Letter to Greenberg and Chachkin from Bose and Evans RE: Copies of Motion and Brief

    lUttfi'it Btntm ( ta r t  nf Ajj^aln
For the Fourth Circuit

N o. 6 9 9 5

SARAH MAE FLEMMING,

vs.
Appellant,

SOUTH CAROLINA ELECTRIC AND GAS 
COMPANY, a corporation,

Appellee.

A pp e a l  F rom  t h e  U n it e d  S tates D istr ic t  C ourt 
for  t h e  E a stern  D istr ic t  of S o u t h  C arolina

BRIEF FOR APPELLANT

P h il ip  W itten b er g ,
306-308 Barringer Building, 

Columbia, South Carolina,

R obert L. C arter,
T hurgood  M a rshall ,

107 West 43rd Street,
New York, New York,

Attorneys for Appellant.

Supreme Printing Co., I nc., 114 W orth Street, N. Y. 13, BEekman 3-2320



TABLE OF CONTENTS

Statement .......................    2

Statutes Involved ...........................................  3

Questions Presented ................................................. 9

Argument :

I. Appellant’s complaint involves State action 
within the meaning of the Fourteenth Amend­
ment .................................................................  10

II. The Statutes requiring enforcement of segre­
gation by appellee are unconstitutional and 
void and are not governed by the Plessy v. 
Ferguson form ula...........................................  12

A. These Statutes Seek To Enforce Racial 
Segregation Prohibited by the Fourteenth 
Amendment under Present Interpretation
of the Scope and Reach of That Provision 13

B. The Ratio Decidendi of Plessy v. Fergu­
son Has Been Repudiated and Only the 
Bare Decision Remains............................. 14
1. The State Policy Here Involved Seeks

To Enforce Classifications and Distinc­
tions Invalid under Both the Equal Pro­
tection and Due Process Clauses of the 
Fourteenth Amendment .....................  15

2. Established Custom, Usage and Tradi­
tion Designed To Insure the Negro’s 
Inferiority Cannot Be an Appropriate 
Yardstick for Measuring State Action 
Under the Fourteenth Amendment . . . .  17

3. The Police Power Argument Is Of No
A vail.......................................    18

PAGE



11

4. The Cases Upholding Segregation in 
Public Education upon which the Plessy 
Decision Rests Have Now Been Re­
jected by the Supreme C ourt..............  19

C. The Supreme Court’s Approach to the In­
terstate Commerce Act Is a Clear Indi­
cation that the State Policy Here Involved
Is Unconstitutional ..................................  21

D. This Court Is Not Bound to a Blind Adher­
ence to Plessy v. Ferguson Merely Because 
the Supreme Court Has Not Expressly 
Rejected its Authority in Intrastate Com­

PAGE

merce .........................................................  26
Conclusion..................................................................  28

Table of Cases

Barbier v. Connolly, 113 U. S. 2 7 .............................  15
Barnette v. State Board, 47 F. Supp. 251 (1942),

aff’d, 319 U. S. 624 ............................................... 26
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 . . . .  12
Bolling v. Sharpe, 347 U. S. 497 ....................12,13,15,18,

20, 25, 27, 28
Brown v. Baskin, 174 F. 2d 391 (CA 4th 1949) . . . .  12
Brown v. Board of Education, 347 U. S. 483 . . . .  12,13,18,

20, 25, 27, 28
Buchanan v. Warley, 245 U. S. 60 ................ 13,16,18,20
Chance v. Lambeth, 186 F. 2d 879 (CA 4th 1951),

cert, denied 341 U. S. 941...................................... 13
Chesapeake & 0. & S. R. R. Co. v. Wells, 85 Tenn.

613 (1887) ......................................................... 19
Chicago & N. W. R. R. Co. v. Williams, 55 111. 185 

(1870) 19



I l l

Chiles, v. Chesapeake & Ohio Ry. Co., 218 U. S. 71 .. 13
Dawson v. Mayor, —  F. 2d ----- , March 14, 1955

13,18, 21, 28
Day v. Owen, 5 Mich. 520 (1858) ...........................  19
Edwards v. California, 314 U. S. 160 ................... 14
Enoch Pratt Free Public Library v. Kerr, 149 F. 2d 

212 (CA 4th 1945), cert, denied 326 U. S. 721 . . . .  12

Hall v. DeOuir, 95 U. S. 485 .................................... . 13
Heard v. Georgia R. Co., ICC Rep. 428 (1888) . . . .  19
Heard v. Georgia R. Co., 3 ICC 111 (1889) ............. 19
Henderson v. United States, 339 U. S. 816 13,17, 21, 22, 25 
Houck v. So. Pacific R. Co., 38 Fed. R. 226 (C. C.

Texas 1888) ...........................................................  19
Hypes v. Southern R. Co., 82 S. C. 315, 64 S. E. 395 

(1909) . . . , .............................................................  12
Jones v. City of Opelika, 316 U. S. 584 .................... 27
King v. Illinois Central R. R. Co., 69 Miss. 245, 10 

So. 42 (1891) ........................................................  12
Logwood v. Memphis & C. R. R. Co., 23 Fed. 318 

(C. C. Tenn. 1885) ................................................. 19
Marchant v. Pennsylvania R. Co., 153 U. S. 380 . . . .  15
Memphis & Charleston R. R. Co. v. Benson, 85 Tenn.

627 (1887) ...............................................................  19
Minnersville School District v. Gobitis, 310 U. S. 586 26
Mitchell v. United States, 313 U. S. 80 .................... 22, 24
Morgan v. Virginia, 328 U. S. 373 ...........................  12,18
Muir v. Louisville Park Theatrical Ass ’n., 202 F. 2d 

275 (CA 6th 1953), vacated and remanded 347
U. S. 971 ................................................................. 13

McCabe v. Atcheson, Topeka & Santa Fe Ry. Co., 235
U. S. 131................................................................. 22

McGuinn v. Forbes, 37 Fed. 639 (D. Md. 1889) . . . .  19
McLaurin v. Oklahoma State Regents, 339 U. S. 637 13,18, 25

PAGE



IV

Nebbia v. New York, 291 U. S. 502 ...........................  16
New Jersey Steam-Boat v. Brockett, 121 U. S. 637 .. 13
People v. Gallagher, 93 N. Y. 438 ...........................  20
People v. King, 110 N. Y. 418 (1888) .......................  19
Plessy v. Ferguson, 163 U. S. 567 ...........1,10,14,15,17,18

19, 20, 21, 28
Railroad Co. v. Brown, 17 Wall. 445 ................ . 17
Rice v. Elmore, 165 F. 2d 387 (CA 4th 1947), cert.

denied 333 U. S. 875 .............................................  12
Roberts v. Boston, 5 Cush. 198 (1849) .................... 20
Shelley v. Kraemer, 334 IT. S. 1..........................2,13,17, 22
Silver v. Silver, 280 U. S. 117 ..................................  16
Smith v. Allwright, 321 U. S. 649 ...........................  17
South Florida R. Co. v. Rhoads, 25 Fla. 40, 5 So.

