NAACP v. St. Louis-San Francisco RY. Co. Brief for Atlantic Coast Line Railroad Company et al.
Public Court Documents
October 18, 1954

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Brief Collection, LDF Court Filings. NAACP v. St. Louis-San Francisco RY. Co. Brief for Atlantic Coast Line Railroad Company et al., 1954. 939f8946-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5217a6d3-3127-4fed-a2fc-eaf30fd1ea10/naacp-v-st-louis-san-francisco-ry-co-brief-for-atlantic-coast-line-railroad-company-et-al. Accessed August 01, 2025.
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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)