Walker v. City of Birmingham Motion for leave to File Brief and Brief Amicus Curiae

    BEFORE THE

Ifn te ra ta te  (Qjratsn?rr? C o m m tB B to n

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

Complainants,

v.

S t. L ouis-S an F rancisco Ry . Co., 
et al.,

Defendants.

Docket No. 31423

REPLY OF COMPLAINANTS AND INTERVENORS TO 
EXCEPTIONS FILED BY DEFENDANTS TO THE REPORT 

PROPOSED BY HOWARD HOSMER, EXAMINER

R obert L. Carter,
T hurgood M arshall,

Attorneys for Complainants 
and Intervenors.

Due Date: February 4,1955.

S upreme Printing Co., I nc., 114 W orth Street, N. Y. 13, BE ekman  3 - 2320



TABLE OF CONTENTS

Statement ........................................................................ 1
Argument .................................................................. . 2

The Examiner’s recommendation that the Com­
missioner order these defendants to cease main­
taining segregation in railroad coaches and in 
railway station waiting rooms is well grounded 
in law and reason and should be adopted.......... 2
A. Findings of Fact By the Trier of Fact Must

Be Sustained Unless Clearly Wrong and Not 
Supported by the Evidence .........................  2

B. It Is In the Public Interest That the Issue
Raised Herein Be Squarely Met and Decided, 
and Dilatory Defenses Should Be Disre­
garded As Immaterial.....................................  2

C. There Is No Warrant Either in the Language
or Legislative History of the Interstate Com­
merce Act For Construing Section 3(1) as 
Limited To Only That Kind of Racial Dis­
crimination Involved in a Denial of Equal 
Physical Facilities ........................................... 5

D. The Separate But Equal Doctrine Reap­
praised ..................................................................... 10

E. The Supreme Court Decisions Support the
Recommendations of the Exam iner..................  13

F. Segregation in Coaches and Waiting Rooms 
Is Discrimination Within the Meaning of
3 ( 1 ) ..........................................................................  17

Conclusion............................................................................  18

PAGE



11

Table of Cases

Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28
(1948) .......................................................................... 12

Bolling v. Sharpe, 347 U. S. 497 (1954 ).....................  9,18
Brown v. Board of Education, 347 U. S. 483 .............. 9,11
Buchanan v. Warley, 245 U. S. 60, 85 (1 9 17 ).......... 11
Chance v. Lambeth, 186 F. 2d 879 (CA 4th 1951)

cert, denied 341 U. S. 941 (1951 ).............................  13
Chesapeake & Ohio Ry. v. United States, 11 F. Supp.

588 (S. W. W. Va. 1935), aff’d 296 U. S. 1 8 7 ........ 7
Chiles v. Chesapeake & Ohio Ry. Co., 218 U. S. 71

(1910) ..........................................................................  12,13
Councill v. Western and Atlantic R. R. Co., 1 1. C. C.

638 (1887) ..................................................................  8,9
Cumming v. County Board of Education, 175 U. S.

528 (1899) ..................................................................  11
Edwards v. Nashville C. & St. L. Ry. Co., 12 I. C. C.

247 (1907) ................................................................  9
Evans v. Chesapeake & Ohio Ry. Co., 92 I. C. C.

713 (1924) ................................................................  9
Foister v. Board of Supervisors, Civil Action No.

937 (E. D. La. 1952) unreported............................... 15
Gong Lum v. Rice, 275 U. S. 78 (1 9 27 )........................ 12
Gray v. Board of Trustees of University of Ten­

nessee, 342 U. S. 517 (1952) ...................................  14
Hall v. DeCuir, 95 U. S. 485 (1878) ...........................  13
Heard v. Georgia R. R. Co., 1 I. C. C. 719 (1888) . . .  8, 9
Helvering v. Hallock, 309 U. S. 106 (1940) .............. 8
Henderson v. United States, 339 U. S. 816 (1950).. 10,12,

13,14
Howitt, et al. v. United States, 328 U. S. 189 (1946). 6
Interstate Commerce Commission v. Chicago, Rock 

Island & Pacific Ry. Co., 218 IT. S. 88 (1 9 10 )........  6

PAGE



Ill

Jackson v. Seaboard Airlines Ry. Co., 269 I. C. C.
399 (1947) ....................................................................  9,10

McKissick v. Carmichael, 187 F. 2d 949 (CA 4th
1951), cert, denied 341 U. S. 951 (1951) .............. 14

McLaurin v. Oklahoma State Regents, 339 U. S.
637 (1950) ..................................................................  12

Merchants AVarehouse Co. v. United States, 283
U. S. 501 (1931) ........................................................  6

