Morgan v. Virginia Briefs and Appendices
Public Court Documents
December 29, 1945
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Brief Collection, LDF Court Filings. Morgan v. Virginia Briefs and Appendices, 1945. b76ef565-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6af9a75c-f66a-43e8-9562-4cf283965831/morgan-v-virginia-briefs-and-appendices. Accessed April 29, 2025.
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IN THE
i>uprrmr (ta rt of thr Hmtrfc ^tatro
October T erm, 1945
No. 704 6r - $
IRENE MORGAN,
vs.
Appellant,
COMMONWEALTH OF VIRGINIA.
V M '" " ” ■■■■■■— I , ..M l — '-l." 1 " " . ' " V . .....................-L— ...■ ILL'.'-itfV
BRIEF FOR APPELLANT
W illiam H . H astie,
L eon A. R ansom,
T hurgood M arshall,
Attorneys for Appellant.
Spottswood W . R obinson, 3rd,
Of Counsel.
.
,
TABLE OF CONTENTS
PAGE
Opinion B elow ______________________________ 1
Jurisdiction _______________________________________ 1
Summary Statement of Matter Involved_____________ 2
1. Statement of the Case__________________ 2
2. Statement of Facts__________________________ 3
3. The Applicable Statute and Its Construction__ 4
Errors Relied Upon_________________________________ 6
I. 6
II. ______________________________________________ 7
Summary of Argument______________________________ 7
Argument
I This Court Has Consistently Asserted That States
Do Not Possess the Authority Which Virginia Now
A sserts__________________________________________ 8
II Regulations Concerning Racial Segregation in Inter
state Commerce Fall Within the Area of Exclusive
National Power as Judicially Defined—..................— 14
A. State Statutes in This Field Are So Numerous
and Diverse That Their Imposition on Interstate
Commerce Would Be an Intolerable Burden_____ 17
B. The Racial Arrangement of Interstate Passen
gers Within a Vehicle in Transit Across a State
Is Not a Matter of Substantial Local Concern.... 26
Conclusion__________________________________________ 28
Appendix A _______________________ _________________ 29
11
Table of Cases.
PAGE
Anderson v. Louisville & N. Ry., 62 Fed. 46 (C. C. Ky.) 12
Bowman v. Chicago & N. W. Ry. Co., 125 U. S. 465 11,15
Brown v. Memphis & C. Ry., 5 Fed. 499 (C. C. Tenn.).... 12
Buck v. Kuykendall, 267 U. S. 307____________________ 15
Carrey v. Spencer, 36 N. Y. Supp. 886________________ 12
Chesapeake & 0. Ry. Co. v. Kentucky, 179 U. S. 388 9
Chesapeake & 0. Ry. Co. v. State, 21 Ky. L. 228, 51
S. W. 160________________________________________ 20
Chicago B. & 0. Ry. Co. v. Railroad Commission of
Wisconsin, 237 U. S. 220_________________________ 15
Chiles v. Chesapeake & Ohio Ry. Co., 218 U. S. 71_____ 9
Chiles v. Chesapeake & Ohio Ry. Co., 125 Ky. 299, 101
S. W. 386________________________________ 20
Cleveland, C. C. & St. L. Ry. Co. v. Illinois, 177 U. S.
514______________________________________________ 11
Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204 11
Crandall v. Nevada, 6 Wall. 35________ _____________ 17
Di Santo v. Pennsylvania, 273 U. S. 34_______________ 16
Edwards v. California, 314 U. S. 160 __ 17
Erie R. R. v. Public Utility Commissioners, 254 U. S.
394 ______________________________________________ 15
Gentry v. McMinnis, 33 Ky. 382______________________ 25
Gibbons v. Ogden, 9 Wheat. 1....._____ 14
Hall v. DeCuir, 95 U. S. 485________ __8, 9,11,12,14, 20, 28
Hanely v. Kansas City Southern Ry. Co., 187 U. S. 617 11
Hare v. Board of Education, 113 N. C. 10, 18 S. E. 55... 26
Hart v. State, 100 Md. 596, 60 Atl. 457_______________ 12,14
Huff v. Norfolk-Southern R. Co., 171 N. C. 203, 88 S. E.
344 ______________________________________________ 12
Illinois Central Ry. v. Redmond, 119 Miss. 765, 81 So.
115 .J.___________________________________________ 12
Kelly v. Washington, 302 U. S. 1____________________ 15
Lee v. New Orleans G. N. Ry., 125 La. 236, 51 S. 182___ 24
Louisville, N. O. & T. Ry. Co. v. Mississippi, 133 U. S.
587 ____________________________ 9
Louisville & N. R. Co, v. Eubank, 184 U. S. 27________ ... 11
I ll
McCabe v. Atcheson, Topeka and Santa Fe Ry. Co., 235
U. S. 151_______________________________- ________ 9
Minnesota Rate Cases, 230 U. S. 352_________________ 11
Missouri v. Kansas Natural Gas Co., 265 U. S. 298____ 11
Moreau v. Grandich, 114 Miss. 560, 75 S. 434------- ------- 24
Morgan’s L. & T. R. R. & Steamship Co. v. Louisiana,
118 U. S. 455____________________________________ 15
Mullins v. Belcher, 142 Ky. 673, 143 S. W. 1151.... .......... 25
Ohio Valley Ry.’s Receiver v. Lander, 104 Ky. 431, 47
S. W. 344 ________________________________________ 20
Pennsylvania v. West Virginia, 262 IT. S. 553_______ 15,16
Plessy v. Ferguson, 163 U. S. 537________________ ___ _ 9
Rhodes v. Iowa, 170 U. S. 412____________________ ___ 11
Smith v. State, 100 Tenn. 494, 46 S. W. 566__________ 12, 21
South Carolina Highway Dept. v. Barnwell Bros., Inc.,
303 U. S. 177____________________________________ 15
South Covington & C. St. Ry. Co. v. Covington, 235
U. S. 537 _____________________________________ 11,15
South Covington & C. St. Ry. Co. v. Commonwealth, 181
Ky. 449, 205 S. W. 603--------------------------------------- 10, 20
South Covington & C. St. Ry. Co. v. Kentucky, 252 U. S.
399 _____________________________________________10,11
South Pacific Co. v. Arizona, 325 U. S. 761.. ....... 11,14
State ex rel. Abbott v. Hicks, 44 L. Ann. 770, 11 So. 74 . 12
State v. Galveston H. & S. A. Ry. Co. (Tex. Civ. App.)
