pared with the demand on the part of the other. McCabe v. Atchison, Topeka & Santa Fe Ry. Co., 151, 160. 37 acter and extent of travel of persons of African descent in the State of Oklahoma and were of the opinion that there was no substantial demand for Pullman car and dining car service for persons of the African race in the interstate travel’ in that state. This argument with respect to volume of traffic seems to us to be without merit. It makes the consti tutional right depend upon the number of persons who may be discriminated against, whereas the essence of the constitutional right is that it is a personal one. Whether or not particular facilities shall be provided may doubtless be conditioned upon there being a rea sonable demand therefor, but, if facilities are pro vided, substantial equality of treatment of persons traveling under like conditions cannot be refused. It is the individual who is entitled to the equal protection of the laws and if he is denied by a common carrier, acting in the matter under the authority of a state law, the facility or convenience in the course of his journey which under substantially the same circum stances is furnished to another traveler he may prop erly complain that his constitutional privilege has been invaded. ’ ’ In view of the undisputed evidence (R. 36, 37, 38) given by the witness Jones on behalf of the Rock Island, clearly showing a course of unjust, undue and unlawful discrimina tion covering a period of the 32 years he has been in charge of this particular Rock Island train, against Ameri can citizens of color traveling as interstate passengers and having paid first-class fares, we are unable to recon cile that part of the report of the Commission, which was approved by the decree of the District Court,44 in view of _44 See R. 24, par. 1, Sheet 8 of the report of the Commis sion. 3 8 the decision of this Honorable Court in McCabe v. Atchison T. & S. F. By. Co., 235 U. S. 151, 160, 161, which held that the argument with respect to volume of traffic is without merit. This Honorable Court in Buchanan v. Warley, 245 U. S. 60, 74, 75, 76, 77, 78, 79, 80, 38 S. Ct. 16, (1917) denounces the practice of discrimination against American citizens solely on account of race and color and in the decision of this Court delivered by Mr. Justice Day, in holding an ordinance void which discriminated against American citizens of color at p. 74 states (245 IT. S. 60): “ The Federal Constitution and laws passed within its authority are by the express terms of that instru ment made the supreme law of the land. The Four teenth Amendment protects life, liberty, and property from invasion by the states without due process of law. ’ ’ The opinion reviews the various cases decided by the Supreme Court and the enactment by Congress of laws for the protection of the civil rights of persons of color under the Fourteenth Amendment, The Court further states (p. 75): “ Following the Civil War certain amendments to the federal Constitution were adopted, which have become an integral part of that instrument, equally binding upon all the states and fixing certain funda mental rights which all are bound to respect. * * The Fourteenth Amendment made all persons horn or naturalized in the United States citizens of the United States and of the states in which they reside, and provided that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, and that no state shall deprive any person of life, liberty, or property / 3 9 without due process of law, nor deny to any person the equal protection of the laws.” (Pages 76, 77): “ The reasons for the adoption of the amendments were elaborately considered hy a court familiar with the times in which the necessity for the amendments arose and with the circumstances which impelled their adoption. In that case Mr. Justice Miller, who spoke for the majority, pointed out that the colored race, having been freed from slavery by the Thirteenth Amendment, was raised to the dignity of citizenship and equality of civil rights by the Fourteenth Amendment. * * * It (the Fourteenth Amendment) was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that en joyment, whenever it should be denied by the states. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any state the power to withhold from them the equal pro tection of the laws, and authorized Congress to enforce its provisions by appropriate legislation. * * *” We ask with sincerity if this Honorable Court would say that a white citizen of the United States subjected to the same treatment as the complainant in this case would not be unjustly discriminated against? We further ask if the constitution and the laws made pursuant there to can be disregarded with impunity. To further demonstrate the justness of the decision of the Supreme Court in the McCabe case, supra, we call to the attention of this Honorable Court -te- a further quota tion from Bmclianan v. Warley, supra, (p. 77): “ The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks 40 in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every pro hibition implies the existence of rights and immunities, prominent among which is an immunity from inequal ity of legal protection, either for life, liberty, or property. Any state action that denies this immunity to a colored man is in conflict with the Constitution.” We do not belejĵ ve it can he successfully contradicted that, every white citizen holding a first-class ticket is al lowed to enjoy the accommodations furnished by the Rock Island Railroad for first-class passengers. They are per mitted and invited to enjoy the accomodations of the Pull man car, observation car, parlor car, and dining car upon paying the additional rate. I f the Fourteenth Amendment to the Constitution of the United States and the laws made pursuant thereto mean what they say then persons of color are entitled, under like circumstances, to like accom modations and the denial by the common carrier claiming justification for such denial under the excuse that the volume of traffic does not permit it to comply with the plain provisions of the law, conflicts with the Constitution and amounts to unjust discrimination. The Court in Buchanan v. Warley, supra further states (p. 78) : “ All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts to sue, be parties, give evidence, and to the full and equal bene fit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, etc.” (Laws of 1870, Chapter 114, Paragraph 16, 16 Stat. 144, Comp. St. 1916, Paragraph 3925.) In the face of these constitutional and statutory pro visions, we contend that no white person could be sub- 41 jected to the same treatment as was received by the com plainant without such conduct on the part of the common carrier amounting to unjust discrimination, undue prefer ence and a violation of his constitutional rights. This being true, then a person of color who is given by law the iden tical rights of the white person cannot be subjected to the treatment given to the complainant in this case without suffering the same consequences. In Buchanan v. Warley, supra, the Court in approving and reaffirming the doctrine laid down in the McCabe case, supra, at page 80 states: “ In the recent case of McCabe v. Atchison, etc., By. Co., 235 TJ. S. 151 (35 Sup. Ct. 69, 59 L. Ed. 169), where the court had under consideration a statute which allowed railroad companies to furnish dining cars for white people and to refuse to furnish dining cars altogether for colored persons, this language was used in reference to the contentions of the Attorney General: ‘ This argument with respect to volume of traffic seems to us to be without merit. It makes the constitutional right depend upon the number of per sons who may be discriminated against, whereas the essence of the constitutional right is that it is a per sonal one. * * * ” We believe the Commission and the District Court over looked the principal provisions of the opinion expressed in the McCabe case, supra, and further overlooked the fact that the undisputed evidence in the case at bar shows that there are no first-class accommodations provided for colored passengers holding first-class tickets, in the din ing car, in the observation-parlor car although such ac commodations are furnished to white passengers paying the same fare. This Commission on page 8, Paragraph 2, states that no such first-class accommodations were fur- 42 nished to colored persons, but on the contrary were denied to colored persons solely on account of their color. This is a plain violation of the Constitution and laws of the United States and is within itself unjust discrimination and undue preference. On page 8, Paragraph 2 (R. 24) the report states: “ The present coach properly takes care of colored second-class passengers, and the drawing rooms and compartments in the sleeper provide proper Pullman accommodations for colored first-class passengers, hut there are no dining-car nor observation-parlor car accommodations for the latter and they can not law fully range through the train.” The undisputed evidence in the case at bar shows that white persons traveling in interstate commerce, and hold ing first-class tickets, are permitted to purchase berths and seats in the Pullman and observation cars, but on the contrary, colored persons holding first-class tickets and traveling as interstate passengers are only permitted to purchase a seat and a berth in the drawing room, if the drawing room is not occupied by white passengers (R. 38). Conductor Jones stated that he had never sold any first- class accommodations and observation-parlor cars to col ored passengers (R. 37, 38) although they held first-class tickets. He further stated that he did not permit a colored person to ride in any other place than the jim crow car although adequate space was vacant in (R. 36, 38) the Pull man car and observation car, and that in 32 years he had never permitted a colored person to even occupy a seat in the drawing room, when they applied to him for such accommodations, but removed them to the jim crow car (R, 38). The doctrine which was so forcibly and clearly expressed by this Honorable Court in the McCabe case, supra, was 4 3 again expressed in State of Missouri, at the relation of Lloyd Gaines, Petitioner v. S. W. Canada, Registrar of the University of Missouri, and the Curators of the University of Missouri, 305 U. S. 337, 350, in which case it was con tended that, “ the limited demand for the legal education of Negroes was a legal excuse for the discrimination by the State of Missouri in favor of white persons.” The Supreme Court adhered to its former holdings, in the McCabe case, supra, and stated (p. 350): “ Nor can we regard the fact that there is but a limited demand in Missouri for the legal education of negroes as excusing the discrimination in favor of whites. We had occasion to consider a cognate ques tion in the case of McCabe v. Atchison, Topeka & Santa Fe Railway Co., supra. There the argument was ad vanced, in relation to the provision by a carrier of sleeping cars, dining and chair cars, that the limited demand by negroes justified the State in permitting the furnishing of such accommodations exclusively for white persons. We found that argument to be without merit. It made, we said, the constitutional right ‘ de pend upon the number of persons who may be dis criminated against, whereas the essence of the con stitutional right is that it is a personal one. Whether or not particular facilities shall be provided may doubt less be conditioned upon there being a reasonable demand therefor, but, if facilities are provided, sub stantial equality of treatment of persons traveling under like conditions cannot be refused. It is the in dividual who is entitled to the equal protection of the laws, and if he is denied by a common carrier, acting in the matter under the authority of a state law, a facility or convenience in the course of his journey which under substantially the same circumstances is furnished to another traveler, he may properly com- 44 plain that his constitutional privilege has been in vaded.’ Id., pp. 161, 162. “ Here, petitioner’s right was a personal one. It was as an individual that he was entitled to the equal protection of the laws, and the state was bound to furnish him within its borders facilities for legal edu cation substantially equal to those which the state there afforded for persons of the white race, whether or not other negroes sought the same opportunity.” We submit that the decisions of this Honorable Court above discussed clearly showed that the findings of the Commission and the decree of the District Court, in the case at bar do not harmonize with the same. The pro visions of the United States Constitution and the laws of Congress above quoted, concerning the equal rights of all citizens of the United States, apparently have been overlooked by the Commission and the District Court. The Commission on sheet 10 of the report, (Par. 2, B. 26) states: “ Complainant contends that the extent of the de mand for first-class accommodations for colored pas sengers has no bearing on the question presented.” We submit that the above discussed decisions by this Honorable Court fully sustain the contention of the ap pellant. It is further contended that the plain provisions of the Supreme law of the land, the Constitution, having declared that “ the immunities of citizens of each state shall be entitled to all privileges and immunities of citizens in the several states” (U. S. Const. Art. 4, Sec. 2, Clause 1). We submit that the Commission and District Court were bound by the plain provisions of the Constitution. 45 The Commission on page 12 of the report (Par. 1, R. 27) states: “ Defendants say that what the Court evidently meant by this comment was that a carrier could not absolutely refuse to afford colored passengers Pull man accommodations, but had to provide them if there was a reasonable demand for colored passengers.” We have shown by the decisions of the Supreme Court that the right to Pullman accommodations does not de pend upon the volume of traffic, but that the right is an individual one, therefore we will not extend this discus sion. The Commission states on page 12 the following: “ In any event, we are not here considering a Con stitutional question, but rather questions of the act.” This statement presents rather a novel situation. All officers of the United States, as we understand, by their oath, to uphold the Constitution of the United States and all laws made pursuant thereto are duty bound to con demn any act whether committed by a state or an indi vidual, contrary to the provisions of the Constitution, without regard to the nature of the proceeding in which the question arises. The very existence of the power and authority of Congress itself is contained in the Consti tution (Art. 1, Sec. 8, Clause 3) which gives to Congress exclusive jurisdiction over Interstate Commerce, Hall v. DeCuir, 95 U. S. 485. Under this Constitutional power Congress enacted the Interstate Commerce Act by which this Commission de rives its power. For the Commission and the District Court to refuse or fail to uphold the Constitution and the plain provisions thereof, leaves the citizens without redress through the administrative governmental agency provided 4 6 by law, and we submit that the facts in the case at bar clearly show that the rights guaranteed to citizens of color by the Constitution and the laws of the United States have been denied to a citizen of color and that such denial violates the provisions of the Constitution and amounts to unjust and unlawful discrimination as a matter of law and fact. The report of the Commission (sheet 12, Par. 2, R. 27), states: “ Volume of traffic is an important consideration in determining whether certain services demanded are warranted and whether a difference in treatment is justified. ’ ’ This statement seems to indicate that the Commission, A - — - — ■■ — ■ C 0 v t i disregarded the decisions of this Honorable,45 and the Dis trict Court in dismissing the petition of the appellant did likewise. This Honorable Court in Hines, et al. v. David- owits, et al., No. 22, October Term 1940 (Opinion January 20, 1941) states: “ And it is also of importance that this legislation deals with the rights, liberties and personal freedoms of human beings, and is in an entirely different cate gory from state tax statutes or state pure food laws regulating the labels on cans.” The conclusion of the Commission that volume of traffic is an important consideration in determining the kind of treatment an American citizen is to receive in interstate 45 McCabe v. Atchison T. & S. F. Ry. Co., 235 U. S. 151, 160, 161; Buchanan v. Warley, 245 U. 8. 60-80; Gaines v. Canada, et al., 305 U. S. 3'37, 350, 351, which hold, that volume of traffic in the transportation of American citizens in interstate commerce is not to be considered. 47 commerce seems to be in conflict with the basic principles of American jurisprudence. In United States v. Chicago Heights Trucking Co., et al., 310 U. S. 344, 351, 352, (1939) this Honorable Court again sustains the doctrine that, the volume of traffic did not authorize an inequality of treatment on rates for substan tially similar services in interstate commerce. III. The claim by the defendant, Rock Island, that it was at tempting to follow the Separate Coach Law of Arkansas and disregard the plain provisions of the Constitution of the United States, and the laws made in pursuance thereof is untenable and the report of the Commission shows its misconception of the law. The Commission in its report (R. 27-29) again erroneous ly assumes that the parties in the case at bar, assumed that the Arkansas statute was applicable to interstate traffic. It would be a rash assumption for any citizen, at this late date, to assume that which the highest court in the land has decided and settled definitely the law as being to the contrary. No citizen can be justified in assuming that the Arkansas statute applied to interstate commerce in view of the unambiguous language used by the Supreme Court in the various decisions above quoted which holds the contrary. The Commission (R. 28) states : “ What we are here dealing with is the practice of the carriers in assumed compliance with the statute, a practice which they could follow even if there were no statute.” 48 It is respectfully contended that in view of tlie decisions of the United States Supreme Court, the Constitution of the United States, and the laws made by Congress for the enforcement of the Fourteenth Amendment,46 that an as sumption by a common carrier to comply with a statute of a state which he knew or ought to have known was not applicable to interstate commerce, and where such prac tice was in violation of the plain provisions of the Con stitution would show an utter disregard for the supreme law of the land and the decisions of the highest tribunal. The practice of discrimination against any citizen of the United States, solely on account of color, should be con demned by the Commission. Such practice of discrimina tion on account of color or race violates the plain provi sions of the Interstate Commerce Act, the very act which this Commission was created to enforce, and such dis crimination should not be tolerated by any law enforcing agency. There is no contention by the carriers, in the case at bar, that they were relying upon any such practice as they well knew or ought to have known, that unjust discrimina tion against a citizen of the United States, solely on account of his color or race, is prohibited by the laws, not only of the United States, but of all God-fearing and liberty loving persons. To permit such practice to continue, as shown by the record in the case at bar, is to reduce to mere words the provisions of the Constitution of the United States, the laws made by Congress prohibiting such practice, and the decisions of the Supreme Court of the United States, which condemned such practice as unjust, unlawful and unAmerican. We do not believe this Court will further permit such discrimination to continue. 46 (Title 8, U.S.C., Secs. 41-43). 49 A colored American citizen paying a first class fare and traveling as a passenger in interstate com merce is entitled to any and all first class services, facilities and accommodations which are furnished on the same journey to white citizens paying a first class fare. IV. PERSONAL RIGHTS. The undisputed and uncontradicted testimony in the rec ord of all witnesses testifying- to matters material to the issues involved conclusively shows that the personal constitutional rights of the appellant were ruthlessly violated. It is undisputed and all evidence bearing on the question is uncontradicted, that the appellant is an American citi zen, member of the Congress of these United States and was a first-class passenger engaged in an interstate jour ney at the time he was ejected from the first-class accom modations for which he had paid and received during part of his journey. This Honorable Court in McCabe v. Atchi son, T. <fi S. F. Ry. Co., 235 U. S. 151 at pp. 161-162 states: “ It is the individual who is entitled to the equal protection of the laws, and if he is denied by a com mon carrier, acting in the matter under the authority of a State law, a facility or convenience in the course of his journey which under substantially the same cir cumstances is furnished to another traveler, he may properly complain that his constitutional right has been invaded.” In the case at bar the constitutional rights of this citi zen were openly violated by the common carrier under 5 0 the claim that it was acting in the matter under the au thority of the Separate-Coach Law of Arkansas.41 In treating this subject, Judge Sanborn in his dissent ing opinion states the law, which it is submitted out of justice and fair play to the American citizen of color should be applied in tbe case at bar.48 He further states that no separate chair cars, sleeping cars, or dining cars are required to enable a common car rier, engaged in interstate commerce to give all citizens equal comforts and conveniences of travel (168 Fed. p. 978). He further held that the constitutional rights of citi- 47 See proposed report of Examiner (R. 10-17); report of I. C. C. (R. 18-33). See dissenting opinion of Commis sioner Eastman (R. 30), which states: “ The facts are that white passengers were and are given adequate opportunity to obtain seats, berths, compartments, or rooms in Pullman cars, together with the right to use any dining car or observation car that may be attached to the train, whereas colored pas sengers have no opportunity to obtain seats or berths in the body of the car or to use dining or observation cars, but may obtain accommodations in a compart ment or room, provided one can be found that has not been previously taken by a white passenger. If the conditions were reversed, I cannot believe that the white passenger -would regard this as equality and opportunity” (229 I. C. C. p. 712). Evidence of Albert W. Jones, witness for the defendants (R. 36-38). 48 McCabe v. Atchison, T. & S. F. By. Co., 168 Fed. 966, p. 978: “ As I understand the fourteenth amendment to the Constitution, the purpose of its enactment, its express terms, and its legal effect are to prohibit the condi tioning of the privileges and immunities of citizens and the equal protection of the laws by the respective conditions and circumstances in which citizens may find themselves, and to secure to those suffering under adverse conditions and unfavorable circumstances the same civil rights and the same protection of tbe laws 51 zens to their privileges and immunities and to the equal protection of the laws are not dependent upon the expense and inconvenience of maintaining separate coaches and compartments for the two races although such items are worthy of serious consideration by the States when enact ing laws compelling railroads to provide separate coaches (p. 978). He further illustrates how unjust and un-Ameri can it is to deny citizens of color the equal accommodations and facilities furnished to white citizens in the use of din ing cars and sleeping cars. I V - A . Personal rights include personal liberty. “ Personal Liberty” constitutes any power of locomotion of changing situation or removing one’s person to what ever place one’s own inclination may direct, without im prisonment or restraint, unless by due course of law. 1 Bl. Com. 134, Plessy v. Ferguson, 163 U. S. 537. (Dis senting Opinion, Mr. Justice Harlan, p. 557.) The equal protection of the laws as used in the Fourteenth Amend ment to the Constitution of the United States, is meant equal security under the laws to everyone in similar terms —in his life, his liberty, his property and in the pursuit that the more fortunate and prosperous enjoy. Citi zenship and citizenship alone, under this amendment to the Constitution, entitles every man, white or black, to all his civil rights and privileges unabridged by the action or legislation of any state and to the equal protection of all the laws. Before the law, by the express terms of the fourteenth amendment, all citi zens are equal in their civil rights, and the humblest is the peer of the most powerful. It regards a citizen as a citizen, and takes no account of his surroundings or of his color when his civil rights, as guaranteed by this the Supreme law of the land, are involved. ’ ’ 52 of happiness. In Re Grice, 79 F. 627, 628, in which case it is also held (p. 641), that one of the most sacred rights of liberty is the right of contract, and that all of the rights of contract which are necessary for the carrying on of ordinary business affairs are protected by the Constitu tion of the United States and that such sacred rights are not capable of being restrained by legislative action of any state (Fourteenth Amendment, United States Consti tution), nor by any person claiming to act under color of any law of the state (Title 8, U. S. C. Chap. 3, Secs. 41 & 43). It was further held in the Grice case, supra that a man may form business relations with whom he pleases and in the conduct of such business, they may fix and limit the character and amount of their business, the price they will charge for the products which they offer to the public, or by which they contract. And it is part of the natural and civil liberty to form business relations free from the dictation of the state. It was further held in the Grice case, supra, that whatever the state does, it cannot deprive one within its jurisdiction of the equal protection of the laws and by equal protection of laws, is meant equal se curity under them, under similar terms in the citizen’s life, liberty, property and in the pursuit of happiness. It not only implies the right of each citizen to resort, in similar terms with others, to the courts of the country for the security of his person, and property, for the redress of wrongs against him and the enforcement of his con tracts, but also his exemption from any greater burden and charges within the state as are equally imposed upon all other citizens under like circumstances. In Re Grice, 79 F. 627. All American citizens, whether white or colored, are entitled to equality before the law. This equality is se cured by the Constitution of the United States and the 53 laws made by Congress in pursuance thereof and the subject of equality before the law, is the fundamental principle of English and American liberty.49 V. Personal rights include the equal protection of the laws and the right to contract for first-class services, accom modations and facilities in Interstate Commerce and further includes the right to enforce the contract in the event of its violation by the common carrier. In the event this Honorable Court should decide that American citizens of color, travelling in Interstate Com merce as first class passengers, may be denied the first class accommodations and facilities furnished to all other white citizens, by the carriers who are engaged in the same continuous interstate journey, solely on account of race or color, then we urge that it is the duty imposed upon the common carrier to furnish to the citizen of color, first class facilities, accommodations and services, equal to those furnished the white American citizens who have paid the same first class fare as the colored citizen. In Hall v. De Cuir, 94 U. S. 485, 24 L. Ed. 547 (1887), the doctrine, then announced has been followed by this 49In Re Grice, 79 F. 627, 645, the Court states: “ The subject of equality before the law is a funda mental principle of English and American liberty, it not only has been made sacred in all later day Consti tutions, State and Federal, but the principle has been carried with jealous watchfulness, to see that the citi zens may have guaranteed to them this inestimable privilege and condition. Barbier v. Connolly, 113 U. S. 27, 5 S. Ct. 357; Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064; Dent v. West Virginia, 129 U. S. 114, 9 S. Ct. 231; Ex Parte Virginia, 100 U. S. 339; Duncan v. Missouri, 152 U. S. 382, 14 S. Ct. 570. ’ ’ 5 4 Honorable Court and all other Courts who have adhered to the Constitution and laws made for the protection of the rights of all American citizens. This doctrine may be stated as follows. All common carriers of passengers for hire are bound, if they have suitable accommodations, to take all persons who apply, unless there is objection to the character or conduct of the applicant. And when an applicant to whom there is no valid objection, applies for passage, he has a right to receive it. (Hall v. Z)e Cuir, p. 501.) It is further held that a passenger has a right to require such accommodations as he has contracted for (p. 405). It is not disputed that the appellant on April 20, 1937, contracted for first class accommodations from Chicago to Hot Springs, Arkansas (E. 70); that he received the class of accommodations for more than one-half' of the interstate journey, and that upon leaving Memphis, Ten nessee, he arriving at a point in the State of Arkansas, between Memphis and Hot Springs (E. 79), he was ejected from the first class accommodations by the conductor of the Eock Island, solely on account of his color (E. 79, 80, 81), and was compelled to ride in a car known as the “ Jim Crow Car” (E. 81) which was used for citizens of color, who had only paid a less rate of fare and admitted to be second class accommodations, inferior to the first class accommodations which all other white citizens were per mitted to use and occupy throughout the interstate journey. The conductor who received the first class ticket from the appellant, admitted that the appellant under the terms of his contract of carriage, was entitled to first class ac commodations, but under the law of the State of Arkansas, the appellant could not continue to receive the first class accommodations to the end of his interstate journey (K. 81). A description of this “ Jim Crow Car,” in which appellant was compelled to ride is found (E. 82, 83, 84, 5 5 133, 134, 135, 165, 166, 167, 168). Description of the first class car from which the appellant was ejected, is found (R. 77, 78, 86, 90, 164, 165, 168), and repetition of the de scription will be avoided. An abstract of the testimony of the Conductor Jones, is found (R. 36-38), and we believe the mere reading of this undisputed and uncontraclicted testimony of Air. Jones, who had charge of the Rock Island train for thirty-two years, will convince this Honorable Court that the Con stitutional rights of the appellant had been violated in the manner described in his complaint and that the sole ground claimed for the unjust discrimination against this American Citizen, the appellant, by the common carrier, is that the appellant is a colored American citizen.50 Various cases involving the rights of American citizens of color to the equal protection of the laws have been decided by the Interstate Commerce Commission (R. 31).51 In the various cases heretofore decided by the Inter state Commerce Commission, it may be safely said that the fundamental principles of law enunciated by the Com mission in each of the cases are as follow s: 1. That colored people who buy first-class tickets to travel as interstate passengers must he furnished with o0 For the convenience of the Court, we have printed the abstract of the evidence of all witnesses as contained in tbe initial brief of the appellant filed with the Interstate Commerce Commission (Appendix C, pp. 19-50), contained in a separate volume filed with this brief. 'ACouncill v. Western and Atlantic R. R. Co., 1 I. C. C. 339, Heard v. Georgia R. R. Co., 1 I. C. C. 428, Edwards v. Nashville, Chattanooga and St. Louis Ry. Co., 12 I. C. C. 217. In each of these cases, the Commission entered a cease and desist order. The Councill and Heard cases are almost identical with the case at bar. 5 6 accommodations equally safe and comfortable with all other first-class interstate passengers. 2. Where a colored person pays a first-class fare on an interstate journey and he is compelled to occupy inferior and second-class accommodations of a Jim Crow car that he has been subjected to undue and unreasonable preju dice in violation of the Interstate Commerce Act and has been denied bis constitutional rights of equal protection of the laws. 3. That it is the lawful duty which the common car rier engaged in interstate travel owes to the traveling pub lic to furnish accommodations equal in comfort, accommo dation and equipment without and discrimination where the same price is paid. 4. That the law, federal and state will not tolerate the doctrine any more in the transportation of persons than of property, v iz : That one class is to be favored by the carrier over another when both have contracted and paid for the same kind of service, accommodations and facili ties. 5. That all persons have the lawful right to purchase first- or second-class accommodations and if the carrier sells none but first-class accommodations he must give first-class services to the purchaser engaged in an inter state journey as such first-class passenger. 6. That there is no equality of rights, when the money of the white citizen purchases luxurious accommodations amid elegant company, and the same amount of money purchases for the black American citizen inferior quarters. 7. That all American citizens, black and white, now stand upon equal footing before the law and that any dis crimination based upon color or race alone to which an 57 interstate passenger is subjected, not only violates the Constitution52 and the laws enacted under it,53 but is at war with our basic concepts of a democratic society and a rep resentative government.54 The following cases fully support the contention of the appellant: Heard v. Georgia Ry. Co., 1 I. C. C. 428, 429, 430, 431, 432, 433, 435, 436; Heard v. Georgia R. R. Co., 3 I. C. C. I l l , 116, 117, 118; Councill v. Western & A. Ry. Co., 1 I. C. C. 339, 346, 347; Edtvards v. Nashville Chat. & St. L. Ry. Co., 12 I. C. C. 247, 250; Brown v. Memphis & C. R. Co., 5 Fed. 499. The following Federal cases also support the above propositions stated: Gray v. Cincinnati Ry. Co., 11 F. 683, 686; Murphy v. Western & A. R. R. Co., 23 F. 637, 639, 640; Logwood and Wife v. Memphis & C. Ry., 23 F. 318, 319; The Sue, 23 F. 843, 844, 845, 846, 848. It is respectfully contended that on the undisputed evi dence appearing in the record that the District Court and the Interstate Commerce Commission have failed to follow the established principles of law. * 64 '"Article IV, Sec. 2, Cl. 1, United States Constitution, Appendix A, p. 12; Fourteenth Amendment, Sec. 1, Ap pendix A, p. 2. 03 Title 8 U. S. C. Ch. 3, Sec. 41— Civil Rights, Appendix A, p. 1; Title 8 U. S. C., Ch. 3, Sec. 43— Civil Rights, Ap pendix A, p. 2; Title 49 U. S. C. Sec. 1 (5), Appendix A, p. 7; Sec. 2, Sec. 3 (1), Appendix A, p. 8. 64 Edgar Smith v. State of Texas, Opp. Nov. 25, 1940, ô. 33, Oct. Term 1940, United States Supreme Court, Opp. 2. 5 8 VI. The Interstate Commerce Act contains a national compre hensive system for the regulation of Interstate Commerce which excludes the application of the local Separate Coach Law of the States. Under the provision of the Constitution above set forth Congress was given exclusive jurisdiction of Inter state Commerce. Under its Constitutional power the “ In terstate Commerce A ct” was passed in 1887. Congress by the passage of this act has done no more than to regu late all interstate business of carriers and the primary purpose for which this Commission was established, was to enforce the regulations imposed by Congress. Karri- man v. Interstate Commerce Commission (N. Y. 1908), 29 S. Ct. 115, 118, 211, U. S. 407, 418, 53 L. Ed. 253. The Chief purpose of the act to regulate commerce and its amendments was to prevent unjust preferences and undue discriminations and to secure uniformity of rates and service. Denver & R. G. R. Co. v. Raer Rros. Mercantile Co., 187 F. 485,109 C. C. A. 337 (Reversed on other grounds, 1914, 34 S. Ct. 641, 233 U. S. 479, 58 Law Edition 1055), Interstate Commerce Commission v. Cincinnati, N. 0. & Tex. Pac. Ry. Co., 167 U. S. 479, 17 S. Ct. 896, 42 L. Ed. 243, Tex db Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 439, 27 S. Ct. 350, 51 L. Ed. 553. In the language of Circuit Judge Sanborn in McCabe v. Atchison, T. & S. F. Ry. Co., 186 Fed. 966, 977: “ if each of two citizens of unobjectionable mental, moral, and physical character, one a white man and the other a colored man, tenders and pays to one of the defendants Railway Companies that is operating its trains, chair cars, sleeping cars and dining cars the same, lawful rate for his transportation between the 5 9 same places in a chair car, or in a sleeping car, and for the customary use of a dining car on his journey, and the white man is furnished by the company with his ride in a chair car, or in a sleeping car, and with his dinner in the dining car, and the Railroad Com pany claiming authority under a state separate coach law, solely by reason of his color, prevents the colored citizen from riding in or using all of those cars and all other cars of a similar character, ejects him from any such car into which he enters, and refuses to carry him at all unless he ride in an ordinary coach, is the colored citizen accorded ‘ the equal protection of the laws’ enjoyed by the white man and the un abridged privileges and immunities of citizenship as guaranteed by the Constitution of the United States and the laws made pursuant thereto and the uniformity of service as provided for in the Interstate Commerce Act?” We submit that this question seems to bear its own answer and the facts contained therein are identical with the facts in the case at bar and unjust purpose and undue discrimination by such conduct, we submit, is clearly shown. Since the original act to regulate commerce in 1887 Con gress by repeated enactments has endeavored to control the whole field of Interstate Commerce and to regulate all relations between shippers, passengers, and carriers, so as to secure uniformity throughout the country and the Interstate Commerce Act must be construed to give the effect intended by Congress. Hartness v. Iberia, etc., R. Co. (D. C. La. 1924), 297 Fed. 622, 624, Johnson v. South ern Pac. Co., 196 U. S. 1, 25 S. Ct. 158, 49 L. Ed. 363. Congress having exercised its control over the whole field of Interstate Commerce, we must look to the laws pertaining thereto for any right claimed by a common 60 carrier to discriminate against a passenger solely on ac count of his color. There is no law or regulation author izing a common carrier to make such discrimination hut on the contrary Congress well knew that the Constitution of the United States, and in particular the Fourteenth Amendment thereto, prohibited any discrimination against a citizen of the United States by a common carrier operat ing under the Interstate Commerce Act. Mr. Justice Shiras, in Tex. & Pac. Ry. v. Interstate Com merce Commission (N. Y. 1896), 162 U. S. 197, 16 S. Ct. 666, 40 L. Ed. 940, fully discusses the causes and reasons which lead to the enactment of the Interstate Commerce Act at page 209 states: “ The act to regulate commerce will he examined in vain to find any intimation that there shall be any difference made in the tolls rates or charges for or any difference in the treatment of home and foreign merchandise in respect to the same or similar service rendered in the transportation, when this transpor tation is done under the operation of this statute. Cer tainly it would require a proviso or exception plainly engrafted upon the face of the act to regulate com merce, before any tribunal charged with its adminis tration would be authorized to decide or hold that foreign merchandise was entitled to any preference in tolls, rates or charges made for, or any difference in its treatment for the same or similar service as against home merchandise. Foreign and home mer chandise, therefore, under the operation of this stat ute, when handled and transported by Interstate car riers, engaged in carriage of the United States, stand exactly upon the same basis of equality as to tolls, rates, charges and treatment for similar services ren dered.” 61 It is to be remembered that the ease at bar involves the rights of a citizen of the United States traveling in Inter state Commerce to the equal protection of the law guar anteed by the Constitution of the United States and from unjust discrimination, prohibited by the Constitution and the laws of the United States. Congress having covered the entire field of Interstate traffic in passengers and prop erty, did not see fit to provide for any discrimination of any citizen of the United States on account of color alone but on the contrary by Section 2 of the act specifically forbids and prohibits unjust discrimination by common carriers. No state or individual can make any laws, rules or regulations in conflict with those provided by the Inter state Commerce Act and Common Carriers engaged in the transportation of passengers and property under the act must conform to the judgment of Congress. Lehigh Valley R. Co. v. Public Service Commission, Second Dist. of the State of N. Y. (D. C. N. Y. 1921), 272 Fed. 758, A ff ’d (1922) 42 S. Ct. 239, 257, U. S. 591, 66 L. Ed. 385. Under the undisputed facts which show that the com plainant was discriminated against solely on account of his race and color, while traveling as a first-class pas senger, in Interstate Commerce, we submit that under the plain provision of the law, applicable alike to white and black citizens, unjust discrimination is clearly shown in the case at bar. The problem of the regulation of interstate commerce is plainly national in area and dimensions. Moreover, laws of the separate states can not deal with it effectively and Congress having enacted the Interstate Commerce Act1'5 all questions of the regulation of interstate commerce is “ Title 49 U. S. C. Secs. 1-156. 6 2 fully covered therein and can not be increased nor dimin ished by state action.36 It is urged that the principle contended for by the ap pellant is so well grounded in the decisions of this Honor able Court that lengthy discussion will not be necessary. This Honorable Court in a very recent case, Hines, et al. v. Davidowitz, et al., Opinion January 20, 1941, No. 22, Oct. Term 1940, sustains the contention of the appellant, that all separate car laws of the various states yielded to the Interstate Commerce Act which is a comprehensive intergraded scheme for the regulation of commerce, and at page 5 of the Opinion, Mr. Justice Black states: “ When the national government by treaty or stat ute has established rules and regulations touching the 56Texas <f Pac. Rip. Co. v. Interstate Commerce Com mission, 162 U. S. 197, 211, 212, p. 211: “ The scope or purpose of the act is, as declared in its title, to regulate commerce. It would, therefore, in advance of an examination of the text of the act, bat reasonable to anticipate that the legislation would cover, or have regard to the entire field of interstate commerce, and that its scheme or regulation would not be restricted to a partial treatment of the sub ject.” See Case of the State Freight Tax, 13 Wall (82 U. S.) 232, which supports the national system doctrine. Haskell v. Cowlian, 187 Fed. 403, 408. U. S. v. F. W. Darby Limber Company, et al., 82 Oct. Term 1940, Opinion February 3, 1941, U. S. Supreme Court, which holds: “ The power to regulate commerce is the power ‘ to prescribe the rules hv which commerce is governed.’ Gibbons v. Ogden, 9 Wheat. 1, 196. It extends not only to those regulations which aid, foster and protect commerce, hut embraces those which prohibit it. (Cases cited.) * * # The power of Congress over interstate commerce ‘ is complete in itself, may be exercised to its utmost extent and acknowledges no limitations other than are prescribed by the Constitution.’ ” 6 3 rights, privileges and obligations or burdens of aliens as such, the treaty is the supreme law of the land. No state can add to or take from the force and effect of such treaty or statute, for Article VI of the Con stitution provides that ‘ this Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every state shall be bound thereby, any thing in the Consti tution or Laws of any State to the Contrary notwith standing.’ ” The Commerce Clause of the Constitution57 forbids dis crimination whether forthright or ingenious and in every case it is the duty of this Honorable Court to determine whether a statute or practice, under attack, whatever its name may be, will in its practical operation work discrimi nation against citizens traveling as interstate passengers in interstate commerce. 57Article I, Sec. 8, Cl. 3, United States Constitution. 64 Congress has prohibited discrimination, undue prejudice, unreasonable and undue advantage and preference in relation to citizens traveling as interstate passengers. The prohibitions contained in the Enforcement Acts58 passed by Congress in 1866 and 1870, prohibiting the de privation of any citizen of the United States of any rights, privileges or immunities secured by the Constitution and laws of the United States is evidence of the policy of the United States towards all citizens. The plain language of the above quoted section clearly demonstrates that Congress intended that no discrimina tion, unreasonable and undue advantage should be taken or shown against any citizen, solely on account of the race, color or creed of the citizen. It is to be noted that the last mentioned section applies to every person. It also pro hibits as a defense, a claim by the offender, as an excuse 58Title 8, U. S. C., Cha. 3; Sec. 41 and 43— Civil Rights. Section 41. Equal rights under the law. All per sons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, # * * and to the full and equal benefit of all laws and proceedings for the se curity of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, taxes, licenses, and exactions of every kind, and to no other. (R. S. par. 1977). Section 43. Civil action for deprivation of rights. Every person who, under color of any statute, * * * regulation, custom, or usage, of any State or Terri tory, subjects, or causes to be subjected, any citizen of the United States or other person within the juris diction thereof to the deprivation of any rights, privi leges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. (R. S. par. 1979). VII. 6 5 for discrimination, any regulation, custom or usage, etc. It not only provides that the injured party may proceed by an action at law or suit in equity, but it provides that the injured party may seek redress “ by other groper pro ceedings.” Congress did not content itself with the provisions of the Enforcement Acts in order to prohibit discrimination, undue prejudice, unreasonable and undue advantage and preference against any citizen or person within the juris diction of the United States but to further protect every citizen in the enjoyment and exercise of their civil rights enacted the Interstate Commerce Act of 1887.39 The Com merce Act again prohibited all persons operating in Inter state Commerce, as common carriers, from the practice of discrimination against, not only persons traveling as inter state passengers but against shippers of goods in interstate commerce. It further prohibited unjust discrimination, undue and unreasonable prejudices, undue advantage and preference and further prohibited interstate carriers from charging different rates for the same services rendered.80 50 * 50Title 49, U. S. C. Secs. 1-156. 60Title 49, U. S. C. Secs. 1 (1) (2) (5), 2, 3 (1), 13 (1) (4). 66 The appellant having suffered direct injury to his rights guaranteed by the Constitution of the United States and laws made pursuant thereof/)as the absolute right to prosecute these proceedings. Some question has been raised as to the right of the plaintiff to apply for a cease and desist order upon the facts alleged in his complaint filed with the Interstate Commerce Commission. It is submitted that the ruling of the Commission on this point sustains the appellant’s right to prosecute these pro ceedings (R. 19-20). No exceptions were filed to the report of the Commission by any of the defendants who were parties thereto. This Honorable Court has sustained the right of the plaintiff in numerous cases.61 VIII. 61Truax v. Raich, 239 U. S. 33, 38, which holds that where the plaintiff’s rights are directly involved he is a proper party to seek redress, and that where a party seeks to enforce a contract on the ground that as a citizen of the United States, he has the same rights as all white citizens (Enforcement Act, Title 8, Sec. 41-43, Fourteenth Amend ment of the United States Constitution, Art. 4, Sec. 2, Cl. 1, United States Constitution); Buchanan v. Warley, 215 U. S. 60, 73, “ This case does not come within the class ■wherein this Court has held that where one seeks to avoid the enforcement of a law or ordinance he must present a grievance of his own and not rest the attack upon the alleged violation of another’s rights. In this case the property rights of the plaintiff in error are directly and necessarily involved.” (See Truax v. Raich, 239 U. S. 33, 38). 