Mitchell v. Illinois Central Railway Company Records and Briefs

    RECORDS
INI)

BRIEFS













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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 .





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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!
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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

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CHICAGO.

.... ......................

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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.







/