NAACP v. St. Louis-San Francisco RY. Co. Brief for Atlantic Coast Line Railroad Company et al.

    BEFORE TH E

interstate Commerce Commission

NATIONAL ASSOCIATION FOR THE ADVANCEMENT 
OF COLORED PEOPLE, et al.,

Complainants,
v.

ST. LOUIS-SAN FRANCISCO RY. CO., et al.,
Defendants.

Docket No. 31423.

BRIEF FOR
ATLANTIC COAST LINE RAILROAD COMPANY; THE 
ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY 
(and Gulf, Colorado & Sante Fe Railway Company and Pan­
handle & Santa Fe Railway Company); GULF, MOBILE & 
OHIO RAILROAD COMPANY; THE KANSAS CITY SOUTH­
ERN RAILWAY COMPANY; LOUISVILLE & NASHVILLE 
RAILROAD COMPANY; ST. LOUIS-SAN FRANCISCO RAIL­
W A Y  COMPANY; and SOUTHERN RAILWAY COMPANY.

S id n e y  S. A l d e r m a n ,
A .  J . B a u m a n ,
Jos. R . B r o w n ,
W m . E. D a v is ,
A r t h u r  J . D ix o n ,
C h a r l e s  C oo k  H o w e l l , 
R o la n d  J . L e h m a n ,
P r im e  F. O sbo rn , III,
S t a r r  T h o m a s ,
C h a r l e s  F. T u r n e r ,
J o h n  W . W e l d o n ,

Attorneys for Named Railroads.

Due date: October 18, 1954.



I N D E X .

PAGE

The Complaint.................................................................... 2

The Stipulations................................................................ 3

The I ssue ......................................................................... 4

T he H oldings of the Commission-------------------------  4

T he U nited States Supreme Court Cases...........  9

Conclusion ..................................................................... 14

R equest for F indings......................................................  17

Certificate of Service......................................................  19



u

Cases Cited.

page
Boyer v. Garrett, 183 F. 2d 582 (1950)....................  11
Brown v. Board of Education, 347 U. S. 483 (1954) 10,11,

16,17
Chiles v. Chesapeake & Ohio By. Co., 218 U. S. 71 

(1910) .......................................................................  8,11
Councill v. Western and Atlantic R. Co., 1 1. C. R.

638 (1887) ...............................................................  4,5
Dawson v. Baltimore, Civil No. 5847 (D. C. Md.

1954) .........................................................................  11
Georgia Edwards v. Nashville C & St. L. By. Co.,

12 I. C. C. 247 (1907)............................................ 7
Hall v. DeCuir, 95 U. S. 485 (1878)........................  11,12
Heard v. Georgia R. R. Co., 1 1. C. R. 719 (1888)....6,14,17 
Henderson v. United States, 339 U. S. 816 (1950).. 11,13
Isaacs y. Baltimore, Civil No. 6879 (D. C. Md.

1954) .........................................................................  11

Jackson v. Seaboard Air Line R. Co., 269 I. C. C.
399 (1947) ...............................................................  8

Joseph P. Evans v. Chesapeake & Ohio Railway 
Co., 92 I. C. C. 713 (1924)....................................  7

Lonesome v. Maxwell, Civil No. 5965 (D. C. Md.
1954) .........................................................................  11

Mitchell v. United States, 313 U. S. 80 (1941).....11,12,13
Morgan v. Virginia, 328 U. S. 373 (1946)............... 11,13
Plessy v. Ferguson, 163 U. S. 537 (1896).......10,11,15,17
Sweatt v. Painter, 339 U. S. 629, 636 (1950)...........  10,11



Statutes Cited.

PAGE
Federal Constitution:

Article I, Section 8, Clause 3......................... .....2, 8,13
Fifth Amendment................................................ 2
Fourteenth Amendment .............................. 2, 3,10,11
Thirteenth Amendment......................................  10

Interstate Commerce Act................................ 2, 4,9,12,16
Section 3(1) .......................................................  2,13
Section 1(5) .......................................................  3
Section 2 ...............................................................  3

Miscellaneous.