67 The appellant, an American citizen, liad contracted and paid for first-class accommodations and facilities for an interstate journey from Chicago to Hot Springs. He was denied equality of treatment as an interstate first- class passenger in that other first-class passengers who had paid a similar fare for first-class accommodations were furnished such first-class accommodations throughout the entire journey. The appellant was compelled by the Rock Island to ride in a jim crow car containing only second-class accommodations, for part of his journey. This inequality of treatment gave to the appellant the undoubted right to apply for redress to the Interstate Commerce Commission.62 It is unnecessary to labor the point. IX. What is unjust discrimination prohibited by the Interstate Commerce Act? The uncontradicted and indisputable evidence in the case at bar clearly shows that the appellant is a native- born American citizen, that he had purchased a first-class round trip ticket from Chicago to Hot Springs (R. 70-71); that he paid the regular first-class fare for the ticket (B. 70); had been received by the defendants as a first-class interstate passenger (B. 70); his ticket had been collected by the conductor on the Bock Island (R. 79), while he was occupying first-class accommodations the same as all other “ Title 49, Sec. 13. The Chicago Junction Case, 264 U. S. 258. 44 S. Ct. 317, 320, in which case this Court states: “ It is injury inflicted by denying to the plaintiff equality of treatment. To such treatment carriers are, under the Interstate Commerce Act, as fully entitled as anv shipper.” Pennsylvania Co. v. United States, 236 U. S. 351, 35 S. Ct. 370, 59 L. Ed. 616. 68 first-class passengers engaged in this interstate journey and who had paid a similar fare for the first-class service. That solely on account of his color he was ejected from the first-class accommodations before he had completed his journey (Abst. 79), and compelled to ride in a car con taining only second-class accommodations for which the charges were less than the first-class fares. The descrip tion of the jim crow car in comparison with the first-class accommodations of the Pullman and observation cars have heretofore been referred to. To charge one person more than another for the same accommodations is unjust discrimination, United States v. Chicago Heights Trucking Company, 310 U. S. 344, 351, 353; 60 S. Ct. 931, 84 L. Ed. 1243, and violates Sec. 2 of the Interstate Commerce Act. To charge one interstate passenger a greater or less compensation for any service rendered or to he ren dered in the transportation of property or passengers than is charged any other person for doing a like and contemporaneous service in the interstate transportation of a like kind under substantially similar circumstances and conditions violates Secs. 2 and 3 of the Interstate Commerce Act. (Appendix A, p. 8 and Sec. 1, par. 5 of the Interstate Commerce Act, Appendix A, p. 7.) It was the duty of the Commission, upon the undisputed facts as shown by the evidence of all witnesses (Appendix C, pp. 19-50) to have entered a cease and desist order (Sec. 15 (1), Interstate Commerce Act, Appendix A, p. 10), ailing to do its duty the District Court should have set aside the order of dismissal (Title 28, U.S.C. 41 (28), Appendix A, p. 2). The uncontradicted and undisputed evidence clearly shows that the allegations in the complaint had been fully sustained. 69 X. Custom does not justify continued unjust discrimination. Custom cannot override the law and a failure to enforce the law does not change it. The good faith of the carrier in the transactions of the past may be unquestioned, but that does not justify a continuance of a practice which violates the Interstate Commerce Act, American Express Company v. United States, 212 U. S. 522, 523, 529; 29 S. Ct. 315; Merchants Warehouse Company Case, 283 U. S. 501, 511, 512. We do not believe it necessary to do other than to state that if this Honorable Court shall find that the discrimina tion practiced by the Bock Island against an interstate passenger, solely on account of his race or color, has existed for the past 32 years as stated by the conductor Jones in his testimony before the Commission (B. 36-38), (Appendix C, pp. 41, 44, 45, 46, 48), then we respectfully urge that the above proposition of law be followed. XI Erroneous holding of the Commission concerning the right of the appellant to purchase and use first-class accom modations in Interstate Commerce. The Commission states (B. 28): “ Complainant urges that collection of the first-class fare, notwithstanding the fact that second-class ac commodations were furnished him, was violative of sections 1, 2, 3, and 6 of the act; also of the Fourteenth Amendment, on the ground that he was deprived of money without due process of law and denied equal protection of the laws. It is sufficient to say that a 70 first-class ticket was furnished and charged for be cause complainant wanted it, and that after it de veloped that the first-class accommodations ordinarily available for colored passengers west of Memphis were all taken by other passengers defendants of fered to refund the difference. Moreover, as already stated, complainant is here seeking no relief from the charges paid.” It is conceded that the complainant is a native born American citizen; that he had contracted and paid for first-class accommodations; that he was traveling on a common carrier engaged in interstate commerce, and that he was an interstate passenger. It is further conceded, that he received the same first-class services which were given to all other first-class passengers, for only a part of the journey; that he was denied first-class services for the remainder of his journey, solely on account of his color (R. 36-39), although such services were furnished to all other interstate passengers on this journey who were white persons. The Constitution of the United States, the laws made in conformity therewith and the provisions of the Interstate Commerce Act, prohibit discrimination against citizens of the United States, solely on account of their race or color. We can not conceive that the Commission would limit the right o f a white citizen in selecting to travel as a first-class passenger on an interstate journey, and that if the complainant was a white person, member of the Congress of the United States, and had received the identical treatment received by the complainant in the case at bar, solely on account of color, we do not believe that the Commission would find that no unjust discrimina tion existed, and that a common carrier was justified by such conduct. The conductor frankly stated that he would not permit a colored man to occupy the first-class accommodations on 7 1 bis train (E. 38, 172), and that for 32 years the Rock Island had failed to provide first-class accommodations for citizens of the United States, solely on account of their color (E. 36, 159). We believe no white American citizen with red blood in his veins with a knowledge of the provi sions of the Constitution, and the laws of Congress, with respect for the decisions of the Supreme Court of the United States, would condone the unchristian and un- American conduct, as shown hv the record in this case, as having been perpetrated against the complainant. We believe it is well and fitting to quote from the lan guage of Circuit Judge Sanborn, in his dissenting opinion in McCabe v. Atchison, Topeka & Sana Fe Ry. (186 F. 966, 983): “ The true interpretation of the Fourteenth Amend ment is to be found in the decisions of the Supreme Court when it was composed of those great jurists who had been active in public affairs when it was pro posed and enacted and who could not fail to know its purpose and its meaning. In Strauder v. West Vir ginia, 100 U. S 303, 306, 25 L. Ed. 664, that court said: ‘ This is one of a series of constitutional provi sions having a common purpose, namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoyed. * * * They especially needed protection against unfriend ly action in the states where they were resident. It was in view of these considerations the Fourteenth Amendment was framed and adopted. It was de signed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the pro tection of the general government, in that enjoy ment, whenever it should be denied by the states. It 72 not only gave citizenship to persons of color, hut it denied to any state the power to withhold from them the equal protection of the laws and authorized Congress to enforce its provisions by appropriate legislation. * * * It ordains that no state shall de prive any person of life, liberty, or property with out due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that a law in the states shall be the same for the black as for the white; that all persons, whether colored or vdiite, shall stand equal before the laws of the states; and, in regard to the colored race for whose protection the amend ment was primarily designed, that no discrimina tion shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race—the right to exemption from unfriendly legislation against them distinctly as colored— exemption from legal discrimination implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy and discriminations which are steps towards reducing them to the condition of a sub ject- race.’ ” We submit that this interpretation of the Fourteenth Amendment, above referred to, needs no argument to show that the civil rights of both white and black American citizens are equal, and that any treatment of a black citizen which denies to him such equal rights, is discriminatory, and prohibited by law. 7 3 XII Refund of Money Is Not Adequate Redress for the Wrong ful Exclusion by a Common Carrier of an American Citizen Engaged in An Interstate Journey As a First- Class Passenger. In the case at bar the undisputed and uncontradicted testimony of all witnesses shows that the appellant was engaged on a continuous interstate journey from Chicago to Hot Springs as a first-class passenger and that he was ejected from the first-class accommodations and facilities which he occupied during a portion of his interstate jour ney (R. 36, 37, 38).63 The appellant by these proceedings, is seeking a cease and desist order for the purpose of pro hibiting a continuance of the pernicious practice of discrim ination in interstate commerce against an American citizen, solely on account of his race or color. In Brown v. Memphis & C. By. Co., 7 Fed. 51, 63 (C. C. Tenn.), the Circuit Court in a passing upon the proposition of law above stated holds that mere refund of money is not adequate redress.64 In the same case the Court held 03 The condensed testimony of Albert W. Jones, conduc tor on the Rock Island for 32 years and a witness for the defendants. 84 Brown v. Memphis & C. By. Co., 7 Fed. 51, 63: “ The mere price of a ticket, or refunding of the money, will not answer the purpose in all cases; that would be simply to permit the carrier to enforce the unreasonable regulations, because he should never claim to keep the money while refusing to render the service. He would take no money or refund all re ceived, and go on with his business in his own way, and the plaintiff or the public would be no better off. In Pearson v. Daune, 4 Wall 605, a captain put off a passenger from a humane motive to save his life—the exclusion was held wrongful although the passenger had no money of his own and had paid for no ticket. ’ ’ 7 4 (p. 64) that the wrongful exclusion is an act against the public. The mere refund offered to the plaintiff is not adequate redress and we believe that this Honorable Court will take judicial notice of the unjust discrimination practices by various common carriers against American citizens trav eling as first-class passengers in interstate commerce, be cause such practice is a matter of common knowledge. X I I I Judicial Notice. In United States ex rel Weinberg v. Scholtfeldt, etc., 26 F. Supp. 283, 284, states: “ It is a matter of common knowledge that at the present time in Central Europe the jews are being persecuted and property confiscated and that they are obliged to seek sanctuary in other countries.” If the Federal Courts can take judicial notice of the persecution of human beings in Central Europe we believe it to be a fair request that this Honorable Court take judi cial notice that American citizens of color traveling in interstate commerce as first-class passengers are unjustly discriminated against by certain common carriers in cer tain sections of the United States, solely on account of their race and color. In view of the legal status of all American citizens of color under the Constitution and the laws made in pursuance thereof,05 and the decisions of this 65 65 United States Constitution, Fourteenth Amendment, Art. 4, Sec. 2, Cl. 1, United States Constitution, Title 8, U. S. C. Ch. 3, Sec. 41-43. 75 Honorable Court,66 and other Federal Courts we believe that the time has now arrived for this Honorable Court to hold, that all American citizens, black and white, travel ing in interstate commerce cannot be affected in tlie kind of service, accommodations and facilities they are to re ceive by the Separate-Coach Laws of the several States. In Ohio Bell Telephone Co. v. Public Utilities Co. of Ohio, 301 IT. S. 292, 301, this Court states: “ Courts take judicial notice of matters of common knowledge.” 5 Wigmore Evidence, Pars. 2571, 2580, 2583; Thayer Preliminary Treatise on Evidence, pp. 277, 301. “ They take judicial notice that there has been a depression, and that a decline of market values is one of its concomitants (citing cases).” XIV Questions Not Involved in This Appeal. In order that the issues involved in the case at har may not be confused we wish to state: 1. That the constitutionality of the separate-coach law of Arkansas has not been attacked in this proceeding but only its unconstitutional application by the Com mission on the claim of the defendant Rock Island, as shown by the uncontradicted and undisputed tes timony of its witness Jones, that he was not acting under any rules or regulations promulgated by the Rock Island but, as the conductor of the train and in charge of its operation on behalf of the Rock Island, he was acting under cover of the Arkansas Separate-Coach Law (R. 178). 66 Strauder v. West Virginia, 100 U. S. 303, 306, 25 L. Ed. 664; McCabe v. Atchison T. £ 8. F. By. Co., 235 U. S. 151, 162, 186 Fed. 966, (see dissenting opinion Circuit Judge Sanborn, 977-989). 76 We do not concede that the Separate-Coach Law is constitutional but for the purpose of this appeal we are not drawing into question its validity. 2. We are not asking this Court to consider the weight of conflicting evidence nor the wisdom of the order entered by the Commission. Such request, we know, would be unavailing under the decisions of this Court,67 nor to substitute its judgment on conflicting evidence for that of the Interstate Commerce Com mission on matters purely administrative,08 nor to consider the credibility of witnesses.69 In the case at bar the undisputed and uncontradicted testimony of all of the witnesses, on the main issues in volved conclusively shows that there is no conflict of evi dence therefore the main question presented by this appeal involves the application of the law to the facts. 67 New England Divisions Case, 261 U. S. 184, 204; Manu facturers Ry. Co. v. United States, 246 U. S. 457; Skinner & Eddie Cory. v. United States, 249 U. S. 557, 562; Sea board Airline Ry. Co. v. United States, 254 U. S. 57, 62. 08 Manufacturers Ry. Co. v. United States, 246 U. S. 457, 482; United States v. Louisville & Nashville R. R. Co., 235 U. S. 314, 320; Pennsylvania Co. v. United States, 236 U. S. 351, 361. 69 Merchants Warehouse Co. v. United States, et al., 283 IT. S. 501, 508. 77 XV. The order of the Interstate Commerce Commission and the decree of the District Court should be reviewed by this court and set aside. The constitutional rights of the appellant were claimed to have been violated on his interstate journey (E. 3-7), and this Court in Manufacturers Ry. Co. v. United States, 246 IT. S. 457, 459, holds that in matters involving constitu tional rights the orders of the commission are not conclu sive. A. The order of the Interstate Commerce Commission is void because it rests upon an erroneous application of the rules of law: 1. That the Separate Coach Law of Arkansas applied to Interstate Commerce. 2. That the volume of traffic was to be taken into con sideration in deciding whether or not a citizen had been discriminated against solely on account of his color and denied first-class accommodations on an interstate journey for which he had paid. 3. In holding that the constitutional rights of the appellant were not involved. 4. In failing to follow the decision of this Honorable Court in McCabe v. Atchison T. & S. F. Ry. Co., 235 U. S. 151. 5. In holding that the carrier was justified in assum ing to follow the Separate Coach Law of Arkansas instead of the Constitution of the United States and laws made in pursuance thereto, which have 78 been declared to be the Supreme Law of tbe Land. (Art. VI, Cl. 2, United States Constitution, (Ap pendix A. p. 12).) Tbe above holdings are supported by Interstate Com merce Commission v. Diffenbaugh, 242 U. S. 42; Rochester Telephone Company v. United States, et al., 307 U. S. 125, 130,135. B. The order of the commission is based upon a finding made without any evidence to support it and the District Court should have set the same aside, Interstate Commerce Com mission v. Union Pacific R. R. Company, 222 U. S. 541, 547; Chicago Junction Case, 264 U. S. 258, 263; Interstate Com merce Commission v. Louisville & Nashville R. R. Company, 227 U. S. 88, 91; Florida East Coast Ry. Company v. United States, 234 U. S. 167; Raltimore & Ohio R. R. Company v. United States, 277 U. S. 291, 300, 301, and numerous cases heretofore decided by this Honorable Court. The evidence of conductor Jones, a witness for the de fendants and whose testimony concerning the material issues is undisputed and uncontradicted, (R. 36-38), we believe to be sufficient, standing alone, to clearly demon strate this contention of the appellant. The testimony of the appellant and all other witnesses do not differ as to the unjust discrimination. The decree of the District Court should be reversed. 7 9 Cases which have been cited by some of the defendants in prior stages of this proceeding which we claim are not in point. In view of the fact that a brief period of time is al lowed for a reply brief by the appellant, we take the liberty of now calling to the attention of this Honorable Court a number of cases, which have been heretofore cited by some of the defendants as sustaining the right to discriminate against citizens of the United States, solely on account of their race and color. Plessy v. Ferguson, 163 U. S. 537, 538, 540, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), has been cited to sustain the application of a separate coach law in interstate commerce. A mere reading of the case will demonstrate its inapplica bility. At page 538, it is stated: “ That on June 7, 1892, he engaged and paid for a first class passage on the East Louisiana Railway from New Orleans to Covington in the same State, etc.” This clearly shows that any question raised or decided must necessarily relate to intrastate transportation and not interstate. The well rendered dissenting opinion of Mr. Justice Harlan clearly sustains the present views of all liberty loving American citizens, and we urge that this masterpiece be given consideration in support of the con tention of the appellant that “ Any discrimination against an American citizen, travelling as a passenger in interstate commerce in the United States solely on account of his race or color is unjust, unreasonable and unAmerican, and not only XVI. 80 violates our Constitution and the laws enacted under it, but is at war with our basic conception of a demo cratic society and a representative government.” 70 It is respectfully submitted that if the judgment of the District Court and the report of the Interstate Commerce Commission is permitted to stand as a part of the law of this nation, it will carry out the prophecy of Mr. Justice Harlan in his dissenting opinion rendered in Plessy v. Fer guson, 163 U. S. 537, p. 559, which is as follows :71 559 “ In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case. It was adjudged in that ease that the descendants of Africans, who were imported into this country and sold as slaves were not included nor intended to be in cluded under the word ‘ citizens’ in the Constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; that at the time of the adoption of the Constitution they were ‘ considered as a subordinate and inferior class of beings, who had 560 been subjugated by the dominatifrace, and whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.’ 19 How. 393, 404. The recent amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But 70 Smith v. Texas, No. 33, October Term, 1940, U. S. Su preme Court, Opinion, November 25, 1940; Plessy v. Fer guson, 163 U. 8. 537, at p. 559. 71 This portion of the dissenting opinion of Mr. Justice Harlan in Plessy v. Ferguson, 163 U. S. 537-559 is specifi cally referred to. 81 it seems that we have yet, in some of the States, a dominant race—a superior class of citizens, which as sumes to regulate the enjoyment of civil rights, com mon to all citizens, upon the basis of race. The pres ent decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritat ing, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Con stitution by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight million of blacks. The destinies of the two races, in this country, are both indissolubly linked together, and the interest of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and per petuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occu pied by white citizens ? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana. “ The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recog nition by our governments, National and State, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United 82 States without regard to race. State enactments, reg ulating the enjoyment of civil rights, upon the basis 561 of race, and cunningly devised to defeat legitimate results of the war, under the pretence of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist be tween the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when travelling in a passenger coach or a public highway than when members of the same race sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot-box in order to exercise the high privilege of voting.” The case of Plessy v. Ferguson, 163 IT. S. 537. was dis tinguished in Buchanan v. Warley, 245 U. S. 60, (p.) 79. The facts in this case clearly show that appellant was not furnished first class accommodations and facilities equal to those furnished other first class interstate passengers, travelling on the same interstate journey and train with the appellant and who had paid a similar rate of fare for transportation. In Plessy v. Ferguson, 163 U. S. 537, 540, it will be noted that no question of the application of the separate coach law of Louisiana to interstate transportation was involved nor decided, and the case decided, only, a local question 83 of intrastate commerce. Cases are cited in the opinion concerning the separation of American citizens solely by reason of their race or color, but the cases cited were only applicable at that time to local laws concerning local situa tions or matters which the Supreme Court of the State had held applicable only within the State without any reference to interstate commerce. In Berea College v. Commonwealth of Kentucky, 211 U. S., 45, 53, 54, 29 S. Ct., 33, 53 L. Ed. 81 (1908) is not applicable to the case at bar. This case is also distin guished in Buchanan v. Warley, 245 U. S. 60, 79. The Berea College case, supra, involved an indictment against a local corporation for violation of a State law requiring the separation of students on account of color and race, alone. The Court in deciding that the matter involved a local situation concerning the relation of a domestic cor poration to the State by which it was created, held (p. 53-54): “ The State which grants to a corporation a charter and reserves the right to amend, alter and regulate the corporation could do so because the corporation only exists by virtue of the conditions stated in its charter. * * * Power exercised by the State over the corporation could not be exercised over an individual without vio lating the constitutional rights of the individual.” In the case at bar, the constitutional rights of a citizen is in issue. This case does not apply to the case at bar. In the case of Chiles v. Chesapeake & Ohio Bailway, 218 U. S. 71, 72, 74, (1910), 54 L. Ed. 936, 30 S. Ct. 667, the mere reading of the opinion will clearly, show that the Court of Appeals, which is the highest court in Kentucky, having held that the Segregation or Separate Car laws 8 4 of the State of Kentucky only applied to intrastate com merce, and not to interstate commerce, no question was raised nor decided in this case, concerning the applica tion of the Separate Car Act as applying to interstate commerce, and the court states (p. 72): “ The Court of Appeals of the State made the case turn on a narrow ground, to w it: ‘ The right which it was decided, a railroad company had to establish such rules and regulations as will require white and colored passengers, although they may be interstate to occupy separate compartments upon the train.’ The Court however, said that there could he no discrimination in accommodations.” The Court at page 74 also states: “ There is a statute of Kentucky which requires railroad companies to furnish separate coaches for white and colored passengers, but the Court of Ap peals of the State put the statute out of consideration, declaring that it had no application to interstate trains , and defendant in error does not rest its de fense upon that Statute, hut upon its rules and reg ulations. ’ ’ In the case at bar there is no defense by the defendants of rules and regulations and they rest upon the Statute of Arkansas which does not apply to interstate commerced3 72 72 In the re-direct examination of the witness Jones who was the conductor in charge of the Rock Island Train at the time of the occurrence, April 20, 1937, by Mr. Taylor, attorney for the Rock Island, stated he was not enforcing any rules of the company but was acting under color of the separate car law of Arkansas, and the following ap pears of record (R. 178): “ Q. I want to ask you again, because I may have misunderstood your answers: Have you ever been 85 Smith v. Tennessee, 46 S. W. 566,100 Tenn. 494, 41 L.R. A. 432 (1898), was decided about 40 years ago and is only the opinion of a state court during that period of the develop ment of the United States. No colored passenger was claiming that his constitutional rights had been violated nor that a person of color had been unjustly discriminated against solely by reason of his race or color. This case was dismissed in this court on motion (Oct, Term 1900, 21 S. Ct. 917, 45 L. Ed. 1256) and was not reviewed by this court. The Smith case, supra, has only been cited and followed by the Supreme Court of Mississippi in Southern Railway Company v. Norton, 73 So. 1, 112 Miss. 302 (Dec. 4, 1916), and Southern Railway Company v. Primrose, 73 So. 2, com panion cases. The case of Alabama Railway Company v. Morris, 103 Miss. 511, 60 So. 11, Ann. Cas. 1915B, 613, is only the decision of a state court which has not been approved nor followed in modern times. The Tennessee Court in refer- given any instructions or directions or any rules with reference to how you shall treat colored passengers in Pullman coaches, by the railway company? “ A. No, sir. “ Q. I understood you, and maybe I misunderstood you, somewhere in your examination to answer counsel that something was according to the rules of the com pany. Were you referring there, or did you intend to refer there (fol. 329) to your practice of undertaking to enforce the Arkansas Separate Coach Law? “ A. Oh, I get what you mean now. No. I meant, I was enforcing the law, not the rules of the company. It is not the rules of the company. It is the law, that I am enforcing, and not the rules of the company, be cause I have never had any instructions from any one on the railroad as to just how to handle these cases, so that it was left up to me. “ Mr. Taylor: That is all.” 8 6 ring to the applicability of the State Separate Coach Law to interstate commerce (46 S. W. p. 571)£a*J'- “ That question is an open one under the decisions of the Supreme Court of the United States.” This was an indictment against an agent of a railway company operating within the State of Tennessee. The learned Justice delivering the opinion in Smith v. Tennes see, 41 S. W. 566, must have overlooked Brown v. Memphis and C. By. Company, 5 Fed. 499 (C. C. Tenn. 1880), in which the Federal Court in Tennessee stated the law con cerning the applicability of the Separate Coach Law of Tennessee as follows (p. 501): “ That this act of the legislature, so far as it abro gated the common law right of case for wrongful ex clusion from railroad cars or roads running between two or more states is unconstitutional, because it was a regulation of commerce between the states, which sc£-afc; the legislature, had no right to make, the exclusive right to make it being by the Constitution of the United States, in Congress. Hall v. DeCuir, 95 U. S. 485.” In Southern Bailway Company v. Norton, 73 So. 1, 112 Miss. 302, was not reviewed by this Honorable Court. No question was involved concerning the violation of the con stitutional rights of an American citizen of color, and the railroad company operating within the State of Mississippi, apparently, was satisfied with the decision. The Supreme Court of Maryland in Hart v. State, 60 Atl. 457, 463, 100 Md. 595 (1905), refused to follow Smith v. Tennessee, 46 S. W. 566, and stated that the Supreme Court of the United States on analogous questions had held to the contrary. In South Covington & Cincinnati S. T. By. Co. v. Ken tucky, 252 U. S. 399, 40 S. Ct. 378 (Decided April 19,1920), 87 in which case Mr. Justice McKenna delivered the opinion of the Court, a mere reading of the opinion will disclose that the case is not applicable to the issues involved in the case at bar. The facts show that the defendant Street By. Co., had gained control of the entire stock of a corporation chartered by the State of Kentucky; that the Kentucky Corporation had been granted certain rights by the State of Kentucky; that each termini and all stations of the Cincinnati, Coving ton and Erlanger By. Co., were within the State of Ken tucky; that the crime charged in the indictment was for the unlawful operation of the railway within the State of Kentucky; that there was a distinct operation within the State of Kentucky under the State charter granted by the State of Kentucky, and that the operation alone was reg ulated and, not interstate character, except incidentally; that the interurban railway company derived all of its power from the charter granted by the State of Kentucky and the Court states (40 S. Ct. 379): “ * * * An interurban railroad company deriving its powers from the State, and subject to obligations under the laws of the state, should not be permitted to exercise the powers given by the state and escape its obligations to the state under the circumstances pre sented by this record, by running its coaches beyond the state lines.” The Court further states (40 S. Ct. 379): - “ There was a distinct operation in Kentucky, an operation authorized and required by the charters of the companies and it is that operation, the act in ques tion regulates, and does no more, and therefore is not a regulation or interstate commerce. This is the effect 8 8 of the ruling in South Covington Ry. Co. v. Covington, 235 IT. S. 537, 35 S. Ct. 158, 59 L. Ed. 350, L. R. A, 1915, F. 792.” Mr. Justice Day dissenting (40 S. Ct. 380), states: “ It is admitted that this regulation would not apply to interstate passengers, and colored passengers going from Cincinnati to Kentucky on a through trip would not be subjected to the regulations.” In this case there was no claim by a citizen that his rights under the Fourteenth Amendment of the United States Constitution and the enforcement act had been violated. In Cosart v. Southern Ry. Company, 16 I. C. C. 226, 230, (1909), the complaint was dismissed because the evidence failed to support the charge contained in the complaint hut the commission reaffirmed the doctrine stated in Edwards v. Nashville Chattanooga and St. Louis Raihvay, et al, 12 I. C. C. Rep. 247.73 In Gaines v. Seaboard Air Line Ry. et al., 16 I. C. C. 471, (1909), a mere reading of the report of the commis sion will clearly demonstrate that the case has no applica tion to the case at bar. 73 The language of the Commission p. 230, is as follows: “ In Edwards v. N. C. and St. L. Ry. et al., 12 I. C. C. Rep. 247, the principle was enunciated that common carriers may not, in the accommodations which they furnish to each,’ unjustly discriminate between white and colored passengers paying the same fare. On that authority of that decision and the cases there cited, the principle is here reaffirmed.” 89 CONCLUSION. Simple justice in the interpretation and application of the Federal Constitution, the Fourteenth Amendment and all laws made pursuant thereto, should require equality in interstate transportation of all American citizens with out regard to race or color, as any other interpretation will nullify their plain and unambiguous provisions. Respectfully submitted, R ichard E . W estbrooks, A rthur W . M itchell, pro se, Attorneys for Appellant. I Offlco - Supremo Court, U. S. F if lS ® FEB 17 1041 ------: I C L £ .m < IN THE SUPREME COURT OF THE UNITED STATES October T erm, A. D. 1940 No. 577 ARTHUR W. MITCHELL, vs. Appellant, THE UNITED STATES OF AMERICA, INTERSTATE COMMERCE COMMISSION, FRANK 0. LOWDEN, e t a l ., Avvellees. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION. Appendices to Brief for Appellant. R ichard E. W estbrooks, Chicago, Illinois and A rthur W. M itchell, Pro Se, Chicago, Illinois Attorneys for Appellant. P R I N T E D B Y C H I C A G O L A W P R I N T I N G C O . FILED NOVEMBER 18, 1940 PROBABLE JURISDICTION NOTED DECEMBER 16, 1940. PAGES A ppendix A— Statutes involved .................................................... 1-11 Constitutional provisions involved........................ 12-13 A ppendix B— Separate coach law of Arkansas............................ 15-18 A ppendix C— Abstract of evidence before the Commission....... 19-50 IN D E X TO A P P E N D IC E S . IN THE SUPREME COURT OF THE UNITED STATES October T erm, A. D. 1940 No. 577 ARTHUR W. MITCHELL, vs. Appellant, THE UNITED STATES OF AMERICA, INTERSTATE COMMERCE COMMISSION, FRANK 0. LOWDEN, et al., Appellees. APPEAL PROM THE DISTRICT COURT OP THE UNITED STATES FOR THE NORTHERN DISTRICT OP ILLINOIS, EASTERN DIVISION. Appendices to Brief for Appellant. APPENDIX A. STATUTORY PROVISIONS INVOLVED. Title 8, U.S.C., Chapter 3, Section 41— C ivil R ights. Section 41. Equal rights under the law. All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and en force contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for 2 Appendix A the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other (R.S. par. 1977). T itle 8, U.S.C., Chapter 3, Section 43— Civil R ights. Section 43. Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, regula tion, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the dep rivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress (R.S. par. 1979). T itle 28, Section 41, Sub. Div. 14, U.S.C. Suits to Redress Deprivation of Civil Rights. Four teenth. Of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, cus tom, or usage, of any State, of any right, privilege, or immunity, secured by the Constitution of the United States or of any right secured by any law of the United States, providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States (R.S. Sec. 563, par. 12, Sec. 629, par. 16; Mar. 3, 1911, c. 231, sec. 24, par. 14, 36 Stat. 1092). T itle 28, U.S.C., Section 41, Sub. Div. 28. Sec. 41, Subd. (28) Setting Aside Order of Interstate Commerce Commission. Twenty-eighth. Of cases brought to enjoin, set aside, annul, or suspend in whole or in part any order of the Interstate Commerce Commission. (June 18, 1910, c. 309, Sec. 1, 36, Stat. 539; Mar. 3, 1911, c. 231, Sec. 208, 36 Stat. 1148; Oct. 22, 1913, c. 32, 38, Stat. 219.) Appendix A 3 Title 28, U.S.C., Sec. 43. Section 43. Venue of Suits Relating to Orders of Inter state Commerce Commission, The venue of any suit brought to enforce, suspend, or set aside, in whole or in part, any order of the Interstate Commerce Commission shall he in the judicial district wherein is the residence of the party or any of the parties upon whose petition the order was made, except that where the order does not relate to transportation or is not made upon the petition of any party the venue shall he in the district where the matter complained of in the petition before the commission arises, and except that where the order does not relate either to transportation or to a matter so complained of before the district where one of the petitioners in court has either to transportation or to a matter so complained of before the commission the matter covered by the order shall be deemed to arise in the district where one of the petitioners in court has either its principal office or its principal operating office. In case such transportation relates to a through shipment the term “ destination” shall be construed as meaning final destination of such ship ment. (Oct. 22, 1913, c. 32, 38, Stat. 219.) Title 28, U.S.C., Section 45. (<Judicial Code, Section 209). District Courts; Practice and Procedure in Certain Cases. The jurisdiction of the district courts of cases brought under subdivisions 27 and 28 of section 41 of this title, and sections 20 and 43 of Title 49, shall be invoked by filing in the office of the clerk of the court a written petition setting forth briefly and succinctly the facts constituting the petitioner’s cause of action, and specifying the relief sought. A copy of such petition shall be forthwith served by the marshal or a deputy marshal of the district court or by the proper United States marshal or deputy marshal upon every de- 4 Appendix A fendant therein named, and when the United States is a party defendant, the service shall be made by filing a copy of said petition in the office of the secretary of the Interstate Commerce Commission and in the Department of Justice. Within thirty days after the petition is served, unless that time is extended by order of the court or a judge thereof, an answer to the petition shall be filed in the clerk’s office, and a copy thereof mailed to the peti tioner’s attorney, which answer shall briefly and cate gorically respond to the allegations of the petition. No replication need be filed to the answer, and objections to the sufficiency of the petition or answer as not setting forth a cause of action or defense must be taken at the final hearing or by motion to dismiss the petition based on said grounds, which motion may be made at any time before answer is filed. In case no answer shall be filed as provided herein the petitioner may apply to the court on notice for such relief as may he proper upon the facts alleged in the petition. The court may, by rule, prescribe the method of taking evidence in cases pending in said court. In all other respects the practice and procedure shall conform as nearly as may be to that in like cases in a district court of the United States. (June 18, 1910, c. 309, Sec. 1, 36 Stat. 539; Mar. 3, 1911, c. 231, Sec. 209, 36 Stat, 1149; Oct, 22, 1913, c. 32, 38 Stat. 219.) T itle 28, U.S.C., Section 47. Interlocutory Injunctions as to Orders of Interstate Com merce Commission; Appeal to Supreme Court. No inter locutory injunction suspending or restraining the enforce ment, operation, or execution of, or setting aside, in whole or in part, any order made or entered by the Interstate Commerce Commission shall be issued' or granted by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, unless the application for the same shall be a circuit or district Appendix A 5 judge, and shall be heard and determined by three judges, of whom at least one shall be a circuit judge, and unless a majority of said three judges shall concur in granting such application. When such application as aforesaid is presented to a judge, he shall immediately call to his as sistance to hear and determine the application two other judges. Said application shall not be heard or determined before at least five days’ notice of the hearing has been given to the Interstate Commerce Commission, to the Attorney General of the United States, and to such other persons as may be defendants in the suit. In cases where irreparable damage would otherwise ensue to the peti tioner, a majority of said three judges concurring, may, on hearing, after not less than three days’ notice to the Interstate Commerce Commission and the Attorney Gen eral, allow a temporary stay or suspension, in whole or in part, of the operation of the order of the Interstate Commerce Commission for not more than sixty days from the date of the order of said judges pending the applica tion for the order or injunction, in which case the said order shall contain a specific finding, based upon evidence submitted to the judges making the order and identified by reference thereto, that such irreparable damage would result to the petitioner and specifying the nature of the damage. The said judges may, at the time of hearing such application, upon a like finding, continue the temporary stay or suspension in whole or in part until decision upon the application. The hearing upon such .application for an interlocutory injunction shall he given precedence and shall be in every way expedited and be assigned for a hearing at the earliest practicable day after the expiration of the notice hereinbefore provided for. An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying, after notice and hear ing, an interlocutory injunction, in such case if such appeal be taken within thirty days after the order, in respect 6 Appendix A to which complaint is made, is granted or refused; and upon the final hearing of any suit brought to suspend or set aside, in whole or in part, any order of said commis sion the same requirement as to judges and the same pro cedure as to expedition and appeal shall apply. (Oct. 22, 1913, c. 32, 38 Stat. 220.) T itle 28, U.S.C., Section 47-a. Sec. 47a (Judicial Code, Section 210) Appeal to Supreme Court from final decree; time for taking; priority. A final judgment or decree of the district court in the cases speci fied in section 44 of this title may be reviewed by the Su preme Court of the United States if appeal to the Supreme Court he taken by an aggrieved party within sixty days after the entry of such final judgment or decree, and suck appeals may be taken in like manner as appeals are taken under existing law in equity cases. And in such cases the notice required shall be served upon the defendants in the case and upon the attorney general of the State. The district court may direct the original record instead of a transcript thereof to be transmitted on appeal. The Supreme Court may affirm, reverse, or modify as the case may require the final judgment or decree of the district court in the cases specified in section 44 of this title. Appeal to the Supreme Court, however, shall in no case supersede or stay the judgment or decree of the district court appealed from, unless the Supreme Court or a justice thereof shall so direct, and appellant shall give bond in such form and of such amount as the Supreme Court, or the justice of that court allowing the stay, may require. Appeals to the Supreme Court under this section and sec tion 47 of this title shall have priority in hearing and determination over all other causes except criminal causes in that court. (Mar. 3, 1911, c. 231, Sec. 210, 36 Stat. 1150; Oct. 22, 1913, c. 32, 38 Stat. 220.) Appendix A 7 Title 28, U.S.C., Section 48. Judicial Code, Section 211. Suits to be against United States; intervention by United States. All cases and pro ceedings brought under subdivisions 27 and 28 of section 41 of this title, and sections 20 and 43 of Title 49 shall be brought by or against the United States, and the United States may intervene in any case or proceedings whenever, though it has not been a party, public interests are in volved. (June 18, 1910, c. 309, Sec. 4, 36 Stat. 542; Mar. 3, 1911, c. 231, Sec. 211, 36 Stat. 1150; Oct. 22, 1913, c. 32, 38 Stat. 219.) Title 49, U.S.C., Section 1, Par. 1. Carriers Subject to Regulation. The provisions of this chapter shall apply to common carriers engaged in— (a) The transportation of passengers or property wholly by railroad, or partly by railroad and partly by water when both are used under a common control, man agement, or arrangement for a continuous carriage or ship ment. Title 49, U.S.C., Section 1, Par. 2. (a) Transportation Subject to Regulation. The provi sions of this chapter shall also apply to such transportation of passengers and property and transmission of intelli gence, but only in so far as such transportation or trans mission takes place within the United States, .* * * Title 49, U.S.C., Section 1, Par. 5. Just and Reasonable Charges Required: Classification of Messages, and Rates; Exchange of Services. All charges made for any service rendered or to be rendered in the transportation of passengers * * *, or in connection there with, shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof 8 Appendix A is prohibited and declared to be unlawful; * * * And Pro vided Further * * *. T itle 49, U.S.C., Section 2. Special Rates and Rebates Prohibited. If any common carrier subject to the provisions of this chapter shall, di rectly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transpor tation of passengers * * * subject to the provisions of this chapter, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation * * * under substantially similar circumstances and con ditions, such common carrier shall be deemed guilty of unjust discrimination, which is prohibited and declared to be unlawful. (Feb. 4, 1887, c. 104, Sec. 2, 24 Stat. 379; Feb. 28, 1920, c. 91, Sec. 404, 41 Stat. 479.) T itle 49, U.S.C., Section 3, Par. 1. Preferences-. Interchange of Traffic; Terminal Facilities. (1) Undue Preference or Prejudices Prohibited. 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 particular person, * * * in any respect whatsoever or to subject any particular person, * * * to any undue or unreasonable preju dice or disadvantage in any respect whatsoever. (As amended Aug. 12, 1935, c. 509, 49, Stat. 607.) T itle 49, U.S.C., Section 4. Duty to Furnish Transportation and Establish Through Routes Division of Joint Rates. It shall be the duty of every common carrier subject to this chapter engaged in the transportation of passengers * * * to provide and furnish such transportation upon reasonable request there Appendix A 9 for, and to establish through routes and just and reason able rates, fares and charges applicable thereto, and to provide reasonable facilities for operating through routes * * *; and in case of joint rates, fares or charges, to estab lish just, reasonable, and equitable divisions thereof as between the carriers subject to this chapter participating therein which shall not unduly prefer or prejudice any of such participating carriers. Title 49, U.S.C., Section 13, Par. 1. Section 13. Complaints to and Investigations by Com mission.