184 S. W. 227_______ 12
Theophanis v. Theophanis, 244 Ky. 689, 57 S. W. (2d)
957 ______________________________________________ 25
Tompkins v. Missouri, K. & T. Ry., 211 Fed. 391 (C. C.
A. 8th) __________________________________________ 12
Tucker v. Blease, 97 S. C. 303, 81 S. E. 668 . ___________ 24
Veazie v. Moor, 14 How. 568____ 14
Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U. S. 557___ 11
Washington, B. & A. Ry. v. Waller, 53 App. D. C. 200,
289 Fed. 598_________________________________
Western Union Tel. Co. v. Pendleton, 122 U. S. 347
PAGE
12
11
IV
Table of Statutes.
PAGE
A In hn rYi o ___
Code, 1923, Sec. 5001_________________________19, 23, 24
Acts, 1927, p. 219________________________________ 24
Statutes, 1940—
Title 1, Sec. 2_________________________________ 23
Title 14, Sec. 360______________________________ 23
Title 48, Secs. 196-197_________________________ 21
Title 48, Sec. 268______________________________ 20
Arkansas—
Statutes 1937 (Pope)—
Secs. 1190-1207 __________________________ 19,22,23
Sec. 3290 _____________________________________ 23
Secs. 6921-6927 _______________________________ 20
Acts, 1943, pp. 379-381____________________________ 20
Florida—
Constitution, Article XVI, Sec. 24------------------------- 23
Statutes, 1941—
Sec. 1.01______________________________________ 23
Secs. 352.07-352.15 _____________________ ___- 19,20
Georgia—
Code, Micliie (1926), Sec. 2177____________________ 25
(1933)—
Secs. 18-206 to 18-210______________________ 19
Secs. 18-9901 to 18-9906 ___________________ 19
Sec. 68-616 _______________________________ 20
Laws, 1927, pp. 272-279___________________________ 23
Supplement 1928, Sec. 2177----------------------------------- 23
Indiana—
Statutes (Burns), 1933—
Secs. 10-901, 10-902 ___________________________ 19
Secs. 44-104 _____________________________ --1 9 ,2 3
Iowa—
Code, 1939, Secs. 13251-13252______________________ 19
Kansas—
General Statutes, 1935, Sec. 21-2424----------------------- 19
V
Kentucky—
Revised Statutes 1942 Sec. 276.440______ __________ 19
Statutes (Carroll) 1930, Sec. 801_________________ 22
PAGE
Louisiana—
Acts, 1910, No. 206________________________
Criminal Code (Dart) 1932, Arts. 1128-1130
General Statutes (Dart) 1939—
Secs. 8130-8132, 8181 to 8189___________
Secs. 5307-5309 ________________________
Maine—
Revised Statutes, 1930, Ch. 134, Secs. 7-10_________ 19
Maryland—
Code (Flack) 1939, Art. 27
Sec. 445 _____________
Secs. 510-516 ________
Secs. 517-520 _________
Art. 27, Sec. 438______
California—
Civil Code (Deering), 1941, Secs. 51-54________ ___ 19
Colorado—
Statutes, 1935, Ch. 3, Secs. 1-10___________________ 19
Connecticut—
General Statutes (Supp. 1933) Sec. 1160b_________ 19
Massachusetts—
Laws (Michie) 1933, Chap. 272, Sec. 98, as amended
1934 __________________________________________ 19
Michigan—
Compiled Laws (Supp. 1933) Secs. 17, 115-146 to
Minnesota—
Statutes (Mason), 1927, Sec. 7321___ 19
Mississippi—
Code, 1942—
Sec. 459 ______________________________________ 23
Sec. 7784 _____________________________________ 19
Sec. 7785 _____________________________________ 20
Sec. 7786 _____________________________________ 19
Constitution, Sec. 263____________________________ 23
21, 23
... 19
. . . 20
..... 25
__ 25
...... 19
..._ 20
VI
PAGE
Missouri—
Revised Statutes 1939, Sec. 4651_________________ 23
Nebraska—
Comp. Statutes, 1929, Ch. 23, Art. 1----------------------- 19
New Hampshire—
Revised Laws, 1942, Ch. 208, Secs. 3-4, 6___________ 19
New Jersey—
Revised Statutes, 1937, Secs. 10:1-1 to 10:1-19_____ 19
New York—
Laws (Thompson) 1937 (1942, 1943, 1944 Supp.),
Ch. 6, Secs. 40-42______________________________ 19
North Carolina—
Constitution, Article XIV, Sec. 8
General Statutes, 1943—
Sec. 14-181 ________________
Sec. 51-3 __________________
Secs. 60-94 to 60-97_________
Secs. 60-135 to 60-137 ..____ .