Hearings before Committee on Interstate and For­
eign Commerce on H. R. 563, 1013, 1250, 3890,
7304, 7324, 8088 and 8160, 83rd Congress, 2nd 
Session (1954), pages 6, 7, 8 and 9..........................  9,13



BEFORE TH E

Sntersitate Commerce Commission

National A ssociation for the Advancement of 
Colored P eople, et al.,

Complainants,
v.

St. L otjis-San F rancisco B y. Co., et al.,
Defendants.

Docket No. 31423

BRIEF FOR CERTAIN RAILROADS.

This brief is filed on behalf of the following rail­
roads, each of which has entered into a separate stipu­
lation with the complainants:

Atlantic Coast Line Railroad Company;
The Atchison, Topeka & Santa Fe Railway Com­

pany (and Gulf, Colorado & Santa Fe Railway 
Company, and Panhandle & Santa Fe Railway 
Company) ;

Gulf, Mobile & Ohio Railroad Company;
The Kansas City Southern Railway Company; 
Louisville & Nashville Railroad Company;
St. Louis-San Francisco Railway Company; and 
Southern Railway Company.

The stipulations provide that as to each o f those rail­
roads respectively the case is submitted to the Cominis-



2

sion solely upon the basis of the pleadings and the facts 
stated in the stipulations. It was so agreed at the hear­
ing of July 27,1954 before the Examiner (Tr., pp. 7, 13).

The Complaint.

The complaint is an attempt to have the Commission 
declare that segregation1 of passengers of the white and 
colored races upon interstate passenger trains is in and 
of itself unlawful; and the purpose of the complainants 
is stated in the complaint specifically to be:

“ Further, complainant’s primary purpose and 
concern is in the elimination of segregation and 
discrimination from all segments of American life 
in order that colored minorities may enjoy full 
and complete citizenship rights in the United 
States, its territories and possessions. Among 
these citizenship rights is the free, full and unre­
stricted use of the facilities and accommodations 
available to the public in general operated by 
defendants in and affecting interstate commerce” .

To accomplish that purpose the complainants say that 
they rely upon: (1) Article I, Section 8, Clause 3 of the 
Federal Constitution2; (2) upon the Fifth and Four­
teenth Amendments3; (3) the entire Interstate Commerce 
Act; (4) upon Section 3(1) of the Interstate Commerce

1 What is involved, however, is not an isolation or seclusion o f Negro 
passengers from the general mass of passengers, hut a separation of Negro 
and non-negro passengers in different coaches. I f  a non-negro passenger 
is required to ride in one coach and a Negro passenger is required to ride 
in another, which passenger is “ segregated” !  Obviously neither. 
Similarly, neither passenger is discriminated against. There simply is 
no preference or disadvantage involved.

2 ‘ ‘ The Congress shall have power . . .  To regulate Commerce with 
foreign Nations, and among the several States, and with the Indian 
Tribes” .

3 Apparently, though not stated, upon the due process clause o f the 
Fifth Amendment, and upon the due process and equal protection clauses



3

Act4 5; (5) upon Section 1(5) of the Interstate Commerce 
Act6; and (6) upon Section 2 of the Interstate Com­
merce Act.8

The Stipulations.

With one exception7 the stipulations are of a sort; 
and taking that of Coast Line as typical and representa­
tive, they agree that the case to he decided by the Com­
mission is based upon the following ultimate facts and 
none other:

Each of the railroads sets aside separate coaches or 
portions of coaches in each of its passenger trains for
the exclusive occupancy of Negro passengers and for the 
exclusive occupancy of passengers who are not Negroes; 
no distinction is made as to or in respect of the assign­
ing of Negroes and the assigning of persons of any other 
race or color to separate coaches or portions of coaches. 
In their design, construction, equipment, appointments, 
facilities and other physical characteristics, and in their 
maintenance and upkeep, the coaches or portions of 
coaches so designated, assigned and set aside for occu-

of the Fourteenth Amendment. As to the Fourteenth Amendment, it is 
too plain for citation that it has to do only with action by a State. None 
o f the stipulations (except one paragraph o f the stipulation filed by 
The Kansas City Southern Railway Company) undertakes to rely on state 
law; and Kansas City Southern relies also, as do the other railroads, upon 
public opinion, custom and usage.