— (1) Complaint to Commission of Violation of Law by Carrier. Reparation: Investigation. Any person, * * * complaining of anything done or omitted to be done by any common carrier subject to the provisions of this chapter in contravention of the provisions thereof, may apply to said commission by petition, which shall briefly state the facts; whereupon a statement of the complaint thus made shall be forwarded by the commission to such common carrier, who shall be called upon to satisfy the complaint, or to answer the same in writing, within a rea sonable time, to be specified by the commission. If such common carrier within the time specified shall make repara tion for the injury alleged to have been done, the common carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier or carriers shall not satisfy the com plaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the commission to investigate the matters complained of in such manner and by such means as it shall deem proper. Title 49, U.S.C., Section 13, Par. 4. (4) Duty of Commission Where State Regulations Re sult in Discrimination. Whenever in any such investiga- 1 0 Appendix A tion the commission, after full hearing, finds that any such rate, fare, charge, # * regulation or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons * * * in interstate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against interstate or foreign commerce, which is forbidden and declared to be unlawful it shall prescribe the rate, fare, or charge *' * * thereafter to be charged, and the * * * regulation, or practice thereafter to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, or discrimination. Such rates, fares, charges, * * # regulations, and practices shall be observed while in effect by the carriers parties to such proceedings affected thereby, the law of any State or the decision or order of any State Authority to the contrary notwithstand ing. (Feb. 4, 1887, c. 104, Sec. 13, 24, Stat. 383; June 18, 1910, c. 309, Sec. 11, 36 Stat. 550; and Feb. 28, 1920, c. 91, Sec. 416, 41 Stat. 484.) T itle 49, U.S.C., Section 15, Par. 1. Determination of Rates, Routes, Etc.; Routing of Traf fic; Disclosures, Etc.— ( 1) Commission Empowered to De termine and Prescribe Rates, Classifications, Etc. When ever, after full hearing, upon a complaint made as provided in section 13 of this chapter, or after full hearing under an order for investigation and hearing made by the com mission on its own initiative, either in extension of any pending complaint or without any complaint whatever, the commission shall be of opinion that any individual or joint rate, fare, or charge whatsoever demanded, charged, or collected by any common carrier or carriers subject to this chapter for the transportation of persons or property or for the transmission of messages as defined in the first section of this chapter, or that any individual or joint classification, regulation, or practice whatsoever of such Appendix A 1 1 carrier or carriers subject to the provisions of this chap ter, is or will be unjust or unreasonable or unjustly dis criminatory or unduly preferential or prejudicial, or other wise in violation of any of the provisions of this chapter, the commission is authorized and empowered to determine and prescribe what will be the just and reasonable in dividual or joint rate, fare, or charge, or rates, fares, or charges, to be thereafter observed in such case, or the maximum or minimum, or maximum and minimum, to be charged (or, in the case of a through route where one of the carriers is a water line, the maximum rates, fares, and charges applicable thereto), and what individual or joint classification, regulation, or practice is or will be just, fair, and reasonable, to be thereafter followed, and to make an order that the carrier or carriers shall cease and desist from such violation to the extent to which the com mission finds that the same does or will exist, and shall not thereafter publish, demand, or collect any rate, fare, or charge for such transportation or transmission other than the rate, fare, or charge so prescribed, or in excess of the maximum or less than the minimum so prescribed, as the case may be, and shall adopt the classification and shall conform to and observe the regulation or practice so prescribed. Title 49, U.S.C., Section 15, Par. 2. (2) Orders of Commission. Except as otherwise pro vided in this chapter, all orders of the commission, other than orders for the payment of money, shall take effect within such reasonable time, not less than thirty days, and shall continue in force until its further order, or for a specified period of time, according as shall be prescribed in the order, unless the same shall be suspended or modi fied or set aside by the commission, 'o r be suspended or set aside by a court of competent jurisdiction. 12 Appendix A CONSTITUTIONAL PROVISIONS INVOLVED. A rticle I, Section 8, Clause 3, U nited S tates Constitution. Section 8. The Congress shall have Power * * * To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” A rticle I, Section 10, Clause 1, U nited S tates Constitu tion. Section 10. No State shall * * * Pass any law impairing the obligation of Contracts * # # J ? A rticle IV, Section 2, Clause 1, U nited S tates Constitu tion. The Citizens of each State shall he entitled to all Priv ileges and Immunities of Citizens in the several States. A rticle V I Clause 2, U nited S tates Constitution. This Constitution, and the Laws of the United States which shall he made in Pursuance thereof; and all Treaties made, or which shall he made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Con trary notwithstanding. F ourteenth A mendment to Constitution of United S tates, Sections 1 and 5. Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. Appetvdix A 1 3 No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Section 5. The Congress shall have power to enforce by appropriate legislation, the provisions of this article. ’ Appendix B 15 APPENDIX B. S E P A R A T E COACH L A W OF THE STATE OF ARKANSAS. (Pope’s Digest, Chap. X X , Sections 1190 to 1201.) Equality of A ccommodations. 1190 All railway companies carrying passengers in this state shall provide equal hnt separate and sufficient accommodations for the white and African races hy pro viding two or more passenger coaches for each passenger train; provided, each railway company carrying passengers in this state may carry one partitioned car, one end of which may be used by white passengers and the other end by passengers of the African race, said partition to he made of wood, and they shall also provide separate waiting rooms of equal and sufficient accommodations for the two races at all their passenger depots in this state. Exception as to street cars. 1191 The foregoing section shall not apply to street rail roads. In the event of the disabling of a passenger coach, or coaches, hy accident or otherwise, said company shall be relieved from the operation of this act until its train reaches a point at which it has additional coaches. Passengers to occupy places assigned. 1192 No person or persons shall be permitted to occupy seats in coaches or waiting rooms other than the ones assigned to them on account of the race to which they be long; provided, officers in charge of prisoners of different races may be assigned with their prisoners to coaches where they will least interfere with the comfort of other pas sengers; provided, further, that Section 1190- shall not apply to employees of a train in the discharge of their duties, nor shall it be construed to apply to such freight trains as carry passengers. 16 Appendix B Separate sleeping and chair cars. 1193 Carriers may haul sleeping or chair cars for the exclusive use of either the white or African race separately, hut not jointly. Short Lines. 1194 On all lines of railway less than thirty miles long, passenger coaches may be divided by partition. Duty of Officers. 1195 The officers of such passenger trains and the agents at such depots shall have power, and are required to assign each passenger or person to the coach or compart ment or room used for the race to which such passenger or person belongs. Penalty. 1196 Any passenger or person insisting on going into a coach or compartment or room to which by race he does not belong shall be liable to a fine o f not less than ten dollars nor more than two hundred dollars, and any officer of any railroad company assigning a passenger or person to a coach or compartment or room other than the one set aside for the race to which said passenger or per son belongs shall be liable to a fine of twenty-five dollars. Duty of Passenger. 1197 Should any passenger refuse to occupy the coach or compartment or room to which he or she is as signed by the officer of such railway company, said officer shall have the power to refuse to carry such passenger on his train, and should any passenger, or any other person not passenger, for the purpose of occupying or waiting in such sitting or waiting room not assigned to his or her race, enter said room, said agent shall have the power, and it is made his duty, to eject such person from such room, Appendix B 17 and for such acts neither they nor the railway company which they represent, shall be liable for damages in any of the courts of this State. Railroad’s noncompliance—Penalty. 1198 All railway companies that shall refuse or neglect to comply with the provisions and requirements of this act shall be deemed guilty of a misdemeanor, and shall, upon conviction before any court of competent jurisdiction, he fined not less than one hundred dollars nor more than five hundred dollars, and every day that such railway company shall fail to comply with the provisions of this act, and every train run in violation of the provisions here of, shall be a separate offense; and any conductor or other employees of such passenger train having charge of the same or any agent at such depot who shall refuse or neg lect to carry out the provisions of this act shall, on con viction, be fined not less than twenty-five dollars nor more than fifty dollars for each offense. Posting law. 1199 All railroad corporations carrying passengers in this State, other than street railroads, shall keep this law posted up in a conspicuous place in each passenger coach and waiting-room. Races defined. 1200 Persons in whom there is a visible and distinct admixture of African blood shall, for the purposes of this act, be deemed to belong to the African race; all others shall be deemed to belong to the white race. Freight Trains. 1201 The railroad companies shall not be required to furnish separate coaches in freight trains for the white and African races. Act February 21, 1893. APPENDIX C. ABSTRACT OF EVIDENCE ON BEHALF OF THE COMPLAINANT. A rthur W . M itch ell , the complainant, testified as fol lows : My home address is 3806 South Parkway, Chicago. I am a lawyer, and member of the Congress of the United States. Have been a member of Congress since the 3rd of January, 1935, and am now serving my second term in Congress (R. 70). On April 20, 1937, I was in Chicago (R. 70). I left Chicago on a trip to Hot Springs, Arkansas on said date. I made personal arrangements for that trip dur ing the day of the 19th or 20th. I called the Illinois Central Railroad office and made reservations for the trip. I made an effort to secure a bedroom from Chi cago to Hot Springs. They did not have a bedroom available for the complete trip. I was provided with a bedroom over the Illinois Central from Chicago to Memphis, Tennessee. I bought a first class round trip ticket, a part of which ticket I have now in my possession, that is the return part of the ticket which I did not use after the happening of this incident. This is the return part of the ticket which I bought to Hot Springs, Arkansas from Chicago for which I bought a bedroom from Chicago to Memphis. I have the stub for that bedroom. (R. 71) Before I arrived in Memphis, knowing that the car I was in would not continue to Hot Springs, Arkansas, I was informed that there was a car attached to the 19 2 0 Appendix C train on which I was riding that would go to Hot Springs. I had the porter on the particular car which was enroute to Hot Springs to come hack to my reservation on the car in which I had traveled to Memphis (R. 71). I was at this time perhaps eight or ten miles out from Memphis. The porter took my baggage consisting of two suit cases, a large hand bag, brief case, and small hand bag, rain coat, top coat and umbrella and conveyed them to a good seat in the car that would go to Hot Springs, and assigned me to that car. At the time I purchased my railroad ticket I paid $27.70 for the railroad ticket and made a memorandum of the charges. I called for a first-class ticket and that was what the agent of the Illinois Central Railroad Company at Chicago sold me. It is marked first class. It was a first class round trip ticket from Chicago to Hot Springs, Arkansas. The return portion of the ticket read by way of Mem phis, Tennessee, returning over the Rock Island and Illi nois Central to Chicago (R. 71). (The return portion of the first class round trip ticket purchased by the complainant in Chicago was marked Complainant’s Exhibit 1 for identification.) Examiner Disque: He has never turned that in for re fund, has he? Mr. Westbrooks: No, he has not. We are still entitled to refund. (Exhibit 1 for identification was then offered in evi dence as Complainant’s Exhibit 1 and there being no objection the same was received in evidence and a photostatic copy of the exhibit was filed in lieu of the original.) (R. 204-A.) The Witness (continuing) : I purchased and paid $7.50 for the Pullman ticket and I had to pay an additional Appendix C 21 $1.65 because I occupied the bedroom alone. This money for the Pullman ticket was paid at the Illinois Central station to the same agent of the Illinois Central Railroad Company to whom I had paid the money for the first class round trip railroad ticket. Both tickets were purchased in Chicago, Illinois (R. 73), the total amount paid by me to the ticket agent of the Illinois Central Railroad Company at the Illinois Central Railroad station in Chicago was $36.85, and these are the figures of the agent made on this envelope which he gave me at the time I purchased both tickets. (Complainant’s Exhibit 2 marked for identification was the passenger’s coupon or stub for Pullman ac commodations from Chicago to Memphis, Tennessee.) The Witness (continuing): The original railroad ticket purchased by me is No. C-2649 and is the unused portion of the ticket from Hot Springs to Memphis and from Mem phis to Chicago. The Pullman ticket is No. 951 and reads from Chicago to Memphis (R. 73), Compartment C, Car No. 227, for one passenger, marked April 20, 1937. (Complainant’s Exhibit 2 was received in evidence.) (R, 204-B.) The Witness (continuing): When I said I had purchased a bedroom, that was Compartment C as was indicated by this ticket (Complainant’s Exhibit 2). The accommoda tions used by me from Chicago to Memphis, Tennessee in the Pullman car was Compartment C. The $1.65 extra that I paid was in excess of the round trip ticket which cost $27.70. After I had paid for my railroad ticket and Pullman accommodations I occupied the compartment in the Pull man car on the Illinois Central Railroad until the train 2 2 Appendix G upon which I was riding was about ten miles from Mem phis, Tennessee. There were other first class passengers riding in the same Pullman car in which I occupied the compartment. I had the porter on the Pullman car on which I was riding get the porter on the Pullman car which was going through to Hot Springs and have a reservation made from Memphis to Hot Springs. The porter on the car in which I occupied the compartment had told me that the through Pullman car to Hot Springs, Arkansas, and which was attached to the train on which I was riding, would be in charge of that porter as there was no Pullman conductor he would go through to Hot Springs. The porter on the through Pullman car to Hot Springs came hack to the compartment occupied by me when the train on which I was riding was about eight or ten miles from Memphis and before we had reached Memphis, Ten nessee, that is on the through Pullman car to Hot Springs, Arkansas (E. 75), said that he had “ plenty of space in the through car.” He made two or three trips from the through Pullman car to the Pullman car in which I was riding and conveyed all of my baggage to the through Pullman car destined for Hot Springs, Arkansas, and which was attached to the train on which I had left Chi cago. The porter on the Hot Springs Pullman car then took me to the through Pullman car and assigned me to a space which he told me I could occupy. He said he would take up the fare as soon as we had left Memphis. I left Chicago on Train No. 3 about 6:05 P. M. and arrived in Memphis, Tennessee the nest morning around eight o ’clock. Train No. 3 is a daily train called the “ Louisiane.” (Complainant’s Exhibit 3 was marked for identi fication. It is one of the folders, time tables and schedules issued by the Illinois Central Railroad Com pany.) (R. 76, 205-207). The Witness (continuing): Complainant’s Exhibit 3 is similar to one of the folders I received at the Illinois Cen tral station in Chicago at the time I purchased my ticket. It is a time table issued December 31, 1936. (Exhibit 3 was admitted in evidence and shows that the Daily Louisiane left Chicago at 6:05 P. M. for Little Rock, and Hot Springs, Arkansas. Page 2 shows that this train arrives in Memphis, Tennessee at 8:20 A. M. (R. 76) and connects with the Chicago, Rock Island and Pacific Railroad at Memphis, Ten nessee with Train No. 45 which leaves Memphis, Ten nessee daily at 8 :30 A. M. and is due to arrive in Hot Springs, Arkansas at 1:05 P. M. It further shows the equipment of Train No. 3 on page 5. The equip ment consisted of sleeping cars, Chicago to New Or leans and Houston, Texas, 10-section drawing room connecting with Southern Pacific No. 3, New Orleans to Houston; Chicago to Hot Springs, Arkansas, a 10- section, 2-compartment drawing room which connects with the Rock Island No. 45 at Memphis, Tennessee for Hot Springs, Arkansas; also Cincinnati and Louis ville to New Orleans, a 10-section, 1-compartment draw ing room, connecting with Baltimore and Ohio No. 63 at Cincinnati and Louisville; Pullman sleeping cars, air conditioned diners, air conditioned buffet lunch cai, radio, Chicago to New Orleans; coach cars air conditioned, chair cars, Chicago to New Orleans, air conditioned; all regularly assigned cars on this train were air conditioned.) (R. 76). The Witness (continuing): The Pullman car in which I rode out of Chicago was in accordance with the tickets Appendix C 23 24 Appendix C which I had purchased and the accommodations were first class. The Pullman car to which my baggage had been removed just before I reached Memphis, and to which I had been assigned by the Pullman porter, was enroute to Hot Springs, Arkansas. The description of the Hot Springs Pullman car was described by you when you read the booklet (Exhibit 3). It had several sections and a draw ing room. It had a smoker for men, and running water. I went into the smoker and smoked. It had all the ac commodations of the Pullman car except bedrooms (R. 77). This Hot Springs car had sections. The upholster ing in the Pullman car to which I was transferred com pared favorably with the upholstering of the Pullman car from which I was transferred. The upholstering was clean. There was clean linen and everything in the way of ac commodations that Pullman cars ordinarily carry. There was porter service in both Pullmans. They were both air conditioned. There was soap such as Pullman cars ordinarily use, of high quality (E. 78). The toilets were clean. There was running water in the toilets and the washbowls. There were clean towels, hot and cold water, and mirrors. Both Pullman cars contained water for flushing purposes in the toilets. I use Pullman cars quite often and both Pull man cars were equipped the same as all Pullman cars I have had occasion to use. I am describing the Pullman car in which I rode from Chicago to a few miles before we reached Memphis, and the Pullman car into which I was transferred just before we reached Memphis. There were no obnoxious odors in the toilets as they were properly disinfected. I rode in the Pullman car enroute to Hot Springs, Arkansas, until after the car left Memphis, Tennessee (R. 78). After we left Mem Appendix C 25 phis, Tennessee and had gotten a little distance towards Hot Springs, Arkansas, the conductor of the train and the Pullman porter came to me. I offered my first class railroad ticket and the train conductor received the ticket, tore off a piece of it and told me at that time that I could not ride in that Pullman car in which I was riding. The conductor said to the porter: “ This man can’t ride in this car.” This was the train conductor on the Rock Island Railroad. After we had left Memphis, Tennessee and crossed into Arkansas, we had gone a distance of seven miles into the State of Arkansas. After the train conductor told me I could not ride in the Pullman car in which I was riding I thought it might help the situation by telling him who I was, and said: “ I am Mr. Mitchell, serving in the Con gress of the United States” (R. 79). The train conductor said, “ It don’t make a damn bit of difference who you are as long as you are a Nigger you can’t ride in this car.” The Pullman porter was doing all he could to arrange for my transportation in the Pullman car. The conductor in a very arrogant and nasty manner said I had better be gone when he came hack. Realizing that I was in the State of Arkansas and that sometimes persons arrested are not kept in jail for trial hut are taken from the jail and lynched, I decided not to create any disturbance. When the porter returned I requested that he talk with the train conductor and see if arrangements could not be made to permit me to ride in the smoking room of the Pull man car in which I was riding. There was nobody occupy ing the smoking room of the Pullman car. 2 6 Appendix C There were at least four or five sections in this Pullman car in which I was riding' which were unoccupied (E. 80). There were one or two other people riding in the Pullman car. There was a white man to the right of me and in front of me who gave some attention to the controversy. He did not say anything about it. The train conductor had used abusive language to me in the presence of the other passengers in this Pullman car. The other passen gers heard what was being said and saw the entire trans action. The Pullman car in which I was riding was not crowded. After riding in this Hot Springs Pullman car for about ten or fifteen miles in the State of Arkansas the Pullman porter returned and said, “ Well, I just can’t do anything with this man. ’ ’ (Meaning the train conductor.) “ He says you can’t ride.” The porter was referring to the train conductor. The porter then said, “ The train conductor says you can’t ride in the smoker of this Pullman car.” The Pullman porter stated that he knew who I was but he was helpless. The conductor told me that in Arkansas they would put both of us in jail and fine us $50 apiece if I rode in the Pullman car which provided first-class accommodations (E. 80). Under the threat of being thrown in jail for receiving first-class accommodations for which I had paid, I was compelled to leave the Pullman and ride in the Jim Crow car to complete the journey to Hot Springs, Arkansas. My baggage remained in the Pullman car until the train reached Hot Springs. I was deprived of the use of all of my baggage until the train reached Hot Springs. The train conductor after taking up part of my first- class ticket, did not offer to make any refund after I had Appendix C 2 7 been compelled to accept second-class accommodations. The conductor had no business to tear my ticket as he was only supposed to punch the ticket and return it to me. About halfway to Little Rock, Arkansas, he returned the torn portion of my ticket and said, “ Of course, this ticket entitles you to have first-class accommodations but under the law of the State of Arkansas you can’t have them, and they have a right to give you hack the difference between the price of the ticket and a regular coach ticket ’ ’ (R. 81). The train crews changed at Little Rock and the piece of ticket which the first conductor had torn off and returned to me was taken up by the train conductor in charge of the train from Little Rock to Hot Springs. I offered to pay for the extra accommodations, that is, the seat in the Pullman car and I had the money in my hand when I offered the ticket to pay for this Pullman accom modation on to Hot Springs, and they refused to accept it. Although I had a first-class ticket and was entitled to first-class accommodation he told me I would have to ride in the Jim Crow car. He told me that before I was put out of that Pullman. I protested about being put out of the Pullman car and he threatened to have me arrested (R. 81). The Jim Crow car was an old car up next to the engine, in front of all the other passenger cars. As I remember it it was into three, or into two compartments. A part of it was used for smoking passengers, a small section of it; separated by partitions, and by a door. I don’t re member whether it was a swinging door, or just an ordinary door; and a separate section of this car was used for non smoking passengers, men and women. The car was in filthy condition. It was old and poorly ventilated; no linen of any kind; no running water; a filthy toilet that emitted obnoxi 2 8 Appendix G ous odors; no wash bowl or any convenience where a man or a woman could wash their hands; no towels or linen of any kind; no soap, offensive smelling spittoons; part of this Jim Crow car was used by the conductor; he used two seats of it for his office. In fact, he and his flagman, his white flagman, used two seats of that part—not the part that was set aside for smokers, but the part that was set aside for the non-smoking passengers. He rode just across the aisle from where I sat all the way into Little Rock (R. 82). The ventilation of the Jim Crow car was the type that they had in the old fashioned cars. You could get ventila tion—they had some arrangement for ventilation at the top ; it was not air-conditioned at all. That car was built before they knew anything about air-conditioned cars, I think. There was neither hot nor cold water for use in that part of the car, in the Jim Crow car, where I was compelled to ride. I f there was any water for flushing the toilet the toilet was out of commission and could not be flushed that morning, because it was giving off a terri ble odor. It might have been due to something caught up above. I don’t want to say it wasn’t; my recollection isn’t clear on that, but I know it wasn’t possible to flush it that morning. The toilet in the Jim Crow car was not flushed out at all from the time I went in there (R. 82). It was filled with offal. One or two ladies were in that portion of the Jim Crow car where I was. This little Jim Crow section wasn’t crowed at any time. I believe they had separate toilets for men and women in this Jim Crow car. Ordinarily they do not. In a great many of them, in the south, they do not have them separated. I was down south two weeks ago— As to this one, I am not certain whether there were two toilets or one. I know there was only one in the compart Appendix C 2 9 ment where I was riding. There might have been one in the little section set off for smoking passengers (R. 83). In the compartment in which the ladies were riding there was only one toilet. The smoking compartment of this same car was used as a smoker for colored passengers. There were white in it, too, but I think the purpose of it was—it was designated for colored, but there were white riding in it. They had a sign I think ‘ ‘ For Colored. ’ ’ The train conductor had charge of that train from Memphis to Little Rock. I recognize what you show me as Complainant’s Exhibit 4, as the folder given me by the Rock Island which is a time table corrected January 24, 1937 (R. 84). That covers that train service. (Complainant’s Exhibit 4, being a Rock Island time table corrected January 24,1937, admitted in evidence.) (R. 84, 207-210). I was not permitted to ride in the observation parlor car as I should have been permitted according to page 6 of the Rock Island time table (R. 85). I had the fare and was ready to pay it and offered to pay it for this per mission. I was ready and willing and able to pay for and ride in the first-class coaches or cars. I saw other first- class passengers riding in them and they were all white people. I did not see any colored person at all riding in that observation car as passengers. They have a sleeping car from Memphis to Hot Springs, ten sections, one draw ing room and two compartments, from . Chicago, Illinois Central No. 3 (R. 85). That was the car I was ejected from. I did not see any colored passengers in that car. I was told by the conductor that they could not ride in it, and because I was colored, I could not ride in it. And that was the only reason he told me that I could not ride in 30 Appendix G there. Absolutely because I was colored. He said this: he said, “ The law of Arkansas has made it a crime for a Negro to ride in a car of that type, in the presence of white people; and that they would have to ride in compartments, or drawing rooms; that they couldn’t ride in the car.” This car that I was in, as a further description of it, that is, the car I was ejected from was of the modern type, with those separations between the sections. It was not the old type, where they used to put up ordinary wooden boards between the sections when they got ready to make down the berths (R. 86). It was one of the modern steel cars with these sections that stay permanently fixed, with these separations, or those partitions, they are permanently fixed between the sections; and I always rode in a section. I was trying to buy a section at the time when they ejected me, so I wouldn’t have contact with anybody else. (Complainant’s Exhibit 4 shows that “ passengers holding coach tickets (not special coach) who desire to use sleeping car or parlor car have their rail tickets made valid for passage in sleeping car or parlor cars, on payment of difference between the one way first- class rail fare and the one way coach fare” (R. 86-87). Additional fare will be charged for the service of the sleeping and parlor cars. “ Tickets designated ‘ special coach’ will not be honored in sleeping or parlor cards” (Exhibit 4, page 12).) The Witness (continuing): I arrived in Hot Springs, Arkansas, about 1:00 o ’clock P. M. (R. 87). (Page 32, Exhibit 4, also advertises the fact that coach tickets may be changed to first-class tickets. Ex hibit 4, page 33, shows the Pullman car rates and pro vides that if a person has only one ticket, an extra fare is charged for occupancy of a compartment.) Appendix G 3 1 When I was ejected from the sleeping car, a first-class accommodation, I was very sick and had been advised by my physician that I was suffering from low blood pressure (R. 88). We had been in a terrible fight in Washington, over the passage of Anti-Lynching Bill, and I was going to Hot Springs, for the purpose of building up my health. At the time I left Washington, D. C., I was sick and the records Avill show that I was excused because of illness (R. 38). I informed the train conductor of the illness be fore I was ejected. I arrived in Hot Springs in the Jim Crow car used for the transportation of persons holding second-class tickets, although I had paid for a first-class fare and accommodations. I remained in Hot Springs for about sixteen or seventeen days during which time I went down to the station and looked at Train 45 more than a half dozen times. It was a sort of custom for the patients at the hotel and bath house where I was stopping to visit the station on the arrival of this train to see who was coming to Hot Springs. That is, the new arrivals. I saw the Pullman cars used by first-class passengers attached to this train. I did not see any colored people riding as passengers in those first-class cars, that is, Pullman cars on the Rock Island (R. 89). The Rock Island refused me a ticket to return to Chicago, I mean, the agents of the Rock Island, in Hot Springs, refused to sell me first-class accommodations in the Pullman car from Hot Springs to Chicago, and that is why I have this unused portion of the first-class ticket which I purchased in Chicago, and I re turned over the Missouri Pacific by paying first-class rail road fare and the additional charges for Pullman service. I have the unused portion of my ticket photostated (R. 89). The condition of the car in which I saAv the colored pas sengers riding, that is the Jim CroAV car, was the same as I have heretofore described and was an antiquated railroad 32 Appendix C car used for diversity purposes. The upholstering was very poor and worn and there were no towels. In the first- class car they have white towels on the back of the seats; they have them in all the Pullmans and in some of the coaches, but not in the Jim Crow car. In fact, there is no effort made by this railroad company to give Negroes equal accommodations. I saw the same kind of a Jim Crow car come into Hot Springs, Arkansas, on that train (Train 45) each day I was there and I have been observing the same condition for the past twenty-five years, there has been no change worth speaking of during that time. Not only have I been there and seen it, but I have been riding in it for that length of time as late as two weeks ago (R. 90). I have a suit filed in the Circuit Court of Cook County against each of the defendants in this case, No. 37-C-5529 (R. 90-91). Exhibit 5, for identification, is an identical copy of the verified answer filed by Frank 0. Lowden, et al., in the Circuit Court. (It was stipulated that Paragraphs 16, 17 and 18 of the answer be read in evidence in this proceeding (R. 92). Paragraph 16 admits that the complainant was riding in the Pullman and was ejected by the train conductor; that the Pullman car was occupied by pas sengers of the white race; that the drawing rooms and compartments in the Pullman car was wholly occupied by other passengers; that the conductor was compelled under the laws of Arkansas, to assign plaintiff who was believed to be a colored person to this Jim Crow car (R. 93). Paragraph 17, claims that the conduct of the train conductor in compelling the complainant who had paid a first-class fare, to ride and accept sec ond-class accommodations was in pursuance of the Separate Coach Law of Arkansas (R. 93). Paragraph 18 admits that the plaintiff was charged and paid for first-class fare from Memphis to Hot, Springs, hut that the defendants, Frank 0. Lowden, et Appendix G 3 3 al., trustees of the Rock Island Railway Company, did not furnish the facilities and accommodations to the plaintiff for which the plaintiff paid and which was furnished other first-class passengers on the same train paying the same fare. It further admits that the plain tiff was overcharged the sum of $3.74 which was re tained by the Rock Island.) (Emphasis supplied.) When the porter on the Hot Springs sleeping car took me in the Hot Springs car he informed me that the draw ing room was engaged and occupied as far as Memphis, Tennessee, and if the drawing room was not taken out of Memphis, I was to be given the drawing room upon pay ing the extra fare, which I was ready, willing and able to do (R. 93-94). He also told me that if the drawing room was engaged from Memphis to Hot Springs I could occupy a seat in the Hot Springs sleeping car from Memphis to Hot Springs. I rode about ten miles in this Hot Springs car with my baggage in a seat before I reached Memphis, and I remained in the same section until we had reached about fifteen miles the other side of Memphis, going to ward Little Rock. Each section of this car had partitions and was the same as the modern Pullman cars are built, (It was stipulated between the complainant and the defendant Pullman Company that at the time the com plainant was ejected from the Hot Springs Pullman car by the train conductor that there were vacant and unoccupied seats in the Pullman car) (R. 95-96). T homas J . P rice, a witness for the complainant, testi fied (R. 97): I live in 3812 South Parkway, Chicago, Illi nois. Have lived there about ten years. I have been engaged in the practice of law about thirty years, twenty years of that time I have spent in Little Rock, Arkansas. I am familiar with the transportation furnished by the Rock Island System as I had a newspaper called the “ Ar 34 Appendix C kansas Times,” and used scrip on the Rock Island Rail road for many years (R. 97). I am quite familiar with Train 45 which runs from Memphis, Tennessee, to Little Rock and Hot Springs, Arkansas. I am familiar with the class of facilities, service and accommodations furnished to colored people on that train, also, the accommodations and facilities on that train furnished to white persons as first-class passengers. The Rock Island had three types of car service, for Negro passengers. A car that they divided up in three sections, with black leather upholstery (R. 100). They had another combination in which they put the colored people next to the baggage, that was divided into two sections, a smoker and another section. They had a car divided into sections with ordinary upholstery, not a chair car. The last time I rode on the Rock Island Rail way was about eleven months ago when I made these ob servations. From 1908 up to about eleven months ago I rode all over the State of Arkansas on the Rock Island Line. These conditions which I was describing have been existing during the period of time last mentioned by me. The accommodations furnished for all Negro passengers were not anywhere up to the accommodation furnished the white passengers (R. 101). I have ridden in the cars fur nished white passengers and received the accommodations and facilities and also in the cars and accommodations fur nished the colored passengers. On one occasion I went in the Jim Crow car. Seeing the car was dirty with peanuts and tobacco juice all over it, I went into the other coach where white passengers were riding. In the Jim Crow car there was a sign “ For Negroes or For Colored,” in the other car, there was a sign “ For White.” There were Negroes riding in the car where the sign read “ For White.” In the Jim Crow car the ladies and men used the only toilet in the place, that is, the same toilet as there was Appendix C 3 5 no other toilet in the ear. There was no running water in that toilet to flush the hopper, no towels nor any wash bowl in the Jim Crow car (R. 101). The Jim Crow car was usually covered with railroad dust from the engine and the toilet was filthy. In the car or cars occupied by white passengers there were clean towels for use of the passengers, clean covers over the hack of the seats or chairs, everything was nice and clean; good air circulation, washbowls, towels, soap and separate toilets for men and women. I always paid a first-class fare when I made the trips on the Rock Island (R. 102). E dwakd H. Caeey, for the complainant, testified (R. 103): I live at 4252 Vincennes Avenue, Chicago, Illinois; have been a resident of Illinois for seventeen years. Lived in Little Rock, Arkansas, for twelve years before coming to Chicago. Have used the Rock Island Railway for trans portation and traveled extensively from Arkansas through out the South from 1910 to 1920 (R. 103). Have traveled as a passenger on the Rock Island from Arkansas to Okla homa and Illinois, and have returned from Chicago to Arkansas many times by way of the Rock Island Railway. Several times I made the trip from Memphis, Tennessee on Train 45 to Hot Springs. Have used and ridden in the cars used by white passengers and also I have ridden those used by colored passengers on the Rock Island, and I am familiar with the accommodation and facilities fur nished by the Rock Island to both white passengers paying first-class fare and colored passengers paying first-class fare (R. 104). I always paid a first-class fare. The coach set aside for Negroes on the Rock Island Train No. 45, from Memphis to Hot Springs, was usually a coach next 36 Appendix C to the baggage car and divided into two sections with poor accommodations as to cleanliness. One toilet and no wash bowls, the one toilet was nsed by colored ladies and gen tlemen. In that part of the section where colored ladies were sitting, the train conductor would usually use four seats for his office (R. 105). In the part used as a smoker for men, the butcher would use part of that as a storehouse for his goods. Colored and white men were smoking in the part next to the colored ladies’ compartment. There was only a little swinging door between the smoking com partment and the compartment occupied by colored ladies and gentlemen. The frequent passing through the swing ing door would permit smoke to fill the compartment occu pied by the colored ladies. I observed this happening quite often. In this compartment or Jim Crow car there was no soap, no running water, no hot and cold water, no water for flushing the toilet, prisoners were often carried in this compartment used for smoking (R. 105). The prisoners were both white and colored. During the many years of travel on the Rock Island I have never seen any white or colored prisoners being carried in the coach set apart for white passengers, in the first-class accommodations furnished white persons holding first-class tickets (R. 106). There weren’t any foot-rests in the Jim Crow car, no carpets on the floor, the cuspidors in the compartment used by colored ladies were usually very filthy. The accommodations furnished white passengers were usually very clean and well kept, covers on the back of the seats which were very comfortable, the upholstering was of green or red plush, there was plenty of running water, hot and cold water, clean towels, soap, clean washbowls (R. 107). Usually a whole coach was set aside for white passengers for smoking purposes of Appendix C 37 white passengers holding coach tickets (R. 107). When I say coach tickets, I mean second-class tickets. The coaches were provided by the railroad company. I do not mean the Pullman cars. I have ridden on the Pullman cars on the Rock Island in the State of Arkansas, these Pullman cars are usually supplied with everything to make passen gers comfortable (R. 108). The upholstering is first-class, first-class berths, soap, towels, washbowls and tables. There are observation cars and lounging compartments. I have purchased Pullman accommodations in Arkansas, if I went on the side used by white persons to purchase a ticket, and if I went on the side specified for colored persons to buy ticket the Rock Island ticket agent would refuse to sell me Pullman or first-class accommodations in the observa tion car belonging to the railroad company (R. 108). The Rock Island agent told me on many occasions that he could not sell Pullman accommodations to Negroes. There would be Pullman cars and observation cars used by passengers holding first-class tickets, attached to the train with space unoccupied. But because I was colored I was refused the accommodations. I always purchased first-class railway ticket and was financially able and willing to pay for the use of first-class accommodations and facilities. (Emphasis supplied.) W illiam H arrison, for the complainant, testified (R. 109): Lived in Chicago about nineteen years; had pre viously lived in Oklahoma. Have held various offices in Illinois and Oklahoma. Was assistant attorney general and member of the board of pardons and paroles in Illi nois, and Special Judge in the State of Oklahoma. That he had traveled over the Rock Island System in the State of Arkansas, Oklahoma and as far west as the Pacific coast (R. 110). Prior to April 20, 1937, and subsequently to said date. That he was familiar with the accommodations 38 A ppendix C and facilities furnished by the Rock Island on Train 45, to colored and white passengers. He always paid for a first-class ticket (R. 110). He described the Jim Crow coach as being next to the baggage car with a smoker used for white coach passengers or second-class passengers as part of the same car. The toilet in the colored compartment of the car was used by both men and women as there was only one toilet. The upholstering was leather and part of the compartment called the Jim Crow car was used by the conductor and the news butcher, each occupying about two seats. This condition described by this witness existed from 1904 to 1916. Colored men smoked in the compartment where colored ladies were compelled to ride, sometimes there was a middle compartment where colored were permitted to smoke. The conductor, flagman and brakeman also smoked in the Jim Crow car (R. 111). The Jim Crow car was filthy; cuspidors were unseemly and emitted odor. In coaches occupied by -white passengers, riding on the same train there were clean covers on the seats and the car was well kept. The Jim Crow car was in no wise equal in point of comfort and convenience. This descrip tion was of Train No. 45, which ran from Memphis, Ten nessee, through Little Rock, Arkansas, and on to Hot Springs. There -were signs in the Jim Crow cars “ For Colored Persons or For Negroes” (R. 112). There was no running water in the Jim Crow car with which to flush the single toilet. The first-class accommodations on Train No. 45 furnished to white passengers included the use of the Pullman cars, running water, clean towels, soap and clean -washbowls (R. 112). The cuspidors were clean, the smoking room -was kept clean. After purchasing a first- class ticket from the Rock Island ticket agent in Hot Springs, Arkansas, I applied for Pullman accommodations Appendix C 39 for which I was financially able to pay and offered to pay, but the agent refused my application because I was colored (R. 114). (Emphasis supplied.) I always bought a regular ticket before making applica tion for Pullman accommodations from Hot Springs, Arkansas, to Chicago, Illinois (R. 113). John J. P u ix e n , for complainant, testified he lived in 4314 Forestville Avenue, Chicago; had practiced medicine thirty-nine years, in Alabama, Tennessee and Arkansas (R. 115). Have lived in Chicago, about eighteen years. As a property owner in Hot Springs and Little Rock, Arkansas, he has frequently made trips on the Rock Island Railway (R. 81). Always paid a first-class fare and was familiar with the accommodations furnished to both white and colored passengers. Have used both accom modations on the various trips. In using the first-class accommodation furnished white passengers by the Rock Island, in Arkansas, I observed that the cars had running water in the toilets, soap, combs and brushes in some of the compartments and everything strictly modern (R. 116). This was the coach and chair cars furnished to white passengers. The Jim Crow car set apart for colored passengers contained very poor accommodations. There was no water to flush the toilets, no towels, no washbowls, most of the time, if there was a washbowl it would be covered with soot and cinders (R. 116-117). The Jim Crow car sometimes had one partition and sometimes two parti tions. Parts of the Jim Crow car was used for smoking. I have observed drunken men of the white race being brought out of the car used by white passengers into the Jim Crow car where colored ladies were riding and the drunken men would heave all over the seats. The conductor and flagman also occupied seats in the compartment set apart for colored ladies and gentlemen. 