623 (1889) ...............................................................  10
St. Louis & M. & S. Ry. Co. v. Waters, 105 Ark. 619,

152 S. W. 619 (1912) ........................................  12
Strauder v. West Virginia, 100 U. S. 303 ................  17
Sweat! v. Painter, 339 U. S. 629 ....................... . 18, 25
Terry v. Adams, 345 U. S. 461..................................  12
The Sue, 22 Fed. 843 (C. C. Tenn. 1885) ................  19
Westchester & P. R. Co. v. Miles, 55 Pa. 209 (1867) 19
Whiteside v. Southern Bus Lines, 177 F. 2d 949 (CA

6th 1949) ..................................................   13
Williams v. Carolina Coach Co., I l l  F. Supp. 329

(E. D. Va. 1952), aff’d 207 F. 2d 408 (CA 4th 1953) 13

Statutes

S. C. Code, § 58-1401 (1952) ....................................  3,11
S. C. Code, §58-1402 (1952) ..................................  4,11
S. C. Code, §58-1403 (1952) ......................................  4,11
S. C. Code, §58-1406 (1952) .............................   5,11

PAGE



PAGE

C. S. Code, § 58-1422 (1952) ..................... ..............  5,11
S. C. Code, §58-1451 (1952) ..................... ..............  5,11
S. C. Code, §58-1452 (1952) . .................... ..............  6,11
S. C. Code, § 58-1453 (1952) .................. . . . . . . . . .  6,11
S. C. Code, §58-1461 (1952) ...................... ............ 6,11
S. C. Code, §58-1491 (1952) .................. .............. 2,7,10
S. C. Code, § 58-1492 (1952) ....... ......... .............. 2,7,10
S. C. Code, § 58-1493 (1952) ...................... .............. 2,7,10
S. C. Code, §58-1494 (1952) ...................... ..............  8,10
S. C. Code, §58-1495 (1952) ..................... ..............  8,10
S. C. Code, § 58-1496 (1952) ...................... ..............  9,10
Interstate Commerce Act, 49 USCA §3(1). .21, 22, 23, 24, 25

Other Authorities

35 Am. Jur., 983 , ......................................................  12
Dollard, Caste and Class in A Southern Town 350

(1932) ....................................................................  17
Johnson, Patterns of Negro Segregation, 270 (1943) 17
Myrdal, 1 American Dilemma, 635 (1944) ............  17
Waite, The Negro in the Supreme Court, 30 Minn.

L. R. 219 (1946) 19



litttteii #tat££ CEnurt nf Appals
For the Fourth Circuit

No. 69 9 5

--------------o—------------
S arah  M ae F l e m m in g ,

vs.
Appellant,

South Carolina  E lectric  and  Gas C o m pa n y , a corporation,
Appellee.

A ppe a l  from  t h e  U n ited  S tates D istr ic t  C ourt for t h e  
E astern  D istrict  of S o u t h  Carolina

'■—  ----------------------------------------------- o ------------------------------------------------------------

BRIEF FOR APPELLANT

Statement

Appellant, a Negro woman, brought this action in the 
court below to recover damages resulting from appellee’s 
enforcement of unconstitutional and discriminatory laws 
requiring the enforcement of racial segregation in intra­
state carriers operating within the State of South Carolina 
(la). Appellee filed a motion to dismiss (5a) and an answer 
(6a). The trial court found the state policy requiring racial 
segregation consistent with the Fourteenth Amendment on 
the theory that the “ separate but equal” doctrine of Plessy 
v. Ferguson governed disposition of this case. Based upon 
this conclusion, the court granted appellee’s motion to dis­
miss on the ground that the complaint failed to state a 
claim upon which relief could be granted (7a). The court ’s 
opinion is reported at 128 F. Supp. 469. This appeal fol­
lowed.



2

The facts are briefly these (see appellant’s complaint at 
la) : On June 22, 1954, appellant boarded a bus owned by 
appellee, a carrier engaged in the business of transporting 
the public via bus in Columbia, South Carolina. The par­
ticular bus on which appellant rode was typical of those in 
appellee’s fleet. It had a front and a rear exit; a long ver­
tical seat on either side at the front and directly behind the 
driver; behind this, horizontal seats on each side of the aisle, 
extending to the rear, with a long back rear seat extending 
across the entire width of the bus. Under South Carolina 
law, Sections 58-1491-1493, Code of Laws of South Caro­
lina, 1952, segregation of the races on motor vehicle car­
riers is required and violations are subject to fine. Section 
58-1493 empowers the bus driver to change the designation 
of space ‘ ‘ so as to increase or decrease the amount of space 
or seats set apart for either race * * * But no contiguous 
seats on the same bench shall be occupied by white and col­
ored persons at the same time. ’ ’ To comply with these pro­
visions, appellee lias adopted and enforces a policy of seat­
ing white persons from the front to rear and Negro passen­
gers from rear to front. Pursuant to these rules or practices, 
no Negro may occupy a seat in front of space in which white 
persons are sitting; and no Negro can sit beside a white 
person.1

When appellant got on the bus, it was extremely crowded, 
and many Negroes were standing up front where wThite 
people were seated. Since no Negro could sit in front of or 
beside a white person, the seats at the front of the bus were 
exclusively reserved for white passengers at that time. 
While appellant was standing in this section of the bus, a 
white passenger, who was occupying the first or second hori­
zontal seat on the right-hand side of the bus, got up to leave.

1 Of course the converse is true. No white person is supposed to 
sit behind or beside a Negro. But these indiscriminate discrimina­
tions, see Shelley v. Kraemer, 334 U. S. 1, are of no aid in a deter­
mination of the constitutionality of the state’s policy.



3

•Appellant took the .seat vacated, which resulted in her sit­
ting in front of one or two white passengers. As soon as 

. she sat down, the bus driver ordered appellant to move to 
the rear in a loud and threatening tone of voice. When he 
repeated this order a second time, fearing further humilia­
tion and possible bodily harm, appellant left the disputed 
seat and prepared to leave the bus although as yet some dis­
tance from her desired destination. When the bus stopped 
to permit passengers to get off, appellant attempted to fol­
low a white passenger out the front door. The aisle was 
extremely crowded to the rear. The driver permitted the 
white passenger to exit from said front door but refused 
to allow the appellant to do so. He ordered her to leave 
by the rear door and struck her to enforce his command— 
all this solely because of appellant’s race and color.