Sec. 62-109 ________________
Sec. 115-2 _________________
North Dakota—
Revised Code, 1943, Secs. 14-0304 and 14-0305______ 23
Ohio—
Code (Throckmorton) 133, Secs. 12940-12941.......... 19
Oklahoma—
Constitution—
Art. XIII, Sec. 3______________________________ 23
Art. XXIII, Sec. 11____________________________ 23
Statutes, 1931—
Sec. 13-181 _______________________________ 19,23
Sec. 13-187 ________________________________ 22
Sec. 13-189 ________________________________ 22
Sec. 43-12 ____________________________________ 23
Sec. 70-452 ________________________________ 23
Secs. 47-201 to 47-210_________________________ 20
_______ 23
__ __ 23
_______ 23
19, 20, 21, 22
____ ...... 19
_________ 20
_____ 23, 25
Oregon—
Compiled Laws, 1940, Sec. 23-1010__________ ___ 23
Pennsylvania—
Statutes (Purdon)—
Title 18, Sec. 1211 __________________ _ jg
Title 18, Secs. 4653-4655 _________________ L __ 19
Rhode Island—
General Law's, 1938—
Ch. 606, Secs. 27-28________________ _ 19
Ch. 612, Secs. 47-48____________________________ ig
South Carolina—
Code, 1942—
Sec. 8396 _________________________________ 19 20
Sec. 8399 __________________________ 21 22
Secs. 8490-8498 ________________ _ ’ jg
Secs. 8530-8531 _________________ ^
Constitution, Article III, Sec. 33__________________ 23
Tennessee—
Code (Michie) 1938—
Secs. 5518-5520_____________ _ 19
Secs. 5527-5532 _________________ ’ Jg
Sec. 8409 ____________________________ 23
Sec. 8396 ______________________________ 23
Constitution, Article XI, Sec. 14_______________ 23
Texas—
Civil Statute (Vernon) 1936—
Sec. 2900 _____________________________________ 23
Sec. 6417 --------------- 19,20,21,22,23,26
Sec. 4477 _____________________________________ 26
Sec. 4607 _____________________________________ 23
Penal Code (Vernon) 1936—
Sec. 493 ______________________________________ 23
Secs. 1659-1660 ----------------------------------------19,21,22
Sec. 1661.1 __________________________________ 20
Vll
PAGE
PAGE
United States Code, Title 48—
Sec. 344(a) __________________________________ 1
Sec. 861(a) __________________________________ 1
Constitution—
Art. I, Sec. 8_________________________________ 3, 6
Amendment XIV ------------------------------------------- 3
Amendment X ------------------------------------------------ 7
Virginia—
Acts, 1930, Chap. 128_____________________________ 4
Code (Michie) 1942-
Sec. 67 _______________________________________ 23
Sec. 3928 _____________________________________ 26
Secs. 3962-68 ______________________ 18,19,21,22,26
Secs. 3978-83 _____________________________ 18,19
Secs. 4022-26 _______________________________18, 20
Secs. 4097z-dd ______________________________4, 20
Sec. 4097z _________________________ __________ 4,18
Sec. 4097aa __________________________________4,18
Sec. 4097cc ___________ _____________ _______5,18
Sec. 4097dd ____________________________ 2, 3, 5,18
Sec. 5099a __________________________________ 25
Washington—
Rev. Statutes (Remington) 1932, Sec. 2686________ 19
Wisconsin—
Statutes, 1941, Sec. 340.75___ 19
IN THE
Supreme Court of tljr
October T erm, 1945
No. 704
I rene Morgan,
vs.
Appellant,
Commonwealth of V irginia.
BRIEF FOR APPELLANT
Opinion Below
The opinion of the Supreme Court of Appeals of Virginia
appears in the record (R. 56-68) and is reported in 184 Va.
24, 34 S. E. (2d) 491.
Jurisdiction
The Supreme Court of the United States has jurisdic
tion to review this case on appeal under the provisions of
Section 344 (a) and 861 (a) of Title 28 of the United States
Code because the highest court of the State of Virginia
has rendered final judgment in this suit sustaining the
validity of a criminal statute of the State of Virginia after
the validity of the statute had been drawn into question by
the appellant prosecuted thereunder, on the ground of its
being repugnant to the Constitution of the United States.
2
The date of the judgment of the Supreme Court of Ap
peals of Virginia which is now being reviewed was June 6,
1945 (R. 68). Appellant tiled a timely Petition for Rehear
ing (R. 69), and this Petition was denied on September 4,
1945 (R. 69). Application for Appeal was duly presented
on November 19, 1945 and allowed on the same day (R. 72).
Probable jurisdiction was noted by this Court on January
28, 1946 (R. 76).
Summary Statement of Matter Involved
1. Statement of the Case
The appellant was tried in the Circuit Court of the
County of Middlesex, Virginia, upon an amended warrant
charging that on the 16th day of July, 1944, she did “ unlaw
fully refuse and fail to obey the direction of the driver or
operator of the Greyhound Bus Lines to change her seat
and to move to the rear of the bus and occupy a seat pro
vided for her, in violation of Section 5 of the Act, Michie
Code of 1942, Section 4097dd” * (R. 27). She was found
guilty by the trial judge sitting without a jury and on
October 18, 1944, was sentenced to pay a fine of $10.00 (R.
54-55).
In the trial court, appellant duly raised and preserved
by appropriate exceptions her objection that the statute in
question is invalid because it is repugnant to the Constitu
tion of the United States. Specifically by motion to strike
the evidence of the Commonwealth (R. 39, 48), by motion
to set aside the decision and arrest the judgment of guilt
(R. 50-51), and by motion for a new trial (R. 52), appellant
duly asserted her claim that the statute in question could
not be made applicable to this case without violation of
* The statute is set out in full in the record (R. 7-9).
3
Section 8 of Article I of the Constitution of the United
States, and that the conviction of appellant under the cir
cumstances of this case constituted a violation of her rights
under the Fourteenth Amendment of the Constitution of the
United States.
On writ of error to the Supreme Court of Appeals of
Virginia the assignment of errors again set forth appel
lant’s claim that the statute under which she was convicted
could not be applied to her without violating Article I, Sec
tion 8 of the Constitution of the United States (R. 1-2). The
Supreme Court of Appeals of Virginia affirmed the judg
ment of the trial court and in its opinion considered and
adjudicated the issues raised in favor of the validity of the
statute in question as applied to appellant.
2. Statement of Facts
On July 16, 1944, appellant, who is a Negro, was a
passenger on a bus of the Richmond Greyhound Lines, Inc.,
traveling from Hayes Store in Gloucester County, Virginia,
to Baltimore, Maryland (R. 31, 40), on a through ticket pur
chased by her from said company (R. 33, 34, 40). The bus
was traveling on a continuous and through trip from Nor
folk, Virginia, to Baltimore, Maryland, via Washington,
D. C. (R. 32-33). During this journey, at Saluda, Virginia,
the driver of the bus, a regular employee of the bus com
pany in charge and control of the bus, directed appellant
to move from the seat which she was occupying (in front
of the rear seat) to the rear of the bus pursuant to a design
to enforce the segregation of white and colored passengers
in accordance with the requirement of the Virginia segrega
tion law and particularly Section 4097dd of Michie’s Code
of Virginia (R. 31, 32, 40-41). Appellant refused to move,
whereupon the driver procured a warrant and caused her
4
to be arrested upon a charge of violating the above statute.
There is no dispute concerning the above facts.
3. The Applicable Statute and Its Construction
In 1930, the General Assembly of Virginia enacted a
statute described by its title as “ An Act to provide for the
separation of white and colored passengers in passenger
motor vehicle carriers within the State; to constitute the
drivers of said motor vehicles special policemen, with the
same powers given to conductors and motormen of electric
railways by general law.” (Acts of Assembly, 1930, Chap.