4 Making it unlawful for an interstate railroad ‘ ‘ to make, give or cause 
any undue or unreasonable preference or advantage to any particular 
person . . .; or to subject any particular person . . .  to any undue or 
unreasonable prejudice or disadvantage in any respect whatsoever” .

5 Requiring all charges for services rendered in the transportation 
o f passengers to be " ju s t  and reasonable” , and prohibiting and declaring 
unlawful “ any unjust and unreasoable charge for such service” .

6 Prohibiting and declaring to be unlawful, as unjust discrimination,
any device o f any sort whereby an interstate railroad receives ‘ ‘ from any 
person or persons a greater or lesser compensation for any service rendered 
. . . in the transportation o f passengers”  than is required o f other 
persons for whom like and contemporaneous service is furnished.

T The Kansas City Southern relies, as well upon its regulations 
respecting segregation, as upon a Louisiana statute.



4

pancy of Negro passengers are substantially equal to 
those designated, assigned and set aside for occupancy 
by passengers not of the Negro race. Such separation of 
the races on the trains is effected pursuant to a rule, regu­
lation or practice of each railroad which has existed con­
tinuously for more than 50 years8 last past, and pursuant 
to the public opinion, customs and usages of the people 
of the several states through which the railroads run.8a 
The fares charged by the railroads are the same to both 
negro and non-negro passengers.

The Issue.

There is no element of discrimination against Negroes 
involved in the case; and none can be found unless for­
sooth the Commission should agree with the complain­
ants that segregation itself is discrimination. The hold­
ings of the Commission for the last 67 years, and of the 
Supreme Court for the last 58 years, are uniformly to 
the contrary, and if segregation now is to be held to be 
discrimination, those holdings must be overruled.

The Holdings of the Commission.

The first complaint by a colored man that he was done 
a legal wrong, when he was not permitted to ride in a 
railroad coach with white people, came before the Com­
mission in December, 1887, and was filed three months 
after the Interstate Commerce Act became effective Feb­
ruary 4,1887. The case was that of Councill v. Western 
and Atlantic R. Co., 1 1. C. R. 638. The Commission held,

8 In the case o f  The Sante Fe and its named affiliates, 45 years.
8a Southern Railway Company’s Stipulation states that such public 

opinion, customs and usages is evidenced “ by the statutes of the said 
states which require segregation o f the races” .



5

as correctly reflected by the first headnote, that “ There 
is no undue prejudice or unjust preference shown by 
railroad companies in separating their white and colored 
passengers by providing cars for each, if  the cars so pro­
vided are equally safe and comfortable” . In the opin­
ion (Morrison, Commissioner) it is said, at page 641:

“ Public sentiment, wherever the colored popu­
lation is large, sanctions and requires this sepa­
ration of races, and this was recognized by coun­
sel 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 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.”

The importance, indeed the crucial importance, of 
giving attention and respect to the established and pre­
vailing customs and traditions of the people of the sev­
eral states, is further illustrated in that portion of the 
opinion in Councill’s case which had to do with the cus­
tom prevailing in 1887 of providing separate cars for 
men and women ;8b and as to which the opinion continues 
at page 641:

“ It is both the right and the duty of railroad 
companies to make such reasonable regulations as 
will secure order and promote the comfort of their 
passengers. In the exercise of this right and the 
performance of this duty, carriers have established 
rules providing separate cars for ladies, and for 
gentlemen accompanied by ladies; and their right 
to make such rules as to sexes is nowhere ques-

8b Quaere: Who then was ‘ ‘ segregated ”  or “  discriminated against ’  ’— 
the men or the women?



6

tioned. A  man, white or colored, excluded from 
the ladies’ car by such a rule could hardly claim 
successfully under the Act to Regulate Commerce 
that he had been subjected to unjust discrimina­
tion and unreasonable prejudice or disadvantage. 
It is a custom of the railroad companies 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” .

Before CouncilVs case was heard, a colored man 
named Wm. H. Heard filed a complaint against the 
Georgia Railroad alleging discrimination on account of 
his color because he, too, had been required to ride in a 
coach occupied solely by people of his own race. His 
case was decided February 15, 1888, Heard v. Georgia 
R. R. Co., 1 I. C. R. 719. Headnote 2, by Commissioner 
Cooley, accurately states the holding, and reads:

“ Separation of white and colored passengers 
paying the same fare is not unlawful, if cars and 
accommodations equal in all respects are fur­
nished to both, and the same care and protection 
of passengers observed.”