As aforesaid, the trial court dismissed for failure to 
state a claim upon which relief could be granted. We 
brought the cause here convinced that this was error.

Statutes Involved

PUBLIC SERVICE COMPANIES

ARTICLE 1.
G en era l  P rovisions

§ 58-1401. Definitions.
As used in articles 1 to 6 of this chapter:
(1) The term “ corporation” means a corporation, com­

pany, association or joint stock association;
(2) The term “ person” means an individual, a firm or 

a copartnership;
(3) The term “Commission” means the Public Service 

Commission;



4

(4) The term “ motor vehicle carrier ” means every cor­
poration or person, their lessees, trustees or receivers, own­
ing, controlling, operating or managing any motor propelled 
vehicle, not usually operated on or over rails, used in the 
business of transporting persons or property for compen­
sation over any improved public highway in this State;

(5) The term “ trailer” means a vehicle equipped to 
carry a load and which is attached to and drawn by a motor 
vehicle and trailers shall be classed as motor vehicles and. 
subject to the provisions of articles 1 to 6 of this chapter; 
and

(6) The term “improved public highway” means every 
improved public highway in this State which is or may here­
after be declared to be a part of the State Highway System 
or any county highway system or a street of any city or 
town.

§ 58-1402. Transportation by motor vehicle for compensa­
tion regulated.

No corporation or person, their lessees, trustees or 
receivers, shall operate any motor vehicle for the transpor­
tation of persons or property for compensation on any im­
proved public highway in this State except in accordance 
with the provisions of this chapter and any such operation 
shall be subject to control, supervision and regulation by 
the Commission in the manner provided by this chapter.

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

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



5

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

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

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

tered, after a hearing had upon notice to the holder of any 
certificate hereunder at which such holder shall have had 
an opportunity to be heard and at which time it shall be 
proved that such holder has wilfully made any misrepre­
sentation of a material fact in obtaining his certificate or 
wilfully violated or refused to observe the laws of this State 
touching motor vehicle carriers or any of the terms of his 
certificate or of the Commission’s proper orders, rules or 
regulations, suspend, revoke, alter or amend any certificate 
issued under the provisions of articles 1 to 6 of this chapter. 
But the holder of such certificate shall have the right of 
appeal to any court of competent jurisdiction.

ARTICLE 4.
D rivers ’ P e r m it s .

§ 58-1451. Drivers’ permits required of operators.
No certificate holder under article 2 of this chapter, shall 

operate or permit any person to operate a motor vehicle 
for the transportation of persons or property for compen­



6

sation in this State unless and until the operator thereof• . 
shall have obtained from the Public Service Commission a 
driver’s permit, which may be revoked for cause by the 
Commission. No such permit shall be issued to any person , 
under eighteen years of age. Such permit shall always lie 
carried by the person to whom it is issued , and .shall be 
shown to any official or citizen upon request.

§ 58-1452. Examination and qualifications required for 
drivers’ permits.

Each applicant for a driver’s permit under the provi­
sions of this article shall be examined by a person desig­
nated by the Commission as to his knowledge of the traffic 
laws of this State and as to his experience as a, driver and 
such applicant may be required to demonstrate his skill and 
ability to handle safely his vehicle. He shall be of good 
moral character and he shall furnish such information con­
cerning himself as required, upon forms provided for such , 
purpose. The Commission shall provide for such examina­
tions and issue such permits as such examinations may 
justify. If the result of any such examination be unsatis­
factory, the permit shall be refused.

§ 58-1453. Fee for drivers’ permits.
The Commission shall collect an annual fee of two. dol­

lars for each driver’s permit issued hereunder and: all! funds n : 
so collected shall be paid into the State Treasury monthly,: , 
to the credit of the State Highway Fund.

ARTICLE 5.
R ig h t s  and D u t ie s  G en er a lly .

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

motor carrier in this State and fix or approve the rates, 
fares, charges, classification and rules and regulations per-



7

taming thereto of each such motor carrier. The rates now 
obtaining, for the respective motor carriers shall remain in 
effect until such time when, pursuant to complaint and 
proper hearing, the Commission shall have determined that 
such rates are unreasonable.

MOTOR VEHICLE CARRIERS

ARTICLE 7 
S egregation  o r  R aces

§ 59-1491. Segregation required.
All passenger motor vehicle carriers operating in this 

State shall separate the white and colored passengers in 
their motor buses and set apart and designate in each bus 
or other vehicle a portion thereof, or certain seats therein, 
to be occupied by white passengers and a portion thereof, 
or certain seats therein, to be occupied by colored passen­
gers, any such carrier that shall fail, refuse, or neglect to 
comply with the provisions of this section shall be guilty 
of a misdemeanor and, upon indictment and conviction, 
shall be fined not less than fifty dollars nor more than two 
hundred and fifty dollars for each offense.

§ 58-1492. Discrimination in accommodations prohibited.
- Such carriers shall make no difference or discrimina­

tion in the quality or convenience of the accommodations 
provided for the two races under the provisions of § 58-1491.

§58-1493. Changing space assigned or requiring change 
of seats.

The driver, operator, or other person in charge of any 
such motor vehicle shall at any time when it may be neces­
sary or proper for the comfort and convenience of passen­
gers so to do, change the designation so as to increase or



8

decrease the amount of space or seats set apart for either 
race and may require any passenger to change his seat as 
it may be necessary or proper. But no contiguous seats on 
the same bench shall be occupied by white and colored per­
sons at the same time. Any driver, operator or other per­
son in charge of any such vehicle who shall fail or refuse 
to carry out the provisions of this section shall be guilty 
of a misdemeanor and upon conviction thereof shall be fined 
not less than five dollars nor more than twenty-five dollars 
for each offense.

§ 58-1494. Driver a special policeman.
Each driver, operator or person in charge of any such 

vehicle, in the employment of any company operating it, 
while actively engaged in the operation of such vehicle, 
shall be a special policeman and have all the powers of a 
conservator of the peace in the enforcement of the provi­
sions of this article and in the discharge of his duty as such 
special policeman in the enforcement of order upon such 
vehicle. Such driver, operator or person in charge of such 
vehicle shall likewise have the powers of a conservator of 
the peace and of a special policeman while in pursuit of 
persons for disorder upon such vehicles or for violating the 
provisions of this article and until such persons as may 
be arrested by him shall have been placed in confinement 
or delivered over to the custody of some other conservator 
of the peace or police officer. Acting in good faith, he shall 
be for the purposes of this article the judge of the race 
of each passenger whenever such passenger has failed to 
disclose his race.