128, pages 343-344.)
This statute, now appearing as Sections 4097z to 4097dd
of Michie’s Code of Virginia, 1942, requires all passenger
motor vehicle carriers to separate the white and colored
passengers in their motor busses, and to set apart and desig
nate in each bus seats or portions thereof to be occupied,
respectively, by the races, and constitutes the failure or re
fusal to comply with said provisions a misdemeanor (Sec.
4097z); forbids the making of any difference or discrimina
tion in the quality or convenience of the accommodations so
provided (Sec. 4097aa); confers the right and obligation
upon the driver, operator or other persons in charge of
such vehicle, to change the designation of seats so as to
increase or decrease the amount of space or seats set apart
for either race at any time when the same may be neces
sary or proper for the comfort or convenience of passengers
so to do; foi'bids the occupancy of contiguous seats on the
same bench by white and colored passengers at the same
time; authorizes the driver or other person in charge of the
vehicle to require any passenger to change his or her seat
as it may he necessary or proper, and constitutes the fail
ure or refusal of the driver, operator or other person in
charge of the vehicle to carry out these provisions a mis
demeanor (Sec. 4097dd); constitutes each driver operator
or other person in charge of the vehicle a special police
man, with all of the powers of a conservator of the peace
in the enforcement of the provisions of this statute, the
maintenance of order upon the vehicle and while in pursuit
of persons for disorder upon said vehicle, for violating the
provisions of the act, and until such persons as may be
arrested by him shall have been placed in confinement or
delivered over to the custody of some other conservator of
the peace or police officer, and protects him against the con
sequences of error in judgment as to the passenger’s race,
where he acts in good faith and the passenger has failed to
disclose his or her race (Sec. 4097cc).
Section 4097dd upon which the prosecution in this case
was based, provides that all persons who fail to take seats
assigned to them by the driver or other person assigned to
take up tickets or who fail to obey the directive of the
driver to change seats pursuant to rules and regulations of
the company designed to accomplish the segregation of the
races as required by the statute, having been first advised
of the rule or regulation, shall be guilty of a misdemeanor;
it is also provided that such person may be ejected from
the bus by any driver or other conservator of the peace
without return of fare paid, and neither the driver nor the
bus company shall be liable for damages for such ejection.
The statute is set out in full in Appendix A to this brief.
The Supreme Court of Appeals of Virginia in affirming
the conviction of appellant decided that the statute in ques
tion applied to both interstate and intrastate passengers
(R. 56, 68). The statute involved requires all motor vehicles
to segregate passengers according to race regardless of the
effect upon interstate commerce or hardship to carrier and
passenger.
6
Carriers of passengers are precluded by this statute
from exercising judgment or discretion in seating arrange
ments. The rules and regulations of the carrier involved
were required by the statutes of Virginia. The lower court
in its opinion, expressly stated: “ The statute, when read
in its entirety, clearly demonstrates that no power is dele
gated to the carrier to legislate and determine what conduct
shall be considered a crime. The statute simply describes
conditions which must first be found to exist before it be
comes applicable. There is no uncertainty about the con
ditions that must exist before the offense is complete. The
statute itself condemns the defendant’s conduct as a viola
tion of law and not the rule of the carrier” (R. 67). (Italics
ours.)
In this view of the case it is understandable that the
appellee made no effort to justify the rules and regulations
of the bus company on the basis of reasonableness or ne
cessity other than the requirements of the statutes of Vir
ginia. For all intents and purposes this case stands as if
the rules and regulations adopted pursuant to the statute
became a part of the statute itself.
Errors Relied Upon
I
The Supreme Court of Appeals of Virginia erred in
rendering judgment affirming the judgment of the Circuit
Court of the County of Middlesex, Virginia, holding that
the statute of the State of Virginia, known as Chapter 128,
Acts of Assembly of 1930, pages 343-344, as applied to
appellant, a passenger traveling on an interstate journey
in a vehicle moving in interstate commerce, is not repug
nant to the provisions of Clause 3 of Section 8 of Article I
of the Constitution of the United States.
7
II
The Supreme Court of Appeals of Virginia erred in
rendering judgment affirming the judgment of the Circuit
Court of the County of Middlesex, Virginia, holding that
the powers reserved to the States under the Tenth Amend
ment of the Constitution of the United States include the
power to enforce a state statute compelling the racial segre
gation of passengers on public carriers against a person
traveling on an interstate journey in a vehicle moving in
interstate commerce.
Summary of Argument
For seventy years the decisions and pronouncements of
this Court have consistently condemned state statutes at
tempting to control or require the segregation of Negro
passengers moving in interstate commerce on public car
riers as unconstitutional invasions of an area where na
tional power under the commerce clause is exclusive. Un
less the reasoning of those cases was or is unsound, they
should be followed.
The nature of the subject matter, the direct impact of
segregation statutes on the interstate movement of persons
in commerce, and the burdensome and disruptive effect of
numerous and conflicting local enactments in this field all
indicate the correctness of the doctrine which places this
aspect of interstate commerce beyond state control. The
transitory status of the interstate passenger and the lack
of any uniform or consistent coverage of Negro travelers
in the segregation laws of the several states, including Vir
ginia, show the unsubstantial character of the State’s claim
of legitimate concern with this matter. Such capricious
application of provincial notions beyond substantial local
needs affords no valid basis for the regulation of interstate
commerce which Virginia is attempting.
s
ARGUM ENT
I
This Court Has Consistently Asserted That States
Do Not Possess the Authority Which
Virginia Now Asserts
That a state statute seeking to impose a local policy con
cerning racial segregation upon the interstate transporta
tion of passengers on public carriers contravenes the com
merce clause was clearly and decisively established by this
Court in Hall v. DeCuir.1 The state statute there challenged
was construed as guaranteeing to passengers in interstate
commerce equal rights and privileges in all parts of public
conveyances without discrimination on account of race or
color. This Court concluded that state regulation of this
subject matter was inconsistent with the commerce clause.
Great emphasis was placed upon the burdensome effect of
diverse regulations in states with conflicting notions of
racial policy.
The considerations which determined the invalidity of
the statute in Hall v. DeCuir operate equally to render in
valid legislation which seeks to compel a separation of inter
state passengers upon a racial basis. It was the. very fact
that one state may attempt to segregate interstate passen
gers in some fashion while an adjoining state may prohibit
such segregation which compelled the Court to declare this
entire subject matter beyond the reach of local law.