The logic of the holding is emphasized by the follow­
ing statements of the opinion found on page 722:

“ The same section applies the same principles 
to the transportation of property as to persons, 
but no one would seriously insist that the statute 
requires all property of the same kind or all kinds 
of property to be carried in the same car. I f like 
property receives like transportation and at like 
rates, the carrier’s duty in that regard is per­
formed. The number of cars used for the pur­
pose is immaterial.



7

“ Identity, then, in the sense that all must he 
admitted to the same ear and that under no cir­
cumstances separation can be made, is not indis­
pensable to give effect to the statute. Its fair 
meaning is complied with when transportation and 
accommodations equal in all respects and at like 
cost are furnished and the same protection 
enforced” .

It was 19 years before the question came again 
before the Commission, in 1907 when it decided Georgia 
Edwards v. Nashville C & St. L. Ry. Co., 12 I. C. C. 247. 
CouncilVs case and Heard’s are referred to, and Heard 
is said by the opinion to have 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” . The opinion 
adds: ‘ * 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 passenger to ‘ undue and 
unreasonable prejudice and disadvantage’. ” 9

Joseph P. Evans v. Chesapeake <& Ohio Railway Co., 
92 I. C. C. 713 (1924), presented a complaint that because 
Evans, a colored man, had been placed in a colored 
coach, an unreasonable fare thereby had been exacted 
from him, which, by the same token, was unjustly dis­
criminatory and unduly prejudicial; his contention being 
thus stated by the opinion:

“ Complainant asks us to find that defendant, 
in requiring the segregation of passengers accord­
ing to color without complying with the require-

8 The order rendered in that case (p. 250) required the railroads to 
cease and desist from failing to furnish a washbowl, towels and separate 
smoking compartment for colored passengers “ where the same accom­
modations are provided for white passengers paying the same fare” .



8

ments of section 6, has violated the act, and to enter 
an order requiring defendant to cease and desist 
from offering any other accommodations to 
passengers in interstate commerce than those set 
forth in its tariffs on file with us” .

Declining to agree with the proposition, the Commission 
said:

. . A  regulation requiring the segregation 
of passengers according to color does not, if equal 
accommodations are furnished, change, affect, or 
determine any part or the aggregate of the fare 
or the value of the service rendered” . . . .

Specific reliance is placed on Chiles v. Chesapeake & Ohio 
Ry. Co., 218 U. S. 71 (1910), where, as the Commission’s 
opinion states, “ The Court said that the carrier’s regu­
lation requiring the segregation in Kentucky of inter­
state passengers according to color 4 can not be said to be 
unreasonable’. ”

The matter came before the Commission again in 
Jackson v. Seaboard Air Line R. Co., 269 I. C. C. 399, 
decided October 31, 1947.10 Jackson complained of 
inequality of dining car service, which the Commission 
found, upon the facts, did exist. Furthermore, however, 
as in the complaint here, Jackson alleged a violation of 
Article I, Section 8, Clause 3 of the Constitution, and of 
Section 1 of the Fourteenth Amendment. As to that 
charge, the Commission said (Division 2, Commissioners 
Aitchison, Splawn and Alldredge):

“ . . . That allegation opens up a wide field of 
legal questions which the Commission does not 
have authority to decide. Most such questions 
have been considered by the courts, but it is not 
the function of the Commission to attempt to state 
the effect of decisions which do not involve provi-

io JacTeson was represented by the same counsel who represent com­
plainants here.



9

sions of the act we administer. The Commission’s 
attention has not been called to any case in which 
it has been held that segregation of the races in 
and of itself is unlawful. It will suffice to say that 
the Commission has only such jurisdiction as is 
specifically conferred on it by statute and that the 
Interstate Commerce Act does not prohibit segre­
gation or authorize the Commission to do so. The 
question whether complainant was subjected to 
undue prejudice or unjust discrimination forbidden 
by the act is not a question of segregation but is 
one of equality of treatment. Mitchell v. United 
States, 313 U. S. 80. ” n

We take that statement as a definitive holding that the 
Commission will not undertake to examine the complain­
ants’ case any further than to see whether the facts 
stipulated evidence a violation of the Interstate Com­
merce Act. Such an examination will demonstrate that 
there is presented here no violation of the Interstate 
Commerce Act.