§ 58-1495. Violations of article by passengers.
All persons who fail while on any motor vehicle car­

rier to take and occupy the seat or seats or other space 
assigned to them by the driver, operator or other person 
in charge of such vehicle or by the person whose duty it is



9

to take up tickets or collect fares from passengers therein 
or who fail to obey the directions of any such driver, oper­
ator or other person in charge as aforesaid to change their 
seats from time to time as occasions may require, pursu­
ant to any lawful rule, regulation or custom in force by 
such lines as to assigning separate seats or other space to 
white and colored persons, respectively, having been first 
advised of the fact of such regulation and requested to 
conform thereto, shall be guilty of a misdemeanor and 
upon conviction thereof shall be fined not less than five 
dollars nor more than twenty-five dollars for each offense,

§ 58-1496. Ejection of such passengers.
Any person who shall violate any of the provisions of 

§ 58-1495 may be ejected from any such vehicle by any 
driver, operator or person in charge of such vehicle or by 
any police officer or other conservator of the peace and, 
if any such person ejected shall have paid his fare upon 
such vehicle, he shall not be entitled to the return of any 
part of it. For the refusal of any such passenger to abide 
by the request of the person in charge of the vehicle, as 
aforesaid, and his consequent ejection from the vehicle, 
neither the driver, operator, person in charge, owner, man­
ager, or bus company operating the vehicle shall be liable 
for damages in any court.

Questions Presented

1. Whether appellant’s challenge to the enforcement of 
a state policy, requiring the segregation of Negro and white 
passengers on intrastate carriers operating in the State of 
South Carolina as violative of her rights under the Four­
teenth Amendment and claim for damages for injuries 
resulting therefrom, constitute a valid cause of action cog­
nizable in the federal courts?



10

2. Whether in light of the present status of the law- 
in respect to the scope and reach of the Fourteenth Amend­
ment, a federal court should apply prevailing constitu­
tional yardsticks in this case and hold the state policy here 
in question unconstitutional, even though the Supreme 
Court has not. yet specifically overruled Plessy v. Ferguson 
in the field of intrastate commerce!

ARGUMENT

I

Appellant’s complaint involves State action within
the meaning of the Fourteenth Am endm ent.

Appellee is engaged in the business of a motor vehicle 
carrier, transporting passengers for hire over the streets 
of Columbia, South Carolina. Appellee operates under 
franchise and as such enjoys monopolistic privileges. As 
has been aptly stated by one court, the rules and regula­
tions of a common carrier insofar as they affect the travel­
ling public are minor laws. South Florida B. Co. v. Rhoads, 
25 Fla. 40, 5 So. 623 (1889).

Sections 58-1491, 1492, 1493, 1494, 1495 and 1496 (set 
out ante) provide for the segregation of the races on motor 
vehicle intrastate carriers operating within the State of 
South Carolina; require that equality be provided in respect 
to appointments and conveniences; make violations by car­
rier, driver or passenger a misdemeanor subject to fine; 
make each operator in charge of the bus a special police­
man with authority to preserve the peace and enforce the 
state laws with respect to segregation, with power to con­
fine and arrest for violations thereof; and hold the carrier 
and bus operator free from damages resulting from the 
ejection of any person who refuses to obey the bus driver 
in connection with these provisions. Pursuant to these



11

provisions, appellee is required to enforce racial segrega­
tion in the seating of Negro and white passengers on its 
buses. Appellee is also authorized to enforce the state 
policy in this respect, and its drivers are made special 
police officers for this purpose. Appellee has adopted the 
state’s policy as its own. It enforces a policy or practice 
with respect to the loading and seating of Negro and white 
passengers which fully incorporates the state regulations 
and is a de facto and de jure state agency for enforcement 
and maintenance of racial segregation on its vehicles.

In addition, the state controls and regulates appellee’s 
operation through a Public Service Commission. See par­
ticularly Sections 58-1401 to 58-1403, Section 58-1406, Sec­
tion 58-1422, Sections 58-1451 to 58-1453 and Section 58-1461 
of the Code of Laws of South Carolina, 1952 set out ante. 
Under these provisions the Public Service Commission is 
given authority to supervise and regulate carriers operat­
ing intrastate, approve rates (58-1461); license drivers 
(58-1451); grant and revoke certificates of public conve­
nience (58-1403 and 1422). The carrier, its officers, 
agents or employees and “ every other person who * * * 
fails to obey, observe or comply with any lawful order, 
decision, rule, regulation, direction, demand or require­
ment of the Commission * * *” are subject to criminal pen­
alties (58-1406). Thus, appellee is required to act for the 
state in the enforcement of racial segregation on its buses, 
and is subject not only to fine and conviction for failure to 
comply with state policy, but also to the complete destruc­
tion of its business by revocation of its certificate of public 
convenience.

There can be no question but that in the course of the 
altercation here that the bus driver, Warren Christmus, 
was acting within the scope of his employment. He was 
seeking to enforce the state segregation laws as required 
both by statute and by his duty as an employee and to pro­
tect his employer from penalties resulting from violation



12

of state law. That his acts in this regard are the acts of 
appellee, and that appellee is thus responsible is clear 
beyond question. See Hypes v. Southern 11. Co., 82 S. C. 
315, 64 S. E. 395 (1909), and cases cited in 35 Am. Jur. 983- 
984. The statutes which make the bus driver a conservator 
of the peace in no way destroys the master-servant rela­
tionship, nor relieves the carrier of its responsibility here 
to appellant. See King v. Illinois Central R. R. Co., 69 
Miss. 245, 10 So. 42 (1891); St, Louis dc M & S. Ry. Co. v. 
Waters, 105 Ark. 619, 152 S. W. 619 (1912). Further, it 
is clear that the carrier in regard to the enforcement of 
the state policy requiring segregation was a state instru­
mentality at least for this limited purpose, and thus the 
action here complained of constitutes state action within 
the meaning of the Fourteenth Amendment. See Enoch 
Pratt Free Public Library v. Kerr, 149 F. 2d 212 (CA 4th 
1945), cert, denied, 326 U. S. 721; Terry v. Adams, 345 U. S. 
461; Rice v. Elmore, 165 F. 2d 387 (CA 4th 1947), cert, 
denied, 333 U. S. 875; Brown v. Bas.hin, 1?4 F. 2d 391 (CA 
4th 1949). Appellee was enforcing the state policy both 
for itself and for the state, and appellant was entitled to 
invoke the protection of the Fourteenth Amendment,

I I

The statutes requiring enforcem ent of segregation  
by appellee are unconstitutional and void  and are not 
governed by the Plessy v. Ferguson formula.