Analysis of the cases which have brought various aspects
of racial segregation in commerce before this Court since
195 U. S. 485.
9
Hall v. DeCuir reveals consistent recognition and applica
tion of the doctrine of that case. Louisville, N. 0. & T. Ry.
Co. v. Mississippi,2 involved the 1888 statute of Mississippi
which required railroads operating within the state to pro
vide separate but equal accommodations for white and
colored passengers. The Supreme Court of Mississippi had
construed the statute as applying only to intrastate com
merce. This Court discussed and reasserted the principle
of Hall v. DeCuir and made it plain that, had the statute
before it been held applicable to interstate commerce, it
would have been invalid.
The 1890 Louisiana statute, requiring separate but equal
accommodations for the white and colored races on rail
roads, was in question in Plessy v. Ferguson . 3 4 The state
court had limited the operation of the law to intrastate
commerce, and the argument centered around constitutional
provisions other than the commerce clause. The Court dis
cussed Hall v. DeCuir, and pointed out that in the latter
case the vice of the statute was that it affected interstate
commerce, thus indicating that the decision in the Plessy
case would have been different had the statute involved
extended to interstate passengers.
In more recent cases concerning segregation in trans
portation, Chesapeake & 0. Ry. Co. v. Kentucky,* Chiles v.
Chesapeake & Ohio Ry. Co.,5 6 and McCabe v. Atchison,
Topeka and Santa Fe Ry. Co.,6 this Court discussed Hall
v. DeCuir and reaffirmed and restated with approval the
reasoning of that case.
2 133 U. S. 587.
3 163 U. S. 537.
4 179 U. S. 388.
5 218 U. S. 71.
6235 U. S. 151.
In South Covington <& C. St. Ry. Co. v. Kentucky? de
fendant, a Kentucky corporation, had been authorized by
its charter to operate a street railway in and around Coving
ton, Kentucky, and to acquire and operate any other street
railway in that vicinity which included the City of Cincin
nati, Ohio. Defendant became the owner of all of the stock
of another Kentucky corporation, herein designated as the
“ C ” Company, authorized to construct and maintain an
electric railroad between Covington and Erlanger, Ken
tucky, and beyond. Both companies were operated under
the same management and under the “ C” Company’s name.
A fare of five cents was charged for passage upon any point
on the road of the “ C” Company to any point on the system
of the defendant, and transfers were given for all connect
ing lines. Many persons taking passage on the line of the
“ C ” Company in Kentucky were transported without
change of cars into Cincinnati over defendant’s line. Each
terminus, as well as each of the stations, of the “ C” Com
pany, was in Kentucky. Defendant was indicted and con
victed for failure to comply with the Kentucky statute re
quiring separate but equal accommodations for the races,
in a car which operated out of Cincinnati but continued
through and beyond Covington, with its Kentucky run over
the “ C” Company route. The defense was that the prin
cipal business of defendant was interstate in character, and
that the statute could not validly apply to it. However,
the Court of Appeals of Kentucky held that the defendant’s
operation over the line of the “ C” Company was a distinct
enterprise within Kentucky to which Kentucky law applied,
pointing out at the same time that the statute had no appli
cation to the transportation of interstate passengers,7 8 and
on this basis affirmed the conviction. This Court made a
10
7 2=12 IT S ^Q9
8 181 Ky. 449, 205 S. W. 603.
11
similar analysis of the situation and affirmed the judgment.
In the majority opinion it was made plain that the Justices
regarded the subject matter upon which the statute oper
ated as intrastate rather than interstate commerce.0 Mr.
Justice D ay, writing for the three dissenting Justices,
pointed out explicitly that
“ It is admitted that this regulation would not ap
ply to interstate passengers, and colored passengers
going from Kentucky to Cincinnati, or going from
Cincinnati to Kentucky on a through trip would not
be subject to the regulation.” 9 10
Not only has Hall v. DeCuir been approved upon those
occasions where this Court has been faced with state laws
concerning racial segregation of passengers, but the deci
sion has frequently been relied upon arguendo in cases
wherein some analogical application of doctrine seemed ap
propriate with respect to other types of state legislation.11
Most recently, in Southern Pacific Co. v. Arizona,12 decided
June 18, 1945, this Court stated that “ the commerce clause
has been held to invalidate local ‘ police power’ enact
ments— regulating the segregation of colored passengers in
interstate trains, Hall v. DeCuir.”
The decisions of other courts likewise reflect substantial
agreement that state laws of the kind involved in the in
9 252 U. S. at 403, 404.
10 252 U. S. at 407.
11 Missouri v. Kansas Natural Gas Co., 265 U. S. 298, 310; South
Covington & C. St. Ry. Co. v. Covington, 235 U. S. 537, 548; Minne
sota Rate Cases, 230 U. S. 352, 401; Hanley v. Kansas City Southern
Ry. Co., 187 U. S. 617, 620; Louisville & N. R. Co. v. Eubank, 184
U. S. 27, 40; Cleveland, C. C. & St. L. Ry. Co. v. Illinois, 177 U. S.
514, 518; Rhodes v. Iowa, 170 U. S. 412, 424; Covington & C. Bridge
Co. v. Kentucky, 154 U. S. 204, 215 ; Bowman v. Chicago & N. W . R.
Co., 125 U. S. 465, 486; Western Union Tel. Co. v. Pendleton, 122
U. S. 347, 357; Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U. S.
557, 565.
12 325 U. S. 761.
12
stant case cannot constitutionally be applied to passengers
traveling in interstate commerce. This conclusion has been
reached in all of the inferior federal courts which have
considered the matter,13 and in a majority of the state
courts as well.14 Analysis of these cases reveals consistency
in recognition of the basic considerations underlying the
decision in Hall v. DeCuir, that the national interest in the
freedom of interstate commerce from diverse and conflicting
requirements as to rearrangement of passengers must pre
vail over local notions of racial policy.