Missouri ex rel Gaines v. Canada, 305 U. S. 337 (1938) 12
Mitchell v. Board of Regents of University of Mary­

land, Docket No. 16, Folio 126 (Baltimore City
Court 1950) unreported ......................................... 15

Mitchell v. United States, 313 U. S. 80 (1941) 6,12,13,14 
Morgan v. Virginia, 328 U. S. 337 (1946 ).................. 12,13
New York v. United States, 331 U. S. 284 (1947) . . .  6
Payne v. Board of Supervisors, Civil Action No. 894

(E.D. La. 1952) unreported.....................................  14
Plessy v. Ferguson, 163 U. S. 537 (1896) .............. 11
Railroad Co. v. Brown, 17 AVall 445 (1873) .......... 15,16
Shelley v. Kraemer, 334 1, 22 (1948) .....................  17
Sipuel v. Oklahoma, 332 U. S. 631 (1948) .................. 12
Swanson v. University of Virginia, Civil Action No.

30 (AV.D. Va. 1950) unreported .........................  14
Sweatt v. Painter, 339 U. S. 629 (1950) .............. 11,12,17
Unexcelled Chemical Corp. v. United States, 345 U. S.

59 (1953) ....................................................................  6
United States v. Baltimore & Ohio R. R. Co., 333

U. S. 169 (1948) ......................................................... 7
United States v. Congress of Industrial Organiza­

tions, 335 U. S. 106 (1948) .....................................  6
United States v. Universal C. I. T. Credit Corp., 344 

U. S. 218 (1952)

PAGE

6



IV

PAGE
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) ........................................................  13
Wilson v. Board of Supervisors, 92 F. Supp. 986

(E.D. La. 1950), a ff’d 340 U. S. 909 (1951) .......... 14

Other Authorities

Davis, Standing to Challenge and Enforce Adminis­
trative Action, 49 Col. L. Rev. 752, 772-779 (1949) 3

Dollard, Caste and Class In A Southern Town 350 
(1937)............................................................................ 17

Fort, Jr., Who May Maintain Suits to Set Aside 
Orders of the Interstate Commerce Commission, 12
I. C. C. Pract. J. 792 (1945) ...................................  3

Frankfurter, Note On Advisory Opinions, 37 Harv.
L. Rev. 1002 (1924) ................................................. 3

Johnson, Pattern of Negro Segregation 270 (1943) 17
Myrdal, American Dilemma, Vol. 1, p. 635 (1944) 17
Sen. Rep. No. 46, 49 Cong. 1st Sess. (1 8 86 ).............. 8



BEFORE THE

J n t r r H t a t e  ( E m tt m e m  (ftom m tBBum

National, A ssociation for the A d­
vancement of Colored People, 
et al.,

Complainants,

v .

S t . L ouis-S an F rancisco B y . C o., 
et al.,

Defendants.

Docket No. 31423

REPLY OF COMPLAINANTS AND INTERVENORS TO 
EXCEPTIONS FILED BY DEFENDANTS TO THE REPORT 

PROPOSED BY HOWARD HOSMER, EXAMINER

Statement

Six different sets of Exceptions were filed by defendants 
to Mr. Hosmer’s proposed report insofar as it recom­
mended the issuance of appropriate orders by the Commis­
sion barring the segregation of Negro and white passen­
gers on railroad coaches and in railway station waiting- 
rooms, including barring the use of signs and other racial 
designations. These Exceptions range from the jurisdic­
tional objections raised by Texas and Pacific Ry. Co. to 
the argument on the merits made by the Atlantic Coast 
Line R. R. Co. Only the Missouri Pacific R. R. Co. took 
no exceptions to the Examiner’s report.

In our judgment none of defendants’ Exceptions are 
well taken; and all fail to shake the fundamental validity 
of the Examiner’s reasoning and conclusions concerning 
the power of the Commission to bar racial segregation in 
railroad coaches and in railway stations.



2

ARGUMENT

The Examiner’s recommendation that the Commis­
sion order these defendants to cease maintaining seg­
regation in railroad coaches and in railway station 
waiting rooms is well grounded in law and reason and 
should be adopted.

A.

Findings of Fact By the Trier of Fact Must Be Sustained 
Unless Clearly Wrong and Not Supported by the Evidence.

The Illinois Central R. R. Co., the Richmond Terminal 
Railway Co. and the Seaboard Airlines R. R. Co. dispute 
the Examiner’s finding that they have a policy of racial 
segregation. The Illinois Central and the Richmond Ter­
minal contend that they have no such policy, and that the 
loading practices and cards of the Illinois Central and the 
signs of the Richmond Terminal are merely a part of an 
effort to cater to the comfort of Negro passengers since 
Negro passengers prefer segregation. It is an elemental 
rule that when a trier of fact makes a finding of fact, as 
distinguished from a conclusion of law, that on review his 
finding as to the facts must be sustained unless clearly 
wrong and not supported by the evidence. The Exam­
iner’s findings in this cause are not subject to objection 
on either score and we submit, therefore, that the findings 
of the Examiner that these carriers practice segregation 
must be sustained.