Whatever the status of the “ separate but equal” doc­
trine today, the trend of decisions culminating in Brown v. 
Board of Education, 347 U. S. 483, and Bolling v. Sharpe, 
347 U. S. 497 (the School Segregation Cases) has been to 
give greater sweep and scope to the Fourteenth Amend­
ment’s interdiction against state enforced racial or color 
distinction. Morgan v. Virginia, 328 IT, S. 373, and Bob-Lo 
Excursion Co. v. Michigan, 333 U. S. 28, have weakened the



13

doctrine’s effectiveness in intrastate commerce. The School 
Segregation Cases, supra; McLaurin v. Oklahoma State 
Regents, 339 U. S. 6 3 7 Shelley v. Kraemer, 334 U. S. 1; 
Henderson v. United States, 339 U. S. 816; Buchanan v. 
Warle-y, 245 U. S. 60; Muir v. Louisville Park Theatrical 
Assn., 202 F. 2d 275 (CA 6th 1953), vacated and remanded, 
347 U. S. 971; and this Court’s decision in Dawson v. Mayor,
-----  F. 2 d ----- , decided March 14, 1955, have abandoned
the “ separate but equal” doctrine in public education, hous­
ing, interstate commerce and public recreation. True, these 
decisions do not apply in terms to intrastate commerce. We 
think, however, that, these more recent developments in the 
law warrant the conviction that the kind of state policy 
here involved also falls within the Fourteenth Amend­
ment’s proscription against state enforced racial distinc­
tions.

A . T h e se  S ta tu te s  S eek  to  E n fo rc e  R a c ia l S e g re ­
g a tio n  P ro h ib ite d  b y  th e  F o u r te e n th  A m e n d ­
m e n t u n d e r  P re s e n t  I n te r p r e ta t io n  o f th e  
S co p e  and R e a c h  o f T h a t  P ro v is io n .

A common carrier is required to protect its passengers 
against assault or interference with the peaceful comple­
tion of their journey, New Jersey Steam-Boat Co. v. Brock- 
ett, 121 U. S. 637; and to be ready and willing to serve on an 
equal basis all passengers who might apply without dis­
tinction or discrimination.2

2 It is true that Chiles v. Chesapeake & Ohio Ry. Co., 218 U. S. 
71, holds that carriers may regulate the seating of Negro and white 
passengers in interstate commerce in the absence of national regula­
tion. But this theory grew out of the vacuum left by the decision in 
Hall v. DeCuir, 95 U. S. 485, that such regulation was outside the 
province of the states. In the absence of federal regulation, it was 
felt, therefore, that incorporation of the “separate but equal” doctrine 
into the carrier regulations was permissible. Contra: Whiteside v.
Southern Bus Lines, 177 F. 2d 949 (CA 6th 1949) ; Chance v. Lam­
beth, 186 F. 2d 879 (CA 4th 1951), cert, denied, 341 U. S. 941; 
Williams v. Carolina Coach Co., I l l  F. Supp. 329 (E. I). Va. 1952), 
aff’d, 207 F. 2d 408 (CA 4th 1953).



14

Appellant is here asserting a right considered sacred in 
a democracy—the right to freedom of locomotion. But for 
the state policy here being questioned, there could be little 
doubt that appellee violated its contractual obligation to 
appellant under the circumstances of this case.

It could not be seriously contended that any state by 
legislation or common carrier by regulation could deny to 
any group of its citizens the right of access to the services 
of common carriers solely on the basis of race or color. 
Indeed, freedom of locomotion cannot be hampered by state 
legislation even though for the laudable purpose of pro­
tecting the property of persons already resident within a 
particular state. Edwards v. California, 314 U. S. 160.

The question raised here is whether a state policy which 
restricts appellant’s liberty to use common carrier facili­
ties on the grounds of race is offensive to the Fourteenth 
Amendment, We contend that it is, despite the fact that 
Plessy v. Ferguson, 163 U. S. 567, has specifically applied 
the 1 ‘ separate but equal ’ ’ doctrine in the field of intrastate 
commerce.

B. T h e  R a tio  D e c id e n d i  o f P le s sy  v. F e rg u so n  H a s  
B een  R e p u d ia te d  a n d  O n ly  th e  B a re  D ec ision  
R em a in s .

The rationale relied upon for the adoption of the “ sepa­
rate but equal” doctrine in Plessy v. Ferguson was based 
upon three fundamental premises: (1 ) that, classifications 
and distinctions based upon race were not violative of the 
constitution as long as equal facilities were provided the 
Negro group; (2) that laws based upon established social 
usage, custom, and tradition were not unreasonable; and 
(3) that since the statute in question was designed to pre­
serve the public peace, state power exerted to achieve this 
end could not have been prohibited by the Fourteenth 
Amendment. Moreover, the Court in the Plessy ease relied



15

all but exclusively on state and lower federal court deci­
sions upholding segregation in public schools to support 
these premises, upon which it grounded its conclusion 
that the Louisiana statute was constitutional.

Now segregation has been expressly declared unconsti­
tutional in the field of public education, and the present 
approach of the Supreme Court to the Fourteenth Amend­
ment is at war with the rationale of the Plessy case. Thus, 
all that remains is the Plessy decision itself with its ra­
tionale repudiated and the precedents on which it relied 
for support discarded—now at best, a sport in the law.

1. T h e  S tate P olicy H ebe  I nvolved S e e k s  to 
E nforce  Cla ssifica tio n s  and D ist in c t io n s  
I nvalid  I I ndeb  B o th  t h e  E qual P rotection  
and  D u e  P rocess C lauses  of t h e  F o u r t e e n t h  
A m e n d m e n t .

It has long been held that the Fourteenth Amendment 
prohibited all unreasonable classifications and distinctions 
even though non-racial in character. See Barbier v. Con­
nolly, 113 U. S. 27; MarcJiant v. Pennsylvania 11. Co., 153 
IT. S. 380, 390. In Plessy this yardstick was not applied 
and segregation was upheld. Thus, the conventional test 
applicable to state classifications and distinctions in general 
were never applied to governmental action requiring the 
segregation of Negroes. “ Separate but equal” was sub­
stituted instead.

There can no longer be doubt, however, as a result of 
Bolling v. Sharpe, supra, that racial differentiations en­
forced pursuant to state law are now subject at least to 
the same test applicable to legislative classifications and 
distinctions non-racial in character. There the Court said:

Classifications based solely upon race must be 
scrutinized with particular care, since they are con­
trary to our traditions and hence constitutionally



16

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

Although the Court has not assumed to define 
‘liberty’ with any great precision, that term is not 
confined to mere freedom from bodily restraint. 
Liberty under law extends to the full range of con­
duct which the individual is free to pursue, and it 
cannot be restricted except for a proper govern­
mental objective.. Segregation in public education 
is not reasonably related to any proper governmen­
tal objective, and thus it imposes on Negro children 
of the District of Columbia a burden that consti­
tutes an arbitrary deprivation of their liberty in 
violation of the Due Process Clause.