The rationale of this entire line of decisions is so clearly
spelled out in Hart v. State, that quotation from that opinion
seems appropriate:
“ Although the state has power to adopt reason
able police regulations to secure the safety and com
fort of passengers on interstate trains while within
its borders, it is well settled, as we have seen, that
it can do nothing which will directly burden or im
pede the interstate traffic of the carrier, or impair
the usefulness of its facilities for such traffic. When
the subject is national in its character and admits
and requires uniformity of regulation affecting alike
all the states, the power is in its nature exclusive,
and the state cannot act. The failure of Congress
to act as to matters of national character is, as a rule,
equivalent to a declaration that they shall be free
from regulation or restriction by any statutory en
actment, and it is well settled that interstate com-
13 Washington, B. & A. Ry. v. Waller, 53 App. D. C. 200, 289
Fed. 598; Tompkins v. Missouri, K. & T. Ry., 211 Fed. 391 (C. C.
A. 8th) ; Anderson v. Louisville & N. R. Co., 62 Fed. 46 (C. C. Ky.) ;
Brozvn v. Memphis & C. R. Co., 5 Fed. 499 (C. C. Tenn.).
14 State ex rel. Abbott v. Hicks, 44 La. Ann. 770, 11 So. 74; Hart
v. State, 100 Md. 595, 60 Atl. 457; Carrey v. Spencer, 36 N. Y.
Supp. 886; State v. Galveston H. & S. A. Ry. Co. (Tex. Civ. App.),
184 S. W. 227; Huff v. Norfolk-Southern R. Co., 171 N. C. 203, 88
S. E. 344. Contra: Illinois Central R. Co. v. Redmond, 119 Miss. 765,
81 So. 115; Smith v. State, 100 Tenn. 494, 46 S. W. 566.
13
merce is national in its character. Applying these
general rules to the particular facts in this case, and
bearing in mind the application of the expressions
used in Hall v. DeCuir to cases involving questions
more or less analogous to that before us, we are
forced to the conclusion that this statute cannot be
sustained to the extent of making interstate passen
gers amenable to its provisions. When a passenger
enters a car in New York under a contract with a
carrier to be carried through to the District of Co
lumbia, if when he reaches the Maryland line, he
must leave that car, and go into another, regardless
of the weather, the hour of the day or the night, or
the condition of his health, it certainly would, in
many instances, be a great inconvenience and pos
sible hardship. It might be that he was the only
person of his color on the train, and no other would
get on in the State of Maryland, but he, if the law
is valid against him, must, as soon as he reaches the
state line, leave the car he started in, and go into
another, which must be furnished for him, or sub
ject himself to a criminal punishment. Or take, for
illustration, the Cumberland Yalley Railroad from
Winchester, Va., to Harrisburg, Pa. In Virginia a
law of this kind is in force, while in West Virginia
and Pennsylvania there is none, as far as we are
aware. On a train starting from Winchester the
passengers must be separated according to their
color for six or eight miles, when it reaches the West
Virginia line, then through West Virginia they can
mingle again until they reach the Potomac, when
they would be again separated, and so continue until
they reach Mason and Dixon’s line, when they are
again permitted to occupy cars without regard to
their color. If the railroad company did not deem
it desirable or proper to have separate compartments
throughout the journey—and oftentimes it might be
wholly unnecessary for the comfort of the passengers
on said trains, as there might be very few colored
persons on them—there would be at least three
14
changes in that short distance. We cannot say, there
fore, that, as applied to interstate passengers, such
a law as this would be so free from the objections
pointed out in the cases above mentioned as to be
sustained under the police powers of the states.” 15 16
The Commonwealth of Virginia is now asserting that
the decision in Hall v. DeCuir and the impressive line of
decisions and pronouncements following that case for
seventy years and as recently as June, 1945, were ill con
sidered.
II
Regulations Concerning Racial Segregation in Inter
state Commerce Fall Within the Area of Exclu
sive National Power as Judicially Defined
Underlying Hall v. DeCuir and the cases which follow
it is the conception that the free movement of persons in
interstate commerce may not be obstructed or interfered
with by state legislation predicated upon provincial notions
of social policy. It was the very design and object of the
commerce power “ to prevent unjust and invidious distinc
tions, which local jealousies or local and partial interests
might be disposed to introduce and maintain.” 10 This is
sound doctrine consistent with judicial exposition and
analysis of the commerce power as developed over more
than a century.
From Gibbons v. Ogden17 in 1824 to Southern Pacific
Co. v. Arizona18 in 1945, this Court has made it clear that
15 100 Md. at 612-613, 60 Atl. at 462-3.
16 See Veazie v. Moor, 14 How 568, 574.
17 9 Wheat. 1.
18 325 U. S. 761.
15
an obvious and basic purpose of the commerce clause is to
prevent the interruption or disruption of the actual move
ment of persons and property across state lines by local
obstacles and impediments. Except where the local imposi
tion is a reasonable corrective of a clear and substantial
hazard to the local community created by the interstate
movement itself,19 this Court has consistently disapproved
such local interference.20 The language of the court in
K elly v. W ashington is apposite and reflects a point of view
which characterizes the decisions:
“ In such a matter [insuring the safety of tug
boats] the State may protect its people * * *. If,
however, the State goes further and attempts to im
pose particular standards as to structure, design,
equipment and operation which in the judgment of
its authorities may be desirable but pass beyond
what is plainly essential to safety and seaworthiness,
the State will encounter the principle that such re
quirements, if imposed at all, must be through the
action of Congress which can establish a uniform
rule.” 21
In this connection, it seems important to note that while
this Court on occasion has questioned certain of its own
earlier distinctions between direct and indirect impositions
upon commerce, the fact that exercise of control over inter
19 E. G .: South Carolina Highway Dept. v. Barnwell Bros., Inc.,
303 U. S. 177; Erie R. R. v. Public Utility Commissioners, 254 U. S.
394; Morgan’s L. & T. R. R. & Steamship Co. v. Louisiana, 118
U. S. 455.
20 Buck v. Kuykendall, 267 U. S. 307; Pennsylvania v. West Vir
ginia, 262 U. S. 553; Chicago B. & Q. R. Co. v. Railroad Commis
sion of Wisconsin, 237 U. S. 220; Bozvman v. Chicago & N. W . R.
Co., 125 U. S. 465; South Covington & C. St. Ry. Co. v. Covington,
235 U. S. 537; Wabash St. L. & P. Ry. Co. v. Illinois, 118 U. S. 557.
21 302 U. S. 1.