The United States Supreme Court Cases.

Complainants’ case not only undertakes to stand in 
the face of those precise and definitive views of the Com­
mission directly opposed to complainants’ theory, but 
without legal regard to the treatment given contentions 
such as theirs by the Supreme Court. The outstanding

n  The Commission took the same position in its letters of September 
28, 1953, January 27, 1954, March 5, 1954 and March 12, 1954, each 
signed by then Chairman J. M. Johnson and by Commissioners Mahaffie 
and Freas, to Honorable Chas. A. Wolverton, Chairman, Committee on 
Interstate and Foreign Commerce o f  the House of Bepresentatives. 
Searings before Committee on Interstate and Foreign Commerce on H. B. 
563, 1013, 1350, 3890, 7304, 7324, 8088 and 8160, 83rd Congress, 2nd 
Session (1954), pages 6, 7, 8 and 9. Each letter stated that in all 
cases o f alleged discrimination on account of segregation in train coaches 
“ the Commission has limited itself to the question whether equal accom­
modations and facilities are provided for members of the two races, adhering 
to the view that the Interstate Commerce Act neither requires nor prohibits 
segregation o f the races. Judicial opinion has supported this restricted 
conception o f our powers in the premises” .



10

case in that Court is of course Plessy v. Ferguson, 163 
U. S. 537 (1896), which held that separate accommoda­
tions for the races in interstate commerce is not obnox­
ious to the Constitution provided the separate accommo­
dations furnished are equal. The precise technical 
holding of the case is that a state statute requiring sepa­
ration of the races in interstate commerce travel hut 
requiring also that each race be furnished with equal 
facilities, is not obnoxious to either the Thirteenth or 
Fourteenth Amendments or any clause of either.

Almost equally well known is the recent school segre­
gation case, Brown v. Board of Education, 347 U. S. 483, 
decided May 17, 1954, which left Plessy v. Ferguson 
standing113 but declined to follow it because, the court 
said, it involved “ not education but transportation” . 
They then proceeded to decide Brown v. Board of Educa­
tion on subjective intangibles and modernistic psycho­
logical theories and opinions, saying that “ any language 
in Plessy v. Ferguson”  to the contrary of the Court’s con­
clusions as to the modern-day view of separation in the 
public schools “ is rejected” .

So far as this Commission is concerned, we would 
suppose that if the complaint here brings any question 
of federal law at all to the Commission, its solution is 
sufficiently stated in Plessy v. Ferguson, particularly, but 
not at all solely, because of the way the Supreme Court 
handled it in Brown v. Board of Education,12 But for 
the convenience of the Commission, and as a matter of

lia The Court was earnestly importuned by the Appellants and Peti­
tioners in the school segregation cases to overrule expressly Plessy V. 
Ferguson. See, e. g., joint Brief filed November 16, 1953 for Appellants on 
reargument in Brown v. Board o f Education, Briggs v. Elliott, Davis v. 
County School Board, Nos. 1, 2 and 3, October Term, 1953, p. 37, passim; 
and Brief filed in those cases for the United States December 3, 1952, p. 
13, passim.

12 In Sweatt v. Painter, 339 U. S. 629, 636 (1950), the Supreme Court 
specifically declined Sweatt’s request that it reexamine Plessy v. Ferguson 
“ in the light of contemporary knowledge respecting the purpose of the



11

completeness as it were, we state briefly the other four 
cases from the Supreme Court generally thought of 
as significant in the consideration of segregation in inter­
state transportation: Chiles v. Chesapeake & Ohio Ry. 
Co., 218 U. S. 71 (1910); Mitchell v. United States, 313 
U. S. 80 (1941); Morgans. Virginia, 328 IT. S. 373 (1946); 
and Henderson v. United States, 339 U. S. 816 (1950).