B.

It Is In the Public Interest That the Issue Raised Herein 
Be Squarely Met and Decided, and Dilatory Defenses 
Should Be Disregarded As Immaterial.

All the defendants in one form or another seek to limit 
the reach and scope of the complaint. The complaint is 
clearly as broad as the Examiner interpreted it to be. In



3

the complaint, amended complaint and at the prehearing 
conference, it was made clear that all the named defend­
ants were charged by all the complainants with enforcing 
a policy or practice of segregation, and that complaint was 
levelled against all defendants jointly and severally. The 
specific instances referred to were cited as examples of the 
policy and practice about which complaint was being made, 
and was not intended to limit the scope of the overall griev­
ance in any way. It is no secret that complainants are 
here seeking to attack the right of any carrier, subject to 
the Interstate Commerce Act, to enforce a policy or prac­
tice of segregation with respect to railroad facilities, rail­
way stations and restaurants. And, we submit, the scope 
of the complaint was clear to all defendants at the outset 
of these proceedings.

To base a defense here on a concept of the plaintiff’s 
burden of proof in a judicial proceeding is highly unreal­
istic. We submit that we have demonstrated sufficiently 
even for a court of law that all defendants maintain a 
policy and practice of segregation. Even if we had failed 
to do so, this could not have been a safe basis for defend­
ants to contest the Commission’s power to issue the order 
recommended by the Examiner. These are not yet “ adver­
sary”  proceedings. Nor is a proceeding before the Com­
mission a “ case and controversy”  in the strict judicial 
sense. Any member of the public may bring to the Com­
mission’s attention the fact that a violation of the law is 
taking place.1 The Commission is not confined by rules of

1 For an excellent discussion of the differences between a proper 
party in interest before the Commission and in a regular judicial pro­
ceedings, see Fort, Jr., Who May Maintain Suits To Set Aside 
Orders of the Interstate Commerce Commission, 12 I. C. C. Pract. J., 
792 (1945) ; and see generally Davis, Standing To Challenge and 
Enforce Administrative Action, 49 Col. L. Rev. 752, 772-779 (1949), 
and Frankfurter, Note on Advisory Opinions, 37 Harv. L. Rev. 
1002 (1924).



4

evidence like a court of law, but it is able to make its own 
investigation of the issues raised without regard to what 
complainants or defendants may show, and issue such 
orders as it deems appropriate. In view of the Commis­
sion’s unquestioned power in this regard, it is somewhat 
strange that dilatory and technical defenses should be 
raised at this time.

All defendants had the opportunity to produce evidence 
showing what their policies and practices were with respect 
to segregation. If sufficient proof has not been adduced 
already, the Commission has unquestioned power to take 
further evidence, as the Examiner pointed out. Surely, 
Kansas City Southern, as one of those which has entered 
into stipulations concerning its practices in interstate com­
merce, cannot seriously contend that if the Commission 
should adopt the Examiner’s recommendation that it 
should not be bound by such an order. Indeed, the Com­
mission has the authority to issue rules and regulations 
applicable to all carriers subject to its jurisdiction barring 
the maintenance of segregation on railroad facilities and 
in railway stations and restaurants, even though some car­
riers affected may not be parties to a proceeding before it.

As to the Seaboard Air Lines R. R. Co. and the Texas 
and Pacific Ry. Co., we have made out a prima facie case 
showing that they do segregate Negro and white passengers 
in interstate commerce. Neither the Texas and Pacific nor 
the Seaboard Air Lines made any attempt to produce evi­
dence to the contrary either through testimony of their 
own officials or by introduction of their written regulations 
and instructions on the subject. They chose not to do so. 
In any event, if any carrier does not enforce a policy of 
segregation, an order by the Commission requiring it not 
to segregate could certainly do the carrier no injury.

We respectfully submit that the question raised here 
should be settled once and for all so that both carriers and



5

public will know exactly what are their rights and obliga­
tions. For these reasons, we urge that all extraneous 
defenses be disregarded and that the basic issue be decided 
on its merits as to all defendants herein.

C.
There Is No Warrant Either in the Language or Legisla­

tive History of the Interstate Commerce Act For Construing 
Section 3(1) as Limited To Only That Kind of Racial Dis­
crimination Involved in a Denial of Equal Physical Facili­
ties.