16
state commerce is the very purpose and object of a ques
tioned state statute and that its enforcement is achieved
by interference with interstate movement itself, militate
strongly against the validity of the statute. This is because
such impact necessarily involves some invasion of the na
tional interest in maintaining the freedom of commerce
across state lines. If this fact alone is not conclusive, it
at least suffices to establish the impropriety of the state
regulation until and unless it is shown that urgent con
siderations of local welfare take a particular case out of
the general rule.22
This aspect of the present case is especially noteworthy.
Not only does the statute require a particular arrangement
or rearrangement of interstate passengers while traveling-
through Virginia, but it accomplishes this result by a crimi
nal sanction, the invocation of which completely interrupts
the interstate movement and brings about the seizure and
incarceration of the person who insists upon the peaceful
and uninterrupted progress of his interstate journey. Thus
the very analysis of the incidence and effect of the statute
reveals so direct and serious an imposition upon interstate
travel as to place upon the State an extremely heavy burden
of justification which it is submitted the State has not met
and cannot meet.
Beyond the foregoing considerations, the free movement
of citizens of the United States throughout the nation is a
22 For such approach and analysis see Pennsylvania v. W est Vir
ginia, 262 U. S. 553, particularly at 596-7. In Di Santo v. Pennsyl
vania, 273 U. S. 34, it is believed that the divergence of majority and
dissenting opinions is essentially whether the at least prima facie case
of invalidity arising from the direct impact of the regulation on inter
state commerce may be rebutted by a showing that there is grave
local need for such regulation.
17
matter of special concern to the national sovereign. The
privileges and immunities clause of the 3 4th amendment
elevates this right of free movement to the dignity of a
constitutional guaranty.23 Where a subject matter is of
such primary national concern, its involvement in a particu
lar local interference with commerce makes it doubly im
perative that national authority over this aspect of com
merce be held exclusive. While the majority opinion in
Edwards v. California did not allude to the constitutional
privilege and immunity of free travel under the Fourteenth
Amendment, it is believed that the incidence of the statute
upon conduct in the area of this privilege is a fundamental
consideration leading to the result reached in that case and
a like result here.
A. State Statutes in This Field Are So Numerous
and Diverse That Their Imposition on Inter
state Commerce Would Be an Intolerable
Burden
The impact of the present statute should properly be
considered in the light of the cumulative effect of similar
statutes in Virginia and elsewhere upon interstate passen
ger travel. The Supreme Court of Appeals of Virginia
properly and correctly pointed out in its opinion in the
present case that not only motor vehicles but other public
carriers and the passengers thereon passing through the
State are affected by similar statutory requirements of
racial segregation:
“ The public policy of the Commonwealth of Vir
ginia, as expressed in the various legislative Acts, is 13
13 Crandall v. Nevada, 6 Wall. 35; cf. concurring opinion in
Edwards v. California, 314 U. S. 160, 177.
18
and has been since 1900 to separate the white and
Negro races on public carriers. As to railroads, see
Acts of 1906, pages 236 and 237, carried in Michie’s
Code of 1942 as secs. 3962-3968; as to steamboats,
see Acts of 1900, page 340, carried in Michie’s Code
1942 as secs. 4022-4025; as to electric or street cars,
see Acts of 1902-03-04, page 990, carried in Michie’s
Code 1942 as secs. 3978-3983, and as to motor vehicles
see Acts of 1930, pages 343 and 344, carried in
Michie’s Code of 1942 as secs. 4097z, 4097aa, 4097bb,
4097cc, and 4097dd.” (R. 60).
It is believed that this Court will take judicial notice of
the fact that the State of Virginia extending from the
Atlantic Ocean to the western mountain barrier of the
Atlantic coastal plain is so located geographically as to
require the entire body of north and south travel along the
populous eastern seaboard to pass through that State. It
is also to be noticed that all persons traveling south and
southwest from the National Capital or traveling to the
Capital from those directions must pass through Virginia.
Thus a very substantial proportion of interstate passenger
travel in America is necessarily affected by the attempted
exercise of local policy which is here challenged.
Moreover, the variety and contrariety of policies and
enactments of the several states with reference to segrega
tion or non-segregation, as well as the variety and uncer
tainty of local rules determining the race of an individual
make it clear that the burden imposed upon and the con
fusion introduced into interstate travel by the enforcement
of multitudinous and uncertain regulations in the course of
a single journey are tremendous.
Legislation affecting these questions is Avidespread and
diverse in language and construction and the subject of
19
frequent change. Eighteen states have adopted so-called
“ Civil Rights Acts” prohibiting segregation on account of
race or color against persons using certain public facil
ities, including public carriers.24 On the other hand, other
states have enacted laws requiring the segregation of races
upon railroad trains,25 street cars,26 motor vehicle car
24 Cal. Civ. Code (Deering), 1941, Sec. 51-54; Colo. Stats., 1935
Ch. 35, Sec. 1-10; Conn. Gen. Stat. (Supp. 1933) Sec. 1160b; 111.
Rev. Stat., 1941, Ch. 38, Sec. 125-128g; Ind. Stat. (Burns), 1933,
Sec. 10-901, 10-902; Iowa Code, 1939, Sec. 13251-13252; Kan. Gen.
Stat., 1935, Sec. 21-2424; Mass. Laws (Michie), 1933, Chap. 272,
Sec. 98, as amended 1934; Mich. Comp. Laws (Supp. 1933), Sec.
17, 115-146 to 147; Minn. Stat. (Mason), 1927, Sec. 7321. Neb.
Comp. Stat., 1929, Ch. 23, Art. 1; N. J. Rev. Stat., 1937, Sec. 10:1-1
to 10:1-9; N. Y. Laws (Thompson), 1937, (1942, 1943, 1944
Supp.), Ch. 6, Sec. 40-42; Ohio Code (Throckmorton), 1933, Sec.
12940-12941 ; Pa. Stat. (Purdon), Tit. 18, Sec. 1211, 4653 to 4655;
R. I. Gen. Laws, 1938, Ch. 606, Sec. 27-28, Ch. 612, Sec. 47-48;
Wash. Rev. Stat. (Remington), 1932, Sec. 2686; Wis. Stat., 1941,
Sec. 340.75. See also Me. Rev. Stat., 1930, Ch. 134, Sec. 7-10;
N. H. Rev. Laws, 1942, Ch. 208, Sec. 3-4, 6.
25 Ala. Code, 1940, Tit. 48, Sec. 196-197; Ark. Stat., 1937
(Pope), Sec. 1190-1201; Fla. Stat., 1941, Sec. 352.03-352-06; Ga.