The real aim of the statutes now before this Court is 
to perpetuate the myth of an inferior Negro and a superior 
white caste. Measured against due process, this state policy 
must fall because it seeks to deprive Negroes of liberty in 
order to maintain and perpetuate a color caste in South 
Carolina. Measured against equal protection, the policy 
is bad because the color classification here enforced is not 
based upon any real difference pertinent to a valid legis­
lative objective.8 As such, these distinctions cannot stand, 
since they are arbitrary and unreasonable. 3

3 Compare Nebbia v. New York, 291 U. S. 502 (due process), 
with Silver v. Silver, 280 U. S. 117 (equal protection) in respect to 
the similarity in the test of reasonableness under either clause.



17

2. E sta blish ed  C ustom , U sage and T radition  
D esigned  to I n su r e  t h e  N egro ’s I n fer io r ity  
C an n o t  be an  A ppro pria te  Y ardstick  for 
M ea su rin g  S tate A ctio n  U nder  t h e  F our­
t e e n t h  A m e n d m e n t .

In Plessy v. Ferguson, the Supreme Court found the 
Louisiana statute which required racial segregation in 
intrastate carriers reasonable because the state, policy 
accorded with the established social usage, custom and 
tradition. But the primary intendment of the Thirteenth, 
Fourteenth and Fifteenth Amendments was to revolution­
ize the legal relationship between Negro and white per­
sons and place the Negro on a plane of complete equality 
with the white man. Strauder v. West Virginia, 100 U. S. 
303. And see Railroad Co. v. Brown, 17 Wall 445. There 
can be little doubt at this late date that racial segregation 
stems from a belief in the Negro’s inferiority and is 
designed to perpetuate the myth of white supremacy. As 
such, segregation on buses and street cars is bitterly 
resented by Negroes as a badge of inferiority. See Myrdal, 
1 American Dilemma 635 (1944); Johnson, Patterns of 
Negro Segregation 270 (1943); Dollard, Caste and Class 
in A Southern Town 350 (1937). Unquestionably, this was 
the kind of established social usage, custom and tradition 
that the Fourteenth Amendment intended to eradicate from 
the American scene.

In the cases involving the rights of Negroes under the 
Fourteenth and Fifteenth Amendments, our courts have 
consistently refused to regard custom and usage, however 
widespread, as determinative of reasonableness. This was 
true in Smith v. Allivright, 321 U. S. 649, of a deeply en­
trenched custom and usage of excluding Negroes from vot­
ing in the primaries. It was true in Shelley v. Kraemer, 
supra, of a long-standing custom of excluding Negroes 
from the use and ownership of real property on the basis 
of race. In Henderson v. United States, supra, a discrimi­



18

natory practice of many years was held to violate the 
Interstate Commerce Act, In the Swecitt v. Painter, 339 
U. S. 629; McLaurin v. Oklahoma State Regents, supra; and 
the School Segregation Cases, supra, the Court broke with 
a long-standing and deeply rooted tradition of enforced seg­
regation in public education. In each instance the custom 
and usage had persisted for generations, and this was cited 
as grounds for its sanction. But to give sanction to custom 
and usage aimed at perpetrating racial inferiority, which 
the Fourteenth Amendment was specifically designed to 
correct, is to countenance defeat and frustration of the 
Amendment’s purpose. For this reason the Plessy argu­
ment falls under its own weight.

3. T h e  P olice  P ow er  A r g u m e n t  is  oe no  A vail .

The Plessy reasoning that racial segregation is neces­
sary to preserve the public peace, and should, there­
fore, be upheld, is no longer persuasive. For if the 
state does not have the power asserted, its exertion is 
no less unconstitutional if exercised to preserve the peace 
than if exercised to perform some other governmental 
function. See Buchanan v. War ley, supra; and Mor­
gan v. Virginia, supra. And this Court’s statement 
in Dawson v. Mayor, — F. 2d —, March 14, 1955, has 
definite pertinence here: “ It is now obvious, however,
that segregation cannot be justified as a means to preserve 
the public peace, merely because the tangible facilities 
furnished to one race are equal to those furnished the 
other. . . .”

Police power, therefore, can no longer support an 
exertion of state authority otherwise in conflict with con­
stitutional rights.



19

4. T h e  C ases U ph o l d in g  S egregation  in  P ublic  ■_ 
E ducation  U po n  W h ic h  t h e  P lessy  D ecisio n  
B ests  H ave N ow B e e n  B e je c t e d  by  t h e  ; 
S u pr e m e  C o urt .

The Court in Plessy rested its decision almost exclu­
sively on state and lower federal court cases upholding 
segregation in the public schools.4

Throughout its opinion, the Court in Plessy cited school 
cases as the sole authority for the major points of its deci­
sion. Bor example, at page 544, the Court said that laws “ re- 
quiring their [white and Negro] separation in places 
where they are liable to be brought into contact do not neces­
sarily imply the inferiority of either race to the other, and

4 The court cites only one group of non-school cases as direct 
authority for its; decision. This is a string of state and lower federal 
Court decisions cited by the Court at p. 548 as holding that stat­
utes requiring segregation on public conveyances are constitutional. 
It appears, however, that not one of these cases actually stands for 
this proposition. See Waite, The Negro in the Supreme Court, 30 
Minn. L. R. 219, 248-251 (1946). At least two of the cases were 
decided either before passage or ratification of the Fourteenth Amend­
ment. West Chester & P. R. Co. v. Miles, 55 Pa. 209 (1867)-; Day 
v. Owen, 5 Mich. 520 (1858). Several of the cases did not concern 
any governmental enactment or action at all. The Sue, 22 Fed. 843 
(C. C. Tenn. 1885 ) ; McGuinn v. Forbes, 37 Fed. 639 (D. Md. 
1889:) ; Chicago & N. W. R. R. Co. v. Williams, 55 111. 185 (1870). 
One case upheld a criminal indictment of a proprietor of an amuse-- 
ment park for refusing to admit Negroes against an attack that the 
New York statute authorizing the indictment was unconstitutional. 
People v. King, 110 N. Y. 418 (1888). And none of the other 
cases dealt with the constitutionality of governmental enactments or 
action requiring or permitting the segregation of persons because of 
race. Chesapeake, O. & S. R. R. Co. v. Wells, 85 Tenn. 613 (1887) ;■ 
Memphis & Charleston R. R. Co. v. Benson, 85 Tenn. 627 (1887) ; 
Houck v. So. Pacific R. Co., 38 Fed. R. 226 (C. C. Texas 1888) ; 
Logwood v. Memphis & C. R. R. Co., 23 Fed. 318 (C. C. Tenn. 
1885) ; Heard v. Georgia R. Co., 1 ICC Rep. 428 (1888) ; Heard v. 
Georgia R. Co., 3 ICC Rep. I l l  (1889).