When the Chiles case was decided, the Congress then, 
as now, had enacted no statute requiring, recognizing or 
relating to segregation of passengers in interstate com­
merce. The Court held that congressional inaction in 
that respect is equivalent to a declaration that a rail­
road may by its regulations separate white and Negro 
interstate passengers. Plessy v. Ferguson of course is 
cited, and approved (as well as Hall v. DeCuir, 95 U. S. 
485 (1878)); and, pointing out that in Plessy v. Ferguson 
a statute of Louisiana was involved, while in Chiles v. 
C <& 0  the regulation of the railroad was at stake, the 
Court said (p. 77) that “ 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” . No question of inequality of 
accommodations was involved in Chiles’ case. He 
simply stood upon the ground he took, as “ an interstate 
passenger who knew his rights” , that “ the separate 
coach law”  did not apply to him. The opinion decides

Fourteenth Amendment and the effects of racial segregation” . And 
the Court o f Appeals for the 4th Circuit (Boyer v. Garrett (1950), 183 
F. 2d 582) refused “ to disregard a decision o f the Supreme Court 
fPlessy v. Ferguson] which that Court has not seen fit to overrule and 
which it expressly refrained from examining, although urged to do so 
in the very recent case of Sweatt v. Painter, 70 S. Ct. 848” .

The United States District Court for the District o f Maryland on July 
27, 1954, in Lonesome v. Maxwell, Civil No. 5965, and the similar cases of 
Dawson v. Baltimore, Civil No. 5847 and Isaacs v. Baltimore, Civil No. 
6879, examined Plessy v. Ferguson in the light o f Brown v. Board of 
Education and held that separation o f the races at city-owned and 
managed public bath houses with equal facilities for each race is con­
stitutionally unobjectionable. Brown v. Board o f  Education, the opinion 
says, did not "destroy  the whole pattern of segregation” .



12

what Chiles’ rights were as an interstate passenger. 
This is made explicit when Justice McKenna quotes from 
the decision in Hall v. DeCuir, supra, and says:

“ This language is pertinent to the case at bar, 
and demonstrates that the contention of the plain­
tiff in error is untenable. In other words, demon­
strates that the interstate commerce clause of the 
Constitution does not constrain the action of car­
riers, but, on the contrary, leaves them to adopt 
rules and regulations for the government of their 
business, free from any interference except by 
Congress. Such rules and regulations, of course, 
must be reasonable, but whether they be such can­
not depend upon a passenger being state or inter­
state.”

Mitchell v. United States, 313 U. S. 80 (1941), was the 
case in which Mitchell, a Negro Congressman, was denied 
a seat in a Pullman when seats for white passengers 
were available, and he was transferred from a Pullman 
which he had occupied for part of his journey to a coach 
whose accommodations and facilities were inferior to 
those in the Pullman from which he was removed. The 
issue, as stated by the Court, arose out of the fact that 
he was required to ride “ in a second class car and was 
thus denied the standard conveniences and privileges 
afforded to first class passengers” . That, the Court of 
course said, was “ manifestly a discrimination against 
him . . . based solely upon the fact that he was a Negro”  
and the question to be determined, the Court continued, 
was whether such treatment “ was a discrimination for­
bidden by the Interstate Commerce A ct” ; and that ques­
tion, the Court went on to say, was “ not a question of 
segregation but one of equality of treatment” . Conse­
quently, the Court’s finding in favor of Mitchell was



13

“ that, the discrimination shown was palpably unjust and
forbidden by the Act” .13

Morgan v. Virginia, 328 U. S. 373 (1946), was the 
consequence of Morgan’s being forced, in obedience to a 
Virginia statute, to move from bis seat in a portion of an 
interstate bus designed only for the seating of white pas­
sengers to a portion of the bus assigned solely for the 
use of Negroes. The case was decided on the ground 
that such treatment was repugnant to Clause 3, Section 
8, Article I of the Federal Constitution as a burden on 
interstate commerce.