40 Appendix C I made a trip from Chicago to Hot Springs by way of Memphis and over the Rock Island lines, September, 1937, I found the conditions the same as I have described in relation to the accommodations furnished colored passen gers and white passengers (R. 117-118). I paid first-class fare, but was compelled to accept second-class accommoda tions by the train conductor (R. 119). When I say first- class ticket or first-class fare, I mean the price I paid for the ticket was the three-cents-a-mile rate, the second-class ticket is what is commonly known as the two-cents-a-mile or coach ticket (R. 119-121). E lias A. M obris, for the complainant, testified he lives at 4171 South Parkway, Chicago, have lived in Chicago sixteen years. I lived in Arkansas, before coming to Chicago, and was a federal employee (R. 121-122). Have returned to Arkansas from Chicago, by way of Memphis, Tennessee, several times since living in Chicago. I always purchase a first-class ticket (R. 122). Have ridden in both chair cars and sleepers from Chicago to Memphis. The Pullman cars are very well furnished, plush hacks for the seats, a smoking room with a lavatory off from the smoking room and with proper necessities for keeping it clean. Run ning water, hot and cold water, towels, soap, carpets on the floor, porter service, berths, tables for use by passengers (R. 122-123). Sanitary, well lighted with all modern con veniences (R. 123). I have ridden in the car set apait for colored people on this Train No. 45 of the Rock Island, which leaves Memphis, about 8:30 each morning. It is a coach divided into, at least, two sections, one for colored passengers, the other for a smoking compartment, one lavatory in the colored compartment used by men and women, no soap, no towels or anything of that kind. I am describing the part of the Jim Crow car used by colored ladies. The washbowls were filthy, no hot or cold water Appendix C 41 in the wash bowls (R. 123-124). The door between the part of the Jim Crow car used for smoking and that part occupied by colored ladies was frequently opened, and rolls of smoke would enter the part of the Jim Crow car in which colored ladies were riding. I saw signs “ For Negroes or For Colored.” The sections of the Arkansas Statute providing for “ The quality of Accommodations” was read in the record and may be quoted as follows (R. 127, 211-213): “ Sec. 986. All railway companies carrying pas sengers in this State shall provide equal, hut sep arate and sufficient accommodations for the xvhites and African races, by providing two or more pas senger coaches for each train.” The provisions of the Arkansas Law concerning “ Sep arate Sleeping and Chair Cars” provides (R. 127, 211): “ Sec. 989. Carriers may haul sleeping or chair cars for the exclusive use of either the white or African Race separately, but not jointly.” Evidence on behalf of the defense. Albert W . J ones, for the defense, testified on direct examination. I live at 711 East Sixth Street, Little Rock, Arkansas (R. 128). I am the railroad conductor employed by the Chicago, Rock Island Railroad Company. Have been running a passenger train for thirty-two years (R. 128). I have been in charge of the Rock Island passenger train between Memphis, Tennessee, and Hot Springs, Arkansas, for five or six years. And I had charge of Rock Island Train No. 45 at the time the complainant was put out of the Hot Springs Pullman car into the Jim Crow car (R. 129-130). Train No. 45 consists of a baggage car, combination coach, straight day coach, diner, sleeper and 42 Appendix C parlor car (R. 130). The combination coach is next to the baggage car, the entire equipment is owned by the Rock Island except the Pullman sleeper. On April 1, 1937, I saw Congressman Mitchell in the sleeping car (R. 130- 131). I received the railroad transportation from Con gressman Mitchell while he was in the Pullman car and he had a dollar in his hand for the porter of the Pullman car. I asked him if he had a through sleeping car. He said, “ No.” I said: “ Well, we can’t accept your dollar, unless the porter has a compartment or stateroom that he can put you in.” The porter said he did not have a com partment or stateroom and I said to Congressman Mitchell, “ You will have to go to the colored car.” He said: “ They told me in Chicago, that I wouldn’t have any trouble getting first-class accommodations for the entire trip.” I said to him, “ The law doesn’t make any provisions for a Con gressman, any more than it does for anybody else” (R. 131). The porter said: “ He is Congressman Mitchell from Chicago.” I said, “ I can’t do anything for you. I can’t accept this Pullman fare, etc.” The congressman walked into the Pullman and sat down, I think in Section 3. (Em phasis supplied.) After I finished checking the berths and returned to where the congressman was, he asked me what I was going to do with his ticket. I said, “ I will make a notation and you can get a refund of one cent per mile.” He said, “ I don’t want your refund, I want the service.” I said, “ I can’t give you the service.” When I came back after working my parlor car the congressman had gone up in the other car. He was in the middle compartment, next to the ladies’ toilet (R. 131). When I first saw the con gressman I was about nine miles from Memphis, in the State of Arkansas. I rode in the colored end of the car from Forest City to Memphis, I mean from Forest City Appendix C 43 to Little Rock, a distance of about eighty-seven miles (R. 131-132). It is 133 miles from Memphis, to Little Rock. The middle compartment is devoted and used by colored women, colored men may use it, but it is called the colored women’s car. (Emphasis supplied.) The car in which the congressman was riding was of solid steel with three partitions (R, 131). The front end is used for a colored smoker, the middle for colored men and women, the rear for a white smoker. There were three toilets one in each compartment. The only water toilet is the middle toilet (R. 133). Paper towels and a wash basin. The other two toilets do not flush, but are dry toilets. The toilet in the middle compartment is used by both colored men and women (R. 134). During the time I was in the Jim Crow car I did not detect any foul odors (R. 134). The colored car is cleaned and renovated at Memphis, but I do not know the nature of the cleaning. It looks clean and nice. The spittoons look clean and have some kind of disinfectant in them. I did not notice any dirt, peanuts, tobacco juice or anything else on the floor. There are leather seats with seat covers. And for the past five or six years, linen back covers have been used (R. 134- 135). There is an electric fan in each compartment and ventilators that you pull open and close with a ventilating stick. On this day, the incident happened, I maintained my office in the forward part of the colored car where I occu pied two seats with my grip, tickets, envelopes and other working material (R. 135-136). There were about five or six colored passengers in that car (R. 136-137). The seat ing capacity in the two compartments devoted to colored passengers is about forty-two. There was no news butcher on that train. There were three coolers with ice-water. To the best of my knowledge there was ice-water in the 4 4 Appendix C coolers (E. 137). In the thirty-two years of my experience I have handled about ten or twelve cases of this kind (R. 138). I mean, cases where I have put colored people out of the sleeping cars because they were colored, and had them occupy the Jim Crow car. Colored persons can’t use the Pullman car on this train (R. 138). They may occupy a drawing room or compartment, but they can’t ride in the body of the car. In my conversation that morning with the congressman he was very gentlemanly (R. 143). He never went out of his way, never talked noisy, he was very nice. He did not use any insulting language, nor any abusive or profane language. His voice was not loud nor raucous (R. 143). The Pullman car came from Chicago, en route to Hot Springs. I f a white passenger desires to ride in the observation car, he must have a “ three-cent-per-mile” ticket, or a first-class ticket as you call it (R. 158). And if the white passenger only has a “ two-cent-per-mile” ticket or second -class ticket, he can only ride up in the half of the jJipi Crow car. And cannot ride in the Pullman car (R. 158). The only provision that the Rock Island has for carrying all colored passengers is in the part of the Jim Crow car. A colored person who has a first-class ticket is compelled to ride in the Jim Crow car with all other colored persons who have second-class ticket or “ two-cent-per-mile” tickets. A white person with a first-class ticket is entitled to use the Pullman, the diner and the observation car, which pro vide first-class accommodations (R. 158-159). The Rock Island Railroad Company has no such first-class accom modation for Negroes, although the Negroes may have first- class tickets on the Rock Island Railway or “ three-cent-per- mile’ ’ tickets. During the thirty-two years I have worked Appendix C 45 over there in Arkansas, for the Rock Island Railroad Com pany it has never had any first-class accommodations for Negroes (R. 159-160). And they haven’t any first-class accommodations in the sleeping cars for Negroes now. (Em phasis supplied.) The Rock Island Railroad Company does not at this time have any first-class accommodations for colored passengers paying the “ three-cent-a-mile” fare permitting them to use the observation car which belongs to the Rock Island. They cannot use the dining car, nor sleeping car, although they may hold first-class tickets (R. 160). On April 21, 1937, Congressman Mitchell had a “ three- cents-per-mile” ticket, or what they call a “ first-class” ticket (R. 161). There was plenty of room in the observa tion car on that day. I did not inform the congressman that he could ride in the observation car by paying the same additional fare of white persons holding first-class tickets (R. 161). The seat fare in the observation car from Memphis, to Hot Springs was ninety cents and the dollar which Congressman Mitchell had in his hand at the time he was ejected from the Pullman car would have been more than adequate to have paid for a seat in the observation car. The same fare is charged for a seat in the Pullman car from Memphis, to Hot Springs (R. 162). Congressman Mitchell was sitting in Section 3 of the Pullman car alone (R. 162). I do not know if anyone occupied Section 3 from Memphis, to Hot Springs on April 21st, but whether the space had been sold or not, I would not have sold a seat, Section 3 or any other space in that Pullman car to Congressman Mitchell, because he was a colored person. I know he had a first-class interstate round- trip ticket from Chicago, Illinois, to Hot Springs, Arkan sas (R, 163). 4 6 Appendix C The accommodations furnished to Negro passengers in the Jim Crow car where Congressman Mitchell was com pelled to ride are not equal to the accommodations furnished in the observation car by the Rock Island Railway to white passengers holding first-class tickets (R. 164-165). (Em phasis supplied.) There is porter service furnished to the passengers in the observation car but no porter service furnished to the colored passengers in the Jim Crow cars (R. 165). The Jim Crow car which all colored passengers were compelled to ride in in April, 1937, had three compartments (R. 165). There was no running water, no wash basins or towels. There were only paper towels furnished in the compartment of the Jim Crow car but linen and paper towels were furnished in the observation car (R. 165-166). There was only one toilet in the compartment where Con gressman Mitchell was riding in the Jim Crow car, which was “ for women.” There was none for men who were riding in that compartment (R. 166). I never used for my office any seats in the white smoker. I used the seats in the colored compartment (R. 167). There is only a runner on the floor of the Jim Crow car now, while on the floor of the Pullman and observation car carpet is used to cover the entire floor (R. 168). In the Jim Crow car where Con gressman Mitchell rode there were only leather seats. When I said that the Jim Crow car was “ now in first-class condi tion” I meant that it was “ clean” (R. 168). I have never sold any colored person any space or ac commodations in the Pullman car during my entire service. I inspected the toilet in the Jim Crow car at Memphis, but did not look in there at any time afterwards (R. 169). The toilet did not have any water to flush the hopper, from the time the train left Memphis until it reached the destina Appendix C 47 tion (R. 170-171). I stated on direct examination that I had no instructions from the Rock Island Company. But I had charge of the train as the conductor for the company and having charge of the train for the company I felt it was my duty to put the congressman out of the sleeping car into the Jim Crow car (Rec. 168). The congressman did complain and protest being put out of the Pullman car. He showed me his ticket and offered to pay for the accommo dations. But I told him he was a colored man and couldn’t ride in those first-class accommodations. If there had been a white passenger with a first-class ticket who had boarded the train at Memphis, for Hot Springs, and had asked for a berth or a seat in that Pullman car, where there ivere vacant seats or had asked for a seat in the observation car, I would have sold it to him. I do not know how many colored people apply for Pullman tickets in Hot Springs, for Chicago, and are refused (R. 71). (Emphasis supplied.) If the compartments or stateroom are occupied, no col ored person can ride in the body of the sleeping car. No colored persons are allowed to ride in the observation car which belongs to the Bock Island, even if they have first- class tickets. Those are the rules of the railway company and I follow the rules. I sell space on that train for seats in the observation car hut would not sell a colored person any accommodations in the observation car, although he had a first-class ticket (R. 172). The white people and colored people are charged the same fare for the “ three- cent-per-mile” ticket, or the “ first-class” tickets (R. 173). There is no difference in the charge for the ticket because of color. The Pullman car is better equipped than the Jim Crow car. I f a white passenger with a first-class ticket was put out of the Jim Crow car he could receive the first- class accommodations of the Pullman car, and would not be compelled to purchase a compartment or a seat in the 4 8 Appendix C compartment. He could buy a seat in the Pullman car or observation car, or parlor car. The only requirement is, his having a first-class or “ three-cents-per-mile” ticket (R. 173-174). The day coach has no partitions cmd is occu pied by white people who only have a second-class or “ two- cents-per-mile” ticket. They have the entire car (R. 174), Colored people cannot ride in that car, even if they have a first or second-class ticket. All of the colored people who ride on my train must stay in the Jim Crow car, no matter what kind of a ticket they have. We now have one partition in the Jim Crow car half for white and half for colored people. The colored men and women occupy the one com partment and if there is any smoking by the colored men or women it must be in that same compartment (R, 175). That is the only accommodation the Rock Island now has for colored people who pay first-class, or “ three-cents-per- mile” fare (R. 176). (Emphasis supplied.) The day coach used for white people has one toilet at each end, no smoking is allowed in this coach, there are plush seats, a runner on the floor and paper towels (E. 176). Only white people can go in the diner which is operated by the Rock Island, between Memphis and Hot Springs, on Trains 45-50 (R. 177). I f I was not the conductor and an employee of the Rock Island Railway I would not undertake the moving of colored people from one car of the train to the other (R. 178). Oh, I get what you mean now. No I meant, I was enforcing the law, not the rules of the company. It is not the rides of the company. It is the law, that I am enforcing, and not the rules of the company, because I have never had any instructions from anyone on the railroad as to just how to handle these cases, so that it was left up to me. (Emphasis supplied.) But as the conductor and in charge of the train, I consider that as one of my duties. When I Appendix C 4 9 stated that there was smoking all over the train, I did not mean in the body of the Pullman car (R. 179). They do not allow any smoking in the body of the Pullman car (R, 179). W. S. S cott, for the defense testified (R. 180): I live at 201 Mill Street, Malvern, Arkansas. In April, 1937, I was employed as brakeman on the Rock Island and assigned on Train 45 as the head brakeman. On April 21, 1937, I saw Congressman Mitchell in the middle compartment of the Jim Crow car on my train (R. 180). The train runs from Memphis to Little Rock, in two hours and forty-five minutes (R. 181). There was no running water in the toilets of the smoking end of the Jim Crow car used by colored passengers. And if the toilet was used it would stay dirty until the train reached Hot Springs, Arkansas. I don’t know if they wash the toilets in Hot Springs or Little Rock or any other place (R. 184-185). They have a coach cleaner who goes through and cleans the inside of the coaches, but the toilets are not washed until they make the round-trip from Hot Springs to Memphis. I did not notice if the five or six men used the toilet or not (R. 185). I think there were two colored ladies sitting in the com partment with the congressman. As I walked through the train I opened the doors each time between the smoking- ends and the middle compartment where the congressman was riding (R. 185-186). This was done every time the train stopped. A. C. M cGuire , for the defense, testified-(R. 189): I live in Little Rock, Arkansas, and was employed in April, 1937, by the Rock Island Railway Company, as mechanical fore man at Memphis, Tennessee. I do not do any of the cleaning of the cars myself (R. 194). The observation car on Train 45 of the Rock Island, 5 0 Appendix C in April, 1937, had different kinds of carpet and washbowls than the Jim Crow car (R. 196). There were linen towels in the observation car, but only paper towels in the Jim Crow car (R. 197). There were different cuspidors than in the Jim Crow car (R. 198). In the observation car the chairs and seats are upholstered (R. 213). They have smoking stands, writing desks, a radio. The Jim Crow car has leather seats, while the observation car has plush seats and the observation car is intended to be more com fortable than the Jim Crow car (R. 200). A rth u r AV. M itch ell , complainant, testified (E. 202): I complained to Conductor Jones when I was being ejected from the first-class accommodations by him. I told him I was first-class passenger and entitled to first-class ac commodations. He stated, “ There are no first-class accom modations for colored people on this train.” J IN THE Supreme Court of the United States October T erm , A. D. 1940 No.577 ARTHUR W. MITCHELL, Appellant, vs. THE UNITED STATES OF AMERICA, INTERSTATE COMMERCE COMMISSION, FRANK O. LOWDEN, et al., Appellees. ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS BRIEF FOR APPELLEES Frank O. Lowden, James E. Gorman and Joseph B. Fleming, Trustees of the Estate of The Chicago, Rock Island and Pacific Railway Company. Illinois Central Railroad Company. The Pullman Company. W allace T. H ughes, L ow ell M. Greenlaw , V ernon W. F oster, Attorneys for Appellees. Marcus L. Bell , E. C. Craig, C. S. W illiston, Erwin W. R oemer, Of Counsel. State Law P rin ting C om pany, 173 W . M adison St., C hicago—F R A n klin 5501 I SUBJECT INDEX. Preliminary St a t e m e n t ................................................... 1 Findings of Fact ......................................................... 2 Conclusions o f L aw ..................................................... 2 Appellant’s Specification of Errors ........................ 4 Summary of A r g u m e n t ..................................................... 7 Argument ................................................................................ 9 1. Appellant’s acceptance of the constitutionality of the Arkansas separate-coach statute must be construed as eliminating the Fourteenth Amendment and Civil Rights Act from con sideration .................................................................... 9 2. Whether the Arkansas statute does or does not lawfully apply to interstate passengers becomes important only if the Commission’s decision depended solely upon that statute, to the exclusion of the Commission’s own ad ministrative judgment ............................................ 12 3. Court decisions cited by appellant have not dealt, in any instance, with a case in which the Interstate Commerce Commission previously exercised its statutory authority to determine an issue raised under the Interstate Commerce Act ................................................................................ 20 4. This Court has sustained laws of States en acted to meet local conditions, even though they incidentally affect interstate commerce, when congressional legislation has not occu pied the field............................................................. 27 P A G E 11 5. Appellant may not complain except in his own behalf, and he must establish his individual PAGE need of the remedy asked ................................... 33 6. Commission’s report and order are supported by substantial evidence, and the finding of the lower court should be affirmed............................ 37 Table of Cases Cited. Alabama & V. Ry. Co. v. Morris (1912) 103 Miss. 511, 60 So. 11 .............................................................. 28 Armour & Company v. Alton R. R. Co., et al., .... U. S.................................................................................... 23 Arthur W. Mitchell v. Chicago, Rock Island & Pa cific Railway Co., 229 I. C. C. 703 .........................1,10 Brown v. Memphis & C. R. Co., 7 Fed. 51, 6 3 .......... 6 Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S. 453 29 Chiles v. Chesapeake & O. R. Co., 218 U. S. 71—.18, 20,24 Choctaw, O. & G. R. Co. v. State, 87 S. W. 426 ...... 25 Councill v. W. & A. R. Co., 1 I. C. Reports, 638, 641 (1887) .................................................................. 18,22 Edwards v. N. C. & St. L. R. Co., 12 I. C. C. 247...... 19 Eichholz v. Public Service Commission of Missouri, et al., 306 U. S. 268 ............................................... 30 Emergency Freight Charges Within Idaho, 213 I. C. C. 130 ........................................................... 17 Emergency Freight Charges Within Kansas, 211 I. C. C. 225 ........................................................... 17 Emergency Freight Charges Within Montana, 214 I. C. C. 537............................................................ 17 Emergency Freight Charges Within Oklahoma, 211 I. C. C. 23 - - - ................................ 17 Evans v. Chesapeake & Ohio Ry. Co., 92 I. C. C. 713 19 Ex Parte Virginia, 100 U. S. 339 ............................. 1 1 Gaines v. Seaboard Airline Railway, et al., 16 I. C. C. 471 ........................................................................19,40 General American Tank Car Corp. v. El Dorado Ter minal Co., 308 U. S. 422 .................................... 23 Hall v. De Cuir, 95 U. S. 485 (1877) ......................... 21 Hart v. State, 60 Atl. 457 (1905) ........................... 28 Heard v. Georgia Railway Co., 1 1. C. Reports, 719—. 19 Henneford v. Silas Mason Company, 300 U. S. 577— 31 Houston E. & W. T. Ry. Co. v. United States, 234 U. S. 342, 359 ................................................15,16, 22 Illinois Central R. R. v. Interstate Commerce Com mission, 206 U. S. 441, 454 ..................................... 46 Interstate Commerce Commission v. Alabama Mid land Ry. Co., 168 U. S. 144, 170 ............................. 13 Louisville N. O. & T. R. Co. v. Mississippi, 133 U. S. 587, 590 ................................................................... 23 Manufacturers Railway Co. v. United States, 246 U. S. 457 ................... 43 Maurer, et al. v. Hamilton, et al., 309 U. S. 598 ..... 30 McCabe v. A. T. & S. F. Ry. Co., 235 U. S. 15 1 (1914) ...................................................................23,35 McGoldrick v. Berwind-White Coal Mining Co., 309 U. S. 33 .................................................,................ 31 Minnesota Rate Case, 230 U. S. 352......................... 16, 22 Nelson v. Sears Roebuck & Co.,.....U. S..................... 31 Pennsylvania R. Co. v. International Coal Mining Co., 230 U. S. 184, 196 ......................................... 13 Pennsylvania R. Co. v. United States, 236 U. S. 351, 361 ....................... P A G E 13 i v Phillips v. United States,.....U. S........ , 61 S. Ct. 480 5 Plessy v. Ferguson, 163 U. S. 537, 546 ................. 11,20 Railroad Commission of Louisiana v. St. L. S. W. Ry. Co., 23 I. C. C. 3 1 ........................................... 15 Railway Company v. Illinois, 118 U. S. 557.............. 30 Rates on Raw Dolomite and Fluxing Stone Within State of Ohio, 188 I. C. C. 495 ............................ 17 Rochester Telephone Corporation v. United States, et al., 307 U. S. 125, 146.................................6, 7,14,42 Smith v. State (1898) 100 Tenn. 494, 46 S. W. 566 .... 29 South Carolina Highway Department v. Barnwell Bros., 303 U. S. 1 6 1 ............................................... 30 Southern Pacific Co. v. Gallagher, 306 U. S. 167 ...... 31 Southern Ry. Co. v. Norton (1916) 112 Miss. 302, 73 So. 1 .................................................................. 29 Southern Ry. Co. v. Primrose (1916) 73 So. 2 ...... 29 State of Missouri ex rel. Lloyd Gaines v. Canada, 305 U. S. 337 .......................................................... 26 St. L. I. M. & S. R. Co. v. Arkansas, 240 U. S. 518 .... 30 Texas & Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 435 ....................................... 4 Texas & Pacific Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, 219 ........................ 13 United States, et al. v. Chicago Heights Trucking Company, et al., 310 U. S. 344, 352 ................. 6,14,44 United States v. Louisville & Nashville R. Co., 235 U. S. 314, 320.......................................................... 6 United States v. Louisville & N. R. Co., 235 U. S. 314, 320 .................................................................. 13 U. S. v. Lowden, et al., 308 U. S. 225, 237, 239 ...... 32 Western Trunk Line Class Rates, 197 I. C. C. 57...... 1? Yick Wo v. Hopkins, 118 U. S. 356, 373 ................. U PAGE V Constitutions, Statutes and Textbooks. Constitution of the United States Fourteenth Amendment .................................... 9 U. S. Statutes Interstate Commerce Act (49 U. S. C.) Section 3(1) ....................................................... 12 Section 15(1) ..................................................... 12 Judicial Code (28 U. S. C. 308) ......................... 2 State Statutes Separate-Coach Law of Arkansas (Pope’s Digest, Chap. 20, Secs. 1190-1201) .....9,12 (This statute is printed in Appendix to Appel lant’s Brief, p. 15, and R. 211.) ......................... Authorities Cited 23 Corpus Juris, 102, Sec. 1902 ...................... 32 4 Corpus Juris Secundum, 465, Sec. 2 4 1 .......... 4 H. R. 8821 (1938)................................................ 32 H. R. 182 (1939).................................................. 32 H. R. 112 (1941).................................................. 33 P A G E I N T H E Suprem e C ou rt o f the U n ited States October Term , A. D. 1940 No. 577 ARTHUR W. MITCHELL, Appellant, vs. THE UNITED STATES OF AMERICA, INTERSTATE COMMERCE COMMISSION, FRANK O. LOWDEN, et al., Appellees. ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS BRIEF FOR APPELLEES Frank O. Lowden, James E. Gorman and Joseph B. Fleming, Trustees of the Estate of The Chicago, Rock Island and Pacific Railway Company. Illinois Central Railroad Company. The Pullman Company. PRELIMINARY STATEMENT. The case before the Interstate Commerce Commission is reported in 229 I. C. C. 703, A rth u r W . M itchell v. Chicago, Rock Island & Pacific Railw ay Co., e t al. The parties to this brief (appellees here) were defendants in 2 the proceeding before the Commission.1 The Commis sion having dismissed his complaint, appellant brought an action before the United States District Court at Chicago and prayed that the court enter its decree that the order of the Commission be set aside, annulled and vacated (R. 40). The prayer further asked that “a de cree be entered granting to the plaintiff the relief prayed for in his complaint filed before the said Commission.” A special three-judge court was assembled to hear the case (Judicial Code, 28 U. S. C. -308-), and after hearing all parties that court entered its separate findings of fact and conclusions of law and ordered that the cause be dismissed for lack of jurisdiction (R. 52, 53). The court’s findings and conclusions are as follows: F indings of F act . 1. The order here in question was made by the Inter state Commerce Commission after a full hearing. 2. The Commission, after the hearing, found the facts specially, and stated separately its conclusions of law thereon, and they are made a part of these findings and conclusions respectively by reference. 3. The Commission’s findings of fact were all sup ported by substantial evidence. Conclusions of L a w . 1. The findings of the Commission are not erroneous. 2. The order of the Commission is not contrary to law. 3. The order of the Commission contravenes no provi sion of the Federal Constitution. 4. The order of the Commission is supported by the findings. i Frank O. Lowden, James E. Gorman and Joseph B. Fleming, Trus tees of the Estate of The Chicago, Rock Island and Pacific Railway Company; Illinois Central Railroad Company and The Pullman Company. 3 5. This court is without jurisdiction to grant the relief sought in the complaint, or any part thereof, and the complaint should be dismissed. An examination of the above findings and conclusions establishes that the court gave full consideration to the case on its merits. Appellant has shifted his position since the trial before the Commission’s Examiner. At that hearing, ap pellant Mitchell, addressing the Examiner, made this statement (R. 156) : “The question of segregation is not involved.” The case proceeded on that assumption. The examiner’s report affirmatively found (R. 16) that “for the purpose of this proceeding complainant accepts segregation under the Arkansas statute.” In exceptions to that report, as the Commission’s opinion shows (R. 27), appellant expressed himself otherwise.3 When the action to set aside the Commission’s order of dismissal came to trial before the three-judge court, appellant Mitchell, as plaintiff and counsel, said to the court (R. 227): “There is no question of segregation involved. We have not said to the railroad that it must let us ride together with the white people. I care as little about riding with white people as they care about rid ing with me, * * *” In answer to a specific question of the court, “Are you invoking the Arkansas statute?”, appellant said, “I asked the Commission to enforce that law but they refused to do so.” In his argument upon appeal to this court, appellant, so far as appellees can interpret his contentions, as sumes a different position by maintaining that the stat ute of Arkansas, which requires the separation of races, does not apply to an interstate passenger. 3 Impliedly the Commission must have taken notice of the statement quoted when it said in its report (p. 170, Rec. 28) that “ the present case arose out of the apparent assumptions of the parties that the Arkansas statute was applicable to interstate traffic.” 4 This shifting of positions is respectfully called to the attention of this court in the light of the estab lished rule that a party may not, when a cause is brought up for appellate review, assume a theory inconsistent with or different from that taken by him at the trial. Texas & Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 435, 4 Corpus Juris Secundum, 465, Sec tion 241. With that reservation, appellees will deal in this brief with the argument tendered by appellant’s brief, which ignores the declaration of position on the question of segregation which was made both before the Commis sion and the court below by Appellant Mitchell himself. Appellees respectfully remind the court that the com plaint before the Commission involved only one passen ger, and that one in but a single incident; that the only train in issue is the one operating from Chicago, 111., to Hot Springs, Ark., over the Illinois Central and the Chicago, Rock Island and Pacific railroads, and that the colored compartment car in which, on April 21, 1937, Appellant Mitchell rode in Arkansas has not been in the train since July, 1937, when an entirely different type of car, fully described in the Commission’s report (p. 707, Rec. 23), was placed in permanent service. Appellant’s Specification of Errors. Beginning on page 15 of his brief, appellant specifies nine alleged errors in the final order and decree of the District Court dismissing his prayer for relief. 1. Assigned error No. 1 is treated comprehensively in these appellees’ Argument contained in this brief, and it calls for no additional comment at this point. It is pertinent to observe, however, that by accepting, at least for the purposes of this case, the constitutionality of 5 the Arkansas statute, appellant’s reference to the Four teenth Amendment becomes irrelevant. 2. Assigned error No. 2 rests upon a false factual premise. The report of the Commission, as supported by the evidence, shows that appellees are not denying ap pellant equal accommodations and facilities, but are pro viding them in sufficient capacity to meet the normal demand of colored passengers. Appellant’s charge that he was denied the equal protection of the laws in viola tion of the Constitution of the United States obviously refers to the Fourteenth Amendment, which applies only to States, and which Amendment has been removed from the case by appellant. 3. The comment in the preceding paragraph concern ing assigned error No. 2 is equally pertinent to alleged errors Nos. 3, 4 and 5. It may be properly added, that these alleged errors are but a restatement in different phrasing of the allegations which were made by the appellant in his complaint before the Interstate Com merce Commission, and which the Commission consid ered in reaching its decision under the Act which it ad ministers. It was not for the lower court to substitute its judgment for that of the Commission, which these assignments of error apparently contend that it should have done. 4. In assigned error No. 6, appellant confuses the law of contracts with the statutory functions of the Inter state Commerce Commission. This is not an action in assumpsit in a court of law, but a proceeding involving the administrative judgment of an agency of the Con gress. Not being a court of law, the Commission is with out jurisdiction to enforce a contract. Nor would the three-judge court below have jurisdiction to determine a contractual obligation, it being a special tribunal with narrow and limited functions. Phillips v. United States, ......U. S........... , 61 S. Ct. 480, decided February 3, 1941. 6 No money damages in any amount whatsoever was sought from the Commission (R. 7). Defendants before the Commission have offered and stand ready to make refund to the complainant in the amount of the differ ence between 3 cents a mile and 2 cents a mile, which latter rate applied for coach travel (R. 21; Commission’s report, p. 705). Apparently appellant intends to test his claim to money damages before a court and jury in the action he has brought in the Circuit Court of Cook County, Illinois (R. 90; Commission’s report, p. 705). Presumably, it is in relation to alleged error No. 6 that appellant (p. 73 of his brief) devotes an argument to the proposition that “refund of money is not adequate re dress for the wrongful exclusion by a common carrier of an American citizen engaged in an interstate journey as a first-class passenger.” The case cited by him in support of the proposition (Brow n V. M em phis & G. R. Co., 7 Fed. 51, 63) grew out of a damage suit tried be fore a jury. The court’s remarks had to do with a plea by the defendant in the case that the jury’s verdict was excessive. The relevancy of the legal proposition and the citation to the question here is not apparent. 5. Appellant’s assigned errors Nos. 7, 8 and 9 relate to the sufficiency of the evidence as a support of the Commission’s findings. It is for the Commission and not a court to draw its inferences from the evidence, and so long as there is warrant in the record for the judg ment of the expert body it must stand. United States v. Louisville & Nashville R . Co., 235 U. S. 314, 320; R och ester Telephone Corporation v. United States, et al, 307 U. S. 125, 146; United States, et al. v. Chicago H eights Trucking Com pany, et al., 310 U. S. 344, 352. SUMMARY OF ARGUMENT. 7 This complaint before the Interstate Commerce Com mission does not differ in its essentials from other cases alleging infractions of the Act. The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body. Rochester Telephone Corporation v. United States, 307 U. S. 125, 146. Appellant’s acceptance of the constitutionality of the Arkansas separate-coach statute removes the Four teenth Amendment and the Civil Rights Act from the case, and their discussion by appellant thus becomes irrelevant. Whether or not the Arkansas separate-coach statute applies to an interstate passenger is of no importance, unless it can be found to have controlled the Commis sion’s decision to the exclusion of its own administrative judgment. An analysis shows that, while the Commis sion took notice of the statute, it dealt with the ques tion of accommodations within the terms of the Inter state Commerce Act. The question of an undue or un reasonable preference or prejudice being one of fact and not of law, the Commission’s decision that the present accommodations furnished colored passengers on the train involved meet the requirements of the Interstate Commerce Act is conclusive. The several court decisions cited by appellant to sup port his contention that the Arkansas law does not ap ply to an interstate passenger are not pertinent, for none of them dealt with a proceeding in which the In terstate Commerce Commission had previously exer cised its statutory power. They called for a different judicial power from that invoked here. This case in 8 volves merely a request by appellant for an administra tive ruling from a body whose limits of jurisdiction he was bound to know. Besides the cited cases do not estab lish finally that a State may not adopt a legislative pol icy, in the exercise of its police power, for the preserva tion of the public peace and order, even though such a policy may incidentally affect interstate commerce, in the absence of Congressional action occupying the same field. The Congress has enacted no legislation prohibit ing the separation of races on interstate journeys, al though this appellant, as a Representative, has intro duced three bills to make such segregation unlawful. The Commission’s order is supported by substantial evidence. A single incident growing out of appellant’s lack of diligence in making Pullman reservations does not lay a basis for a finding of undue or unreasonable preference or prejudice, and, therefore, it forms no basis for an order to cease and desist from a practice. The proof shows that these appellees provide accom modations which, the Commission finds, meet the re quirements of the Interstate Commerce Act. The Com mission has not made mere volume of business the test of a right, but has merely permitted volume of business to determine the reasonableness of the capacity of ac commodations furnished. This is properly within the expert discretion of the regulating body. Appellant may lawfully act only for himself in this proceeding and may not assume to represent others who are unknown and whose interest in relief is speculative. Even his need of relief becomes obscure, since he has made other trips since April 21, 1937, from Chicago, 111., to Hot Springs, Ark., but always over another route than that involved in this case. For the single incident presented in this case, appellant is seeking a common law remedy by an action for damages in the Circuit Court of Cook County, Illinois. 9 * ARGUMENT. 1. Appellant’s acceptance of the constitutionality of the Arkansas separate-coach statute must be construed as eliminating the Fourteenth Amendment and Civil Rights Act from consideration. On page 75 of his brief under the title, “Questions Not Involved in this Appeal,” appellant makes this statement: “In order that the issues involved in the case at bar may not be confused we wish to state: 1. That the constitutionality o f the separate- coach law o f Arkansas has not been attacked in this proceeding but only its unconstitutional application by the Commission on the claim of the defendant Rock Island, as shown by the uncontradicted and undisputed testimony of its witness Jones, that he was not acting under any rules or regulations promulgated by the Rock Island but, as the conductor of the train and in charge of its operation on behalf of the Rock Island, he was acting under cover of the Arkansas Separate-Coach Law (R. 178).” This statement can only be construed as the accep tance by appellant, at least for the purposes of this case, of the constitutionality of the Arkansas statute, with a reservation challenging only its application to an interstate passenger. This acceptance necessarily car ries with it recognition that the Arkansas statute con forms to the requirements imposed upon a State by the Fourteenth Amendment to the Constitution of the United States. Since that amendment asserts its force upon a State and no one else, it follows that the removal from this case of the constitutionality of the Arkansas 1 0 statute carries with it the removal of any and all issues under the Fourteenth Amendment. This serves finally to dispose of much confusion which has attended the proceeding since its initiation before the Interstate Commerce Commission. In his complaint before the Commission appellant (R. 7) alleged that the action of defendants (the Rock Island, Illinois Central and The Pullman Company) in operating under the Arkansas law is in violation of “the Fourteenth Amend ment of the United States Constitution in denying to petitioner equal protection of the laws.” Since that amendment is directed at the State, a railroad obviously cannot violate it. The allegation submitted to the Inter state Commerce Commission a question over which it has no jurisdiction, for the Commission is an adminis trative agency of the Congress which has not been em powered to determine whether a statute enacted by a State Legislature contravenes the Fourteenth Amend ment or any other provision of the Constitution.4 In his complaint before the United States District Court for the Northern District of Illinois, from which this appeal is taken, the appellant recites that the order and findings of the Commission (R. 39, par. 15) “are a denial of the equal protection of the laws to the plaintiff as guaranteed by the Fourteenth Amendment of the United States Constitution.” Thus, in the court below (R. 39), appellant urged the failure of the Commission to accord him relief under the Fourteenth Amendment as among the errors entitling him to an order setting aside, annulling and vacating the Commission’s order of dismissal. So, too, in his “Specification of Errors” be fore this Court (Appellant’s Brief, pp. 15, 16, 17), ap pellant claims that the final order and decree of the 4 “We are not here considering a constitutional question, but rather questions of the [Interstate Commerce] Act.” (R. 27.) Mitchell v. C. B. I. & P. By. Co., et al., 229 I. C. C. 703, 710. 1 1 District Court, sustaining the order of the Interstate Commerce Commission, was erroneous because it de nies appellant the equal protection of the laws, contrary to the provisions of the Fourteenth Amendment. A de nial of the equal protection of the laws can flow only from a State statute which contravenes that amendment by its terms, or which might be so unequally and op pressively administered by the public authorities as to amount to an unconstitutional discrimination by the State itself. Yick Wo v. Hopkins, 118 U. S. 356, 373. Inasmuch as appellant now raises no question of the constitutionality of the Arkansas statute, any further discussion of the Fourteenth Amendment by appellant, either in his brief or elsewhere, becomes irrelevant. In the Specification of Errors on page 15 of appellant’s brief, the final order and decree of the District Court is declared to be erroneous because, among other things— “b. It was contrary to the laws passed by Congress under the Fourteenth Amendment to the Con stitution and known as the Enforcement Act or Civil Rights Act Title 8, U. S. C. Chapter 3, Sections 41 and 43.” On page 64 appellant’s brief discusses and quotes the Civil Rights Act, again referring to it on page 74. The equal-protection clause of the Fourteenth Amendment and the benefits of the Civil Rights Act, based upon that amendment, are only available as a prohibition against the States. Ex Parte Virginia, 100 U. S. 339.5 The Civil s “In the Civil Rights case, 109 U. S. 3, it was held that an act of Congress, entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, ad vantages, facilities and privileges of inns, public conveyances, on land or water, theatres and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void, upon the rgound that the Fourteenth Amendment was prohibitory upon the States only, and the legislation authorized to be adopted by Congress for enforcing it was not direct legislation on matters respecting which the States were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation, such as might be necessary or proper for counteracting and redressing the effect of such laws or acts.” Plessy v. Ferguson, 163 U. S. 537, 546. 1 2 Rights Act was first passed in 1866 after adoption of the Thirteenth Amendment. It was reenacted in 1870, after adoption of the Fourteenth Amendment, and again in 1875. The Fourteenth Amendment is a limitation upon the power of the States. The Civil Rights Act, by which the Congress gave statutory effect to the provi sions of the Amendment, is similarly confined. Neither applies in respect of equal protection of the laws to an order of the Interstate Commerce Commission. Appel lant could invoke their provisions only in an attack upon the State statute. Since the appellant accepts, for this case, the constitu tionality of the Arkansas statute, all contentions made under the Civil Rights Act become as irrelevant as any further discussion by appellant of the Fourteenth Amendment. 2. Whether the Arkansas statute does or does not law fully apply to interstate passengers becomes impor tant only if the Commission’s decision depended solely upon that statute, to the exclusion of the Commission’s own administrative judgment. In seizing upon the Commission’s references to the Arkansas statute, in the apparent belief that the stat ute controlled the Commission’s judgment, appellant is ignoring all the other facts and discussions which are found in the Commission’s lengthy report. In exercising its functions under the Interstate Commerce Act, the Commission could have reached the conclusion which it reached, regardless of whether there was in existence such an enactment as the statute of Arkansas. Section 3(1) of the Interstate Commerce Act con demns undue or unreasonable preference or advantage and undue or unreasonable prejudice or disadvantage. Section 15(1) empowers the Commission, after full hearing, if it shall find such a preference or prejudice to 13 exist, to make an order that the carrier or carriers shall cease and desist from such violation “to the extent to which the Commission finds that the same does or will exist.” In his prayer, this appellant asked the Commis sion (R. 7) to enter an order “commanding said defend ants and each of them to cease and desist from the afore said violations of said Act, and establish and put in force and apply in future to the transportation of persons be tween the origin and destination points 6 named in para graphs V and VI hereof, in lieu of the services and facili ties named in said paragraphs V and VI, and such other services and facilities as the Commission may deem reasonable and just; and that such other and further order or orders be made as the Commission may con sider proper in the premises.” Here the Commission was called upon by appellant to exercise its judgment upon the facts presented. Whether a preference or advantage is undue or unrea sonable is a question of fact, not of law. Texas & Pacific Ry. Co. v. Interstate Com m erce Com m ission, 162 U. S. 197, 219; Interstate Com m erce Com m ission v. Alabam a Midland R y. Co., 168 U. S. 144, 170; Pennsylvania R. Co. v. International Coal M ining Co., 230 U. S. 184, 196; Pennsylvania R. Co. v. United States, 236 U. S. 351, 361. It is not disputable that from the beginning the very purpose for which the Commission was created was to bring into existence a body which from its peculiar character would be most fitted to decide primarily whether from facts, disputed or undisputed, in a given case preference or discrimination existed. United States v. Louisville & N . R. Co., 235 U. S. 314, 320. “The courts have always recognized that Congress intended to com mit to the Commission the determination, by applica tion of an informed judgment to existing facts, of the 6 Chicago, 111., and Hot Springs, Ark. 14 existence of forbidden preferences, advantages and dis crimination.” United States et dl. v. Chicago Heights Trucking Com pany, et al., 310 U. S. 344, 352. “Even when resort to courts can be had to review a Commis sion’s order, the range of issues open to review is nar row. Only questions affecting constitutional power, stat utory authority and the basic prerequisites of proof can be raised. If these legal tests are satisfied, the Com mission’s order becomes incontestable.” Rochester Tel ephone Corporation v. United States, et al., 307 U. S. 125, 139, 140. As the basis for an order requiring railroads or other defendants in a proceeding before it to cease and desist practicing an undue and unreasonable preference or prejudice, the Commission must first find the factual existence of the unlawful preference and prejudice. As we have seen, that involves a question of fact. In the present case, the Commission made no such finding of unlawfulness; therefore, there was no unlawfulness to be corrected. The question which the Commission de termined was not whether the Arkansas statute was unconstitutional, but whether the incident complained of by the present appellant constituted a violation of the Interstate Commerce Act and demanded the Com mission’s corrective order. If therefore the Commission reached a result within its administrative discretion, ap pellant may not validly claim error because the Com mission took notice of the existence of the law of Ar kansas. These appellees refer to the text of the Com mission’s report, which is too lengthy for convenient analysis at this point, for an exposition of the numer ous facts and reasoning which underlie the Commis sion’s conclusions, apart from the State statute. Some of these details will be emphasized in Title 5 of this argument, dealing with the evidence before the Com mission. 