1. The basic substantive argument advanced by the 
defendants is contained in the exceptions filed on behalf of 
the Atlantic Coast Line R. R. Co. and the several other 
defendant carriers that entered into stipulations concern­
ing their practices. In essence, their contention is that the 
Examiner’s recommendations that segregation in coaches 
and waiting rooms be outlawed is contrary to judicial and 
administrative holdings; and that adoption of such recom­
mendations would necessitate a modification or extension 
of the scope and reach of the Interstate Commerce Act 
which would constitute an usurpation of Congressional 
authority by the Commission. What defendants are really 
saying is that segregation per se cannot be barred by the 
Commission, and that the Interstate Commerce Act reaches 
only that form of racial discrimination which results from 
a denial of equal facilities under the “ separate but equal’ ’ 
doctrine.

This is a somewhat startling conception of the Commis­
sion’s power, and defendants’ contention has validity only 
if the language of the Act is unmistakably clear in its incor­
poration of the “ separate but equal’ ’ philosophy; or bar­
ring that, if the statutory construction which defendants



6

advance is consistent with the intent of Congress as shown 
by the legislative history of the Interstate Commerce Act.2

2. The pertinent language in Section 3(1) which has 
formed the basis for the Commission’s authority to bar 
racial discrimination and discrimination of any other kind, 
is the prohibition against “ undue or unreasonable prefer­
ence or advantage”  and against “ undue or unreasonable 
prejudice or disadvantage in any respect whatsoever.”  
Not only is “ separate but equal”  not mentioned in Sec­
tion 3(1) and nowhere else in the Act, but discrimination 
is barred in sweeping and all inclusive terms. The courts 
have found this language unambiguous, and as we pointed 
out heretofore in our own Exceptions, this language has 
been interpreted as a broad barrier against discrimination 
of any kind whatsoever. Interstate Commerce Commis­
sion v. Chicago Rock Island & Pacific Ry. Co., 218 U. S. 88 
(1910); Merchants Warehouse Co. v. United States, 283 
U. S. 501 (1931); Mitchell v. United States, 313 U. S. 80 
(1941); Howitt, et al. v. United States, 328 U. S. 189 (1946); 
New York v. United States, 331 U. S. 284 (1947); United

2 Arguments of policy are relevant in construing a statute only 
when there is ambiguity in legislative language which must be 
resolved. Unexcelled Chemical Corp. v. United States, 345 U. S. 
59 (1953). Where the meaning of a statute is not clear on its face, 
the purpose of Congress is a dominant factor in determining the 
statute’s true meaning. See United States v. Congress of Industrial 
Organisations, 335 U. S. 106 (1948); United States v. Universal 
C. I. T. Credit Corp., 344 U. S. 218 (1952). In United States v. 
Universal C. I. T. Credit Corp., supra, Mr. Justice Frankfurter 
speaking for the Court stated at pages 221, 222 that “ we may utilize, 
in construing a statute not unambiguous, all the light relevantly shed 
upon the words and the clause and the statute that express the purpose 
of Congress.”  Moreover, “ (ijnstead of balancing the various gen­
eralized axioms of experience in construing legislation, regard for 
the specific history of the legislative process that culminated in the 
Act * * * affords more solid ground for giving it appropriate mean­
ing.”



7

States v. Baltimore & Ohio R. R. Co., 333 U. S. 169 (1948); 
Chesapeake & Ohio Ry. v. United States, 11 F. Supp. 588 
(S. W. W. Va. 1935), aff’d 296 U. S. 187.

If we look to the language of the Act, therefore, defend­
ants’ arguments necessarily fail. Indeed, from the lan­
guage it is so clear that all lands of discrimination are pro­
hibited that no further inquiry is necessary to support a 
holding that the separation of Negro and white passengers, 
in the use and enjoyment of interstate transportation 
facilities, is included in that discrimination which the Inter­
state Commerce Act was intended to abolish.

3. I f we assume arguendo, however, that the language 
does not settle the proposition, then we must look to the 
reports and debates of Congress to determine how far the 
Congress meant to go in enacting Section 3(1). After such 
an inquiry, it may be categorically stated that there is noth­
ing whatsoever in the Congressional reports or debates on 
the Interstate Commerce Act to warrant a conclusion that 
the Congress was delegating to the Commission power to 
deal with one land of racial discrimination and withholding 
power to deal with another. In fact, the evidence is to the 
contrary. It is clear that Congress was attempting to make 
certain that the railroads would be open and free from any 
and all manner of obstructions which might impede the 
free flow of commerce throughout the United States. To 
assure accomplishment of this purpose, Congress granted 
to the Commission broad power to deal with every kind of 
discrimination which might be devised.

In sum, there is nothing in the reports on the Interstate 
Commerce Act to warrant a conclusion that the Congress 
was incorporating into the Act the “ separate hut equal”  
doctrine. On the contrary, the reports show that Congress 
was delegating broad power to the Commission to assure 
equality in transportation between persons and localities.