Henderson v. United States, 339 U. S. 816 (1950), held 
that Henderson, a colored man, could not be denied a seat 
and service in a dining car when there were seats in the 
car vacant and not in use. The Court finds that “ from 
the beginning”  the Commission bad recognized the 
requirements of the Commerce Clause as applying “ to 
discriminations between white and Negro passengers” ; 
they said that the decision was largely controlled by 
that in Mitchell*s case; that Henderson had been denied 
a seat in the dining car “ although at least one seat was 
vacant and would have been available to him, under the 
existing rules, if he had been white” ; and that he had 
“ a right to be free from unreasonable discriminations 
. . . under Section 3 (1 )” .

is Complainants ’ counsel. Carter, testified before the Committee o f  the 
House on Interstate and Foreign Commerce in support o f H. E. 563, 
et al. (ante, p. 9, footnote 11), and at page 99 o f the transcript o f the 
Hearings before that Committee he is quoted as saying that M itchell’s 
case “ was unquestionably merely an application of the ‘ separate but 
equal’ doctrine and in no way restricted the carrier’s right to effect 
racial segregation as long as Negro passengers were provided equal 
accommodations” . As to Henderson v. United States, 339 U. S. 816, 
he said, at page 99, that its decision “ did not in terms segregate per s e ” .



14

Conclusion.

Those who speak with the highest authority on the 
subject matter of the complaint, namely, this Commis­
sion and the Supreme Court, have written long, clearly 
and definitely on the subject, not merely by ipse dixit, 
but with careful explanation of the reasoning by which 
their results were reached. So, for example, in the Com­
mission’s opinion in Heard v. Georgia R. R. Co., 1 1. C. R. 
719, it is said:

“ The undeniable fact of a difference in color is 
one for which government and law are not respon­
sible. It exists by a fiat transcending human 
knowledge, and has existed through the epochs of 
history. It should he recognized and dealt with 
like other unchangeable facts, justly always, but 
with discretion and reason. When it becomes an 
element in a judicial controversy one color or race 
has no exclusive right to recognition nor ground 
for special favor over the other, hut white and black 
alike are entitled to fair and impartial considera­
tion; and the principle of equality of rights is to 
be applied with even handed justice, but without 
unnecessary extension beyond its legitimate pur­
view. It is not, therefore, with sole regard to the 
wishes or conceptions of ideal justice of colored 
persons, nor only with deference to the prejudices 
or abstract convictions of white persons, that a 
practical adjustment is to be reached, hut with 
enlightened regard to the best interests and har­
monious relations of both, constrained by long 
past events for which none now living are respon­
sible to make their habitations and support them­
selves as best they can under the same govern­
ment.

“ The disposition of a delicate and important 
question of this character, weighted with embar­
rassments arising from antecedent legal and social



15

conditions, should aim at a result most likely to 
conduce to peace and order, and to preserve the 
self respect and dignity of citizenship of a common 
country. And, -while the mandate of the statute 
must be our paramount guide, we may be assisted 
by the knowledge familiar to all of past and pres­
ent circumstances relating to our diverse popula­
tion, and such lights of reason and experience as 
surround the question, in giving effect with the 
least amount of friction to the purposes of the 
law. ’ ’

Similarly, Mr. Justice Brown, wrote for the Court in
Plessy v. Ferguson, 163 U. S. 537, at page 551:

“ We consider the underlying fallacy of the 
plaintiff’s argument to consist in the assumption 
that the enforced separation of the two races 
stamps the colored race with a badge of inferior­
ity. I f this be so, it is not by reason of anything 
found in the act, but solely because the colored 
race chooses to put that construction upon it. The 
argument necessarily assumes that if, as has been 
more than once the case, and is not unlikely to he 
so again, the colored race should become the domi­
nant power in the state legislature, and should 
enact a law in precisely similar terms, it would 
thereby relegate the white race to an inferior posi­
tion. We imagine that the white race, at least, 
would not acquiesce in this assumption. The argu­
ment also assumes that social prejudices may be 
overcome by legislation, and that equal rights can­
not be secured to the negro except by an enforced 
commingling of the two races. We cannot accept 
this proposition. I f the two races are to meet on 
terms of social equality, it must be the result of 
natural affinities, a mutual appreciation of each 
other’s merits and a voluntary consent of individ­
uals. As was said by the court of appeals of New 
York in People v. Gallagher, 93 N. Y. 438, 448 [45



16

Am. Rep. 232], ‘ this end can neither be accom­
plished nor promoted by laws which conflict with 
the general sentiment of the community upon whom 
they are designed to operate. When the govern­
ment, therefore, has secured to each of its citizens 
equal rights before the law and equal opportuni­
ties for improvement and progress, it has accom­
plished the end for which it is organized and 
performed all of the functions respecting social 
advantages with which it is endowed.’ Legisla­
tion is powerless to eradicate racial instincts or 
to abolish distinctions based upon physical differ­
ences, and the attempt to do so can only result in 
accentuating the difficulties of the present situa­
tion. I f the civil and political rights of both races 
be equal, one cannot be inferior to the other 
civilly or politically. I f one race be inferior to the 
other socially, the Constitution of the United 
States cannot put them upon the same plane” .