1 5 The Commission’s power, derived from the Interstate Commerce Act, concerns itself, not with the validity of a State statute, but with the question of whether an undue prejudice is practiced against the commerce that is subject to the Interstate Commerce Act. If, on an ade quate record, the Commission shall find that no such undue preference or prejudice prevails as is condemned by the Act, its findings are conclusive. Similarly, if, on an adequate record, it finds the existence of such a vio lation, its judgment is final and its order is valid. Houston E. & W. T. Ry. Co. v. United States, 234 U. S. 342, 359.7 In the case last cited the Railroad Commission of Louisiana had filed with the Interstate Commerce Com mission in March, 1911, a complaint which, in substance, alleged that interstate carriers maintained unreasonable rates from Shreveport, La., to various points in Texas and unjustly discriminated in favor of traffic within the State of Texas and against similar traffic between Louisiana and Texas. The Texas rates were made under the compulsion of State authorities. After an extensive investigation of the facts, the Commission found that by the rate ad justment complained of “an unlawful and undue pref erence and advantage” was given to the Texas cities and a discrimination that was “undue and unlawful” was effected against Shreveport. The Commission or dered the removal of the unlawful preference and preju dice and prescribed the manner of accomplishing it. Railroad Commission of Louisiana v. St. L. S. W. Ry. Co., 23 I. C. C. 31. The Commission there exercised the powers lodged in it under the third section of the Act. Whether, in that case, the state-made rates imposed an unlawful prejudice against shippers at Shreveport 7 Commonly known as “ the Shreveport Case.” 1 6 and constituted an unlawful preference of Texas ship pers was to be judged by the facts. The Commission had first to determine that the facts established an ac tual and unlawful discrimination before its power to remove such a condition could come into play. There, the Commission having arrived at its judgment, this Court in Houston E. & W. T. Ry. Co. V. United States, 234 U. S. 342, upheld its authority to exercise such a power. In the course of its opinion this Court (p. 357) said: “Undoubtedly— in the absence of a finding by the Commission of unjust discrimination— intrastate rates were left to be fixed by the carrier and sub ject to the States or of the agencies created by the States.” In the Minnesota Rate Cases, 230 U. S. 352, this Court had before it for review the validity of the action of the State of Minnesota in establishing reduced levels of freight rates for intrastate transportation throughout the State. The Court was asked to hold that an entire scheme of intrastate rates fixed by the State of Min nesota was null and void because of its effect upon in terstate rates. But there had been no finding by the Interstate Commerce Commission of any unjust discrim ination. This Court said (p. 419) * * * “the question whether the carrier, in such a case, was giving an undue or unreasonable preference or advantage to one locality as against another, or subjecting any locality to an un due or unreasonable prejudice or disadvantage, would be primarily for the investigation and determination of the Interstate Commerce Commission and not for the Courts.” Appellees emphasize that in the two cases just cited the major subjects were rates fixed under the law of States, and that in both instances the doctrine was firmly established that the determination of whether 17 such State regulations constituted an unlawful discrim ination against interstate commerce belonged to the In terstate Commerce Commission. It has become a common thing for the Commission to exercise its judgment, in situations brought to its attention, upon the lawfulness of state-made intrastate rates in their relation to interstate rates. In numerous instances the Commission has found that lower intra state rates enforced by state authority, although apply ing over identical routes and railroads, are not shown to effect, in fact, an unlawful discrimination against interstate commerce. W estern Trunk Line Class R ates, 197 I. C. C. 57; R ates on Raw D olom ite and Fluxing Stone W ithin State o f Ohio, 188 I. C. C. 495; E m ergen cy Freight Charges W ithin Montana, 214 I. C. C. 537; Emergency F reight Charges W ithin Idaho, 213 I. C. C. 130; Em ergency F reigh t Charges W ithin Oklahoma, 211 I. C. C. 23; E m ergen cy F reight Charges W ithin Kansas, 211 I. C. C. 225. In each case the result depended upon the particular facts. The Commission exercised its judgment wholly apart from the State law. Appellees respectfully submit that the foregoing es tablishes the soundness of these propositions: (1) It is for the Commission and not for the Court to deter mine whether the effect of a State statute is to impose an undue and unreasonable prejudice against interstate commerce; (2) whether the effect is undue or unrea sonable is a question of fact wholly within the province of the Commission to determine; (3) as a basis for an order to cease and desist practicing an undue or un reasonable preference or prejudice, the Commission must first have found such an unlawful condition to exist. While it is true that the Commission took notice of the Arkansas statute, it expressly said (R. 28; Com mission’s Report, p. 710) that “it is not for us to con 1 8 strue the statute,” that (R. 28; Commission’s Report, p. 710) the carriers could pursue the practice of segre gating the races “even if there were no statute,” 8 and (R. 29; Commission’s Report, p. 711) “it is not for us to enforce the State law,” since it understands “that to be a matter for State authorities.” Appellees, there fore, respectfully assert that appellant overemphasizes the State statute for the purpose of raising questions of law in a proceeding that rests upon questions of fact. The ultimate question submitted to the Commission related to the character of facilities provided for col ored passengers on the train from Chicago, 111., to Hot Springs, Ark. The Commission’s administrative juris diction over this issue, so far as undue and unreason able prejudice or preference is concerned under Section 3 of the Act, is not doubted. The Commission makes plain in the final language of its report that its findings are within and are based on the terms of the Act which it administers. It is only with respect to segregation, and nothing else, that the Commission recognized “that under the State law defendants must segregate colored passengers,” a practice which, as already pointed out, “the carriers could follow even if there were no stat ute.” This amounts to no more than the recognition by the Commission in this case of a doctrine which it has enunciated and adhered to in all proceedings of this general nature which have been brought before it. In Councill v. W. & A. R. Co., 1 1. C. Reports, 638, 641 (1887) the Commission held that “there is no undue prejudice or unjust preference shown by railroad com panies in separating their white and colored passengers by providing cars for each, if the cars so provided are s Chiles v. Chesapeake & O. R. Co., 218 U. S. 71. 19 equally safe and comfortable.” 9 The doctrine was fol lowed in Heard v. Georgia Railway Co., 1 I. C. Reports, 719; Edwards v. N . C. & St. L . R. Co., 12 I. C. C. 247; Gaines v. Seaboard Airline Railway, et al., 16 I. C. C. 471; Evans v. Chesapeake & Ohio R y . Co., 92 I. C. C. 713. The Commission’s report (p. 707) in the instant pro ceeding cites four of those decisions. Thus, since the Commission, over a long period of years and for public reasons considered in its several decisions, has con sistently upheld as reasonable the separation of races on interstate travel, its reference to the segregation re quired by the Arkansas statute adds nothing to the case as a consideration controlling its conclusion. Stated dif ferently, since the Commission for fifty-three years has construed Section 3 of the Interstate Commerce Act as not prohibiting the separation of races in interstate commerce, its administrative judgment in the present case cannot be said to rest, as appellant seems to argue, solely upon the statute of Arkansas. The reasoning by which the Commission supported s In the case just cited the Commission said (p. 641): “The people of the United States, by the votes of their represen tatives in Congress, support the public schools of the country’s capital city, and here white and colored children are educated in separate schools. Congress votes public moneys to separate chari ties; men, black and white, pitch their tents at the base of Wash ington’s Monument to compete in the arts of war in separate organizations. Trade unions, assemblies, and industrial associations maintain and march in separate organizations of white and colored persons. “Public sentiment, wherever the colored population is large, sanctions and requires this separation of races, and this was recog nized by counsel representing both complainant and defendant at the hearing. We cannot, therefore, say that there is any undue prejudice or unjust preferences in recognizing- and acting upon this general sentiment, provided it is done on fair and equal terms. This separation may be carried out on railroad trains without dis advantage to either race and with increased comfort to both.” The Commission had warrant in the present case for assuming that Appellant Mitchell raised no issue as to segregation. It was the appel lant who offered portions of the Arkansas statute at the hearing before the Commission’s examiner (R. 125; text of statute, R. 211), and it was Appellant Mitchell himself who told the examiner (R. 156) that “The question of segregation is not involved.” The Commission refers to the statement, p. 710 of its report (R. 27). In the trial below Appellant Mitchell made the same statement to the three-judge court (R. 227). 2 0 its doctrine that segregation of itself does not constitute an unreasonable discrimination differs in no material respect from the reasoning of this Court in its ruling that a statute of Louisiana requiring separation of the races on passenger trains was not a discrimination pro hibited by the Fourteenth Amendment. Plessy v. Fer guson, 163 U. S. 537. Nor does it differ in any material respect from the reasoning of this Court in Chiles v. Chesapeake & O. R. Co., 218 U. S. 71, wherein it was held that a railroad’s regulation requiring the separation of races on passenger trains, even in connection with the travel of interstate passengers, was not unreasonable, provided substantially equal accommodations were fur nished. If separation is practiced, there must be no such dif ferences in accommodations furnished as to constitute, as a question of fact, an unlawful preference or preju dice in violation of the Act. The Commission has decided this question of fact by holding that the facilities fur nished meet the requirements of the Act. That, ap pellees respectfully submit, should be conclusive. 3. Court decisions cited by appellant have not dealt, in any instance, with a case in which the Interstate Commerce Commission previously exercised its stat utory authority to determine an issue raised under the Interstate Commerce Act. The several court decisions cited by appellant as sus taining his contention that the Commission erred by taking notice of the Arkansas statute have two major weaknesses. 1. Not one of them reviews the exercise by the Inter state Commerce Commission of its statutory authority to determine questions assigned to its jurisdiction by the Congress of the United States. 2. Not one of them from this Court has nullified the 2 1 separate coach statute of Arkansas or any other State as a regulation of interstate commerce, and none of them has so foreclosed the question as to deprive the Commission of its regulatory discretion under the Inter state Commerce Act. It is not necessary to consider more than three of the cases mentioned by appellant, since the others must necessarily be tested by the same considerations. I. Hall V. De Cuir, 95 U. S. 485 (1877). In 1869 Louisi ana passed a statute requiring all those engaged in the transportation of passengers to give all persons travel ing within the State equal rights and privileges in all parts of their conveyances (in this case a steamboat) without distinction on account of race or color. The Supreme Court of Louisiana construed the statute as applying to interstate as well as intrastate travel. Hav ing before it the interpretation of the State law by the Supreme Court of the State, this Court said (p. 487) : “Such was the construction given to the act in the courts below, and it is conclusive on us as the construction of a State law by the State courts.” “The line which sepa rates the powers of the States,” said the opinion (p. 488), “from this exclusive power of Congress is not always distinctly marked, and oftentimes it is not easy to determine on which side a particular case belongs. Judges not unfrequently differ in their reasons for a decision in which they concur. Under such circum stances, it would be a useless task to undertake to fix an arbitrary rule by which the line must in all cases be located. It is far better to leave a matter of such deli cacy to be settled in each case upon a view of the par ticular rights involved.” The Court held that the stat ute as construed by the State Supreme Court infringed upon the commerce clause. It ruled that Congressional inaction left the steamboat master at liberty to adopt 2 2 such reasonable rules and regulations for the disposition of passengers upon his boat, while pursuing her voyage in Louisiana and without, as seemed to him most for the interest of all concerned. Referring to the Louisiana statute, the Court said (p. 490) : “if the public good requires such legislation it must come from Congress and not from the States.” The cited case was decided ten years prior to the as sertion by Congress of its power to regulate interstate commerce by the enactment of the Interstate Commerce Act, the creation of the Interstate Commerce Commis sion and the prescription of rules and regulations which that Commission was authorized to administer. Even the “reasonable rules and regulations” which this Court at that time left in the power of the steamboat master have been placed (so far as interstate railroads are con cerned) under the control of the Interstate Commerce Commission. It is noteworthy that in the first year of its existence (1887) the Commission was called upon to pass upon railroad regulations affecting interstate colored passen gers, and accommodations provided for members of that race. Councill v. W. & A. R. C o1 I. C. Reports, 638. It was then that the Commission first assumed jurisdic tion of the subject under Section 3 of the Interstate Commerce Act, a jurisdiction which it has exercised ever since. It was the jurisdiction of the Commission that this appellant invoked in submitting his complaint to that body for adjudcation. In the light of the doctrines of the Shreveport case, Houston E. & W. T. Ry. Co. v. United States, 234 U. S. 342, and the Minnesota Rate cases, 230 U. S. 352, it is wholly conceivable that the situ ation dealt with in Hall v. De Cuir would now require the primary exercise of the Commission’s judgment insofar 23 as an alleged discrimination by a railroad under the Interstate Commerce Act might be involved. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U. S. 422; Armour & Company v. Alton R. R. Co., et al., U. S........ , decided February 3, 1941. II. McCabe v. A. T. & S. F. Ry. Co., 235 U. S. 151 (1914). Appellant cites this case as a support of two of his contentions. First, that it affirmatively and conclusively settled the inapplicability of a separate-coach law of a State to interstate passengers. (Appellant’s brief, p. 23) We do not find in the Court’s language any such finality. The Court did not decide the question. A separate-coach statute of Oklahoma had been attacked as being, among other things, repugnant to the Fourteenth Amendment and the commerce clause. The Supreme Court of Okla homa had given the statute no interpretation. This Court, in the absence of a different construction by the State court, construed it as applying to transportation exclusively intrastate, as a means of resolving the open constitutional question into one which this Court had passed on in prior cases. By construing the Act thus, the Court found that it was constitutional, in conformity with Louisville N. O. & T. R. Co. V. Mississippi, 133 U. S. 587, 590, and other cases cited in the Court’s opinion. Aside from Hall v. De Cuir, supra, which was discussed above, appellees have found no case in which this Court has nullified a State statute of this nature. Second, appellant cites the case (Appellant’s brief, pp. 34 to 37) as supporting his claim to accommodations identical with those supplied other passengers holding similar tickets. This exposes some important contradic tions in appellant’s arguments. While maintaining that a State statute does not apply to interstate passengers, he relies now upon a State statute as determining his 24 rights as an interstate passenger. In the McCabe Case, this Court was meeting certain contentions of the Attor ney General of Oklahoma concerning the scope and meaning of the Oklahoma statute (p. 161), although the Supreme Court of Oklahoma had given the statute no construction whatsoever. The questions arose there un der the impact of the Fourteenth Amendment upon a State’s enactment and the definition of that enactment by an officer of the State. Since the Arkansas statute in this case is admittedly not under attack as unconsti tutional, the Fourteenth Amendment, as heretofore pointed out, has no pertinence here such as it may have had in the Oklahoma case. Appellant may not validly reject a State statute as not applying to an interstate passenger, and yet measure his rights by the interpreta tion of a similar State statute. Appellant apparently mistakes the difference between the functions of the Interstate Commerce Commission under the Act which it administers and the functions of the Court in passing upon the Oklahoma statute. Under the Fourteenth Amendment the statute had to provide for equal accommodations. The Interstate Com merce Act, on the other hand, employs no such phrase. It condemns only preferences and prejudices which are un due or unreasonable, and these are questions of fact to be determined by the Commission within the framework of that Act and corrected “to the extent to which the Commission finds that the same does or will exist.” But even as used in a State statute, the equality demanded is to be substantial, not identical. In the case now dis cussed, under a State law, this Court (p. 161) goes no further than to call for “substantial equality.” In Chiles v. C. & 0. R. Co., 218 U. S. 71, this Court sustained the action of the railroad in transferring a colored passenger from a white coach into a colored compartment coach. The coaches were not identical, but the Court found 25 them substantially equal in quality, convenience and ac commodations. It is obvious that the car, divided by board partitions into three compartments, was assigned to colored passengers because the volume of colored travel would not justify the assignment of an entire coach. It is well established that the word “equal” does not mean “identical.” The Supreme Court of Arkansas, deal ing with the separate coach law of that State, Choctaw, 0. & G. R. Co. v. State, 87 S. W. 426, said (p. 427) : “What one man or set of men might consider sufficient would not be so considered by another. The same may be said of the word ‘equal.’ The ac commodations need not be the same within the meaning and spirit of the statute; its object being to prevent discrimination. In this sense, one might consider accommodations equal, when another would not.” What may be equal accommodations within the pur view of a State statute is a question primarily to be decided by the State courts of the State concerned. It is not shown that this appellant has made any resort to the Arkansas courts. Appellant may not properly, apart from the contradiction in position heretofore mentioned, base a claim on a State statute and apply to the Federal regulatory body to enforce it. Appellant charges that the Commission has permitted his rights to be controlled by mere volume of business, and he cites the McCabe Case as demonstrating that body’s error. Here, appellees believe, the appellant has read into the Commission’s report something which is not there and has misconceived the rational purpose of the regulating body. The Commission has not deter mined rights on the basis of volume of traffic, but has only passed upon the measure of the capacity necessary to accord those rights— the volume of accommodations 2 6 required for colored passengers in view of the very slight demand for such accommodations. This, of course, is a quite different thing. It is wholly within the Commis sion’s duty to consider the public interest in the avoid ance of wasteful and unnecessary services by interstate carriers. It is not called upon to require accommoda tions for imaginary travelers. It finds that present ac commodations meet the requirements of the Act, and that the discrimination and prejudice is plainly not un just or undue. III. State of Missouri ex rel. Lloyd Gaines v. Canada, 305 U. S. 337. This case presented a direct attack upon the State of Missouri for denying a colored student ad mission to the law department of the University of Mis souri, on the ground that the State violated the provi sions of the Fourteenth Amendment by denying the student the equal protection of the laws. The facts need not be rehearsed. The case combined a State law, a State’s conduct and the Fourteenth Amendment. Ex cept that a colored student was involved, it is difficult to discern any remote legal connection between that case and the proceedings now before this Court. In the first place, the case did not involve commerce. In the second place, Congress had not provided for a determination of the complaint by an administrative agency. Third, the judicial power invoked differed decidedly from the judicial power engaged by an action before a special three-judge court to set aside and annul an order of the Commission in an adjudicated case. Were the case otherwise pertinent, it would present one uncompromising difference. There the exclusion of the student from the State University was continuous. Here the exclusion was casual, on a single run of a train which runs three hundred and sixty-five days a year and on which sufficient accommodations are provided for 27 colored passengers who show the same diligence as white passengers in making reservations. 4. This Court has sustained laws of States enacted to meet local conditions, even though they incidentally affect interstate commerce, when congressional legis lation has not occupied the field. Maintaining unreservedly the position heretofore ex pressed, that the statute of Arkansas is important only if the Commission’s decision depended solely upon that statute, to the exclusion of the Commission’s adminis trative judgment; that the Commission’s report shows that it represents an exercise of the body’s administra tive judgment, and that this Court has not annulled the Arkansas statute or any other similar State statute, as is contended by appellant, these appellees now present reasons for the view that the State statute may have more force in its relation to interstate passengers than appellant now, after completely shifting his position, concedes to it. Appellees are led to this discussion by appellant’s re peated statements that both the railroads and the Com mission should know that the State statute was of no effect. It is common knowledge that approximately a quarter of the forty-eight states have laws similar to that of Arkansas, and, in the absence of a different construc tion by a State Supreme Court, they are enforceable against all passengers traveling within the State. These appellees are neither lawmakers nor law interpreters, but are subjects to law. They may not arbitrarily ignore or defy such an enactment, and their employes on trains are, as individuals, subjected to penalties for vio lations. They take no position concerning the merits of the practice of separation required by the statutes, but they must give heed to the legislative policy thus 2 8 imposed and to the community sentiment upon which that policy rests. Let us repeat, that the question be fore the Commission was not, and could not be, the validity of the State statute, but only one involving an alleged undue preference and prejudice under the terms of the Interstate Commerce Act, whether or not the Arkansas statute existed. It is true, as stated in appellant’s brief (p. 28), that the Supreme Court of Maryland in Hart v. State, 60 Atl. 457 (1905), affirmatively held that the separate coach law of Maryland was void in so far as it applied to inter state passengers. There have been no such judgments among the southern State courts in general. The doctrine underlying such statutes as that of Ar kansas seems to be that the State is within its sovereign rights in asserting its police power, in view of local conditions, to enact measures for the preservation of peace and order, entirely apart from any relation to commerce as such. At least two State Supreme Courts have held segregation statutes to apply both to intra state and interstate passengers. In Alabama & V. Ry. Co. v. Morris (1912) 103 Miss. 511, 60 So. 11, the Court in discussing the Mississippi segregation statute stated (pp. 13, 14) : “The statute was not enacted with any idea of discriminating against the members of either race; nor was it prompted by prejudice or passion, but with the knowledge that the enforced intermingling of the races would be distasteful to both races, would inevitably result in discomfort to both, and provoke and encourage conflicts endangering the peace and quiet of the commonwealth. * * * “This statute has been upon our books for many years, and has caused no complaint or criticism from the inhabitants of the state. * * “The two races here accept the law as a wise and necessary exercise of the police power of the 2 9 state for the protection of members of both races. No greater punishment could be inflicted upon the average negro traveler than being obliged to sit in the coach set apart for whites, and our colored fel low citizens would be the first to oppose a repeal of the statute. “A riot upon an interstate train growing out of the refusal of common carriers to recognize a situa tion known to every Mississipian— black and white —would endanger the lives and disturb the peace of all persons passengers on the train, intrastate and interstate; and we therefore decline to limit the application of the statute to intrastate com merce. * * * “If the peculiar conditions existing here demanded this legislation to conserve the peace of the State, and our lawmakers have so decided, the mere fact that the passenger is going out of the State, com ing into the State from without, or traveling across the State, does not alter the complexion of affairs nor render the danger less, should a negro or white man be required, against his will, to occupy a car with passengers of another race. “Each section of our common country has its own problems, and the laws of one State may not be necessary in another State; * * * The statute in question, rather than burdening the carrier, is an aid to the peaceful operation of its business; and we have no doubt that its overthrow would create intolerable conditions from which the railway com pany would be the first and greatest sufferer.” To the same effect: Southern Ry. Co. v. Norton (1916) 112 Miss. 302, 73 So. 1; Southern Ry. Co. v. Primrose (1916) 73 So. 2; and Smith v. State (1898) 100 Tenn. 494, 46 S. W. 566. The exercise of the State regulatory power has often been sustained, although it has incidentally affected or has even burdened or impeded interstate commerce. In Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S, 453, and 30 St. L. I. M. & S. R. Co. v. Arkansas, 240 U. S. 518, this Court held that an Arkansas statute, applying both to intrastate and interstate railroad trains, which required certain numbers of men in their crews was a valid exer cise of the State police power and was not void as a burden on or interference with interstate commerce. So long as the State action does not discriminate, the burden is one which the Constitution permits because it is an inseparable incident of the exercise of a legis lative authority, which, under the Constitution, has been left to the States in the absence of Congressional action constitutionally exercised in the same field. South Caro lina Highway Department v. Barnwell Bros., 303 U. S. 161; Maurer, et al. V. Hamilton, et al., 309 U. S. 598; Eichholz v. Public Service Commission of Missouri, et al., 306 U. S. 268. In the last case cited, this Court said: “But in the absence of the exercise of federal authority, and in the light of local exigencies, the State is free to act in order to protect its legitimate interests even though interstate commerce is di rectly affected. Cooley v. Board of Wardens, 12 How. 299, 319; Morgan’s S. S. Co. V. Louisiana, 118 U. S. 455; Smith V. Alabama, 124 U. S, 465; Kelly v. Washington, 302 U. S. 1, 9 ,10.” The foregoing utterances from this Court appear to negative a quotation from Mr. Justice Miller (Appel lant’s brief, p. 29) in Railway Company V. Illinois, 118 U. S. 557, to the effect that “this court holds now, and has never consciously held otherwise, that a statute of a State intended to regulate or to tax, or to impose any other restriction upon the transmission of persons or property or telegraph messages from one State to an other is not within that class of legislation which the States may enact in the absence of legislation by Con gress ; and that such statutes are void even as to that part of such transmission which may be within the 31 State.” Attention is called especially to the word “tax” in the foregoing quotation. In recent cases involving the levy of certain State taxes, arguments were force fully presented that the taxes were a burden upon and an interference with interstate commerce, in like man ner that appellant now urges his contention against the Arkansas statute. This Court upheld such taxes. Henneford V. Silas Mason Company, 300 U. S. 577; Southern Pacific Co. v. Gallagher, 306 U. S, 167; Mc- Goldrick v. Berwind-White Coal Mining Co., 309 U. S. 33; Nelson v. Sears Roebuck & Co., ...... U. S........ , de cided February 17, 1941. In the last cited case, Mr. Justice Douglas, speaking for the Court, said: “Prohibited discriminatory burdens on interstate commerce are not to be determined by abstractions. Particular facts of specific cases determine whether a given tax prohibitively discriminates against in terstate commerce. Hence a review of prior adjudi cations based on widely disparate facts, howsoever imbedded in general propositions, does not facili tate an answer to the present problem.” In the light of doctrines and decisions thus consid ered, appellees were and are without an alternative to the observance of the statute of Arkansas. If one of the purposes of appellant was to have the practice of segregation, whether under the State stat ute or not, declared to be unlawful, it may be remarked that he asked the Interstate Commerce Commission, an agency of Congress, to enact legislation which the Con gress itself has declined to adopt. It cannot be questioned that Congress, under the commerce clause of the Constitution, has power to make unlawful the segregation of interstate passengers, there by occupying the field and dispossessing the States of such power as they now exert over the subject. The Commission, as previously shown, has consistently held 32 that segregation in itself is not a prohibited discrimina tion under the Interstate Commerce Act. It merely ad hered to its adopted doctrine in this proceeding. The Congress is presumed to be advised of the activity of its agent, as well as the existence of the legislative policy of the numerous States having separate coach laws. The journals of the two Houses of the Congress are judicially noticed by Federal courts. U. S. v. Lowden, et al., 308 U. S. 225, 237, 239. 23 Corpus Juris 102, Sec. 1902. The lower court was asked by appellees to take judicial notice of bills offered in the Congress dealing with this subject (R. 250). The same request is made of this Court. On January 5, 1938, Representative Mitchell, the ap pellant herein, introduced in the House of Representa tives a bill, H. R. 8821, to amend the Transportation Act (U. S. C. title 49, sec. 3(1) ) by adding the follow ing: “It shall be unlawful to segregate any persons traveling as interstate passengers on any carrier subject to the provisions of this Act, or in railroad stations, waiting rooms, rest rooms, lunch rooms, restaurants, dining cars, or in any other accommo dations provided for passengers traveling inter state, on account of such passengers’ race, color, or religion; and any such discrimination or at tempted discrimination shall subject the offending carrier, its officers, agents, servants, and employes, to the penalties hereinafter provided for violations of this Act.” The bill was referred to the Committee on Interstate and Foreign commerce. It was never reported out. On January 3, 1939, the Representative reintroduced the bill, H. R. 182, which was referred to the same committee. It was never reported out, although during the subsequent period the committee was engaged in 33 studying and developing extensive revisions of the In terstate Commerce Act which were finally enacted and approved September 18, 1940, as the Transportation Act of 1940. On January 3, 1941, the Representative introduced the same bill in the House of Representatives, and again it was referred to the Committee on Interstate and For eign commerce. H. R. 112, 77th Congress, 1st Session. The subject, therefore, is now before the Congress for disposition. Perhaps the complainant thus has his proposal of a national legislative policy before the proper forum, wherein the elected representatives from forty-eight States may determine whether the sover eignity exercised over the subject by approximately a quarter of the States is to be overruled by Federal action. It is significant that, despite many years of agitation and repeated court decisions sustaining State policies of segregation, the Congress has not seen fit to enact legis lation bearing directly on this controversial subject. 5. Appellant may not complain except in his own be half, and he must establish his individual need of the remedy asked. When the case is stripped of confusing allegations and arguments, it is revealed as a complaint before the Interstate Commerce Commission which invoked only the authority and jurisdiction which the Commission possessed. It was this appellant who elected to pro ceed before the Commission within the confines of the Interstate Commerce Act, and he may not complain because the Commission exercised only such authority as the Congress had conferred on it. In his complaint before the Commission, this appellant alleged a single incident, the one in which he figured 34 (R. 3). Nor was any other witness produced who had a like experience. Yet, appellant (the complainant there) undertook to aver that “said practice of the defendants * * * causes undue and unreasonable preju dice to this complainant and all colored persons who in the future will use, as interstate passengers, the lines of the said defendants.” Defendants objected at the hearing to expanding this case beyond the issue relat ing to this individual plaintiff on the particular train of April 21, 1937, an objection to which they adhered through the proceeding before the Commission. Com mission’s report, p. 704. The Commission overruled the objections. Since, however, the appellant introduced proof of but the single incident, the proof hardly met the wide allegations of undue and unreasonable preju dice to “this complainant and all other colored persons ” The prayer was that the Commission make an order commanding “said defendants and each of them to de sist from the aforesaid violations of said Act and establish and put in force and apply in future to the transportation of persons between the origin and des tination points named in paragraphs V and VI hereof, in lieu of the services and facilities named in said para graphs V and VI, and such other services and facilities as the Commission may deem reasonable and just.” Recurrence of such an incident may not be assumed. Inasmuch as no other examples have been submitted and the train has been running daily, both before and since April 21, 1937, the failure to prove any other or similar experiences is significant. In the circumstances, these appellees submit that the complaint before the Commission could involve no indi vidual except only this appellant. There is no evidence that this appellant had ever before or since been unable to obtain Pullman accommodation on the train in ques tion. There is no evidence that he ever will be deprived 3 5 of accommodations in the Pullman from Chicago, 111., to Hot Springs, Ark. Addressing the court below, as plaintiff and as his own counsel, the appellant (R. 255) said: “As a matter of fact, I have been down to Hot Springs several times since this thing happened. Of course, I have not gone down there on the Rock Island Railroad.” If that statement does not make the issue moot so far as this individual is concerned, it at least estab lishes that his interest in the relief sought is theoretic and not real. As the proof shows, and as the Commis sion finds (R. 29), Pullman accommodations of adequate capacity are provided. If, by exercising the ordinary diligence of average travelers, appellant had obtained such accommodations on subsequent trips, this case would have been destroyed. Nor may this appellant properly complain in behalf of any one other than himself. In McCabe v. A. T. & S. F. Ry. Co., 235 U. S. 151, five negro citizens of the State of Oklahoma filed a suit in the United States District Court against five railroad corporations to restrain them from complying with the State statute of Oklahoma, about to become effective, requiring separate but equal accommodations for white and colored races. After the Act had been in operation for a few days an amended bill was filed seeking spe cifically to enjoin compliance for the alleged reasons that the Act was repugnant to the commerce clause of the Federal Constitution, the Enabling Act and the Fourteenth Amendment. This Court, affirming the lower court’s dismissal of the injunction suit, rejected the right of the five plaintiffs to act for anyone other than themselves. The Court ruled (p. 162) : “There is, however, an insuperable obstacle to the granting of the relief sought by this bill. It 36 was filed, as we have seen, by five persons against five railroad corporations to restrain them from complying with the state statute. The suit had been brought before the law went into effect and this amended bill was filed very shortly after. It contains some general allegations as to discrim inations in the supply of facilities and as to the hardships which will ensue. It states that there will be a ‘multiplicity of suits,’ there being at least ‘fifty thousand persons of the negro race in the State of Oklahoma’ who will be injured and deprived of their civil rights. But we are dealing here with the case of the complainants, and nothing is shown to entitle them to an injunction. It is an elementary principle that, in order to justify the granting of this extraordinary relief, the complainant’s need of it, and the absence of an adequate remedy at law, must clearly appear. The complainant cannot suc ceed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupa tion. It is the fact, clearly established, of injury to the complainant— not to others— which justifies ju dicial intervention. Williams v. Hagood, 98 U. S. 72, 74, 75; Virginia Coupon Cases, 114 U. S. 325, 328, 329 ; Tyler v. Judges, 179 U. S. 405, 406; Turpin v. Lemon, 187 U. S. 51, 60; Davis & Farnum v. Los Angeles, 189 U. S. 207, 220; Hooker v. Burr, 194 U. S. 415, 419; Braxton County Court v. West Virginia, 208 U. S. 192, 197; Collins v. Texas, 223 U. S, 288, 295, 296.” It is true that the above quotation related to relief sought from a court of equity, not from the Interstate Commerce Commission. But its pertinence is evident, for here we have a case in which the Commission was asked to enter an order which in its force and effect would be injunctive, and this court, with its equitable powers is, in turn, asked to annul a Commission’s order refusing relief to a complainant in circumstances similar to those in the McCabe Case. 3 7 The Court concluded (p. 164) : “Nor is there anything to show that in case any of these complainants offers himself as a passenger on any of these roads and is refused accommoda tions equal to those afforded to others on a like journey, he will not have an adequate remedy at law. The desire to obtain a sweeping injunction cannot be accepted as a substitute for compliance with the general rule that the complainant must present facts sufficient to show that his individual need requires the remedy for which he asks.” That this plaintiff has a remedy at law is evident by his pending action for damages in the Circuit Court of Cook County, Illinois, based upon the incident involved herein (R. 90). That the case is that of an individual is further sup ported by the petition to the lower court (paragraph XXVIII) in which it is alleged (R. 39) that “the plain tiff will suffer irreparable loss and damage unless the said order entered November 7, 1938, be set aside, an nulled and vacated.” Apart from plaintiff’s failure to prove irreparable loss and damage, the allegation is plainly confined to the plaintiff alone. 6. Commission’s report and order are supported by sub stantial evidence, and the finding of the lower court should be affirmed. In alleging, as he does, that the Commission’s report and order are not supported by the evidence, or that they are contrary to the evidence, appellant fails to give to the Commission’s judgment the conclusive force which this court consistently ascribes to it. Even without a survey of the transcript of evidence before the Com mission, a reading of the Commission’s report based on that evidence proves by itself that the Commission’s decision rested upon substantial evidence, from which 38 the Commission was empowered to draw its own in ferences. Little need be said concerning the colored coach into which the appellant was moved. Practically all the testi mony of five witnesses produced before the Commission by the appellant consisted of their recollections as to coaches assigned for colored travel on the Rock Island in Arkansas. Since some of it went back as far as 1904 and 1926 and other past periods, its relation to Appel lant Mitchell’s trip in 1937 was, to say the least, remote. The Commission’s report contains the appellant’s de scription of the colored compartment car in the train on which he rode, a description which was rebutted by employes of the Rock Island railroad familiar with the coach. The appellant sought from this Commission an order covering the future. The fact that the colored coach at that time in use was displaced in July, 1937, by a new and improved type of car removed the issue as to coach accommodations. The Commission describes the new coach in detail, and it affirmatively finds that “the combination coach is as fully desirable in all its ap pointments as the coach used entirely by white passen gers traveling at second-class fare.” As to Pullman accommodations, the Commission draws attention to the fact that the complaint mentions but a single incident of alleged discrimination and preju dice, the one in which this appellant was involved. In his complaint before the Commission, appellant alleged that it was on April 20, 1937, that he applied for a ticket and a Pullman bedroom from Chicago, 111., to Hot Springs, Ark. That was on the day of the train’s de parture. The conductor of the Rock Island’s train testi fied (R. 130) that when the appellant applied for a seat in the Pullman he made an effort to find one for him in a Pullman drawing-room or compartment, but the rooms were occupied. The Commission finds that the use of 39 one of the drawing-rooms would have amounted to segregation under the State law and ordinarily such accommodations are available to colored passengers upon demand, the 90-cent fare being applicable. “Oc casionally they are used by colored passengers,” the Commission states, “but in this instance both draw ing rooms were already occupied by white passengers.” The Commission finds that “only one negro to twenty white passengers rides this train from and to points on the line between Memphis and Hot Springs, and there is hardly ever a demand from a colored pas senger for Pullman accommodations.” The Commis sion cites the conductor’s estimate that the demand from colored passengers for Pullman accommodations did not amount to one per year. In this connection, the train conductor (R. 138) testified that if at the time there had been a vacant drawing room in the Pullman car he would have put the appellant in there. He testi fied (R. 145) that, considering the number of colored persons who travel in Pullmans on this train, the draw ing-rooms and compartments are adequate to take care of all who desire Pullman accommodations. Ordinarily, he testified, he can accommodate in a drawing-room or in a compartment the colored applicant for Pullman ac commodations and at the same time comply with the Arkansas law (R. 147). When the witness has a draw ing-room or compartment available (R. 149) he puts the colored passengers in that space, leaving the door open, fronting out on the aisle, and the passenger pays only a seat fare. After examining all the proof offered by all parties, the Commission resolved the case into its proper and quite simple proportions. It found that the appellees provide accommodations which meet the requirements of the Act. Appellees stress here the circumstance that appellant had shown no diligence in undertaking to make 4 0 reservations, and that it is a common experience of trav elers to find accommodations, otherwise adequate, un available because of their own delay. This does not mean that accommodations are denied to a passenger, or that they are insufficient to supply the normal de mand. If the Rock Island railroad operated a separate Pull man car for colored passengers between Memphis, Tenn., and Hot Springs, Ark., and that car happened to be filled to capacity on a particular day it would be ex travagant to claim that any additional colored passen gers would have ground for a claim of unlawful discrim ination by reason of the fact that the accommodations, ordinarily sufficient for all travel, were insufficient on the day in question. That is essentially what a railroad does when it assigns the colored passenger to a Pullman compart ment or drawing-room. Those accommodations are or dinarily enough to take care of colored travel. On the day that Mitchell made his trip they were not enough. It is immaterial that they happened to be occupied by white persons. If they had been occupied by colored passengers the prior purchase of available facilities would have created the same situation. In Gaines v. Seaboard Air Line Co., 1 6 1. C. C. 471, 475, the Interstate Commerce Commission used this pertinent language: “Throughout the record an attempt was made on behalf of complainants to prove that colored pas sengers are discriminated against in the sale of accommodations on train No. 38 of the Southern Railway. This train and its companion No. 37, run ning in the opposite direction, are the finest trains on that road. It is composed exclusively of Pullman cars and has the desirable features of a club car and an observation car. It runs upon a limited schedule between New Orleans and New York, and 41 reservations on this train are in great demand at every station where it stops. * * * Reservations for space must often be made days in advance. “That colored people at Atlanta find it impossible to get reservations on that train within a few hours of the time of departure indicates absolutely nothing in the nature of discrimination. White peo ple are glad to get such reservations and put them selves to some trouble in advance to get them. “This case was heard at Atlanta on the 17th, 18th, and 19th of September, 1908; September 19 three Interstate Commerce Commissioners desired to get reservations on train No. 37, New York-New Or leans Vestibuled Limited, from Washington to At lanta and failed; they were obliged to take a slower train without a club and observation car, and over a longer route.” The three Commissioners referred to in the foregoing evidently did not regard themselves as having been victims of an unlawful discrimination. In that case (p. 476) the Commission found, as it did in the present proceeding, that in compliance with the laws of Georgia and the sentiment there “negroes are assigned to the drawing room, or separate com partments, so far as possible, even in interstate travel.” It found that undue discrimination or prejudice had not been shown, and the complaint was dismissed. In the course of its report it found (p. 474) that the propor tion of negro to white passengers on long journeys, such as make sleeping accommodations necessary, is' infini tesimal. It is not for a court to weigh the evidence or to derive therefrom its own inferences. After much discussion in which appellant appears to ask this court to determine the weight of the evidence and to exercise its judgment thereon, appellant says (p. 76 of his brief) : 42 “We are not asking this Court to consider the weight of conflicting evidence nor the wisdom of the order entered by the Commission. Such request, we know, would he unavailing under the decisions of this Court, nor to substitute its judgment on con flicting evidence for that of the Interstate Com merce Commission on matters purely administra tive, nor to consider the credibility of witnesses.” In that paragraph appellant correctly states the law as it has been repeatedly expressed by this court. The quotations, excerpts and abstracts of testimony which appellant scatters through his brief and its appendix in an effort to establish a conflict in evidence are without any relevancy whatsoever to the issue before this court. The issue is not whether there was conflicting evi dence, but only, and strictly, whether there was substan tial evidence upon which the Commission may have reached its conclusion. The right or the wrong of such conclusions, so far as they represent an exercise of the Commission’s statutory discretion, is not for the court to consider. These appellees, therefore, are not called upon to give any attention to such material found in appellant’s brief and the appendix thereto. Since the decision in Rochester Telephone Corpora tion v. U. S., et al., 307 U. S. 125, so-called “negative” orders of the Commission— into which category the present Commission’s order would fall— are treated for purposes of review similarly to the so-called “affirma tive” orders, and, hence, become reviewable. But this court was careful to point out that this decision did not enlarge the scope of review. It restated the limited range of review that is open to one appealing from an order of an administrative body: “Even when resort to courts can be had to re view a Commission’s order, the range of issues open to review is narrow. Only questions affecting Con 43 stitutional power, statutory authority and the basic requisites of proof can be raised. If these legal tests are satisfied, the Commission’s order becomes incontestable. Interstate Commerce Commission v. Illinois Central Railroad, 215 U. S. 452, 470; Inter state Commerce Commission v. Union Pacific Rail road, 222 U. S. 541.” This review presents no questions of the Commis sion’s constitutional power or statutory authority. It is but a step in the proceedings instituted by the appel lant before the Interstate Commerce Commission, and its scope must be limited to questions which are proper for the Commission’s consideration within the defini tions and limits fixed by the Act under which it func tions. This court concluded its opinion in the Rochester Tele phone case with this pertinent language (p. 146) : “So long as there is warrant in the record for the judgment of the expert body it must stand * * * Having found that the record permitted the Com mission to draw the conclusion that it did, a court travels beyond its province to express concurrence therewith as an original question. The judicial func tion is exhausted when there is found to be a ra tional basis for the conclusions approved by the administrative body. Mississippi Valley Barge Line Co. v. United States, 292 U. S. 282, 2860287; Swayne & Hoyt Ltd. v. United States, 300 U. S. 297, 303 et seq.” This court stated in Manufacturers Railway Co. v. United States, 246 U. S. 457 (at p. 481 j : “Whether a preference or advantage or discrim ination is undue or unreasonable or unjust is one of those questions of fact that have been confided by Congress to the judgment and discretion of the Commission (Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 U. S. 144, 170), and upon which its decisions, made the basis of admin 44 istrative orders operating in future, are not to be disturbed by the courts except upon a showing that they are unsupported by evidence, were made with out a hearing, exceed constitutional limits, or for some other reason amount to an abuse of power. This results from the provisions of sections 15 and 16 of the Commerce Act as amended in 1906 and 1910 (34 Stat. 589-591, c. 3591; 36 Stat. 551-554, c. 309), expounded in familiar decisions. Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452, 469-470; Interstate Commerce Com mission v. Union Pacific R. R. Co., 222 U. S. 541, 547; Procter & Gamble Co. v. United States, 225 U. S. 282, 297-298; Interstate Commerce Commis sion v. Louisville & Nashville R. R. Co., 227 U. S. 88, 91. “In the present case the negative finding of the Commission upon the question of undue discrimina tion was based upon a consideration of the different conditions of location, ownership, and operation as between the Railway and the Terminal. 28 I. C. C. 104, 105; 32 I. C. C. 102. The conclusions were reached after full hearing, are not without support in the evidence, and we are unable to say that they show an abuse of discretion. It may be conceded that the evidence would have warranted a different finding; indeed the first report of the Commission was to the contrary; but to annul the Commission’s order on this ground would be to substitute the judgment of a court for the judgment of the Com mission upon a matter purely administrative, and this cannot be done. United States v. Louisville & Nashville R. R. Co., 235 U. S. 314, 320; Pennsylvania Co. v. United States, 236 U. S. 351, 361. Recently this Court had another opportunity to define the limits of review on an appeal from an order of the Commission. In The United States of America, et al. v. Chicago Heights Trucking Company, et al., 310 U. S. 344, 352, certain trucking companies had filed a tariff with the Commission, which that body suspended, pend 4 5 ing investigation into its lawfulness. Although only evi dence supporting the tariffs was introduced, the Com mission found the tariff unlawful and ordered its per manent cancellation. A minority opinion was also re leased. The trucking companies appealed to a three- judge court, which enjoined the Commission’s order. In reversing the court below and ordering dismissal of the suit, this court stated at page 352: “It is not disputable that from the beginning the very purpose for which the Commission was created was to bring into existence a body which from its peculiar character would be most fitted to primarily decide whether from facts, disputed or undisputed, in a given case preference or discrimination ex isted. And where a court substituted ‘its judgment as to the existence of preference for that of the Commission on the ground that where there was no dispute as to the facts it had a right to do so, (the court) obviously exerted an authority not con ferred upon it by the statute.’ United States v. Louisville & Nashville R. R. Co., 235 U. S. 314, 320. So here, it has been pointed out that there was no dispute in the evidence before the Commission, all of which was introduced by respondents. But the differing inferences as to discrimination finding possible support in that evidence are made to stand out by the persuasive reasoning advanced in both the majority and minority opinions of the Com mission. The Interstate Commerce Act does not at tempt to define an unlawful discrimination with mathematical precision. Instead, different treat ment for similar transportation services is made an unlawful discrimination when ‘undue,’ ‘unjust,’ ‘un fair,’ and ‘unreasonable.’ And the courts have al ways recognized that Congress intended to commit to the Commission the determination by application of an informed judgment to existing facts, of the existence of forbidden preferences, advantages and discrimination.” 4 6 This language is particularly applicable to the present proceeding. Holding that “only differences in treatment that are unjust or undue are unlawful and within the power of this Commission to condemn, remove, and prevent,” the Commission, expressly finding that no such unlawful differences existed, dismissed the com plaint. The determination of the Commission, after its appli cation “of an informed judgment to existing facts, of the existence of forbidden preferences, advantages and discrimination,” should not be disturbed. There should be “ascribed” to it “the strength due to the judgment of a tribunal appointed by law and informed by experi ence.” Illinois Central R. R. v. Interstate Commerce Commission, 206 U. S. 441, 454. Accordingly the order of the District Court dismissing the petition should be affirmed. W allace T. H ughes, L owell M. Greenlaw, V ernon W . F oster, Attorneys for Appellees. Marcus L. Be ll , E. C. Craig , C. S. W illiston , E r w in W . R oemer, Of Counsel. No. 577 Jn tltf j&itprtmj Ckurt of th e ® n M States O ctober T erm , 1940 A rth ur W . M itchell, appellant v. T he U nited S tates of A merica, I nterstate Co m merce Commission , F r a n k O. L owden, et al . ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS BRIEF FOR THE INTERSTATE COMMERCE COMMISSION INDEX Page OPINIONS_____________________________________ i QUESTION PRESENTED____________________________ 1 STATEMENT__________________________________________ 2 PROCEEDINGS IN COURT BELOW_________ 1 2 THE EVIDENCE___________________ 1 4 ARGUMENT_______________________________________ . . . 14 I. Appellant has failed to show that he has legal interest in the accommodations to be furnished in the future by the Rock Island on its train No. 45________________ 14 II. The Commission’s findings are fully sup ported by the evidence____________________ 23 III. Not all discriminations are unlawful under the Interstate Commerce Act but only those that are undue, unreasonable, or unjust. Whether a discrimination is undue, unreasonable, or unjust is a ques tion of fact for the Commission__________ 32 IV. The Commission’s order contravenes no constitutional provision___________________ 38 V. Question of segregation is not here involved^ 40 VI. The question of the applicability of the Arkansas segregation statute to interstate passengers, and of its constitutionality if so applicable, is not necessarily presented for decision in this case___l______________ 49 VII. Applicability of state segregation statute to interstate commerce__________ ___ _ 57 CONCLUSION_________________________________________ 66 CASES CITED Alabama & Vicksburg Ry. Co. v. Morris, 60 Sou. 11___________ 60 Algoma Coal Co. v. V. S., 11 F. Supp. 487_____________________ 22 Arkadelphia Co. v. St. Louis S. W. Ry. Co., 249 U. S. 134_____ 16 Atchison Ry. v. Railroad Comm., 283 U. S. 380__ •__________ 37 Avent y. United States, 266 U. S. 127________________________ 16 C. & 0. Ry. Co. v. Kentucky, 179 U. S. 398-3JS.C__________ 49 Chiles v. C. & O. R. Co., 218 U. S. 71______________________21,51, 54 Cozart v. Southern Ry. Co., 16 I. C. C. 226____________________ 48 Councill v. Western & Atlantic R. R. Co., 1 I. C. C. 339________ 42,55 Crosby v. St. L.-S. F. Ry. Co., 112 I. C. C. 239______________ 48, 56 Dayton-Coose Creek Ry. v. U. S., 263 U. S. 456________________ 3 7 Edward Hines Trustees v. U. S., 263 U. S. 143________________ 22 Edicards v. N. C. & St. L. Ry. Co., 12 I. C. C. 247____________29, 44 Evans v. C. & O. Ry. Co., 92 I. C. C. 713______________________29̂ 56 299014— 41------ 1 ,T, II Page Florida v. V. 8., 292 U. S. 1-------------------------------------------------- 8,37 Qavtves v. Seaboard Air Line, 16 I. O. 0. 471--------------------- 28,45,55 Hall v. DeCtiir, 95 II. S. 485----------------------------------------------- 53,57 Harden v. Pullman Co., 120 I. C. C. 359--------------------------------- 48,56 Hart v. State, 60 Atlantic 457----------------------------------------------- 57 Heard v Georgia R. Co.. 1 I. C. C. 428 ; 3 I. C. C. I l l ----------- 29,41 Huff v. Norfolk-S. R. Co., 88 S. E. 344------------------------------------- 21 / C. C. v. Baird, 194 U. S. 1---------------------------------------- 21 I. C. C. v. Chicago, R. I. & P. Ry., 218 U. S. 88------------------------- 16 L. & N. R. Co. v. Ohio Valley Tie Co., 242 U. S. 288------------------- 20 L., N. O. d T. R. Co. v. Mississippi, 133 II. S. 587------------------ 49 Manufacturers Ry. Co. v. U. S., 246 II. S. 457------------------------ 34 McCabe v. A., T. d S. F. Ry. Co., 235 U. S. 151------------------16, 49, 57 Moffat Tunnel League v. V. S., 289 U. S. 113------------------------- 18 Nashville Ry. v. Tennessee, 262 II. S. 318------------------------------ 34 Hew England Divisions Case, 261 U. S. 184--------------------------- 36 New York v. U. S., 257 II. S. 591------------------------------------------ 39 Piedmont d Nor. Ry. v. TJ. S., 280 U. S. 469---------------------------- 37 Pitts, d IF. Va. Ry. v. U. S., 281 U. S. 479------------------------------ 22 Plessy v. Ferguson, 163 U. S. 537----------------------------------------- 53, 54 Rochester Tel. Corp. v. TJ. S., 307 II. S. 125--------------------------- 14 Smith v. State, 46 S. W. 566------------------------------------------------- 50 Sou. Ry. Co. y . Norton, 73 Sou. 1------------------------------------------------------------------ 64 Sou. Ry. Co. v. Primrose, 73 Sou. 2--------------------------------------- 65 Sprunt v. U. S., 281 II. S. 249------------------------------------------------ 22 Texas v. V. S., 292 II. S. 530________________________________ 37 Tex. d P. Ry. Co. v. O. C. d S. F. Ry. Co., 270 II. S. 266----------- 37 Tex. d Pac. Ry. v. I. C. C., 162, U. S. 197--------------------------------- 33 U. S. v. Louisiana, 290 II. S. 70--------------------------------------------- 8,36 TJ. S. v. Merchants etc. Assn., 242 II. S. 178--------------------------- 22 TJ. S. v. Trucking Co., 310 U. S. 344--------------------------------------- 35 W., B. d A. El. R. Co. v. Waller, 289 F. 5^9/------------------------- 21, 57 Wis. R. R. Com. v. C., B. d Q. jft. R., 257 U. S. 563___________ 36 STATUTES CITED Interstate Commerce Act: Section 1 (5 )-------------------------------------------------------------- 1 Section 2----------------------------------------------------------------------- 8 Section 3 (1 )________________________________________ 8,9 Section 6 (7 )-------------------------------------------------------------- 8 Section 13 (4 )________________________________________ 8 Section 15 (1 )________________________________________ 0 Section 15a-------------------------------------------------------------------- 39 Section 16 (1 )_________________________________________ 8,20 Transportation Act, 1920------------------------------------------------------- 39 Arkansas separate coach law------------------------------------------------ 2" Miscellaneous: H. R. 8821, 75th Cong., 3d Sess__________________________ 38 H. R. 182, 76th Cong., 1st Sess__________________________ 38 H. R. 112, 77th Cong., 1st Sess__________________________ 37 J n t h t Supreme Qlourt »fl tte United States O ctober T erm , 1940 No. 577 A rth ur W . M itchell , appellant v. T he U nited S tates of A merica , I nterstate Com merce Com m ission , F ran k 0 . L owden , et al . ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS BRIEF FOR THE INTERSTATE COMMERCE COMMISSION OPINIONS The court below rendered no opinion. The Com mission’s report, Mitchell v. Chicago, R. I. d? P . Ry. Co. (R . 18-33), appears in 229 I. C. C. 703. QUESTION PRESENTED The question presented is whether the Commis sion committed error o f law in dismissing appel lant’s complaint respecting accommodations fo r colored passengers traveling in Arkansas on train No. 45 of the Chicago, Rock Island & Pacific Rail- (i) 2 way Company on through journeys from Chicago, 111., to Hot Springs, Ark., and refusing, under the facts and circumstances shown, and upon a finding that the present accommodations are not unjustly discriminatory or otherwise violative of the Inter state Commerce Act, to enter an affirmative order for the future, as sought in the complaint. STATEM ENT This is a direct appeal from a final decree (R. 53) o f the court below dismissing appellant’s petition (R . 1-40), seeking inter alia to set aside the Com mission’s order o f dismissal (R . 34). On September 2, 1937, appellant filed complaint with the Commission (R . 2 -7), naming as defend ants the Illinois Central Railway Company, the trus tees of the Rock Island, and the Pullman Company, alleging, in effect, that defendants, in complying with an Arkansas statute requiring segregation of the races during transportation, do not provide as desirable accommodations for colored as for white passengers traveling in Arkansas over the line of the Rock Island at first-class fares from Chicago, 111., to Hot Springs, Ark., and that this results in unreason able charges and mi just discrimination against, and undue prejudice to, colored passengers, in violation o f sections 1 (5 ), 2, 3 (1 ), and 13 (4) of the Inter state Commerce Act. It was further alleged that by reason of the facts stated defendants had violated the Fourteenth 3 Am endm ent, in that they denied com plainant the equal protection o f the laws. The relief requested by the complaint was that the Commission, after due hearing and investigation, enter an order commanding defendants to cease and desist from the violations of the Act alleged and to establish and apply in the future to the transporta tion of persons between the origin and destination named, in lieu of the services and facilities then be ing furnished, such other services and facilities as the Commission should deem reasonable and just (R. 7). The complaint did not ask for an award of damages (R . 28). There was a hearing (R. 66-213) ; briefs were filed; an examiner’s proposed report was issued (R. 10-17), to which complainant filed exceptions (R. 260-279), and defendants filed reply (R . 21T-219) ; the proceeding was orally argued before the Com mission ; and, on November 7,1938, the Commission issued its report (R. 18-30), containing findings of fact and conclusions thereon. Its ultimate conclu sion and finding was that the alleged violations of the Act had not been substantiated and that the com plaint should, therefore, be dismissed. W ith the report an order was issued dismissing the complaint. The Commission found that the case was built mainly on an unpleasant experience complainant had on his above-mentioned trip from Chicago to Hot Springs. “ On the evening of April 20, 1937, he left Chicago for Hot Springs over the lines of 4 the Illinois Central Railroad Company to Mem phis, Tenn., and the Rock Island beyond, travel ing on a round-trip ticket he had purchased at 3 cents per mile from the initial carrier’s ticket agent in Chicago. He had requested a bedroom on de fendants’ through Chicago-Hot Springs Pullman sleeping car, but, none being available, the ticket agent provided him with a compartment as far as Memphis in the sleeper destined to Hew Orleans, La. Just before the train reached Memphis, on the morning after leaving Chicago, he had a Pull man porter transfer him, together with his hand baggage and other personal effects, to the Chicago- Hot Springs sleeper then on the same train, but which was to leave Memphis at 8: 30 a. m., on Rock Island train 45, and reach Hot Springs, 193 miles west, at 1 :05 p. m., the same day. Space was available and the porter assigned him a particular seat in that car, for which he was to pay the estab lished fare, 90 cents.” (R . 21.) “ Shortly after leaving Memphis and crossing the Mississippi River into Arkansas the train conduc tor took up the Memphis-Hot Springs portion of his ticket, but refused to accept payment for the Pullman seat from Memphis and, in accordance with custom, compelled him, over his protest and finally under threat o f arrest, to move into the car provided for colored passengers, in purported com pliance with an Arkansas statute requiring segre gation o f colored from white persons by the use of 5 cars or partitioned sections thereof providing ‘ equal, but separate and sufficient accommoda tions’, for both races,” (R . 21.) “ Later the conductor returned the portion o f the ticket he had taken up and correctly advised com plainant that he could get a refund on the basis of the coach fare of 2 cents per mile from Memphis. The refund was never claimed from defendants and is not here sought, but defendants stand ready to make it upon application. ” (R . 21.) “ Complainant has an action at law pending against defendants in the circuit court o f Cook County, 111., for damages incident to his transfer.” 1 (R. 21-22.) The pullman car contained 10 sections o f berths and 2 drawing rooms.2 “ The use o f one of the drawing rooms,” the Commission found, “ would have amounted to segregation under the State law and ordinarily such accommodations are available to colored passengers upon demand, the 90-cent seat fare being applicable. Occasionally they are used by colored passengers, but in this instance both drawing rooms were already occupied by white passengers.” (R . 22.) 1 Although there is no official information, it is our under standing that the case has not yet been tried. 2 It appears from the evidence that ordinarily the Hot Springs sleeping car used in this train has a compartment in addition to two drawing rooms. Appellant so testified (R. 85). The Rock Island timetable, Ex. 4, p. 6, R. 207, so shows. 6 The colored passengers’ coach was an old com bination affair, divided by partitions into three main parts, one for colored smokers, one for white smokers, and one in the center for colored men and women. Complainant sat in the women’s section. There was a toilet in each section, but only the one in the women’s section was equipped for flushing and it was for the exclusive use o f the colored women. The car was without washbasins, soap, towels, or running water, except in the women’s section. Complainant testified that the car was filthy and foul smelling, but the testimony of de fendants was to the contrary (R. 22-23). In July 1937— about 3 months after complainant made his trip—the old combination coach was re placed by a new, all-steel, modern, air-conditioned coach. This coach is divided by a partition into two sections, one for colored and the other for white passengers; and it has comfortable seats. In each section there are washbasins, running hot and cold water, paper towels and drinking cups, and separate flush toilets for men and women (R . 23). This coach, the Commission found, “ is as fully desirable in all its appointments as the coach used entirely by white passengers traveling at second- class fares.” (R. 23.) The Commission found that the demand of col ored passengers for Pullman accommodations over the route in question is shown by the evidence to have been negligible over a period of many years. 7 “ Only about 1 negro to 20 white passengers rides this train from and to points on the line between Memphis and Hot Springs, and there is hardly ever a demand from a colored passenger for Pullman accommodations. The conductor recalled about 10 or 12 instances in the past 32 years of his service on the train, wherein colored passengers who had entered Pullman cars were required by him to move into the colored passengers’ coach. He estimated that the demand for Pullman accommodations did not amount to one per year. What demand there may have been at ticket offices does not appear.” (R. 24.) Upon the evidence the Commission concluded that “ The present coach properly takes care of colored second-class passengers, and the drawing rooms and compartments in the sleeper provide proper Pullman accommodations for colored first- class passengers, but there are no dining-car nor ob servation-parlor car accommodations for the latter, and they cannot lawfully range through the train.” (R. 24.) Section 1 (5 ) o f the Interstate Commerce Act (49 U. S. C., secs. 1-27) provides: “ All charges made for any service ren dered or to be rendered in the transporta tion of passengers or property as aforesaid, or in connection therewith, shall be just and reasonable, . . . ” 2 9 9 0 1 4 — 41--------2 8 The Commission found that there was no viola tion o f this provision. There was no evidence bear ing upon the subject o f the reasonableness of the fares themselves. I f a carrier collects a 3-cent fare and furnishes only 2-cent accommodations, he has violated section 6 (7) of the Act, which requires strict adherence to the published rates. The Com mission is authorized by section 16 (1 ) to enter an order awarding reparation for any overcharge, but complainant did not request such an order, no doubt for the reason that none is necessary, since the car rier is willing to make refund of the overcharge of 1 cent a mile upon application and upon surrender of the portion of the ticket covering the transporta tion from Memphis to Hot Springs.3 Section 13 (4 ) inhibits unjust discrimination against interstate commerce growing out of the relation o f intrastate rates to interstate rates. Cf. U. S. v. Louisiana, 290 U. S. 70; Florida v. U. S., 292 U. S. 1. The Commission found that there was no violation o f this section because no intra state fares were involved. Sections 2 and 3 (1 ) o f the Act provide: “ S ec. 2. That if any common carrier sub ject to the provisions of this part shall, di rectly or indirectly, by any special rate, rebate, drawback, or other device, charge, 3 The trustees of the Bock Island, in their answer to ap pellant’s petition filed in the Circuit Court of Cook County, 111., made tender of the amount of the overcharge (E. 93). 9 demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or prop erty, subject to the provisions of this part, than it charges, demands, collects, or re ceives from any other person or persons for doing for him or them a like and contem poraneous service in the transportation of a like kind of traffic under substantially simi lar circumstances and conditions, such com mon carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful. “ S ec. 3 (1 ). That it shall be unlawful for any common carrier subject to the provi sions o f this Act to make or give any undue or unreasonable preference or advantage to any particular person . . . in any respect whatsoever, or to subject any particular person . . . to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.” Under section 15 (1) the Commission is author ized to enter an order for the future requiring the carrier to cease and desist from any violation of these sections whenever, after full hearing, it is of the opinion that they are violated. Respecting the allegations of violations of sections 2 and 3, the Commission found that there is no showing that colored passengers are treated differently from white passengers on their journeys from Chicago 10 to Memphis over the Illinois Central, and that apparently that road is in no way chargeable with discrimination; that there is no discrimination on the part of the Pullman Company, because it pro vides accomodations in the form of drawing rooms, which if not already occupied or reserved for some one else, are available for colored passengers west of Memphis at the seat fare of 90 cents; that it is not its duty to enforce the State law, but that in deciding the case on the facts presented it must recognize that under the State law defendants must segregate colored passengers; that in these circum stances the present colored passenger coach and the Pullman drawing rooms meet the requirements of the A c t ; and that, as there is comparatively little colored traffic, and no indication that there is likely to be such demand for dining-car and observation- parlor car accomodations by colored passengers as to warrant the ruiming o f any extra cars or the construction of partitions, the discrimination and prejudice are plainly not unjust or undue; that only differences in treatment that are unjust or undue are unlawful and within the power of this Commission to condemn, remove and prevent; that therefore the complaint should be dismissed (R. 29-30). I t is plahi from the report that the Commission, in reaching this conclusion, took into consideration that appellant was the sole complainant, without authorization to speak for anyone else; that his 11 complaint “ mentions but a single incident of al leged discrimination and prejudice,” i. e., the one described in the report “ in which complainant was involved” ; that the case was “ built mainly on an unpleasant experience complainant had about 18 months ago” ; that the Pullman car on Rock Island train No. 45 “ contained 10 sections of berths and 2 compartment drawing rooms” ; that the “ use of one of the drawing rooms would have amounted to segregation under the State law and ordinarily such accommodations are available to colored pas sengers upon demand, the 90-cent seat fare being applicable” ; that “ there is hardly ever a demand from a colored passenger for Pullman accommoda tions” ; that there is no discrimination against col ored passengers by the Illinois Central or the Pull man Company; that the remaining defendant, the Rock Island, is in the hands o f trustees in bank ruptcy; that the journey over its road from Mem phis to Hot Springs on its train No. 45 is a day-time run of only 4 hours, 35 minutes; that the running of two dining cars and separate parlor cars, or the construction of partitions in the present cars, would put this carrier to great expense and would also cause it loss of needed revenues, because of the extremely slight, almost nonexistent demand for such accommodations by colored passengers, and that there was no evidence whatsoever of any de mand either by appellant or any other negro pas sengers for dining-car accomodations on this short 12 run, on which the train leaves at 8 :30 a. m. and arrives at destination at 1: 05 p. m. the same day. There was no evidence before the Commission that complainant ever made a similar journey over the Rock Island, or that he was ever before a passen ger on the Rock Island. Nor wTas there any evi dence that complainant intends in the future to make a similar trip over the Rock Island. There was no evidence before the Commission to support a finding of unjust discrimination against complainant respecting dining-car service. The evidence indicates that in Arkansas the Rock Island, in view o f the segregation statute, excludes colored passengers from the dining car while white passen gers are being served, but there was no evidence be fore the Commission that complainant desired din ing-car service or any eating accommodations while the train was in Arkansas, or that he was denied separate eating accommodations substantially simi lar to those afforded white passengers. There was no showing before the Commission and there is none here that complainant has been author ized by any other colored persons to complain on their behalf because o f alleged discrimination against them. PROCEEDINGS IN COURT BELOW April 20, 1939, appellant filed petition in the court below (R . 1-40) praying that the Commis sion’s order be set aside, annulled, and vacated, and that a decree be entered granting to him the relief prayed for in his complaint to the Commission. Answers were filed (R. 41-52). May 27, 1940— more than a year after the filing of the petition—the case was brought up for hearing before a three- judge court (R . 220-258). June 27, 1940, the court filed findings of fact and conclusions of law (R . 52-53). It found that the Commission’s order was made after a full hearing; that the Commission’s findings were all supported by substantial evidence, and are not erroneous; that the Commission’s order is supported by the findings, is not contrary to law, and contravenes no provision of the Constitution; that the court is without juris diction to grant the relief sought, or any part there of ; and that the petition should be dismissed. On the same day, the court issued its decree, dis missing the petition for lack o f jurisdiction (R . 53). While there was no opinion by the court explaining its reasons for holding that it lacked jurisdiction to grant the relief sought, it would seem that the holding is based on two grounds: (1) The court was clearly without jurisdiction to grant the prayer of the petition that “ a decree be entered granting to the plaintiff the relief prayed for in his com plaint filed before the said Commission” (R . 40), inasmuch as the grant o f such a prayer would re quire exercise by the court of administrative func tions; (2) there was no showing by plaintiff o f his need for the extraordinary remedies o f equity. 14 THE EVIDENCE At the hearing before the court there was intro duced inter alia a certified copy of the evidence be fore the Commission (R. 221). This evidence, transmitted to this Court as an original exhibit (R . 63), has been printed in full (R . 66-213). Ap pellant, in his brief before this Court, at page 13 and elsewhere, refers to his own abstract of the evi dence, which he has reproduced in the appendices to his brief here, pp. 19-50. His brief makes fre quent reference to this abstract. To avoid misun derstanding, attention should be called to the fact that appellees have not agreed that such abstract is a full, true, and accurate abstract o f the evidence. A R G U M E N T I Appellant has failed to show that he has legal interest in the accommodations to be furnished in the future by the Rock Island on its train No. 45 In Rochester Tel. Corp. v. U. S., 307 U. S. 125, the Court, reexamining the “ negative order” doc trine, noted that the prior decisions involving the doctrine fall into three categories, the third of which is : “ Where the action sought to be reviewed does not forbid or compel conduct on the part of the person seeking review but is attacked because it does not forbid or compel conduct by a third person.” (P . 130.) The order in question, nei ther compelling nor forbidding conduct on appel- 15 lant’s part, or on the part of a third person, seems clearly to fall within the third category, in refer ence to which the Court said, p. 136: ‘ ‘ The requisites of equity have o f course to be satisfied, but by the conventional criteria. They were satisfied in the Procter <$, Gamble case, since the bill sought to avoid a multiplicity of suits.” They are not satis fied in this case. For, although appellant com plained of a practice alleged to be discriminatory, and prayed for an order for the future correcting the practice, he did not show that the practice would affect him in the future. Appellant’s case before the Commission related solely to the accommodations furnished to him on a single trip from Chicago to Hot Springs. He neither alleged nor submitted evidence to show that he will have occasion or intends to make a similar trip in the future. In these circumstances it would seem that recovery of damages, i f any, sustained on his one trip would constitute complete relief. He has an action at law pending in the Circuit Court of Cook County, 111., for such damages (R . 21- 22). The relief he sought before the Commission was a legislative order for the future commanding the carriers to cease discriminating against him and other colored passengers in respect of accommoda tions on Rock Island train No. 45. But he was not authorized to seek avoidance o f discrimination against other colored passengers. 299014— 41------ 3 16 As a litigant in judicial proceedings, appellant may urge only his own grievances. This Court has said several times that it “ will not listen to a party who complains o f a grievance which is not his.” I. C. G. v. Chicago, R. I. & P . By., 218 U. S. 88, 109 and cases cited; Arkadelphia Co. v. St. L. S. W. By. Co., 249 U. S. 134,149; Avent v. U. S., 266 U. S. 127; McCabe v. A., T. & S. F. By. Co., 235 U. S. 151. The McCabe case was a suit by five negro citizens o f the State o f Oklahoma against certain railway companies to restrain them from obeying the Okla homa separate coach law. This Court held that none o f the complainants had personally been re fused accommodations equal to those afforded to others and that they did not have sufficient inter est in the subject matter to enable them to maintain the suit. It said: “ The desire to obtain a sweeping injunction can not be accepted as a substitute for compliance with the general rule that the complainant must present facts sufficient to show that his individual need re quires the remedy for which he asks. The bill is wholly destitute o f any sufficient ground for injunc tion and unless we are to ignore settled principles governing equitable relief, the decree must be affirmed.” (P . 164.) The bill contained “ some general allegations as to discriminations in the supply o f facilities and as to the hardships which will ensue. It states that there will be a ‘multiplicity o f suits,’ there being at 17 least ‘ fifty thousand persons of the negro race in the State o f Oklahoma’ who will be injured and de prived of their civil rights.” “ But,” the Court held, “ we are dealing here with the case o f the com plainants, and nothing is shown to entitle them to an injunction. There is an elementary principle that, hi order to justify the granting of this ex traordinary relief, the complainant’s need of it, and the absence of an adequate remedy at law, must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons, who may be injured are persons o f the same race or occupa tion. It is the fact, clearly established, o f injury to the complainant—not to others—which justifies judicial intervention. [Citing cases.]” Although appellant submitted no evidence o f an intention to travel again to Hot Springs over the Rock Island, he did find occasion to make the fo l lowing significant statement (R . 157) : “ E x a m in e e D isqtje. Y ou not only want a Pullman car, but you want another car, an observation car, put on there % M e . M it c h e l l . I want dining car accom m odations also. E x a m in e e D isqtje. Y ou want another ob servation car put on, and you cannot m ix them in the same dining car, so you w ant another dining car put on there ? Me. M it c h e l l . Yes. I f that is what they should do, under the law, let them pay the 18 price, and give it to me. * * * I f they have passed a law that works that hardship on them , we want to take advantage of it .” In Moffat Tunnel League v. TJ. S., 289 U. S. 113, the Court held that in a suit to set aside a Com mission order plaintiff must show that he has, or represents others having, a legal right or interest that will he injuriously affected by the order; that appellant could not maintain the action because its interest was not a legal one. The Court ob served that the Urgent Deficiencies Act “ does not specify the classes o f persons, natural or artificial, who may sue, or what shall constitute a cause of action for the setting aside of an order. But it does require that the petition shall set forth ‘ the facts constituting petitioner’s cause of action,’ and by other provisions show that for failure so to do the suit shall be dismissed. Id., section 45. Con sequently the complaint must show that plaintiff has, or represents others having, a legal right or interest that will be unjustly affected by the order. Edward Hines Trustees v. TJ. S., 263 U. S. 143,148. Sprunt v. V. S., 281 U. S. 249, 254. Pitts, d W. Va. By. v. U. S., 281 U. S. 479, 486.” The Court further held: “ Plaintiffs have failed to show that they are so qualified. Their interest . . . is no more than a sentiment, . . . ” The in terest o f appellant here seems to be no more than a sentiment, since he has not shown he will have occa sion to use the facilities o f the Eock Island in the Ii9 future. He apparently seeks to champion the rights o f negroes generally who may in the future use those facilities. Appellant in argument before the court below stated: “ A sa matter of fact, I have been down to Hot Springs several times since this thing happened. O f course, I have not gone down there on the Rock Island Railroad. I have gone down on the Missouri Pacific, which is a little more liberal and where you can get ac commodations and something to eat.” (R . 255.) This statement indicates an affirmative intention not to patronize the Rock Island again. It admits appellant’s lack of interest in the alleged discrim inatory practice of the Rock Island. It establishes that the future practice, whatever it is, will not affect him. It shows that he has no standing to invoke the extraordinary remedy of equity; that he needs no decree for the future to compel the Rock Island to cease discriminating against him. He is not authorized and has no standing to complain in behalf of others. He has a complete remedy at law for any damages sustained on the one trip he made over the Rock Island. That remedy he has invoked. The evidence before the Commission related only to the practice of the three named defendants in respect to accommodations furnished on one train, particularly Rock Island train No. 45 from Mem phis to Hot Springs, on which, in deference to the 20 Arkansas statute, the practice o f segregating in Arkansas is followed. There was no evidence dis closing the practice o f the Missouri Pacific or any other railroad, either in Arkansas or elsewhere. There is nothing of record to show that appel lant’s pending court suit for damages is predicated upon an alleged violation of the Interstate Com merce Act which requires a preliminary adminis trative finding by the Commission. Appellant has not so alleged; he has made no suggestion to that effect to the Commission. The fact that such a suit is pending was divulged only because appellant desired to prove certain things by introducing copies o f the defendant’s answers in that suit. The answers themselves were not put in ; by stipula tion o f counsel certain paragraphs were read into the record (R . 90-96). No copy of the declaration showing the basis of appellant’s suit was intro duced before the Commission. There is no showing that the suit involves an administrative question. The inferences are that it does not; for, if appel lant sought damages for violation o f any provision o f the Interstate Commerce Act, it is reasonable to suppose he would have claimed them in his case before the Commission. The Commission is author ized to award full damages for any violation of the Act. Section 16 (1) ; L. <& N. R. Co. v. Ohio Valley Tie Co., 242 U. S. 288. The circumstances seem to indicate that appel lant’s action at law is based on alleged violation of 21 common law rights. Such suits have been main tained in several instances; in none was it held that an administrative determination by the Commis sion was necessary. Chiles v. C. & 0 . R. Co., 218 I T . S. 71; W ., B. & A. E l R. Co. v. Waller, 289 F. 5$9>; H uff v. NorfoVk-S. B. Co., 88 S. E. 344. The defendants urged that the complaint was insufficient to raise any issue as to practice, since the complaint mentions but a single incident of alleged discrimination and prejudice, and that one incident does not amount to a practice. The Com mission overruled this contention on the ground that the one incident was mentioned as representa tive of an alleged practice that was expected to continue (R . 20). Section 13 (2 ), Interstate Commerce Act, pro vides that no complaint shall at any time be dis missed because o f the absence o f direct damage to the complainant. Cf. I. C. C. v. Baird, 194 U. S. 2̂ 39/ 4 4 In that case the complaint to the Commission was filed by William Randolph Hearst alleging that certain inter state freight rates on anthracite coal were unreasonable and otherwise violative of the Interstate Commerce Act. It ap pears from the opinion of the Circuit Court, 123 Fed. 969, that Hearst was not a shipper of anthracite coal and that his only interest in the rates attacked was that of “an indi vidual who merely purchases merchandise, the price of which is advanced by reason of its including the cost of transportation from the place of production to the place of sale.’ Under the decision in that case, almost any mem ber of the public v7ould have the right to maintain proceed ings before the Commission. 2 2 But the right of an individual or of an associa tion or league to prosecute proceedings before the Commission does not in itself confer the right to maintain judicial proceedings to set aside the Commission’s order and the corollary right to take a direct appeal to this Court. As stated in Edward Hines Trustees v. U. S., 263 U. S. 143,148, . plaintiffs could not maintain this suit merely by showing (i f true) that the Commission was without power to order the penalty charges canceled. They must show also that the order al leged to be void subjects them to legal injury ac tual or threatened.” In Pitts. & W. Va. By. v. TJ. S., 281 U. S. 479, it was held that the “ appellant had no standing to bring this suit . . . in the ab sence o f resulting actual or threatened legal in jury to it . . that certain “ vague speculative interests” were “ clearly insufficient to give the Pittsburgh an independent standing in this suit.” See also Sprunt v. TJ. S., 281 U. S. 249, 256-257; Algoma Goal Go. v. TJ. S., 11 P. Supp. 487, 495- 496; TJ. S. v. Merchants etc. Assn., 242 U. S. 178, 188. Although appellant has affirmatively indicated an intention not to patronize the Rock Island again (R . 255), the speculation that he might nevertheless do so is clearly insufficient to give him standing to seek an order for the future respecting the Rock Island’s practice. It is now approximately 4 years since appellant made his one trip. It seems clear 2 3 that the practice of the Rock Island has not affected appellant during that 4-year period, and evidently will not affect him in the future. The following argument is submitted for consid eration in the event the Court should find that ap pellant has standing to maintain the suit. I I The Commission’s findings are fu lly supported by the evidence Appellant’s brief (pp. 17, 37, 78) alleges in gen eral terms that the Commission’s findings are not supported by the evidence. But in the absence of specification it is unnecessary to review the evi dence to show support for each o f the findings. Reference to some of the evidence, however, seems desirable. The evidence shows that drawing rooms and com partments in Pullman cars are available to colored passengers.—Appellant desired to travel in Pull man cars and to that end purchased a first-class railroad ticket, at 3 cents a mile (R . 70, 158). He endeavored to purchase a drawing room or bedroom in the through Hot Springs sleeper. But none was then available in that car, all having been previ ously taken by other passengers. Similar space was available in a New Orleans sleeper and appel lant purchased a compartment in that car as far as Memphis (R . 70,73). 299014— 41------ 4 24 As the train approached Memphis the next morn ing, appellant had the porter move him into a seat in the body o f the Hot Springs sleeper (R. 71). This Pullman car is carried from Memphis to Hot Springs on Rock Island train No. 45. Shortly after leaving Memphis the train crossed the Mississippi River into the State of Arkansas, en route to Hot Springs. When the Rock Island train conductor came in due course to collect ap pellant’s ticket, appellant offered to purchase a seat in the Pullman (R . 81), for which the Pull man charge was 90 cents (R . 162). The conductor informed appellant he could not ride in the Pull man car, because o f the Arkansas segregation law, unless there was a vacant compartment or drawing room (R . 85-86, 94, 130-131, 139, 147-148, 160). There was none (R . 131, 138), and appellant was compelled to move into the combination coach (R. 131-133). The coach fare was 2 cents a mile. The conduc tor informed appellant that he was entitled to a refund of 1 cent a mile for the distance from Mem phis to Hot Springs (R . 71, 81, 93, 131). Appel lant has not surrendered the ticket for a refund, because he “ thought it was worth more in a hear ing like 'this 'than it would be to turn it in.” (R . 71.) But he sought no order from the Com mission directing payment of the overcharge. Appellant was sold a 3-cent per mile ticket at Chicago through to Hot Springs because he re- 25 quested it, even though he had no parlor-car reser vation beyond Memphis. His inability to secure a reservation in the Hot Springs sleeper was not be cause he is a colored man, but because of the late ness of his application. He testified: “ During the day o f the 20th I believe— or the 19th, I called the . . . ticket office and made a reservation for the trip.” (R . 70.) He left on the 20th. Had he applied for reservations earlier he could no doubt have obtained the space he desired— a drawing room or compartment through to Hot Springs— and then, no doubt, the trouble he experienced would have been avoided. The conductor in charge of Rock Island train No. 45 testified that colored passengers may not use the sleeping car (R . 160), that is, they are not permitted to ride in the body of a Pullman sleep ing car in the State o f Arkansas, because of the State segregation statute (R. 131, 138), but that they are permitted to ride in Pullman drawing rooms and compartments, at the regular seat fare, if such accommodations are available (R . 138,148- 149). By “ if available,” he meant that if a col ored person applies for a through Pullman ticket “ he can get it, i f it is not sold. They do not hold it, to wait and see if some white man is going to buy it. They will sell it to him.” (R. 160.) Although appellant testified that he was told by the conductor he could not ride in the Pullman 2 6 sleeping car in Arkansas because he was colored (R . 