8

See Sen. Rep. No. 46, pp. 178, 182, 190, 215, 49 Cong. 1st 
Sess. (1886).

Nor does defendants’ argument concerning Congres­
sional inaction help their cause. Congressional inaction 
after a court or administrative agency has construed a 
statute does not constitute proof that Congress has acqui­
esced in the interpretation given by the court or agency. 
This was settled by the United States Supreme Court in 
Helvering v. Hallock, 309 U. S. 106 (1940), where the Court 
overruled an early line of cases involving construction of 
the federal estate tax statute.

Mr. Justice Frankfurter, speaking for the majority 
declared at pages 119-120:

“ Nor does want of specific congressional repudia­
tions of the St. Louis Union Trust Co. Cases serve as 
an implied instruction by Congress to us not to recon­
sider, in the light of new experience, whether those 
decisions, in conjunction with the Klein Case, make 
for dissonance of doctrine. It would require very per­
suasive circumstances enveloping congressional 
silence to debar this Court from reexamining its own 
doctrines. To explain the cause of nonaction by 
Congress when Congress itself sheds no light is to 
venture into speculative unrealities.”  (emphasis 
added.)

It should be added here that there is no more validity 
for interpreting Congressional silence as consent to prior 
interpretations of Section 3(1) than there was for inter­
preting Congressional silence as endorsement of the Plessy 
v. Ferguson concept of the meaning of the Fourteenth 
Amendment.

Defendants quite properly cite Councill v. Western and 
Atlantic R. R. Co., 1 I. C. C. 638 (1887); Heard v. Georgia



9

R. R. Co., 1 I. C. C. 719 (1888); Edwards v. Nashville C. 
& St. L. Ry. Co., 12 L C. C. 247 (1907); Evans v. Chesa­
peake <& Ohio Ry. Co., 92 I. C. C. 713 (1924); and Jackson 
v. Seaboard Airlines Ry. Co., 269 I. C. C. 399 (1947), as 
supporting their contention that segregation within the 
“ separate but equal”  formula is condoned by the Inter­
state Commerce Act. It should be pointed out, however, 
that these decisions were based merely upon a belief, then 
current, that racial discrimination did not include racial 
segregation.3 New knowledge and understanding of the

3 In Councill v. Western and Atlantic R. R. Co., the Commission 
ruled that the facilities provided by defendant railroad were unequal 
and in violation of Section 3 (1 ). The Commission also held that 
as long as the defendant provided “ equal” facilities it would not be 
compelled to end segregation. In reaching this decision, however, 
the Commission looked neither to the language nor the history of 
the Interstate Commerce Act. Rather, it cited as supporting author­
ity the decisions of state courts upholding a carrier’s right to main­
tain segregated facilities and a decision holding that the maintenance 
of segregated public schools was not unconstitutional. The Com­
mission also noted that public sentiment required the maintenance 
of segregated facilities.

In Heard v. Georgia R. R. Co., the Commission again held that 
Section 3 (1 ) was violated by defendant railroad when it offered 
inferior facilities for Negroes on its coaches. After noting that it 
was proper to apply reason and experience in order to give effect to 
the law while causing a minimum amount of friction, the Com­
mission said that it would not follow that segregation into cars of 
“ equal quality”  would constitute a violation of the Act. Here again 
the Commission did not cite either the history of the Act or the 
intent of the framers as authority for its ruling.

The Commission in Edwards v. Nashville C. & St. L. Ry. Co., 
held that defendants had violated Section 3 (1 ) by providing 
unequal facilities. For the proposition that segregation per se was 
not unlawful, the Commission simply cited the Councill and Heard 
Cases.

Evans v. Chesapeake & Ohio Ry. Co., did not involve an 
interpretation of Section 3 of the Interstate Commerce Act. There 
the Commission rejected a claim that a regulation of defendant rail­
road requiring segregation in transportation facilities had to be filed



1 0

implications of racial segregation certainly form as proper 
a basis for the Commission to reexamine its prior holdings 
as it was for the United States Supreme Court.

We submit, therefore, that the Commission is not com­
pelled to construe Section 3(1) in the restricted fashion 
which defendants urge. Rather the language and legisla­
tive history of the Act supports the adoption of the recom­
mendations proposed in the Examiner’s report, as well 
as those in the Exceptions which we have heretofore filed.

D.

The Separate But Equal Doctrine Reappraised.

The defendants approach the question of the legality 
of segregation as if the School Segregation Cases, 347 U. S. 
483 (1954), were a special departure from the main stream 
of constitutional and legal development on this problem. 
On reexamination it is clear that this is not the case insofar 
as the Supreme Court of the United States is concerned.