The decisions of the Supreme Court, and those of 
this Commission, are perfectly clear that the mere 
separation of white and colored passengers, when equal 
accommodations are provided, is not a violation of the 
Interstate Commerce Act nor is it otherwise unlawful. 
Nor are the doctrines of those decisions put aside by 
the Supreme Court’s discussion in Brown v. Board of 
Education. There is no way of relating the status and 
condition of a passenger on a railroad train to that of 
a child going to school. Riding on a train is not, as 
education is, “ perhaps the most important function of 
state and local governments” 14. Passenger transpor­
tation is not required “ in the performance of our most 
basic public responsibilities” , nor can it with any degree 
of verity be said to be “ the very foundation of good

14 All the quotations in this paragraph are found in the opinion in 
Brown v. Board o f Education, 347 IT. S. 483 (1954).



17

citizenship” , or “ a principal instrument in awakening 
the child [or man, or woman] to cultural values, in 
preparing him for later professional training, and in 
helping him to adjust normally to his environment” . 
There is involved in passenger transportation none of 
“ those qualities which are incapable of objective 
measurement but which make for greatness” . There 
is no basis for a conception that the separation on 
passenger trains of colored and non-colored passengers 
generates in the former “ a feeling of inferiority as to 
their status in the community that may affect their 
hearts and minds in a way unlikely ever to he undone” . 
The sociological surveys and psychological studies on 
which is based the Supreme Court’s opinion in Brown 
v. Board of Education, and which that Court itself 
refused to apply to Plessy v. Ferguson, do not suggest 
that this Commission should make such an application, 
nor that Heard v. Georgia R. R. Co., 1 1. C. R. 719 (1888) 
should be repudiated, nor that Plessy v. Ferguson should 
not be followed.

Request for Findings.

The Railroads who file this brief severally request 
that the following findings be made:

1. That the segregation of the races upon interstate 
passenger trains operated by the several and respective 
railroads named herein accord to each race without dis­
tinction substantial equality in accommodations, service 
and treatment;

2. That such segregation is not contrary to any pro­
vision of the Interstate Commerce Act;

3. That the rules, regulations and practices of the 
several railroads, pursuant to which such segregation is



18

effected, are not unduly prejudicial to or unduly dis­
criminatory against any of the complainants; and

4. That the complaint should be dismissed.

Respectfully submitted,

Charles Cook H owell,
J ohn W . W eldon,

Attorneys for Atlantic Coast Line 
Railroad Company.

R oland J. L ehman,
Stare Thomas,

Attorneys for The Atchison, Topeka 
& Santa Fe Railway Company; 
Gulf, Colorado & Santa Fe Rail­
way Company, and Panhandle & 
Santa Fe Railway Company.

Charles F. T urner,
Attorney for Gulf, Mobile and Ohio 

Railroad Company.

Jos. R. Brown,
W m. E. Davis,

Attorneys for The Kansas City 
Southern Railway Company.

Prime F. Osborn, IH,
Attorney for Louisville & Nashville 

Railroad Company.

A. J. Bauman,
Attorney for St. Louis-San Fran­

cisco Railway Company.

Sidney S. A lderman,
A rthur J. Dixon,

Attorneys for Southern Railway 
Company.



19

Certificate of Service.

I hereby certify that this day I have served this 
Brief upon all parties of record in this proceeding, by 
mailing a copy thereof, properly addressed, to counsel 
for each of said parties.

Dated at Wilmington, North Carolina this 14th day 
of October, 1954.

Charles Cook H owell, 
Counsel for Atlantic Coast Line 

Railroad Company.



(W«5)