Walker v. City of Birmingham Motion for leave to File Brief and Brief Amicus Curiae
Public Court Documents
July 31, 1967

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Brief Collection, LDF Court Filings. NAACP v. St. Louis-San Francisco RY. Co. Reply of Complainants and Intervenors to Exceptions, 1955. 769f8946-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/300ae57c-f10c-4851-b4be-e4a0c6d364bc/naacp-v-st-louis-san-francisco-ry-co-reply-of-complainants-and-intervenors-to-exceptions. Accessed July 01, 2025.
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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.