Lower federal and state courts have assumed, at least 
since 1896, that the “ separate but equal’ ’ doctrine had been 
approved by the Supreme Court as a doctrine of general

with the Commission to comply with Section 6 of the Act, the tariff 
clause. The Commission held that if equal accommodations were 
furnished, the defendant’s regulation did not change the fare or the 
value of the services rendered.

In Jackson v. Seaboard Airlines Ry. Co., decided before Hender­
son v. United States, 339 U.. S. 816 (1950), the Commission held that 
a carrier’s refusal to give service to a Negro passenger in a dining 
car, because whites were occupying the tables reserved for Negro 
passengers, violated Section 3 (1 ), but that subsequent regulations 
which set aside tables for the exclusive use of Negroes did not con­
travene the Act. The Commission noted that no case holding that 
segregation per se was unlawful had been called to its attention and 
concluded without further citation of authority that the Interstate 
Commerce Act did not prohibit segregation.



11

application. And it is possible that the early decisions of 
the Commission were based upon this erroneous assump­
tion.

The United States Supreme Court, however, has 
never given “ separate but equal”  the general approbation 
and universal application which has been assumed hereto­
fore. On the contrary, the “ separate but equal”  doctrine 
has been utilized by the United States Supreme Court in 
a very restricted fashion. It was adopted as applicable to 
intrastate transportation in 1896 in Plessy v. Ferguson, 
163 U. S. 537. The doctrine was specifically repudiated by 
the Supreme Court in Buchanan v. Warley, 245 U. S. 60, 
85 (1917), as not being applicable to housing. Moreover, 
except for intrastate commerce the doctrine has never been 
applied by the Court in any field whatsoever.

It is true that there is language in several opinions in­
volving public education which assumed that the Court had 
adopted the “ separate but equal”  doctrine as an appro­
priate constitutional standard in the field of public educa­
tion. In Brown v. Board of Education, supra, the Court 
sharply emphasizes the limited and restricted application 
of the “ separate but equal”  doctrine in the decisions of the 
Court. There it said:

“ In the first cases in this Court construing the 
Fourteenth Amendment, decided shortly after its 
adoption, the Court interpreted it as proscribing all 
state-imposed discriminations against the Negro 
race. The doctrine of ‘ separate but equal’ did not 
make its appearance in this Court until 1896 in the 
case of Plessy v. Ferguson, supra, involving not 
education but transportation. American courts have 
since labored with the doctrine for over half a cen­
tury. In this Court, there have been six cases in­
volving the ‘ separate but equal ’ doctrine in the field 
of public education. In Cumming v. County Board



12

of Education, 175 U. S. 528, and Gong Lum v. Rice, 
275 U. S. 78, the validity of the doctrine itself was 
not challenged. In more recent cases, all on the 
graduate school level, inequality was found in that 
specific benefits enjoyed by white students were de­
nied to Negro students of the same educational quali­
fications. Missouri ex rel. Gaines v. Canada, 305 
U. S. 337; Sipuel v. Oklahoma, 332 U. S. 631; Sweatt 
v. Painter, 339 U. S. 629; McLaurin v. Oklahoma 
State Regents, 339 U. S. 637. In none of these cases 
was it necessary to reexamine the doctrine to grant 
relief to the Negro plaintiff. And in Sweatt v. 
Painter, supra, the Court expressly reserved deci­
sion on the question whether Plessy v. Ferguson 
should be held inapplicable to public education.”

In short, the doctrine was never applied in the field of 
public education, and now it has been specifically repudi­
ated. At best the “ separate but equal”  doctrine stands 
unrepudiated by the Supreme Court only in the field of 
intrastate commerce. And even in that area subsequent 
decisions have sapped the doctrine of much of its vitality.4

The doctrine was cited with approval by the Supreme 
Court in Chiles v. Chesapeake <& Ohio Ry. Co., 218 U. S. 71 
(1910), and approbation of the doctrine is implicit in 
Mitchell v. United States, 313 U. S. 80 (1941), but the Court 
has never applied the “ separate but equal”  formula to 
interstate commerce. Henderson v. United States, 339 
U. S. 816 (1950), which outlawed segregation in railroad 
dining cars as violative of the Interstate Commerce Act 
constituted, in fact, a repudiation of the Chiles Case. Apart 
from the Interstate Commerce Act, at present a carrier

4 See particularly, Morgan v. Virginia, 328 U. S. 337 (1946); 
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 (1948) ; Hender­
son v. United States, supra.



13

regulation is invalid as a burden on commerce which 
requires Negro passengers to shift their seats in the course 
of a through journey in order to conform to a carrier 
policy of segregation. Whiteside v. Southern Bus Lines, 
177 F. 2d 949 (CA 6th 1949); and Chance v. Lambeth, 186 
F. 2d 879 (CA 4th 1951), cert, denied 341 U. S. 941 (1951). 
See also Morgan v. Virginia, 328 U. S. 337 (1946).® The 
law is not all of a piece in support of the carrier’s right to 
segregate, and little can be gained at this late date in 
blind adherence to provincial and discredited notions of 
a past era.