85), he later qualified his statement as follows: “ Well, he said this; he said ‘ The law of Arkansas has made it a crime for a negro to ride in a car o f that type, in the presence of white people’ ; and that they would have to ride in compartments, or in drawing rooms; that they couldn’t ride in the car. ” (R. 85- 86.) The conductor further testified that if at the time of this transaction there had been a vacant compartment, or a vacant drawing room in that Pullman car, he would have put appellant in it (R . 138-140) ; that when he has a drawing room or a compartment available, he puts the colored passenger in it, leaving the door open fronting out on the aisle, and then the passenger pays only the seat fare, the same in amount that he would pay for a seat in the body of the car (R . 148-149). On cross-examination the witness was asked: “ Now, during the 32 years you said you worked over there they have never had any first-class ac commodations for negroes available, have they?” 1 (R . 159.) While the witness then answered in the negative, he obviously meant that negroes are not allowed to ride in the unsegregated part of a Pull man car, and immediately he corrected his answer, 1 confirming his previous testimony that they can use the compartments in sleeping cars (R. 160) . It thus appears that there were first-class accom modations for negroes, that is, in the drawing 27 rooms or compartments of Pullman cars, at the regular seat fare, when they were available, and that they were equally as available to negroes as to white persons. The Commission’s -finding that there is but little colored traffic is supported by the evidence.— The conductor testified that he found colored passengers occupying compartments and drawing rooms on his train once in a while (R . 138); as to how many colored passengers per year had applied to him for passage in a Pullman car on his train, he answered, “ Well, it won’t average one a year.” (R. 140.) As to the proportion of colored to white passengers who customarily ride that train he stated: “ Well, for the last year or so, we have had about—we have handled about 20 whites to one colored.” He fur ther stated that within his knowledge, one or two colored persons in the Pullman car per year would cover the amount o f travel in those cars, and that the accommodations on that train devoted to col ored people are adequate to care for the amount of travel o f such people (R . 145); that in 32 years he had only 10 or 12 colored persons riding in Pull man cars, that one or two, about one per year, or something like that, had applied to him for accom modations (R . 137-138,145,168). The examiner observed that the witness was “ tes tifying only as to the passengers he sees in compart ments or drawing rooms in Pullman cars; he is not testifying as to how many people offer themselves at ticket offices to buy tickets. ” (R . 139.) The wit- 2 8 ness did not know about the demand at ticket of fices, but in the absence o f evidence o f a practice at ticket offices to refuse to sell to negroes space in Pullman compartments and drawing rooms when available, it seems reasonable to assume that ne groes who applied for such space when available were sold it and that those who boarded the trains with such space were all who had seasonably ap plied for it at the ticket offices. As observed by the Commission in Gaines v. Sdab oard A ir Line, 16 I. C. C. 471, 475, the fact that colored people find it impossible to get Pullman reservations on a popu lar train within a few hours of the time of its de parture ‘ ‘ indicates absolutely nothing in the way of discrimination.” The absence o f demand for Pullman accommoda tions by negroes is illustrated by the testimony of John J. Pullen, who, testifying in behalf of com plainant (R . 115-121) stated that he is a retired physician, living in Chicago; that he had prac ticed in Arkansas, owns property in H ot Springs and Little Rock, and frequently makes trips down there; that he has had occasion to use the Rock Island in making trips from Chicago to Hot Springs, and that the coach accommodations for negroes are not as good as coach accommodations for whites. The last trip he made from Chicago to H ot Springs over the Rock Island was in Sep tember 1937, but he did not undertake to ride in the Pullman car. He bought his ticket intending to ride in a coach. Further, that he had never 2 9 ridden from Chicago to H ot Springs over that route in a Pullman car, and that he had never tried to do so (R . 120). The evidence in the present case respecting the volume of colored passenger traffic is consistent with findings of the Commission in previous simi lar cases. For example, in Gaines v. S. A. L., supra, the Commission found: “ The testimony is clear that colored travel is mainly for short dis tances, whether between intrastate or interstate points, and that the proportion of negro to white passengers on long journeys, such as make sleep ing accommodations necessary is infinitesimal. . . . It is a matter of common observation that through out the land, without regard to the section, to the local conditions, or to the local laws, the propor tion of colored Pullman travel to white Pullman travel is infinitesimal in amount . . . ” See also Edwards v. N. C. & St. L. By. Co., 12 I. C. C. 247, 248; Evans v. C. & 0 . By. Co., 92 I. C. C. 713; Heard v. Georgia B. Co., 3 I. C. C. I l l , 115. The evidence shows that the compartments and drawing rooms in Pullman cars are ordinarily suf ficient fo r the number of colored passengers who want to ride in Pullman cars.— The train conductor testified that, considering the number o f colored persons who travel in Pullmans on his train, the drawing rooms and compartments are ordinarily adequate and sufficient to take care of all o f those who desire Pullman accommodations; that there is “ plenty o f space for all we are handling.” (R. 147.) 30 The witness affirmed that ordinarily he can ac commodate the colored man who desires a drawing room or compartment; that ordinarily he can ac commodate in a drawing room or a compartment the colored applicant for Pullman accommodations, and at the same time comply with the Arkansas law (R . 147-148). There is no evidence that appellant was sub jected to unjust discrimination in respect of din ing-car service.—Although appellant testified at length (R. 70-96), he made no claim, and submitted no evidence, that he was subjected to discrimination in respect o f dining-car service; he made no men tion of the subject in his testimony. He did not divulge whether he was served with breakfast either in his compartment or in the dining car of the New Orleans train on which he rode from Chi cago to Memphis. He did not testify that he de sired to obtain either breakfast or luncheon on Rock Island train 45, or whether he preferred to wait for luncheon until after the train arrived at destination, at 1 :05 p. m. He did not testify that the Rock Island refused to serve him either break fast or luncheon. The first mention made of the dining car was after appellant had left the stand. Then, appel lant’s counsel, in support of his objection to a cer tain question, made this statement (R . 145) : “ Well, but as first-class passengers, hav ing paid the first-class fare, we contend that we can ride in the observation car, and in 31 the Pullman car, and in the dining car, and not up there in the Jim Crow car, which is only for coach passengers.” The appellant, when asked by the examiner: “ You not only want a Pullman car, but you want another car, an observation car, put on there?” answered, speaking as counsel pro se, “ I want din ing-car accommodations also.” (R. 157.) While the conductor testified on cross-examina tion that colored passengers are not admitted into the dining car (R . 160), there was no testimony that negro passengers are denied the equivalent of dining-car service. I f colored passengers are to be segregated, they may not be served at the same time with white passengers in the dining car. If, however, there is a demand for dining-car service by colored passengers—the record contains no evi dence of such demand—it can easily be taken care of, as indicated by the Commission’s report in » Gaines v. S. A. L., supra, dealing with a complaint was brought by five colored men alleging inter alia that they were refused access to dining cars and thereby subjected to unjust discrimination. In holding that no unjust discrimination had been shown, the Commission found that the evidence was “ clear that colored passengers do get the same serv ice that is furnished the whites, the only discrimin ation made being in hours of service or the place of service. For instance, colored passengers are not served with meals in the dining car at the same time with white passengers, but in consideration o f 299014— 41-------5 3 2 the relative amount o f long distance travel o f the two races they are served on the third and last call. I f the colored passenger does not desire to wait until the last call is made, he is, upon his request, served with the same food and with the same care at his seat either in the Pullman or in the ordinary coach, portable tables being used for this purpose.” In the absence of testimony upon the subject in the present case, it would seem reasonable to infer that the Rock Island would not refuse to sell meals to colored passengers, either in the dining car at a reasonable hour (segregated from white passen gers) or at their seats either in the Pullman com partments or in the day coach. The mere showing that colored passengers are excluded from the din ing car on the Rock Island in Arkansas, without a showing that they are denied the equivalent of din ing-car service, does not establish unjust discrimi nation in violation o f the Interstate Commerce Act. I l l Not all discriminations are unlawful under the Inter state Commerce Act but only those that are undue, unreasonable, or unjust. Whether a discrimination is undue, unreasonable, or unjust is a question of fact for the Commission Sections 2 and 3 of the Interstate Commerce Act in broad terms prohibit “ unjust discrimination” and ‘ ‘ undue or unreasonable ’ ’ prejudice. It is clear from their wording that these sections do not in absolute terms prohibit all discrimination or prej- 33 udice but only such discrimination as in “ unjust” and prejudice that is “ unreasonable” or “ undue.” Such has been the uniform holding o f this Court. In T. & P. By. v. I. C. C., 162 U. S. 197, it said that the principal purpose of the second section is to prevent unjust discrimination between shippers; “ and we think that Congress must have intended that whatever would be regarded by common car riers, apart from the operation of the statute, as matters which warranted differences in charges, ought to be considered in forming a judgment whether such differences were or were not ‘ unjust.’ Some charges might be unjust to shippers— others might be unjust to the carriers. The rights and interests of both must, under the terms of the Act, be regarded by the Commission.” (P . 219.) This statement, having relation to discrimination between shippers in rates for freight transporta tion, applies with equal force to alleged dis crimination between passengers in the service performed or accommodations furnished under passenger fares. The Court thereupon considered the third sec tion, and after noting that it forbids any “ undue or unreasonable” preference or advantage in favor of any person, etc., pointed out that “ as there is nothing in the Act which defines what shall be held to be due or undue, reasonable or unreasonable, such questions are questions not o f law, but of fact.” The Court said that “ The mere circum stance that there is, in a given case, a preference m or an advantage does not of itself show that such preference or advantage is undue or unreasonable within the meaning of the Act. Hence it follows that before the Commission can adjudge a common carrier to have acted unlawfully, it must ascer tain the facts; and here again we think it evident that those facts and matters which carriers, apart from any question arising under the statute, would treat as calling, in given cases, for a preference or advantage, are facts and matters which must be considered by the Commission in forming its judg ment whether such preference or advantage is un due or unreasonable.” (Pp. 219-220.) In Manufacturers By. Co. v. U. S., 246 U. S. 457, the Court said: “ It is not any and every dis crimination, preference, and prejudice that are de nounced by the Commerce Act. Section 3 . . . renders unlawful any ‘undue or unreasonable’ preference or advantage, prejudice or disadvan tage. . . . And in the first paragraph of amended section 15 . . . it is rates, regulations, or prac tices that in the opinion o f the Commission are ‘ unjustly discriminatory, or unduly preferential or prejudicial/ etc., to which the prohibition is to be applied. (P . 481; Court’s italics.) In Nashville By. v. Tennessee, 262 U. S. 318, the Court said that every rate which gives preference or advantage to certain persons, commodities, localities or traffic is discriminatory, because “ such preference prevents absolute equality o f treatment among all shippers or all travelers. But discrim- 35 ination is not necessarily unlawful. The Act to Regulate Commerce prohibits (by sections 2 and 3) only that discrimination which is unreasonable, undue, or unjust. . . . Whether a preference or discrimination is undue, unreasonable or unjust is ordinarily left to the Commission for decision; and the determination is to be made, as a question of fact, on the matters proved in the particular case. ’ ’ In U. S. v. Trucking Co., 310 U. S. 344, the Court affirmed its prior holdings in this regard: “ The Interstate Commerce Act does not attempt to define an unlawful discrimination with mathematical pre cision. Instead, different treatment for similar transportation services is made an unlawful dis crimination when ‘undue,’ ‘ unjust,’ ‘ unfair,’ and ‘unreasonable.’ And the courts have always rec ognized that Congress intended to commit to the Commission the determination, by application o f an informed judgment to existing facts, o f the ex istence o f forbidden preferences, advantages, and discrimination.” The Court also affirmed prior holdings to the effect that particular problems of discrimination are to be considered and determined in the light of the national transportation problem-and the policy of Congress to aid in the development of adequate national transportation. It sa id : “ The particular problem here involved is but a segment o f the larger complicated national problem of rates with which the Commission must deal. As exemplified by this record, the Commission is ‘ in- 3 6 formed by experience’ o f years in its consideration o f the relationship of forwarders to our national transportation system . . . “ The Commission acted in its capacity as a pub lic agency and carried out duties imposed upon it by Congress in the interest o f shippers generally, the national transportation system and the public interest. Its order was the embodiment o f the Commission’s judgment that the proposed tariff was a discrimination prohibited by the Act. ‘ The judgment so exercised, being supported by ample evidence, is conclusive.’ ” In determining appellant’s case the Commission properly gave consideration to the national trans portation policy, which has for its purpose the maintenance of adequate transportation service. It was within its power, and therefore not in excess o f its authority, to decline to issue an order, oper ating indefinitely and permanently in the future, the effect o f which would be to require the carrier to provide facilities which appellant has not shown he will ever use, at an expense widely disproportion ate to the demand for such facilities, and the reve nue to be derived therefrom, in the face of the undisputed evidence that negro passengers pur chasing first-class tickets are seated in the drawing rooms of Pullman cars, at the regular seat fare, and that ordinarily such facilities are ample to take care o f the colored demand. Cf. W is. R. R. Com. v. C., B. & Q. R. R., 257 U. S. 563, 585; New England Divisions Case, 261 U. S. 184, 189-190; U. S. v. 3 7 Louisiana, 290 U. S. 70, 75; Dayton-Goose Greek By. v. Z7. S., 263 U. S. 456; Texas v. U. S., 292 U. S. 530, 531; Tex. & P . By. Go. v. G. G. & S. F. By. Go., 270 U. S. 266; Piedmont & Nor. By. v. U. S., 280 U. S. 469; 286 U. S. 299; Atchison By. v. Bailroad Comm., 283 U. S. 380; Florida v. U. S., 292 U. S. 1, 6-7. The Interstate Commerce Act neither requires nor prohibits segregation. At the opening of the present session of Congress Mr. Mitchell intro duced a h ill5 providing: “ That the Transportation Act (U. S. C., title 49, sec. 3 (1 ) ) , be, and the same is here by, amended by adding a subsection to be known as subsection (a ), which shall read as follow s: ‘ (a) It shall be unlawful to segregate any persons traveling as interstate passen gers on any carriers subject to the provi sions o f this Act, or in railroad stations, waiting rooms, rest rooms, lunch rooms, restaurants, dining cars, or in any other ac commodations provided for passengers traveling interstate, on account o f such pas sengers’ race, color, or religion; and any such discrimination or attempted discrimination shall subject the offending carrier, its officers, agents, servants, and employees, to the pen alties hereinafter provided for violations of this Act.’ ” 5H. R. 112, 77 Cong., 1st Sess., introduced January 3, 1941, and referred to the Committee on Interstate and For eign Commerce. 3 8 Similar bills were introduced by Mr. Mitchell at the last session o f Congress and at the one before that; 6 but Congress has not adopted the proposed amendment, although meanwhile it has given ex tended consideration to the transportation problem, and on September 18,1940, enacted Transportation Act, 1940. Appellant of course could not hope to accomplish in these proceedings before the Commission what he might conceivably accomplish by legislation in Con gress. The evidence submitted to the Commission was very narrow in its scope. It did not disclose general conditions; it related almost entirely to one train o f one railroad. The Commission obviously could not lawfully issue an order having general ap plication, upon the narrow record before it. The general question whether segregation is to be abolished in all sections of the comitry where it is now practiced— the South and the Southwest— would seem to be one appropriately for determina tion by Congress. IV The Commission’s order contravenes no constitutional provision It is alleged that the Commission’s order and findings deny to appellant due process of law and equal protection o f the laws, in violation of the 6 H. E. 182, 76th Cong., 1st Sess., introduced January 3, 1939, and H. E. 8821, 75th Cong., 3d Sess. 39 Fourteenth Amendment, Since appellant was granted a full hearing by the Commission, which is admitted, there appears to be no basis for the allegation o f denial o f due process of law. Ke- specting the alleged denial of equal protection of the laws, it seems clear that the requirement of the Fourteenth Amendment that no State shall deny to any person the equal protection of the laws is not violated by a finding by the Commission, after full hearing, that an alleged discrimination is not violative of the Interstate Commerce Act. As pre viously shown, the Act does not require absolute equality but prohibits only discriminations which are unjust or undue. This provision is o f general application. In New York v. U. S., 257 U. S. 591, the Commission, finding that the passenger fares of 2 cents per mile applicable intrastate within the State of New York caused unjust discrimination against interstate commerce in their relation to interstate fares as increased by the Commission in 1920, in compliance with the requirements of Sec tion 15a of the Interstate Commerce Act, added by Transportation Act, 1920, and to carry out the de clared congressional purpose “ to provide the people of the United States with adequate transporta tion,” ordered the intrastate fares increased to the same basis as that applying interstate. It was alleged that the Commission’s order was invalid because it enabled the New York Central to violate its contract with the State, and thereby impaired 4 0 the obligation o f a contract in violation o f Section 10, Article I, o f the Federal Constitution. The State had a charter contract with the railroad com pany by which the latter was bound not to charge more than 2 cents a mile for passenger carriage between Albany and Buffalo. This Court held: “ That section provides that ‘ no State shall . . . pass any . . . law impairing the obligation of con tracts,’ and does not in terms restrict Congress or the United States.” (P . 600-601; Court’s italics.) Similarly the provisions o f the Four teenth Amendment do not in terms restrict Con gress or the United States. Congress, in the exer cise o f its constitutional power to regulate inter state commerce, has not condemned all discrimina tion but has prohibited only that which is found by the Commission to be unjust or undue. The constitutionality o f the Arkansas statute is not here in issue, nor was that question in issue before the Commission, which as an administrative body is o f course not authorized to determine the constitutionality o f statutes. Y Question of segregation is not here involved The complaint to the Commission did not bring in issue the question o f segregation. Its principal allegation was inequality o f accommodations fur nished. At the hearing before the Commission ap pellant, as counsel for himself, stated: “ The ques- 41 tion o f segregation is not involved. The law of the State o f Arkansas, which has been put into the rec ord here, provides that the passengers o f the two races must be separated, but that the accommoda tions must be equal. Now, we are contending that a colored man is entitled to everything that a white man gets, who pays a similar fare, on these trains.” (R. 156.) In his exceptions to the examiner’s proposed re port, however, appellant expressed his opposition to segregation, as indicated by the following state ment in the Commission’s report: “ A t the hearing complainant stated that segregation was not in volved and apparently for the purpose o f this case he accepted it, regarding the Arkansas statute as requiring it in that State for all passengers, both interstate and intrastate. However, in his excep tions he opposed it as abominable and urges that the statute does not require it as to interstate passengers.” (R . 27-28.) But before the court below appellant affirmed his prior statement before the Commission that segre gation is not involved, stating to the court: “ . . . There is no question of segregation in volved. W e have not said to the railroad that it must let us ride together with the white people. I care as little about riding with white people as they care about riding with me, but if I buy first-class passage to ride on the Rock Island or on any other railroad in the United States, under my constitu- 4 2 tional rights I am entitled to the same treatment as any man is entitled to regardless of color.” (R. 227-228.) The ultimate question before the Commission was whether an order should be issued for the fu ture. The Commission decided that under all the facts and circumstances no such order should be issued in this case. The general principles applicable in cases of this kind had been stated in previous Commission de cisions. In Councill v. W . d A. R. R. Co., 1 1. C. C. 339 (1887), the Commission said (p. 345) : “ It is both the right and the duty o f railroad companies to make such reasonable regulations as will secure order and promote the comfort of their passengers. It is a custom o f the railroad com panies in the States where the defendant’s road is located, and in all the States where the colored population is considerable, to provide separate cars for the exclusive use o f colored and of white people. ” A fter referring to a decision of the Supreme Court o f Pennsylvania declaring the separation of white and colored passengers in a public convey ance to be a subject o f “ sound regulation to secure order, promote comfort, preserve peace, and main tain the rights of both carriers and passengers,” the Commission further said (p. 346): “ Public sentiment, wherever the colored popu lation is large, sanctions and requires this separa- 43 tion of races, and this was recognized by counsel representing both complainant and defendant at the hearing. We cannot, therefore, say that there is any undue prejudice or unjust preference in recognizing and acting upon this general senti ment, provided it is done on fair and equal terms. This separation may be carried out on railroad trains without disadvantage to either race and with increased comfort to both.” Councill, in his complaint to the Commission, alleged that defendant had subjected him to un reasonable prejudice and disadvantage in violation of the Act to regulate commerce, in that, because of his color, he was not allowed a seat in the day coach set aside for women and for men accompa nied by women, while white passengers who had purchased tickets at the same price paid by com plainant were allowed to ride in said car. He further alleged that several persons on the train, one holding a lantern, “ without provocation, struck the complainant with it several blows, cut and bruised his face, and the three together forci bly ejected him from the car and compelled him to go into and occupy another car.” The defend ant railroad denied that the persons who ejected the complainant from the white car were its agents. “ But the right of the carrier to assign a white man to another car than the ladies’ car, or a colored man to a car for his own race, takes nothing from the right of either to have accommodations sub- 4 4 stantially equal to those of other passengers pay ing the same fare. The complainant had paid the same fare with other ‘first-class’ passengers. It was no more than fair dealing and common hon esty that he should have the security and conven iences of travel for which his money had been accepted.” The Commission, finding that the accommoda tions furnished in the separate car for colored passengers were not equal to those furnished in the other car, ordered the railroad “to cease and desist from subjecting colored passengers to undue and unreasonable prejudice and disadvantage in vio lation of section 3 of the Act to regulate commerce, and from furnishing to colored persons purchasing first-class tickets on its road accommodations which are not equally safe and comfortable with those furnished other first-class passengers.” H eard v. Ga. R . R . Co., 1 I. C. C. 428, 3 I. C. C. Ill, and Edw ards v. N ., C. d? St. L . R . Co., 121. C. C. 247, are to the same effect and in these cases correc tive orders were issued. In the Edw ards case, at page 249, the Commission said: “If a railroad pro vides certain facilities and accommodations for first-class passengers of the white race, it is com manded by the law that like accommodations should he provided for colored passengers of the same class. The principle that must govern is that carriers must serve equally well all passengers, whether white or colored, paying the same fare. Failure to do this is discrimination and subjects 45 the passenger to ‘undue and unreasonable preju dice and disadvantage.’ ” In Gaines v. S. A . L . R y ., 16 I. C. C. 471 (1909), the Commission, speaking of the segregation laws, said: “Throughout the section of the country em braced in this complaint the laws of the several states provide for the separation of the white and black passengers in the trains. These laws, in so far as they provide merely for such separation of the races, have been upheld by the courts as reason able police regulations designed for the comfort, peace, and happiness of the black people as well as of the white, and, when equal accommodations are furnished the two races, are not open to just criti cism from anyone. Nor are these laws and customs fairly open to comparison with the laws of states or countries where there is no race question be cause of the inconsiderable number of the black race.” Further, the Commission said: “ A careful exam ination of the record before us indicates that not withstanding the legally correct attitude of the de fendants and their responsible officials, including city and district passenger agents, the colored trav eler is not welcomed by the average ticket seller or the average Pullman conductor when he applies for sleeping-car accommodations. This condition is due to many things, the chief among which may be stated as (1) the exceeding infrequency of the demand; (2) the fear of breaking state laws in ac ceding thereto; (3) the natural, if legally inex- 4 6 disable, confusion of the lay mind with respect to state and federal laws and the rights, obligations, and penalties attaching thereto; and frequently (4) the manner of the making of the demand.” Certain portions of the record before it, the Com mission said, seemed to indicate “that a modus vi- vendi may be arrived at if the colored travelers and the carriers’ servants will approach the situa tion each with respect and consideration for the prejudices and difficulties of the other. For in stance, it is a matter of general knowledge and is stipulated in the record ‘that the so-called race riot which occurred in Atlanta in the year 1906, began on or about September 22, 1906, and continued for about three days, more or less.’ Yet in view of the fact and the state of feeling it indicated, one of the witnesses for the complainants, with reference to an experience he had coming from Richmond, Va., probably at Hamlet, N. C., on the night of Oc tober 6, 1906, or immediately after those riots and while the newspapers were full of accounts of vio lence in Atlanta, testified as follows: ‘He (the conductor) was walking up and down in front of it (the sleeping car), and I accosted him. I said, “You are the con ductor?” He said, “I am.” I said, “I would like to have a berth to Atlanta.” “Well,” he said, “I don’t know about that.” I paced up and down the car with him there and finally I confronted him, and I said, “Let me ask you one question.” I said, 47 “Do you mean to tell me that you refuse to sell me a berth on this car?” He said, “I do not, but I don’t want to.” I said, “It isn’t a question of what you want to do.” I said, “I want a berth; I want to know right now what you are going to do.” He said, “If I sell you a berth there will be trouble down the road.” I said, “All right, sir, I will take care of the trouble; I will take the berth.” I got on the car, and there was no trouble. Now, the point is this, and the general complaint of the colored people, as a rule, is the unfairness, the attempt on the part of railroad agents, servants, as they say, to make it hard for them to get just such things as they could pay for.’ “The point of what the conductor said might very well have been that, in view of what had re cently occurred in Atlanta and of the state of pub lic feeling there, he did not care to assume the responsibility for placing the colored traveler to Atlanta in that car.” The record was quite clear on one point, the . Commission said: “That in compliance with the laws of Georgia and the sentiment there negroes are assigned to the drawing-room, or separate com partments, so far as possible even in interstate travel. ’ ’ The Commission thought it might be use ful to quote a part of the testimony of the general passenger agent of the Southern Railway: “ If a negro man, a proper kind of a man, a man who is clean and respectable, will go 48 to our ticket office in Atlanta, and want a sleeping-car berth, and there are berths available, accommodations available, our agent would attend to him just the same as he would a white man; but when you ask whether or not he can go and get one just the same as a white man any time, that has no bearing on the case, because white men are getting berths and making reservations every day, whereas the application of a col ored man is very infrequent, so infrequent that we undertake as far as we can to sell them a berth in a stateroom or drawing room, as you may choose to call it, which is superior, equal to if not superior, to the ac commodations furnished in the body of the car. It is always my understanding that that is very much more satisfactory to the colored man, to be separated from the white people in a separate compartment, than to be mixed up there in the body of the car. I don’t believe I know of a colored man that wants to ride on a sleeping car that would not prefer that; it gives him all of the privi leges of privacy, and relieves him of any embarrassment, and is likewise more satis factory to the white people.” The ultimate conclusion of the Commission was that “Undue discrimination or prejudice has not been shown in any of the particulars alleged, and the complaint must be dismissed.” See also C ozart v. Sou. B y . Co., 16 I. C. C. 226, C rosby v. St. ■L..-S. F . B y . Co., 112 I. C. C. 239, and H a rd en v. P ullm an C om pany, 120 I. C. C. 359. 4 9 VI The question of the applicability of the Arkansas segre gation statute to interstate passengers, and of its con stitutionality if so applicable, is not necessarily presented for decision in this case Although there are statements in the Commis sion’s report which if isolated seem to indicate the Commission decided that the Arkansas statute is applicable to interstate passengers, a reading of the report as a -whole indicates the Commission did not attempt to decide that question; and we sug gest that the report should be so interpreted. “At the hearing,” the Commission said, “complainant stated that segregation was not involved and ap parently for the purpose of this case he accepted it, regarding the Arkansas statute as requiring it in the State for all passengers, both interstate and intrastate. However, in his exceptions he opposes it as abominable and urges that the statute does not require it as to interstate passengers. The statute is general in its terms in that like the Mis sissippi and Kentucky statutes dealt wth by the Supreme Court [in L ouisville, N . 0 . & T. B . Co. v. Miss., 133 U. S. 587, and C. & 0 . B y Co. v. K e n tucky, 179 U. S. 388], it does not mention either intrastate or interstate passengers. These latter statutes, as already stated, were by State courts confined to intrastate passengers and the Supreme Court accepted these constructions as binding on it. Complainant also relies on the Supreme Court’s conclusions in M cC abe v. A . T. & S. F . B. 50 Co., supra [235 U. S. 151], to the effect that the Oklahoma statute had to be construed as applying only intrastate because there had been no construc tion to the contrary by the State court.” (R. 27-28.) “Be that as it may,” the Commission said, “the present case arose out of the apparent assump tions of the parties that the Arkansas statute was applicable to interstate traffic, and, while it is not for us to construe the statute, we think, in view of its general terms, that, until further informed by judicial determination, defendants are justified, as a matter of self-protection, in assuming that it ap plies to interstate, as well as intrastate, traffic.” (R. 28.) It appears, therefore, that other statements in the report having references to the statute, includ ing: “the statute sets up two distinct groups of passengers . . . ” (R. 25), and “ . . . we must rec ognize that under the State law defendants must segregate . . . ” (R. 29), should be read in the light of the above-quoted discussion and particu larly the definite statement “it is not for us to construe the statute.” The Commission clearly recognized that the question whether the statute should be construed as applying to interstate traffic is a judicial question, involving important consti tutional considerations, to be determined in ap propriate court proceedings, and not by the admin istrative body. 51 “What we are here dealing with,” the Commis sion added, “is the practice of the carriers in as sumed compliance with the statute, a practice which they could follow even if there were no statute.” (R. 28.) In support of the latter statement the report cited Chiles v. C. & O. R y . Co., 218 U. S. 71, in which, the Commission said, “dealing with coach passengers, the Supreme Court held that in a south ern State a railroad has the right, by the establish ment of appropriate rules and regulations, to re quire segregation, intrastate and interstate, aside from any statutory requirements, provided substan tially the same accommodations are furnished for the two races. It said that railroad regulations re specting this matter were subject to the same tests of reasonableness as those enacted by legislative au thority and that rules and regulations induced by the general sentiment of the community for which they are made and upon which they operate are not unreasonable.” (R. 25.) In that case Chiles, a colored man, bought a first-class ticket from Washington, D. C., to Lex ington, Ky., over the C. & 0. The train he took at Washington did not run through to .Lexington and he changed to another train at Ashland, Ky., going into a car which, under the regulations of the car rier, was set apart exclusively for white persons. From this car he was required to remove to a car set apart exclusively for the transportation of col- 5 2 ored persons. He removed under protest and only after a police officer had been summoned by the carrier. Subsequently be brought action for dam ages in a State court, where the jury rendered a verdict against him. He appealed to the State Court of Appeals which affirmed the judgment, and the case was brought to this Court. In affirming the judgment, this Court considered the contention that Chiles was an interstate passenger and was entitled to a first-class passage, and that, therefore, the act of the carrier in causing him to be removed from the car at Ashland was a violation of his rights and subjected the carrier to damages. “The complaint of the action of the court,” this Court said, “rests upon the contention that, as against an interstate passenger, the regulation of the com pany in providing different cars for the white and colored races is void. There is a statute of Ken tucky which requires railroad companies to furnish separate coaches for white and colored passengers, but the Court of Appeals of the State put the stat ute out of consideration, declaring that it had no application to interstate trains, and defendant in error does not rest its defense upon that statute, but upon its rules and regulations. ” This Court further said it “must keep in mind that we are not dealing with the law of a State at tempting a regulation of interstate commerce be yond its power to make. We are dealing with the act of a private person, to wit, the railroad com- 53 pany and the distinction between state and inter state commerce we think is unimportant. ’ ’ It cited Plessy v. F ergu son , 163 U. S. 540, in which a statute of Louisiana which required railroad companies to provide separate accommodations for the white and colored races was considered. “The statute was attacked on the ground that it violated the Thir teenth and Fourteenth Amendments of the Consti tution of the United States. The opinion of the Court, which was by Mr. Justice Brown, reviewed prior cases, and not only sustained the law but justified as reasonable the distinction between the races on account of which the statute was passed and enforced. It is true the power of a legislature to recognize a racial distinction was the subject considered, but if the test of reasonableness in leg islation be, as it was declared to be, ‘the established usages, customs and traditions of the people’ and the ‘promotion of their comfort and the preserva tion of the public peace and good order, ’ this must also be the test of the reasonableness of the regula tions of the carrier, made for like purpose and to secure like results. Regulations which are induced by the general sentiment of the community for whom they are made and upon whom they operate, cannot be said to be unreasonable.” The right of an interstate carrier to require seg regation had been upheld in the much earlier deci sion in H all v. D eC uir, 95 U. S. 485 (1877). In that case the Court passed on a Louisiana statute, which 54 required interstate carriers to give all passengers traveling within the State equal rights and priv ileges in all parts of the conveyance, without dis tinction on account of race or color.7 The State Supreme Court had upheld an award of damages against the owner of a vessel who excluded colored passengers on account of their color from the cabin set apart for whites during the passage. This Court held that the statute was a regulation of in terstate commerce and was void; that “Congres sional inaction left Benson [the shipowner] at liberty to adopt such reasonable rules and regula tions for the disposition of passengers upon his boat while pursuing her voyage within Louisiana or without as seem to him most for the interest of all concerned.” Speaking of that, case in Chiles v. C. & 0 . Tty., 218 U. S. 71,76, the Court said: “This language is pertinent to the case at bar, and demonstrates that the contention of the plaintiff in error is untenable. In other words, demonstrates that the interstate com merce clause of the Constitution does not constrain the action of carriers, but on the contrary leaves them to adopt rules and reg ulations for the government of their business,, free from any interference except by Con gress. Such rules and regulations, of course,, must be reasonable, but whether they be such 7 That statute was enacted in 1869. Later, Louisiana en acted a segregation statute, the constitutionality of which was sustained in Plessy v. Ferguson, 163 U. S. 537 (1896). 5 5 cannot depend upon a passenger being state or interstate. This also is manifest from the cited case. There, as we have seen, an in terstate colored passenger was excluded from ■the privileges of the cabin set apart for white persons by a regulation of the carrier and where the colored passenger’s right to be was attempted to be provided by a state statute. The statute was declared invalid, because it attempted to force a carrier to do the very thing which plaintiff in error complains was not done in the case at bar, to wit, permit him to ride in the place set apart for white pas sengers. In other words, the statute was struck down, because it interfered with the regulations of the carrier as to interstate passengers. This court commented on the case subsequently in L ouisville dec. R ailw ay Com pany v. M ississippi, 133 U. S. 587, 590, and said: ‘Obviously, whether interstate passengers of one race should, in any portion of their journey, be compelled to share their cabin accommodations with passengers of another race was a question of interstate commerce, and to be determined by Congress alone.’ We have seen that it was decided in H all v. JDeCuir that the inaction of Congress was equivalent to the declaration that a car rier could by regulations separate colored and white interstate passengers.” Decisions of the Commission also recognize the right of interstate carriers to require segregation, Council v. W . & A . R . R . Co., 1 1. C. C. 339, Gaines 56 v. S. A . L . R y , 16 I. C. C. 471, C rosby v. St. L.- S. F . R y . Co., 112 I. C. C. 239, H arden v. Pullman C om pany, 120 I. C. C. 359; and these cases affirm what is a matter of common knowledge that the carriers follow the practice of segregation only in territory where State segregation laws are in force. For example, in E vans v. C. A 0 . R . Co., 92 I. C. C. 713, the Commission pointed out that the defend ant’s line traverses the District of Columbia and the States of Virginia, West Virginia, Kentucky, Ohio, Indiana and Illinois, hut requires segregation only in Virginia and Kentucky. The train there involved ran from Charleston, W. Va., to Cincin nati, Ohio, and the practice of the carrier was as follows: “When the train on which complainant was a passenger arrived at the West Virginia- Kentucky line, the porter passed through the train requesting all white passengers in the compartment to move back to the coaches and all colored pas sengers in the coaches to move forward to the com partment, at the same time posting a sign with the word ‘colored’ in the compartment and signs with the word ‘white’ in the coaches.” Under these decisions it seems clear that the car riers have the right to follow the practice and that they have followed it for over 50 years. In the present case, the Commission dealt with the prac tice of the Rock Island in Arkansas, in assumed compliance with the Arkansas statute, a practice which it could continue to follow even though the 5 7 determination were made authoritatively in this case that the statute had no application to inter state passengers. In these circumstances it would seem that the question as to the applicability of the State statute to interstate passengers, and of its constitutionality is so applicable, is not necessarily presented for decision in this case. The following discussion is submitted, however, in the event the Court deems this question to he one for decision. VII Applicability of State segregation statute to interstate commerce It appears that this question has never been di rectly decided by this Court. In 1877, in H all v. DeCuir, 95 U. S. 485, the Court found that a Louisi ana reconstruction statute passed in 1869 forbidding segregation was unconstitutional as an attempted regulation of interstate commerce as applied to a steamboat operating in interstate commerce on the Mississippi River from New Orleans to Vicksburg, Miss. Most of the subsequent cases which have held State statutes requiring segregation to be inapplicable to interstate commerce, have followed |Sail v. D eC uir. These cases include M cC abe v. A. T. d S. F . R y . C o., 186 Fed. 966, 972 (affirmed 235 U. S. 151), H a rt v. S ta te , 60 Atlantic 457, 462 (Court of Appeals of Maryland), W . B . & A . E l. R . Co. v. W a ller , 289 F. 598 (D. C. Court of Appeals). 58 In H all v. D eC uir, it was found that while the stat ute purported only to control the carrier when en gaged within the State, it necessarily involved his conduct to some extent in the management of his business throughout his entire voyage. ‘ ‘His dispo sition of passengers taken up and put down within the State, or taken up within to be carried without, cannot but affect in greater or less degree those taken up without and brought within, and sometimes those taken up and put down without. A passenger in the cabin set apart for the use of whites without the State must, when the boat comes within, share the accommodations of that cabin with such colored persons as may come on board afterwards, if the law is enforced. “It was to meet just such a case that the commer cial clause in the Constitution was adopted. The river Mississippi passes through or along the bor ders of ten different States, and its tributaries reach many more. The commerce upon these waters is immense, and its regulation clearly a matter of na tional concern. If each State was at liberty to reg ulate the conduct of carriers while within its juris diction, the confusion likely to follow could not but be productive of great inconvenience and unneces sary hardship. Each State could provide for its own passengers and regulate the transportation of its own freight, regardless of the interests of others. Nay more, it could prescribe rules by which the car rier must be governed within the State in respect to 59 passengers and property brought from without. On one side of the river or its tributaries he might be required to observe one set of rules, and on the other another. Commerce cannot flourish in the midst of such embarrassments. No carrier of passengers can conduct his business with satisfaction to himself, or comfort to those employing him, if on one side of a State line his passengers, both white and colored, must be permitted to occupy the same cabin, and on the other be kept separate. ’ ’ While, no doubt, the statute, as applied within the State, was within the police power of the State, yet it must be conceded that that statute forbidding seg regation is different from one requiring segrega tion. A statute forbidding segregation is not one tending to promote the peace, comfort and protection of the passengers as is one requiring segregation. The Supreme Court of Tennessee, in Sm ith v. State, 46 S. W. 566, said “It is easy to perceive how it might conduce to the comfort, health, or safety of persons traveling to be separated; but no reason of this kind can be found, nor any other of a police nature, for requiring that all should he crowded or mixed together.” Speaking of the Tennessee segregation statute, which the Court held was applicable to all passengers within the State, whether interstate or intrastate, the Court held that it was a proper and reasonable exercise of the State police power. “It is entitled, if that 6 0 were material, ‘An act to promote the comfort of passengers.’ It may operate for this puipose, or to promote the safety of one or both, or to further the ends of good order. If it be true, as is some times said, that race prejudices exist here that make it uncomfortable or unsafe, or promotive of disorder, to mix the races in public conveyances, then both safety and good order are promoted, as well as comfort in their separation. The state is to judge of the necessity for such a regulation. Whether either or both should be uncomfortable, unsafe, or liable to the injury or annoyance of dis order by such intermixture in travel is not the question. The question is whether it, in fact, is so, or whether the state legislature reasonably deemed it so, and provided against the consequences.” In A la. & V icks. B y . Co. v. M orris, 60 Sou. 11, the Supreme Court of Mississippi held that the Legislature, in passing the Mississippi segregation law, did not intend to limit the application of the statute to that portion of the train given over to the accommodation of intrastate passengers. “To so hold would be to disregard the reason which under lies this legislation. The Legislature, in the exer cise of its power to police the highways of commerce running through the state, enacted the statute in question to promote the peace, comfort, and general welfare of the public. The statute was not enacted with any idea of discriminating against the mem bers of either race; nor was it prompted by preju- 61 dice or passion, but with the knowledge that the enforced intermingling of the races would be dis tasteful to both races, would inevitably result in discomfort to both, and provoke and encourage conflicts endangering the peace and quiet of the commonwealth. . . . “A riot upon an interstate train growing out of the refusal of common carriers to recognize a situ ation known to every Mississippian—black and white—would endanger the lives and disturb the peace of all persons passengers on the train, intra state and interstate; and we therefore decline to limit the application of the statute to intrastate commerce. . . . “If we should hold that the statute is inappli cable to interstate travelers, it seems to us that nec essarily it must be condemned altogether, as the theory upon which its wisdom and justice rests will thus be declared fanciful and without foundation in fact. If the peculiar conditions existing here demanded this legislation to conserve the peace of the state, and our lawmakers have so decided, the mere fact that the passenger is going out of the state, coming into the state from without, or travel ing across the state, does not alter the complexion of affairs, nor render the danger less, should a negro or white man be required, against his will, to occupy a car with passengers of another race.” Since the decision in H a ll v. D eC u ir this Court has sustained the validity of many State statutes 62 enacted under the police power, which had the ef fect of regulating commerce within the State, both intrastate and interstate, in the absence of action by Congress. It would seem that the Arkansas segregation statute, if applied to all passengers within the State, would have no more effect upon interstate commerce than would many of the State statutes held valid by this Court. That the Arkansas statute does not discriminate against interstate commerce is shown by the fact that in general terms it applies to “all railway com panies carrying passengers in this State . . .” (R. 211.) That it does not put any appreciable burden upon interstate commerce under the facts of this case, is shown by the fact that the entire run of the train from Memphis to Hot Springs except for the first few minutes is in the State of Arkansas, that the carrier has voluntarily complied with the statute without contest, and that the clear indications are the carrier, in the interest of its own business, would require segregation on this train in the absence of the State statute. A car rier is dependent for its patronage upon the people in the communities it serves and if the sentiment is in favor of segregation the carrier is virtually compelled to enforce it; and obviously the carrier must provide for the comfort, peace, and safety of all its passengers both black and white. Sm ith v. S ta te , supra, was an indictment of a conductor of a Louisville & Nashville Railroad pas senger train under the Tennessee segregation stat- 0 3 ute for unlawfully failing to assign certain negroes to the car used in his train for colored passengers and for permitting them to ride in the car assigned to white passengers. Convicted in the trial court, he appealed to the Supreme Court of Tennessee and contended that the act referred to was invalid as a regulation of interstate commerce. Distin guishing H all v. D eC u ir, 95 U. S. 485, the Court held that the Tennessee statute was a reasonable exercise of the police power, since it tended to pro mote the comfort of the people, and that, as ap plied both to intrastate and interstate travel was not an invalid regulation of interstate commerce. Congress had not acted upon the subject and, there fore, the State could enact such a statute in the exercise of its police power and apply it to all passengers within the State. In A . & V . B y . Co. v. M orris, supra, appellee procured a ticket which entitled her to passage on appellant’s railway from Vicksburg to Meridian (both points within Mississippi), and from the latter place, over the line of connecting carriers, to the city of New York. In addition to the rail way ticket, appellee purchased from the agent of appellant a sleeping-car ticket entitling her to a berth in the Pullman car attached to and forming a part of the train. When appellee boarded the train at Vicksburg, she discovered as her fellow passengers three men of the negro race, and pro tested to the employees of appellant on the train that either she or the negroes be assigned to an- 6 4 other coach. This demand was refused or ignored, and the appellee was forced, if she occupied a sleeper at all, to retire to her berth in the same car with the berths occupied by the negro passen gers. She claimed to have suffered much distress of mind and body, the result of being forced to occupy the same sleeping apartments used by men of a different race, and recovered a judgment. The Court stated that the question involved was whether a State segregation statute is an invasion of the national authority to regulate and control commerce between the States, should it be inter preted to mean that the statute applies to inter state travelers abroad trains forming a part of a chain of carriers engaged in the business of trans porting passengers.taken up within the State for carriage to a point without the State. The Court held that the legislature did not intend to limit the application of the statute to that portion of the train given over to the accommodation of intra state passengers. Finding the verdict of the jury ($15,000) to be grossly excessive, the Court ruled that if appellee would remit all except $2,000 the case would be affirmed. In Sou. R y . Co. v. N orton , 73 Sou. 1 (Sup. Ct.,. Miss.), a judgment was obtained by the appellee,, Mary Norton, for $1,000 against the railway com pany because of violation of the Mississippi seg regation statute, under the following facts: “The appellee . . ., boarded . . . the‘Memphis Special’ 65 train at Philadelphia, Pa., and traveled from that point to Memphis, Tenn., in a Pullman sleeping car. In the same Pullman car there was a negro passenger, who had boarded the train in New York and whose destination was Memphis, Tenn. The Court pointed out that a segregation statute is in force in every state through which the Southern Railway passes except Illinois and Indiana. It affirmed its prior holding “that the statute is a reasonable constitutional exercise of the police power of the state, and is valid, and applies to both intrastate and interstate passengers; that the stat ute was enacted to promote the peace, comfort, and general welfare of the public.” Sou. R y . Co. v. P rim rose , 73 Sou. 2, affirmed a judgment recovered by appellee, Carrie Primrose, for $1,000 mrder circumstances similar to those in the N orton case, supra. The Commission evidently had in mind cases like these when it expressed the view that defendants are justified, as a matter of self-protection, in assum ing that the Arkansas statute applies to interstate as well as intrastate traffic, until further informed by judicial determination. Both Sm ith v. S ta te, supra, and A . & V . R y . C o. v. M orris, supra, were appealed to this Court by the carriers. Both appeals were dismissed on the mo tion of the carriers (21 Sup. Ct. 917, 45 L. Ed. 1256 (not in U. S. Reports) ; 234 U. S. 766). Why the carriers withdrew the cases after they were ap- 0 6 pealed to this Court does not appear. It is infer able, however, that they became satisfied with the decisions of the State Supreme Courts that the State segregation statutes applied to interstate commerce. At least, they decided not to contest those decisions. CONCLUSION The decree of the court below should be affirmed. D aniel W . K now lton , Chief Counsel. J . S tanley P ayn e , Assistcmt Chief Counsel. M arch 1941. U. 5. GOVERNMENT PRINTING OPPICNl 1141 / J tithe Supreme ̂ ourt of theHnited States O ctober T e r m , 1940 A r t h u r W . M it c h e l l , appellant v. T h e U nited S tates of A m e r ic a , I nterstate C o m merce C o m m is s io n , F r a n k 0 . L o w d e n , et a l . ON APPEAL FROM T1IE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS MEMORANDUM FOR THE UNITED STATES I NDEX Page Statement--------------------------------------------- 2 I. Appellant’s standing to sue________________________ 4 II. The lawfulness of the discrimination_________________ 6 A. The Arkansas statute__________ 7 1. The segregation______________________ 7 2. Interstate passage: construction______ 7 3. Interstate passage: constitutionality___ 10 B. The carrier’s practice________________________ 12 C. Equality of accommodations_________________ 15 1. The rule_____________________________ 15 2. The equality of accommodation_______ 16 3. The small number of colored pas sengers____________________________ 17 D. The effect of the Commission’s determination. 19 Conclusion_________________________________________________ 20 CITATIONS Cases: Abbott v. Hicks, 44 La. Ann. 770_________________________ 9 Alabama & V. R. Co. v. Morris, 103 Miss. 511, 60 So. 11, writ of error dismissed on motion of plaintiff in error, 234 U. S. 766____________________________________________ 9 Arkansas Gas Co. v. Department, 304 U. S. 61____________ 11 Armour & Co. v. The Alton Railroad Co., No. 293, this Term___________________________ 5 Berea College v. Kentucky, 211 U. S. 45_________________ 7 Butts v. Merchants Transportation Co., 230 U. S. 126--------- 13 Carrey v. Spencer, 36 N. Y. Supp. 886---------------------------- 9 Case v. Los Angeles Lumber Co., 308 U. S. 106____________ 8 Chesapeake and Ohio Ry. Co. v. Kentucky, 179 U. S. 388----- 9, 10 Chicago Junction Case, The, 264 U. S. 258------------------------- 4 Chiles v. Chesapeake and Ohio Railway, 125 Ky. 299, affirmed, 218 U. S. 71_______________________ 9, 10, 12, 14, 15 Civil Rights Cases, 109 U. S. 3------------- --------------------------- 13 Coger v. Northwest. Union Packet Co., 37 Iowa 145------------ 15 Councill v. The Western & Atlantic R. R. Co., 1 I. C. C. 339. 14 Cozart v. Southern Ry. Co., 16 I. C. C. 226---------------------- 14 Crosby v. St. L.-S. F. Ry. Co., 112 I. C. C. 239___________ 14 Cumming v. Board of Education, 175 U. S. 528------------------- 7 Edwards v. Nash., Chat. <£ St. Louis Ry. Co., 12 I. C. C. 247- 14 (i) 297492— 41-----1 II Cases—Continued Page El Paso & Northeastern Railway Co. v. Gutierrez, 215 U. S. 87----------------- -------------------- -------- ------------ •,-------------------- 13 Gaines v. Seaboard Air Line Ry., 16 I. C. C. 471---------------- 14 General Inv. Co. v. N. Y. Central R. R., 271 U. S. 228--------- 3 Gong Lum v. Rice, 275 U. S. 78---------------------------------------- 7 Gwin, etc., Inc. v. Henneford, 305 U. S. 434------------------------- 10 Hall v. De Cuir, 95 U. S. 485--------------------------------------------- 10 Heard v. The Georgia R. R. Co., 1 I. C. C. 428-------------------- 14 Heard v. The Georgia Railroad Co., 3 I. C. C. I l l ---------------- 14 Heiner v. Donnan, 285 U. S. 312---------------------------------------- 18 Hart v. State, 100 Md. 595, 60 Atl. 457------------------------------ 9, 15 Houck v. Southern Pac. Ry. Co., 38 Fed. 226----------------------- 15 Huff v. Norfolk & Southern R. Co. 88 S. E. 344------------------ 9 Interstate Commerce Commission v. Oregon-Washington R. Co., 288 U. S. 14_______________________________________ 2 Inland Waterways Corp. v. Young, 309 U. S. 517---------------- 14 Keck v. United States, 172 U. S. 434--------------------------------- 8 Keifer & Keifer v. R. F. C., 306 U. S. 381--------------------------- 12 Louisville & N. R. Co. v. United States, 282 U. S. 740--------- 19 Louisville &c. Railway Co. v. Mississippi, 133 U. S. 587-- 8, 10 Maurer v. Hamilton, 309 U. S. 598------------------------------------ 11 McCabe v. Atchison, T. &S.F.Ry.Co., 186 Fed. 966; affirmed, 235 U. S. 151_____________________________ 6, 7, 9, 10, 15, 18, 20 Milk Board v. Eisenberg Co., 306 U. S. 346----------------------- 11 Mississippi Valley Barge Line Co. v. United States, 292 U. S. 282— . ____________________________________ ______ 20 Missouri ex rel. Gaines v. Canada, 305 U. S. 337------------- 7, 18, 20 Mobile & O. R. R. Co. v. Spenny, 12 Ala. App. 375----------- 15 Moffat Tunnel League v. United States, 289 U. S. 113--------- 4 Morrisdale Coal Co. v. Penna. R. R. Co., 230 U. S. 304------ 5 Murphy v. Western & A. R. R., 23 Fed. 637--------------------- 15 Nashville, C. & St. L. Ry. v. Browning, 310 U. S. 362-------- 19 Norwegian Nitrogen Co. v. United States, 288 U. S. 294------ 14 Ohio Valley Ry.’s Receiver v. Lander, 20 Ky. L. Rep. 913----- 15 Pace v. Alabama, 106 U. S. 583----------------------------------------- 7 Pennsylvania Co. v. United States, 236 U. S. 351------------- 20 Pittsburgh & W. Va. Ry. v. United States, 281 U. S. 479--- 4 Plessy, Ex parte, 45 La. Ann. 80, affirmed, 163 U. S. 537— 15 Plessy v. Ferguson, 163 U. S. 537------------------------------ 7, 9, 10, 12 Robinson v. Baltimore & 0. R. R., 222 U. S. 506--------------- 5 Rochester Telephone Corp. v. United States, 307 U. S. 125-- 4, 19 Shreveport Cases, The, 234 U. S. 342---------------------------------- 19 Smith v. State, 100 Tenn. 494, 46 S. W. 566; writ of error dismissed on motion, 21 S. Ct. Rep. 917, 45 L. Ed. 1256-- 9 South Carolina Highway Department v. Barnwell Bros., SOS U. S. 177_______________________________________________ 11 South Covington &c. Ry. Co. v. Kentucky, 181 Ky. 449, affirmed, 252 U. S. 399------------ --------------- ---------- ------------ 9,10 Ill Cases— Continued pae« So. Kansas Ry. v. State, 99 S. W. 166___________________ 9 Southern Ry. Co. v. Norton, 112 Miss. 302, 73 So. 1_______ 9 State Tax Commission v. Van Cott, 306 U. S. 511_________ 10 Tank Car Cory. v. Terminal Co., 308 U. S. 422___________ 5 Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U. S. 426__ 5 United States v. American Trucking Ass’ns, 310 U. S. 534,. 14 United States v. Hutcheson, No. 43, this Term____________ 12 Warehouse Co. v. United States, 283 U. S. 501____________ 19 Washington, B. & A. Electric R. Co. v. Waller, 289 Fed. 598_____________________________________ 9,14 Welch Co. v. New Hampshire, 306 U. S. 79_______________ 11 Youngstown Sheet & Tube Co. v. United States, 295 U. S. 476. 4 Statutes: Civil Rights Act of 1875, c. 114, 18 Stat. 335, Secs. 1, 2__ 13 Interstate Commerce Act, c. 104, 24 Stat. 379, 380, Sec. 3 (1) (49 U. S. C. §3 )__________________ ______ _ 12, 15, 18 Commerce Court Act, c. 309, 36 Stat. 539_______________ 2 Act of October 22, 1913, c. 32, 38 Stat. 208 (28 U. S. C. §45a)______________________ 2 Arkansas separate coach law (Acts of 1891, pt. 15, as amended by Acts of 1893, p. 200; Pope’s Digest, 1937, Vol. I) Secs. 1190-1199______________________ 6,7,12 Miscellaneous: H. R. 8821, 75th Cong., 3d Sess........... ................................. 14 H. R. 182, 76th Cong., 1st Sess_________________________ 14 H. R. 112, 77th Cong., 1st Sess_________________________ 14 .gttthejSuptmt^mtrtof the United plates O ctober T e r m , 1940 No. 577 A r t h u r W . M it c h e l l , appellant v. T h e U nited S tates of A m e r ic a , I nterstate C o m merce C o m m is s io n , F r a n k O . L o w d e n , et a l . ON APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS MEMORANDUM FOR THE UNITED STATES The United States, one of the five appellees in this case,1 does not support the judgment of the court below. The legal questions, however, are not en tirely clear and the Solicitor General is of the opin ion that both this Court and the other appellees are entitled to have presented the arguments which may be advanced in support of the judgment below. 1 The other appellees are the Interstate Commerce Com mission, the trustees of the Chicago, Rock Island and Pacific Railway Company, the Illinois Central Railway Company, and the Pullman Company. (1) 2 He has, therefore, authorized the Interstate Com merce Commission to file a brief and appear in argument in support o f the order of the Commis sion and the judgment below.2 The following memorandum outlines the reasons which have led the United States to the conclusion that the judgment of the court below should be reversed. ST A T E M E N T Appellant filed a complaint (R . 3-7) with the Interstate Commerce Commission, charging that the appellee carriers had subjected him to undue and unreasonable prejudice, and praying that they be required in the future to cease and desist from violations o f the Interstate Commerce Act and to provide for colored persons holding tickets for first-class accommodations from Chicago, Illinois, to H ot Springs, Arkansas, such first-class facilities as the Commission may deem reasonable and just (R . 6, 7). The Commission found that the case was “ built mainly on an unpleasant experience complain ant had about 18 months ago” (R . 21). On the morning of April 21, 1937, the appellant, en route from Chicago to Hot Springs, was compelled under threat o f arrest to move from a Pullman car after 2 Under Section 5 of the Commerce Court Act (36 Stat. 539; see 38 Stat. 208; 28 U. S. C. § 45a) the Commission may appear independently of the United States. See I. C. C. v. O regon-W ashington R . Co., 288 U. S. 14, 22-27. 3 the train crossed the Arkansas border. This was in purported compliance with an Arkansas segre gation statute. He held a first-class railroad ticket and offered to pay for his Pullman seat. The ap pellee carriers, under ordinary circumstances, would have made a Pullman drawing room avail able, but all were then occupied by white passen gers. Appellant accordingly was transferred into a second-class coach reserved for the use o f colored passengers.3 The conductor advised appellant that he could obtain a refund of the extra cost o f the first-class ticket, but this has never been claimed by the appellant (E . 21-22). The Commission on November 7,1938, dismissed appellant’s complaint (E . 34). Four members dissented (E . 30-33), and a fifth dissented in part. Appellant brought suit to set aside this order (E. 1-40). The three-judge district court upon gen eral findings o f fact and conclusions of law (E. 52-53) dismissed the cause for lack of jurisdiction4 (E. 53). Appellant was allowed an appeal (E . 61-62) and this Court noted probable jurisdiction on December 16,1940. 3 There was testimony that this coach was filthy and far inferior to the second-class coach reserved for the use of white persons, but at the time of the hearing a new coach of quality equal to those used by second-class white passengers was in use (R. 22-21). 4 In the light o f the findings, we are of opinion that the dismissal is more accurately described as placed on the merits rather than want of jurisdiction. See General Inv. Co. v. Neio Y ork Central R. R., 271 U. S. 228, 230. 4 I A p p e l l a n t ’s S ta n d in g T o S ue At the threshold of the case lies a question as to appellant’s standing to attack the Commission’s refusal to issue a cease-and-desist order. It is im material that the order dismissing his complaint was negative in form. R och ester T elephone Corp. v. U nited S tates, 307 U. S. 125. But neither the complaint nor the findings show that appellant in tends in the future to use the appellee carriers be tween Chicago and Hot Springs, and his complaint is limited to the discrimination to which he was subjected on this run by these carriers. Standing to attack an order of the Interstate Commerce Commission is probably not an auto matic consequence of appearance before the Com mission. See P ittsbu rgh <& W . Va. R y . v. United S tates, 281 U. S. 479, 486; compare T he Chicago Junction C ase, 264 U. S. 258, 268. Some independ ent interest in the order is doubtless necessary. M offa t Tunnel L eague v. U nited S tates, 289 U. S. 113; cf. Y oung stolen S heet d? T ube Co. v. United S tates, 295 U. S. 476,479. However, appellant is probably able to show a pecuniary interest in his attack on the Commis sion’s order. He has brought an action at law for damages against the appellee carriers (R . 21-22). The Interstate Commerce Commission has primary jurisdiction to determine the lawfulness of an alleged discrimination, and a suit for damages can not be maintained until the Commission lias deter mined that the discrimination is unlawful. R ob inson v. B altim ore & 0 . R . R ., 222 U. S. 506; Morris- dale Coal Co. v. P enna. R . R . Co., 230 U. S. 304; A rm ou r & Co. v. T he A lton Railroad Co., No. 293, this Term; cf. T exas & P ac. R y . v. A bilene C otton Oil Co., 204 U. S. 426; Tank Car C orp. v. Term inal Co., 308 U. S. 422, 433. Accordingly, if the success of appellant’s action at law turns on the action of the Commission,5 he has a pecuniary interest suffi cient to attack the order. More fundamentally, we think that vindication of the rights o f the person ranks higher than pro tection o f one’s right not to be charged discrimina tory rates. W hile appellant has not shown any specific intention o f again using the appellee car riers between Chicago and Hot Springs, few men can so order their personal affairs that their future travels are predictable. Petitioner has already 6 6 We suggest below (pp. 19-20) that no question of admin istrative judgment can properly be found in this case. The “primary jurisdiction” doctrine is based upon the fact that the ordinary case of discrimination involves questions of ad ministrative judgment. If the procedural rule were limited to its reasons, we should accordingly conclude that the court had jurisdiction in this case without regard to the Commis sion’s action. But in matters of procedure, it is sufficient that the reason for the rule applies in most cases. If a de termination on the merits were to shape the antecedent pro cedure, there would be an unnecessary sacrifice of procedural simplicity and expedition. 297492— 41-------2 6 been subjected to one indignity because of bis race and, if the discrimination be unlawful, is entitled to guard against its recurrence. See McCabe v. A., T. & S. F. By. Co., 235 U. S. 151,163-164. The guaranties o f equal treatment cover the occasional traveler as well as the commuter. II T h e L a w f u l n e s s of t h e D isc r im in a t io n The majority o f the Commission ruled: (1) the appellee carriers were justified in assuming that the Arkansas Separate Coach Law applied to an interstate transportation (R . 28 ); (2) the carrier practice o f segregation would be valid in the ab sence of the state statute (R . 28) ; and (3 ) the small amount of colored traffic, rarely in excess of the available Pullman drawing rooms, made the oc casional discrimination when separate Pullman accommodations were not available neither unjust nor undue (R. 29-30).6 6 6 Commissioner Eastman dissented, with reluctance be cause of the practical burdens placed upon the carriers if they were required to provide equal accommodations (R. 30-31). Commissioners Lee, Aitchison, and Porter dis sented on the ground that the Interstate Commerce Act required equality of accommodations (R. 31-33). Commis sioner Miller dissented in part, on the ground that the Commission should find discrimination against the appellant on this trip, even though ordinarily there would be none, when drawing rooms were available (R. 33). 7 A. THE ARKANSAS STATUTE 1. The S egregation .— This Court on several oc casions has ruled that segregation statutes do not violate the Fourteenth Amendment.7 P lessy v. Ferguson , 163 U. S. 537; M cCabe v. A ., T. & S. F . B y . Co., 235 U. S. 151, 160; c f. Cumming v. B oard o f E ducation , 175 U. S. 528, 544-545; B erea College v. K en tu ck y , 211 U. S. 45; Gong Bum v. R ice, 275 U. S. 78, 85-86; M issouri ex rel. Gaines v. Canada, 305 U. S. 337, 344. W e shall, therefore, assume that the Arkansas statute does not deny equal pro tection because of its command that colored and white passengers be segregated. 2. In tersta te P a ssa ge: Construction.— The A r kansas Separate Coach Law 8 (Acts of 1891, p. 15, as amended by Acts of 1893, p. 200; P ope ’s Digest, 1937, Yol. I, Sec. 1190) provides: 7 See, also, the numerous decisions of the lower federal courts and the state courts cited in the Gong Lum (275 U. S. at 86) and the Plessy (163 U. S. at 548) cases, and the deci sions upholding state segregation statutes against attack under the commerce clause (infra, pp. 8-10). Compare Pace v. Alabama, 106 U. S. 583. 8 The entire Act is printed in the Appendix to appellant’s brief, pp. 15-17. Other sections forbid persons, on penalty of a $10-$200 fine, to occupy seats assigned to those of another race (Secs. 1192, 1196) ; forbid carriers to permit the joint use of sleep ing or chair cars (Sec. 1193) ; require train officers to sepa rate the races, on penalty of a $25 fine (Secs. 1195, 1196); authorize train officers to refuse to carry any passenger who refuses to occupy the assigned coach (Sec. 1197); impose a fine of $100-$500 upon a railway company for every day and every train run in violation of the Act (Sec. 1198) ; and re quire that the statute be posted in every coach (Sec. 1199). 8 All railway companies carrying passen gers in this state shall provide equal but sep arate and sufficient accommodations for the white and African races by providing two or more passenger coaches for each passen ger train ; * * *. The Arkansas courts have not considered wheth er or not the statute applies to interstate transpor tation. The statutory language, “ All railway companies carrying passengers in this state” , is equivocal. W e believe, however, that the statute should be construed to apply only to the intrastate transportation o f passengers. In L ouisville dec. R ailw ay Go. v. M ississippi, 133 U. S. 587, 592, this Court sustained a segregation statute phrased in almost identical terms 9 on the ground that the state court had construed it to apply only to intrastate transportation. That case was decided March 3, 1890, one year before en actment o f the Arkansas statute. On familiar principles, the Arkansas legislature must be pre sumed to have adopted this construction. K e ck v. U nited S ta tes, 172 U. S. 434, 436; Case v. Los A n geles L um ber Co., 308 U. S. 106, 115. This Court has similarly approved the state court construction of other state segregation statutes, correspondingly equivocal, as applicable only to 9 The statute there involved required “all railroads carry ing passengers in this State (other than street railroads)” to provide separate but equal accommodations (133 U. S. at 588). 9 intrastate passage. Plessy v. Ferguson, 163 U. S. 537, 548; Chesapeake and Ohio Ry. Co. v. K en tucky, 179 U. S. 388, 394. And in McCabe v. A., T. A S. F. Ry. Co., 235 IT. S. 151,160, this Court in dictum said that there was “ no reason to doubt” that an Oklahoma segregation statute, “ in the ab sence of a different construction by the state court, must be construed as applying to transportation exclusively intrastate” . The weight o f authority in the state courts is to the same effect. While two state courts have held that segregation stat utes cast in general terms apply to interstate as well as intrastate transportation,10 the courts of six states have limited these statutes to transpor tation of passengers wholly within the state.11 These decisions, it is true, do not represent an independent ruling on statutory construction; ordinarily the opinion proceeds under the com pulsion of an assumed constitutional prohibition. 10 Sm ith v. State, 100 Tenn. 494, 46 S. W. 566, writ of error dismissed on motion, 21 S. Ct. Rep. 917, 45 L. Ed. 1256; Southern R y . Co. v. N orton , 112 Miss. 302,73 So. 1; Alabama & V. R . Co. v. M orris, 103 Miss. 511, 60 So. 11, writ of error dismissed on motion of plaintiff in error, 234 U. S. 766. 11 H art v. State, 100 Md. 595, 60 Atl. 457; Chiles v. Chesa peake and Ohio R y . Co., 125 Ky. 299, affirmed, 218 U. S. 71; So. Covington dec. R y . Co. v. Kentucky, 181 Ky. 449, af firmed, 252 U. S. 399; A bbott v. Hicks, 44 La. Ann. 770; So. Kansas R y . v. State, 99 S. W. 166 (Tex. Civ. App.) ; Carrey v. Spencer, 36 N. Y. Supp. 886; see, also, W ashing ton, B . do A . Electric R . Co. v. Waller, 289 Fed. 598 (App. D. C .); M cCabe v. Atchison, T . & S. F . R y . Co., 186 Fed. 966 (C. C. A. 8th), affirmed, 235 U. S. 151; cf. H uff v. N or folk d Southern R . Co., 88 S. E. 344. 1 0 Compare S tate T ax Com m ission v. V an C ott, 306 U. S. 511. But, even if the assumption were un warranted, the consistent rulings may be supposed to have represented also the expectations o f the Arkansas legislature. See Gwin, etc., In c. v. H en- n eford , 305 U. S. 434, 441. 3. In tersta te P a ssa ge: C onstitutionality.—If, however, the Arkansas statute were construed as applicable to interstate transportation, it might well then be unconstitutional as a forbidden regu lation o f interstate commerce. This Court has never directly ruled upon the question. But in H all v. D e Cuir, 95 U. S. 485, it held invalid, as a regulation o f interstate com merce, a Louisiana statute (o f 1869) which forbade common carriers to discriminate on account of race or color. The confusion which would arise from separate and varying state laws was con sidered conclusive that the subject was for na tional regulation alone. On the authority of the H e C uir case, this Court in dicta has frequently stated or assumed that a state segregation statute could not constitutionally be applied to an inter state passage. L ouisville d c . P a ilw ay Co. v. M is sissippi, 133 U. S. 587, 590, 591; P lessy v. F ergu son, 163 U. S. 537, 548; Chesapeake and Ohio B y . Co. v. K en tu ck y , 179 U. S. 388, 394; Chiles v. Ches apeake and Ohio R ailw ay, 218 U. S. 71, 75; M cCabe v. A ., T. d S. F . B y . Co., 235 U. S. 151, 160; South C ovington d c . B y . Co. v. K en tu ck y , 252 U. S. 399, 1 1 403-404, see 407. The lower federal courts and most of the state courts have similarly held that the commerce clause protects the interstate passenger from a state segregation statute. Two state courts, have, however, ruled to the contrary.12 The statute, it is true, may be argued to be an exercise of the power of Arkansas to provide for the comfort of those within its borders. I f there were an important occasion for the exercise of the so-called police power o f Arkansas, the recent de cisions o f this Court demonstrate that the inter state carrier would not be exempt. South C aro lina H ighw ay D epartm ent v. Barnw ell B ros., 303 U. S. 177; A rkansas Gas Co. v. D epartm ent, 304 U. S. 61; TFelch Co. v. N ew H am pshire, 306 U. S. 79; M ilk B oard v. E isen berg Co., 306 U. S. 346; Clason v. Indiana, 306 U. S. 439; M aurer v. H am ilton, 309 U. S. 598. But the distribution of commerce powers be tween state and nation cannot proceed upon mathe matical formulae. The task of this Court under the Constitution is one of adjustment and recon ciliation. In performance of this task it cannot, of course, ignore other provisions of the Consti tution. The Thirteenth, Fourteenth, and F if teenth Amendments set up a constitutional policy against racial discrimination. Those amendments 12 The cases are listed supra, p. 9, notes 10 and 11; the decisions represent a blend of constitutional decision and statutory construction. 12 have been held not to contain any specific prohibi tion against racial segregation {supra, p. 7). But, while they fall short o f the specific prohibition, they remain as a factor which must be weighed in the commerce clause adjustments. There is, in other words, no occasion to permit state power to reach into the field of interstate commerce in order to accomplish an end at variance with the basic policy of the Amendments. Compare K e i fe r & K e i fe r v. R . F . C., 306 U. S. 381, 391; U nited States v. H utcheson , No. 43, this Term. W e conclude, therefore, that the Arkansas sepa rate coach law is inapplicable to interstate pas sage, whether as a matter of statutory construction or o f constitutional limitation. B. THE CARRIER’ S PRACTICE In Chiles v. C hesapeake and Ohio R ailw ay, 218 U. S. 71, this Court ruled that a carrier, without regard to the inter- or intra-state character o f the journey, had power by regulation to segregate white and colored passengers. The opinion, analo gizing the carrier’s power to that of a state, rested upon P lessy v. F ergu son , 163 U. S. 537. The Court, in the Chiles case did not consider Section 3 (1) o f the Interstate Commerce Act, which forbids any carrier from subjecting “ any particular person * * * or any particular description o f traffic * * * to any undue or 13 unreasonable prejudice or disadvantage in any re spect whatsoever.” 13 It is by no means clear that the segregated colored passenger is not in some re spect subjected to an undue or unreasonable preju dice or disadvantage simply because he is not denied ‘ ‘ the equal protection of the laws. ’ ’ The prejudice is clear, and the only question is whether it is “ un due ” or “ unreasonable. ’ ’ The answer to this ques tion would be different according as one looked to the established customs of the region or to the basic concepts o f our government, as reflected in the Thirteenth, Fourteenth, and Fifteenth Amend ments. However, the question is one of statutory con struction. Whatever might be the correct view if the matter were open to original examination, the long-continued practice of the Interstate Commerce Commission has been to allow segregation by the carriers so long as equal accommodations were 13 The opinion also ignores the Civil Rights Act of 1875 (18 Stat. 335), Sections 1 and 2 of which forbid public con veyances from refusing equal accommodations because of color. The Act, however, was held unconstitutional in the Civil Rights Cases, 109 U. S. 3, as applied within a state. In Butts v. Merchants Transportation Co., 230 U. S. 126, the Court held that the Act was inseparable, and could not after its invalidation in the Civil Rights Cases be applied to inter state carriers by water. Compare, however, E l Paso & Northeastem Railway Co. v. Gutierrez, 215 U. S. 87. We assume, therefore, that appellant is not aided by the Civil Rights Act. 14 separately provided.14 This administrative prac tice, adopted contemporaneously with the Act, must on familiar principles be supposed to have received the approval o f Congress.15 N orw egian N itrogen Co. v. U nited States, 288 U. S. 294, 315; Inland W a terw a ys C orp. v. Y oung, 309 U. S. 517, 524-525; U nited S tates v. 'Am erican T rucking A ssns., 310 U. S. 534, 549. W e assume, therefore, that segre gation by carrier regulation does not violate the Interstate Commerce Act. However, it is not wholly clear in this case that there was a carrier regulation of dignity sufficient to come within the rule o f Chiles v. Chesapeake and Ohio R ailw ay, 218 U. S. 71. That case was read in W ashington , B . & A . E lectr ic R . Co. v. W a ller , 289 Fed. 598, 601-603 (App. D. C .), to require a formal, published regulation, rather than merely a customary practice, to justify segregation of colored passengers. Under this limitation o f the 14 See Councill v. The W estern <& Atlantic R . R . Co., 1 I. C. C. 339; Heard v. The Georgia R . R . Co., 1 I. C. C. 428; H eard v. The Georgia Railroad Co., 3 I. C. C. I ll ; Edwards v. Nash., Chat. <& St. Louis R y . Co., 121. C. C. 247; Cozart v. Southern R y . Co., 16 I. C. C. 226; Gaines v. Sea- hoard A ir Line R y ., 16 I. C. C. 471; Crosby tv. S t. L .-S . F . R y . Co., 112 I. C. C. 239. In the four cases first cited dis crimination in accommodations was found, in the three last cited it was not. 15 This inference receives some added support in view of the bills to forbid segregation which have been introduced in Congress only to languish in Committee. See, e. g., H. E. 8821, 75th Cong., 3d Sess.; H. E, 182, 76th Cong., 1st Sess.; H. E. 112, 77th Cong., 1st Sess. 1/5 rule, which is not e n t i r e ly justified by the opinion in the Chiles case, it is doubtful that the carrier’s practice rose to the formality of a rule or regula tion (see R. 24-25; 131, 140, 141, 147, 172, 178). W e have, therefore, some doubt whether any segregation would be warranted on the appellees’ Chicago-Hot Springs run. But in view of the con clusions reached in the next section, we think it unnecessary to resolve this question. C. EQUALITY OF ACCOMMODATIONS 1. The Rule.— In every decision of this Court dealing with segregation by carriers it has been assumed that, under the equal protection clause, the separate accommodations must be o f equal quality. And in McCabe v. A ., T. & S. F. R y. Co., 235 U. S. 151, 161, this Court in considered dictum ruled that “ substantial equality o f treat ment of persons traveling mider like conditions cannot be refused. ’ ’ The state courts and the lower federal courts, without exception, have held like wise.16 The Interstate Commerce Commission has invariably applied the same rule under Section 3 (1) of the Interstate Commerce Act {supra, p. 14). 16 See, e. g., Mobile <& 0 . R. R. Co. v.!Spenny, 12 Ala. App. 375, 387; Coger v. Northwest. Union Packet Co., 37 Iowa 145, 153, 156-157; Ohio Valley Ry.'s Receiver v. Lander, 20 Ky. L. Bep. 913, 917; E x parte P lessy , 45 La. Ann. 80, 84-85, affirmed, 163 U. S. 537; H art v. State, 100 Md. 595, 601; Murphy v. Western & A . R. R., 23 Fed. 637, 639 (C. C. E. D. Tenn.); Houck v. Southern Pan. Ry. Co., 38 Fed. 226, 228 (C. C. W. D. Tex.) 16 The Arkansas statute itself requires that the ac commodations be equal {supra, p. 8 ). 2. The Equality of Accommodation.— The actual incident which precipitated the appellant’s com plaint involved a discrimination because o f his color even as compared to second-class white travelers (R . 22-23). But since July 1937 the carrier has put in service a coach for colored passengers which is of equal quality with that used by second-class white passengers (R . 23). Since the complaint asks only relief for the future, it may be assumed that colored passengers who travel second-class have accommodations equal to those open to white passengers at the same fare. However, the question does not end with travel on second-class tickets. Colored passengers who travel first-class on the appellee carriers are not, we believe, given accommodations which are sub stantially equal to those open to white passengers. W hen a drawing room is available, the carrier prac tice o f allowing colored passengers to use one at Pullman seat rates avoids inequality as between the accommodations specifically assigned to the passenger.17 But when none is available, as on the trip which occasioned this litigation, the discrimi nation and inequality of accommodation become 17 Discrimination remains, for an enforced privacy may well be galling and unwelcome. But, in view of the deci sions sustaining segregation statutes as applied to interstate commerce (supra, p. 7) and segregation regulations of the carriers (supra, pp. 12-14), we assume this discrimination to be without legal significance. 1/7 self-evident. It is no answer to say that the colored passengers, i f sufficiently diligent and forehanded, can make their reservations so far in advance as to be assured o f first-class accommodations.18 So long as white passengers can secure first-class res ervations on the day o f travel and the colored pas sengers cannot, the latter are subjected to inequality and discrimination because o f their race.19 3. The Small Number o f Colored Passengers.— The Commission accepted the testimony of the rail road conductor that only 10 or 12 times in the past 32 years on the Memphis-Hot Springs run had colored passengers been forced to leave the Pull man for want o f separate accommodations; it ob served, however, that “ what demand there may have been at ticket offices does not appear” (R . 24). The Commission recognized that a discrimination occurred on the specific trip which underlay this proceeding, but ruled that it was not unjust or undue because of the “ comparatively little colored traffic” (R . 26-27, 29-30). This ruling we believe to be erroneous. The Con stitution 20 and the Interstate Commerce Act alike 18 Commissioner Miller suggested this expedient in his partial dissent (R. 33). 19 Indeed, even with respect to the colored passenger who secures a drawing room, the Commission found that “there are no dining-car nor observation-parlor car accommoda tions for the latter and they can not lawfully range through the train” (R. 24). 20 The equal protection clause of the Fourteenth Amend ment would reach to the Arkansas statute; the due-process IS make the guaranty o f equal treatment one which is personal to each passenger. The majority of the Commission considered that it was dealing with a question of “ colored traffic” (R . 29). It was, how ever, faced instead with an issue of the basic liberties and privileges o f citizens. These are secured to each person, not only to those members of groups suffi ciently numerous to make the liberty or privilege ex pedient, or attainable without undue expense or inconvenience. This Court, in emphatic dictum, so held in McCabe v. A., T. A S. F. Ry. Co., 235 U. S. 151,161-162. In Missouri ex rel. Gaines v. Canada, 305 U. S. 337,351, the Court made a corresponding decision with re spect to state educational facilities. It is true that both cases dealt with the effect o f the equal protec tion clause upon state statutes, while here the case deals with a state statute combined with a carrier regulation challenged under the Interstate Com merce Act. But, even assuming the state statute can be ignored and the issue treated as one of a car rier regulation alone, we do not believe that a prac tice which, i f commanded by a state, would be a de nial of equal protection of the laws, can escape con demnation under Section 3 (1) as an “ undue or un reasonable prejudice or disadvantage in any respect whatsoever.” This language, the Court has fre quently observed, “ is certainly sweeping enough to clause of the Fifth Amendment to the action of the Commis sion (cf. H einer v. Donnan, 285 U. S. 312, 326, 338). 19 embrace all the discriminations o f the sort de scribed which it was within the power o f Congress to condemn.” The S h revep ort Case, 234 U. S. 342, 356; L ouisville & N. R . Co. v. U nited S tates, 282 U. S. 740,749-750; W areh ouse Co. v. U nited S tates, 283 U. S. 501, 512-513. D. THE EFFECT OF THE COMMISSION’S DETERMINATION The majority of the Commission, in the last anal ysis, seems to have directed dismissal o f the appel lant’s complaint because of its finding (R. 29)— that the present colored-passenger coach and the Pullman drawing rooms meet the re quirements o f the act; and that as there is comparatively little colored traffic and no indication that there is likely to be such de mand for dining-car and observation-parlor car accommodations by colored passengers as to warrant the running o f any extra cars or the construction of partitions, * * *. Commissioner Eastman, dissenting, recognized the practical difficulties which would follow upon re quiring that the discrimination be eliminated, and suggested possible solutions (R . 30-31). I f the issue before this Court called into question the Commission’s judgment on these practical or economic obstacles to a removal of the inequality, its decision would not be open to review except upon a charge that it was arbitrary or without sup port in the evidence. N ashville, C. & St. L . R y . v. B row ning, 310 U. S. 362, 366; R och ester T elephone 2 0 C orp. v. U nited S tates, 307 U. S. 125, 146; M issis sipp i V alley B arge L in e Co. v. U nited States, 292 U. S. 282, 286-287. This is the case in the ordinary discrimination complaint. P en nsylvania Co. y. U nited S tates, 236 U. S. 351,361. But we do not so conceive the issue here. We think there is no room for administrative or expert judgment as to the practical difficulties in remov ing the discrimination. However great these may he, the common carrier which undertakes to segre gate its colored passengers must pay the cost. M cC abe v. A ., T. A S. F . B y . Co., 235 U. S. 151; M issouri ex rel. Gaines v. Canada, 305 U. S. 337. CONCLUSION W e therefore conclude that the Commission er roneously supposed that the Arkansas Separate Coach Law applied to an interstate passenger, and erroneously determined that the small number of colored passengers asking for first-class accommo dations justified an occasional discrimination against them because of their race. I f either of these conclusions is correct, the Commission should be directed to reinstate the appellant’s complaint and to proceed in the light of the opinion of this Court. F ran cis B iddle, S olicitor General. W arner W . G ardner , F r a n k Co l e m a n , S pecial A ssistan ts to the A tto rn ey General. M a r c h 1941. U. S . G O V E R N M E N T P R IN T IN G O F F I C E : 1941 MAR 12 1941 G L 6L R K IN THE SUPREME COURT OF THE UNITED STATES O c t o b e r T e r m , A. D. 1940 No. 577 ARTHUR, W. MITCHELL, Appellant, vs. THE UNITED STATES OF AMERICA, INTERSTATE COMMERCE COMMISSION, FRANK 0. LOWDEN, e t a l ., Appellees. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION. REPLY BRIEF FOR ARTHUR W. MITCHELL, APPELLANT. March 10, 1941. R i c h a r d E. W e s t b r o o k s , Chicago, Illinois and A r t h u r W . M i t c h e l l , Pro Se, Chicago, Illinois Attorneys for Appellant. P R I N T E D B Y C H I C A G O L A W P R I N T I N G C O . 2 sion and find that both briefs raise a host of minor con troversies over mere details but we have been unable to find in either, answers to the propositions of law tendered by the brief for appellant. These details we shall not at tempt to meet, lest a particularized rebuttal by the appel lant, obscure the essential simplicity of the issues presented to this court for decision. We expressly desire to note that we do not concede that appellees are correct on the issues which are not developed in reply. Instead, we shall briefly call to the attention of this Honorable Court two matters which we believe sufficient to close the pleadings. II. The United States concedes correctness of two major con tentions urged by the appellant for reversal. The Solicitor General, representing the appellee, United States, concedes the following two major contentions urged by the appellant for reversal of the decree of the district court to-wit: 1. That the Arkansas Separate Coach Law does not apply to an interstate passenger. 2. That the volume of traffic does not justify discrimi nation against American citizens traveling in inter state commerce as first-class passengers, because of their race. Reference is hereby made to the Memorandum for the United States filed by the Solicitor General, in support of the above contentions urged by the appellant for the re versal of the decree of the district court and the appellant joins the Solicitor General in his recommendation that the decree of the district court be reversed, the Commission directed to reinstate the appellant’s complaint and to pro ceed in the light of the opinion of this court. 3 The charge that the appellant has shifted his position since the trial before the Commissioner’s examiner is not supported by the record. The appellees, Frank 0. Lowden, James E. Gorman and Joseph B. Fleming, Trustees of the Estate of the Chicago, Rock Island and Pacific Railway Company, Illinois Central Railroad Company and the Pullman Company in their joint brief (p. 3, para. 3, 4; p. 4, para. 1) charge that the appellant has shifted his position concerning the question of the acceptance by the appellant of the segregation under the Arkansas Statute and other questions appearing in appellant’s briefs filed in this court. It is only necessary to call to the attention of this court the allegations con tained in the complaint filed before the Commission (R. 2-7); the testimony of the witnesses (R. 70-201) including the witnesses for the appellees; Defendants’ Exhibit Num ber 2—Exceptions on behalf of plaintiff, Arthur W. Mit chell to report proposed by William S. Disque, Examiner (R. 260-264); the Argument in Support of the Excep tions (R. 264-279) and the Brief filed by the appellant in this court, all of which we submit clearly demonstrates the incorrectness of the charge against the appellant by the appellees, that the appellant has shifted his position. We believe further reference is unnecessary to meet the charge. III. 4 CONCLUSION. For these reasons, in addition to those set out in our main brief, it is respectfully submitted that the decision of the court below should be reversed. Respectfully submitted, R ichard E. W estbrooks, and A rth ur W . M itch ell , Pro Se, Attorneys for Appellant. March 10,1941. /