2 0

have been generally, if not universally, recognized as within 
the competency of the state legislatures in the exercise of 
their police power. The most common instance of this is con­
nected with the establishment of separate schools . . .” 
(emphasis added). The Court then proceeded to quote 
extensively from Robert v. Boston, 5 Cush. 198 (1849), a 
Massachusetts decision, which held school segregation valid 
and cited several other state and federal school cases to 
the same effect at 545.

Later, the Court, after conceding at 550 that “ every 
exercise of the police power must be reasonable and extend 
only to such laws as are enacted in good faith for the pro­
motion of the public good and not for the annoyances or 
oppression of a particular class,” stated at 550-551 that 
“ [g]auged by this standard, we cannot say that a law which 
authorizes or even requires the separation of the two races 
in public conveyances is unreasonable or more obnoxious 
to the 14th Amendment than the acts of Congress requiring 
separate schools for colored children in the District of 
Columbia, the constitutionality of which does not seem to 
have been questioned, or the acts of state legislatures.”

Finally, for its argument that the harmony of the races 
cannot be promoted by laws which conflict with the general 
sentiment of the community, the Court again cites as sole 
authority a school case, People v. Gallagher, 93 N. Y. 438, 
448.

But the School Segregation Cases have now made it clear 
that the states and the federal government are prohibited 
from enforcing racial segregation in public education. Thus, 
the main body of legal precedent upon which the Plessy case 
relies can no longer be considered authority to support such 
a decision today.

Moreover, it is unlikely and unthinkable that state im­
posed racial segregation would be considered arbitrary 
and unreasonable in the field of public housing, Buchanan 
v. Warley, supra; in public education, the School Segrega­



21

tion Cases, supra; and in interstate commerce, Henderson 
v. United States, supra; and yet would constitute a valid 
exercise of governmental authority in the field of intra­
state commerce.

And to paraphrase this Court’s opinion in the Dawson 
case, it is obvious that racial segregation in intrastate 
transportation can no longer be sustained as a proper exer­
cise of a state police power, for if that power cannot be 
sustained where enforced commingling must necessarily 
result, it cannot be sustained with respect to intrastate 
carrier facilities, the use of which is entirely optional. 
For these reasons we think this Court must strike down 
the state policy here involved as prohibited by the Four­
teenth Amendment, in spite of the fact that the Plessy 
decision has not yet been specifically overruled by the 
Supreme Court in the field of intrastate commerce.

C. T h e Suprem e C ourt’s A p p roach  to  th e  In ter­
sta te  C om m erce A ct Is a C lear In d ication  T hat 
th e  S ta te  P o licy  H ere Involved  Is U n con stitu ­
tional.

The Supreme Court in interpreting Section 3(1) of the 
Interstate Commerce A ct5 has construed this provision as 
if the mandate of the equal protection clause of the Four­
teenth Amendment and the mandate of equality in Section

5 Section 3(1) of the Interstate Commerce Act is as follows:
“It shall be unlawful for any common carrier subject to 

the provisions of this part to .make, give, or cause any undue 
or unreasonable preference or advantage to any particular 
person, company, firm, corporation, association, locality, port, 
port district, gateway, transit point, region, district, territory, 
or any particular description of traffic, in any respect what­
soever; or to subject any particular person, company, firm, 
corporation, association, locality, port, port district, gateway, 
transit point, region, district, territory, or any particular 
description of traffic to any undue or unreasonable prejudice 
or disadvantage in any respect whatsoever: * * *”



2 2

3(1) were one and the same. Even such subsidiary concepts 
read into the equal protection clause—as the personal and 
present nature of the right, McCabe v. Atchison Topeka <& 
Santa Fe Ry. Co., 235 U. S. 131, and that equality is not 
accorded by indiscriminate discrimination, Shelley v. Krae- 
mer, supra■—are now a part of the definitive meaning- and 
scope of Section 3(1). See Mitchell v. United States, 313 
U. S. 80, 97; Henderson v. United States, supra at 824 and 
825.

A reading of Henderson v. United States, makes it clear 
that Section 3(1) prohibits the segregation of Negi’o and 
white passengers in interstate commerce. There the Su­
preme Court struck down a carrier regulation which sought 
to segregate Negro and white passengers in the use of 
dining- car service.

When the cause was before the Interstate Commerce 
Commission, the controversy centered around a regulation 
of the Southern Railway Co. pursuant to which two tables 
at the end of its dining cars were left open for Negro 
passeng’ers. When Negroes were seated and served at those 
tables, curtains were drawn shutting them off from the rest 
of the car. If, however, white passengers sat at these 
tables before Negroes sought service, in spite of the fact 
that there were empty tables in other parts of the dining 
room, Negroes could not be served until these end tables 
were again free.

This regulation was attacked before the Commission as 
violative of the Interstate Commerce Act. The Commis­
sion upheld the regulation, Henderson v. Southern Rail­
road, 258 ICC 413, but the United States District Court 
for the District of Maryland found the regulation violative 
of the Interstate Commerce Act, 63 F. Supp. 906.

Thereafter, the carrier promulgated a new regulation 
which provided that one table seating four persons would 
be reserved exclusively and unconditionally for Negro



23

passengers and that the rest of the tables in the cars would 
be for the exclusive use of white persons. A curtain or 
partition was to separate the table for Negro passengers 
from the rest of the tables in the dining car. The Com* 
mission found this modified ruling conformed to the re­
quirements of the Act, 269 ICC 78, and the District Court, 
with Judge Soper dissenting, upheld the Commission’s 
order, 80 F . Supp. 32. On appeal the Supreme Court 
struck the regulation down.

The Court said at 824, 825:
. . . The right to be free from unreasonable dis­

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

We need not multiply instances in which these 
rules sanction unreasonable discriminations. The 
curtains, partitions and signs emphasize the artifici­
ality of a difference in treatment which serves only 
to call attention to a racial classification of passen­
gers holding identical tickets and using the same pub­
lic dining facility . . . They violate § 3(1 ).



24

Our attention has been directed to nothing which 
removes these racial allocations from the statutory 
condemnation of ‘undue or unreasonable prejudice 
or disadvantage.. . . ’

The carrier argued that the regulation should be sus­
tained on the ground that the allocation of space was fair 
and equitable in view of the lack of demand for dining 
car space by Negro passengers. The Court held, however, 
the regulation constituted a denial of equality required by 
Section 3(1) because of the possibility that Negro passen­
gers might be denied dining car service even though there 
was available space in that portion of the dining car re­
served for white persons.

On this point the Court stated at 825:
It is argued that the limited demand for dining- 

car facilities by Negro passengers justifies the regu­
lations. But it is no answer to the particular pas­
senger who is denied service at an unoccoupied place 
in a dining car that, on the average, persons like him 
are served. As was pointed out in Mitchell v. United 
States, 313 U. S. 80, 97, 81 L. ed. 1201, 1212, 61 S. Ct. 
873, “ the comparative volume of traffic cannot jus­
tify the denial of a fundamental right of equality of 
treatment, a right specifically safeguarded by the 
provisions of the Interstate Commerce Act.” . . .