E.

The Supreme Court Decisions Support the Recommen­
dations of the Examiner.

Defendants cite in support of their thesis that the Act 
incorporates the “ separate but equal”  doctrine, Chiles v. 
Chesapeake <& Ohio Ry. Co., supra. The Chiles case 
nowhere refers to the Interstate Commerce Act and places 
reliance primarily on Hall v. DeCuir, 95 U. S. 485 (1878), 
a case decided many years before the Interstate Commerce 
Act was enacted. Chiles can be no authority, therefore, as 
to what the Interstate Commerce Act was intended to 
accomplish.

Neither in Mitchell v. United States, supra (upon which 
defendants placed great reliance), nor in Henderson v. 
United States did the United States Supreme Court uphold 
a carrier’s practice of segregation. True, there is language 
in Mitchell which impliedly supports the “ separate but 
equal”  thesis, but the holding required that Mitchell and 
all other Negroes be afforded an equal opportunity to pur- 5

5 See also Williams v. Carolina Coach Co., I l l  F. Supp. 329 
(E. D. Va. 1952), which would seem to invalidate any carrier require­
ment that passengers change their seats pursuant to the carrier’s 
effort to maintain the segregation of the races.



14

chase and occupy available first-class space. This holding 
resulted in the ending of efforts by carriers to segregate 
passengers in its Pullman cars.

The Henderson case is even more revealing. There the 
Court struck down the regulations which would have main­
tained segregation in the railroad dining cars, even though 
Henderson had not been injured or directly affected by the 
regulations in question. The regulations were declared 
invalid because of the possibility that they might result in 
the denial to some Negro passengers of service, when seats 
were available in other parts of the dining car. We stressed 
this phase of the opinion in our brief on the merits. We 
reiterate it here because if this standard is to be applied, 
obviously segregation cannot be maintained by any carrier. 
No regulation, which separates persons because of race, can 
be devised which would also insure against the possibility 
that under all circumstances service will not be denied to 
a Negro passenger, although unused facilities are avail­
able in the section reserved for white persons. This is the 
key to the decision in the Henderson case, and it is error 
to consider it a mere reiteration of what was said in the 
Mitchell case.

The Henderson case, we submit, decided the same time 
as McLaurin and Sweatt, although seemingly within the 
“ separate but equal”  format, has established standards 
which make the maintenance of segregation impossible 
under the Interstate Commerce Act, as McLaurin and 
Sweatt made impossible the maintenance of segregation in 
public graduate and professional schools under the Four­
teenth Amendment. See Wilson v. Board of Supervisors, 
92 F. Supp. 986 (E. D. La. 1950), aff’d 340 U. S. 909 (1951); 
Gray v. Board of Trustees of University of Tennessee, 342 
U. S. 517 (1952); McKissick v. Carmichael, 187 F. 2d 949 
(CA 4th 1951), cert, denied 341 U. S. 951 (1951); Swanson 
v. University of Virginia, Civil Action No. 30 (W. D. Va. 
1950) unreported; Payne v. Board of Supervisors, Civil



15

Action No. 894 (E. D. La. 1952) unreported; Foister v. 
Board of Supervisors, Civil Action No. 937 (E. D. La. 
1952) unreported; Mitchell v. Board of Regents of Uni­
versity of Maryland, Docket No. 16, Folio 126 (Baltimore 
City Court 1950) unreported.

The Commission’s attention is also called to Railroad 
Co. v. Brown, 17 Wall. 445 (1873), which was an interpre­
tation by the United States Supreme Court of a charter 
granted by Congress barring a railroad from discriminat­
ing against passengers. In this decision, contemporaneous 
with the adoption of the Fourteenth Amendment, segre­
gation was struck down as discrimination. The pertinent 
facts are described by the Court as follows at page 451:

“ In the enforcement of this regulation, the de­
fendant in error, a person of color, having entered 
a car appropriated to white ladies, was requested to 
leave it and take a seat in another car used for col­
ored persons. This she refused to do, and this 
refusal resulted in her ejectment by force and with 
insult from the car she had first entered.”

At page 452, the Court characterized the railroad’s defense, 
that its practice of providing separate accommodations for 
Negroes was valid, as an ingenious attempt at evasion.

“ The plaintiff in error contends that it has 
literally obeyed the direction, because it has never 
excluded this class of persons from the cars, but on 
the contrary, has always provided accommodations 
for them.”