That the regulations may impose on white pas­
sengers, in proportion to their numbers, disadvan­
tages similar to those imposed on Negro passengers 
is not an answer to the requirements of §3(1). 
Discriminations that operate to the disadvantage of 
two groups are not the less to be condemned because 
their impact is broader than if only one were affected.

The considerations which led Judge Soper to dissent 
from the judgment sustaining the Commission’s second



25

order—see 80 F. Supp. 32, 39—were adopted and ex­
panded by the Supreme Court. Under the Henderson 
formula it is impossible to maintain segregation in rail­
road dining cars, because no regulation requiring segrega­
tion in an area of limited space can avoid the possibility 
that a Negro might be denied service or use of a facility 
when space is available in the section reserved for other 
racial groups.

The reasons which led to a rejection of the car­
rier regulation in Henderson apply with equal force here. 
No Negro or white person may occupy contiguous space 
on the same seat on appellee’s bus under South Carolina 
law. Thus, situations must occur when a seat is available 
beside a white person on the carrier and all the seats are 
filled which, under state law and carrier practice, Negroes 
may properly occupy. A Negro entering the bus must 
stand even though there is available space in the section 
of the bus reserved for white persons. Under the Hender­
son formula this constitutes a denial of equality.

Because of the parallelism between the Supreme Court’s 
approach to the Interstate Commerce Act and its approach 
to the Fourteenth Amendment, it is doubtful that the Court 
would now construe the Fourteenth Amendment as per­
mitting segregation in intrastate commerce under the 
“ separate but equal” doctrine when it would be forbidden 
under Section 3(1) of the Interstate Commerce Act.

Placement of the Henderson case is also of considerable 
importance. It should be noted that while Henderson does 
not prohibit segregation in terms, it does so in effect. It 
should also be remembered that Henderson was de­
cided at the same , time as McLaurin v. Oklahoma State 
Regents and Sweatt v. Painter, supra, which accomplished 
the same result in the field of public education These 
latter cases were followed by the School Segregation Cases 
in which the “ separate but equal” doctrine was expressly



26

repudiated. It is logical to assume that the Court, when 
again faced with this question in the field of transportation, 
will decide the issue squarely and in the same manner as 
in the field of public education. Again, we submit, it is 
highly doubtful that the Court would apply one standard 
to one field with respect to equal protection and due process 

* and another standard here, especially in the light of its 
approach to Section 3(1) of the Interstate Commerce Act.

D. T h is  C o u r t Is N o t B o u n d  to  a  B lin d  A d h e re n c e  
to  P le ssy  v. F e rg u so n  M e re ly  B e c a u se  th e  
S u p re m e  C o u rt H a s  N o t E x p re ss ly  R e je c te d  
I ts  A u th o r i ty  in  I n t r a s ta te  C o m m erce .

The unmistakable trend is away from support for the 
“ separate but equal” doctrine and in the direction of hold­
ing legislative classifications and distinctions based upon 
race violative of the Fourteenth Amendment. In the area 
here involved, as we have already indicated, while the doc­
trine has not been specifically overruled, its rationale is 
not now followed—-and it has been repudiated in other 
fields. This situation bears striking similarity to that 
facing the Southern District of West Virginia in Barnette 
v. State Board, 47 F. Supp. 251 (1942), aff’d, 319 U. S. 
624. There the Court had to decide whether to apply the 
doctrine enunciated in Minnersville School District v. Go- 
hitis, 310 U. S. 586 which was technically controlling, or to 
reject that doctrine in light of subsequent defection from 
the Gobitis doctrine by a majority of the Supreme Court. 
The court felt that judicial responsibility compelled it to 
reject Gobitis and to hold the flag salute requirement uncon­
stitutional under the First Amendment. There it was said 
at pages 252-253:

Ordinarily we would feel constrained to follow 
an unreversed decision of the Supreme Court of the 
United States, whether we agreed with it or not. It 
is true that decisions are but evidences of the law and 
not the law itself; but the decisions of the Supreme



27

Court must be accepted by the lower courts as bind­
ing upon them if any orderly administration of 
justice is to be attained. The developments with 
respect to the Gobitis case, however, are such that 
we do not feel that it is incumbent upon us to accept 
it as binding' authority. Of the seven justices now 
members of the Supreme Court who participated in 
that decision, four have given public expression to 
the view that it is unsound, the present Chief Justice 
in his dissenting opinion rendered therein and three 
other justices in a special dissenting opinion in 
Jones v. City of Opelika, 316 U. S. 584, 62 S. Ct. 
1231, 1251, 86 L. Ed. 1691. The majority of the court 
in Jones v. City of Opelika, moreover, thought it 
worthwhile to distinguish the decision in the Gobitis 
case, instead of relying upon it as supporting author­
ity. Under such circumstances and believing, as we 
do, that the flag salute here required is violative 
of religious liberty when required of persons hold­
ing the religious views of plaintiffs, we feel that we 
would be recreant to our duty as judges, if through 
a blind following of a decision which the Supreme 
Court itself has thus impaired as an authority, we 
should deny protection to rights which we regard as 
among the most sacred of those protected by consti­
tutional guaranties.

The present case is even more compelling because this 
Court has for guidance the School Segregation Cases 
which clearly and concisely define the scope and reach of the 
Fourteenth Amendment with respect to the basic question 
involved—the validity of state enforced racial segregation. 
It is true, of course, that those cases apply to public educa­
tion and the instant case involves intrastate commerce. 
Yet, when decision must be made concerning the validity 
of racial segregation in other areas, it would seem more 
appropriate to follow the School Segregation Cases, than



28

a discredited decision which is now at variance with the 
whole trend of constitutional development.

The possibility of reaffirmation of the Plessy doctrine 
by the Supreme Court in view of the present status of the 
law seems remote indeed, and recognition of this is im­
plicit in this Court’s opinion in the Dawson case. Under 
the circumstances, we urge the rejection of the Plessy 
formula and application of the doctrine applied by the 
Supreme Court in the School Segregation Cases and by this 
Court in the Dawson Case.

CONCLUSION

For the r e a s o n s  h e r e i n a b o v e  stated, it is  respectfully 
submitted t h a t  t h e  judgment o f  t h e  court below should 
be reversed.

P h il ip  W itten b er g ,
306-308 Barringer Building, 

Columbia, South Carolina,

R obert L. C arter ,
T httkgood M a rsh a ll ,

107 West 43rd Street,
New York, New York,

Attorneys for Appellant.