“ This is an ingenious attempt to evade a com­
pliance with the obvious meaning of the require­
ment. It is true the words taken literally might 
bear the interpretation put upon them by the plain­
tiff in error, but evidently Congress did not use 
them in any such limited sense. There was no



16

occasion, in legislating for a railroad corporation, 
to annex a condition to a grant of power, that the 
company should allow colored persons to ride in its 
cars. This right had never been refused, nor could 
there have been in the mind of anyone an apprehen­
sion that such a state of things would ever occur, 
for self-interest would clearly induce the carrier— 
South as well as North—to transport, if paid for it, 
all persons whether white or black, who should de­
sire transportation.”

The Court stressed with particularity the fact that the dis­
crimination prohibited was discrimination in the use of 
the cars, at pages 452-453:

“ It was the discrimination in the use of the cars 
on account of color, where slavery obtained, which 
was the subject of discussion at the time, and not 
the fact that the colored race could not ride in the 
cars at all. Congress, in the belief that this discrim­
ination was unjust, acted. It told this company, in 
substance, that it could extend its road in the Dis­
trict as desired, but that this discrimination must 
cease, and the colored and white race, in the use of 
the cars, be placed on an equality. This condition 
it had the right to impose, and in the temper of 
Congress at the time, it is manifest the grant could 
not have been made without it.”

The regulation was struck down in the Brown Case 
because it was felt that discrimination barred by the Con­
gress included racial segregation as well as denial of equal 
facilities. The Supreme Court has once again come to take 
that view of discrimination, and there is little basis for the 
Commission’s holding fast to a moribund doctrine whose 
life span now in any area seems destined to be short lived.



17

F.
Segregation in Coaches and Waiting Rooms Is Dis­

crimination Within the Meaning of 3(1).

Defendants attempt to defend their policy of segrega­
tion on the theory that this is what Negro passengers 
prefer. Rather, they assert that Negro passengers do not 
view these practices as something unwanted—as imposed 
upon them against their will and desire. Defendants’ 
conclusions are contrary to the findings of the most eminent 
social scientists and learned students of the American 
social order. If there is one thing which students of 
American culture are in agreement, it is the fact that segre­
gation in public transportation is bitterly resented by 
Negroes and is considered a badge of inferiority.6

All that is involved in racial segregation—the signs and 
other indicia of race—is maintenance of the myth of a 
superior white and an inferior Negro caste, nothing 
more, nothing less. There is no other reason for these 
practices which result in humiliation and degradation of 
Negro passengers who seek merely to ride on the carrier 
facilities of the nation on the same bases as any other 
citizen. And to defend these practices as catering to the 
desires of the Negro passengers is sheer nonsense.

Segregation does not provide equality for anybody. On 
the contrary it results in the imposition of indiscriminate 
discrimination against both Negro and white passengers. 
To paraphrase the Supreme Court in Shelley v. Kraemer, 
334 U. S. 1, 22 (1948), and Sweatt v. Painter at 635, the 
indiscriminate imposition of inequalities pursuant to the 
enforcement of defendants ’ policies and practices of segre­
gation does not achieve that equality which the Interstate 
Commerce Act seeks to assure.

6 See Myrdal, American Dilemma, Vol. 1, p. 635 (1944); Johnson, 
Pattern of Negro Segregation 270 (1943); Dollard, Caste and Class 
In A Southern Town 350 (1937).



18

In Bolling v. Sharpe, 347 U. S. 497 (1954), the Supreme 
Court said “ [ljiberty under law extends to the full range 
of conduct which the individual is free to pursue and it 
cannot be restricted except for a proper governmental 
objective.”  Segregation in interstate commerce is no more 
proper as a governmental objective than segregation in 
public schools. If the Commission construes Section 3(1) 
as according carriers the right to segregate Negro and 
white passengers, it will amount to the sanctioning of segre­
gation in interstate commerce pursuant to governmental 
authority. As such, this will raise serious doubts concern­
ing the constitutionality of the Interstate Commerce Act 
itself. Clearly such a construction is to be avoided.

Conclusion

For the reasons hereinabove stated, it is respectfully 
submitted that the recommendations of the Examiner that 
segregation in railroad coaches and railway stations be out­
lawed should be adopted. In addition, reason and logic 
call for extension of the proposed barrier against segrega­
tion to include restaurants operated in railway stations for 
the benefit of interstate passengers. Again we respectfully 
urge the Commission to adopt the views contained in our 
Exceptions in this regard.

R obert L. Carter,
T hurgood M arshall,

Attorneys for Complainants 
and Intervenors.

Due Date: February 4, 1955.



19

Certificate of Service

I hereby certify that I have this day served the fore­
going document upon all parties of record in this proceed­
ing by mailing a copy thereof properly addressed to counsel 
for each party of record.

Dated at New York, N. Y., this 3rd day of February, 
1955.

R obert L. Carter.