Code, 1933, Sec. 18-206 to 18-210, 18-9901 to 18-9906; Ky. Rev.
Stat. (Baldwin), 1942, Sec. 276.440; La. Gen. Stat. (Dart), 1939,
Sec. 8130-8132; Md. Code (Flack), 1939, Art. 27, Sec. 510-516;
Miss. Code, 1942, Sec. 7784; N. C. Gen. Stat. 1943, Secs. 60-94 to
60-97; 13 Okla. St. Ann. 181-190; S. C. Code, 1942, Sec. 8396 to
8400-2; Tenn. Code (Michie), 1938, Sec. 5518-5520; Tex. Rev. Civ.
Stat. (Vernon), 1936, Art. 6417; Tex. Pen. Code (Vernon), 1936,
Art. 1659-1660; Va. Code (Michie), 1942, Sec. 3962-3968.
26 Ark. Stat., 1937 (Pope), Sec. 1202-1207; Fla. Stat., 1941, Sec.
352.07-352.15; Ga. Code, 1933, Sec. 18-206 to 18-210, construed to
include street railways; La. Gen. Stat. (Dart), 1939, Sec. 8188-
8189; Miss. Code, 1942, Sec. 7785; N. C. Gen. Stat., 1943, Sec.
60-135 to 60-137; 13 Okla. Stat. 181-190; S. C. Code, 1942, Sec.
8490-8498; Tenn. Code (Michie), 1938, Sec. 5527-5532; Tex. Rev.
Civil Stat. (Vernon), 1936, Art. 6417; Tex. Penal Code (Vernon),
1936, Art. 1659-1660; Va. Code, 1942, Sec. 3978-3983.
20
riers 27 and steamboats.28 If all these laws can validly be
applied to interstate commerce, the very prophesy in Hall
v. DeCuir becomes a realty.
Furthermore, there is no uniformity even as respects
the applicability of the several existing segregation laws to
interstate transportation. Before the Virginia decision in
the instant case, only two states, Tennessee and Missis
sippi, had held that their laws could affect interstate trav
elers; elsewhere they had been construed, in appropriate
cases, as limited in their operation to passengers in intra
state commerce. Assuming a trip from the District of
Columbia to Louisiana through Virginia, Kentucky, Ten
nessee, Alabama, and Mississippi, within the District of
Columbia all passengers have the free run of the vehicle.
But when Virginia is entered, passengers must move to
comply with the statute under consideration. As soon, how
ever, as Kentucky is reached, the interstate passenger
regains his power of choice as to seats.29 When the vehicle
27 Ala. Code, 1940, Tit. 48, Sec. 268; Ark. Stat., 1937 (Pope),
Sec. 6921-6927, Laws 1943, p. 379; Fla. Stat., 1941, Sec. 352.03-
352.08; Ga. Code, 1933, Sec. 68-616; La. Gen. Stat. (Dart), 1939,
Sec. 5307-5309; Miss. Code, 1942, Sec. 7785; N. C. Gen. Stat. 1943,
Sec. 62-109; 47 Okla. Stat. Ann., 201-210; S. C. Code, 1942, Sec.
8530 (1) ; Tex. Rev. Civ. Stat. (Vernon) 1936, Art. 6417; Tex. Pen.
Code (Vernon) 1936, Art. 1661.1; Va. Code, 1942, Sec. 4097z-
4097dd.
28 Md. Code (Flack), 1939, Art. 27, Sec. 517-520; N. C. Gen.
Stat., 1943, Sec. 60-94 to 60-97; S. C. Code, 1942, Sec. 8396; Va.
Code, 1942, Sec. 4022-4026.
29 The Kentucky statutes have consistently been construed as
limited in operation to intrastate passengers. South Covington & C. St.
Ry. Co. v. Commonwealth, 181 Ky. 449, 205 S. W. 603; Chiles v.
Chesapeake & O. Ry. Co., 125 Ky. 299, 101 S. W. 386; Ohio Valley
Ry.’s Receiver v. Lander, 104 Ky. 431, 47 S. W. 344; Chesapeake &
O. Ry. Co. v. State, 21 Ky. L. 228, 51 S. W. 160.
2 1
passes into Tennessee, the interstate passenger is again
segregated.30 31 32 When the vehicle crosses the line into Ala
bama, he is not subject to the segregation statute in
Alabama which expressly excepts from its interdictions
passengers in interstate commerce who started their jour
ney in jurisdictions not having segregation statutes.81 In
Mississippi, segregation is again invoked, but entering into
Louisiana the local segregation statute is once more inap
plicable. The consequence of these numerous shifts, of the
precedent arrangements which must be made to bring them
about, and the administration of the details in accomplish
ing them, cannot be otherwise than burdensome to the
national commerce and those engaged therein. It -is also
to be noted that the mechanics of segregation may differ
greatly among the states requiring it.
There is no uniformity as to the type of transportation
affected by the regulations of the individual states. Vir
ginia and three other jurisdictions except express trains ;82
two except narrow gauge and branch lines;33 34 one excepts
relief trains;84 one excepts excursion trains;35 one permits
special trains for the members of either race where regular
30 The Tennessee statute was construed to apply to interstate pas
sengers in Smith v. State, 100 Tenn. 494, 46 S. W. 566,
31 Ala. Code, 1940, Title 48, Sec. 197.
32 Md. Code (Flack), 1939, Art. 27, Sec. 516; N. C. Gen. Stat.,
1943, Sec. 60-94; S. C. Code (1932) Sec. 8399; Va. Code Ann
(Michie, 1930) Sec. 3968.
3f N. C. Gen. Stat., 1943, Sec. 60-95 (consent of Utilities Com
mission necessary); S. C. Code (1932) Sec. 8399.
34 N. C. Gen. Stat., 1943, Sec. 60-94.
35 Tex. Ann. Rev. Civ. State. (Vernon, 1925) Art. 6417 Tex
Ann. Pen. Code (Vernon, 1925) Art. 1660.
2 2
schedules are not interfered with ;30 * * * * * 36 and Virginia and seven
other states except freight trains and cabooses.37
Unlike the antithetical Civil Rights Acts, segregation
laws require, as a condition to their operation, a division
of peoples upon a basis of race and, as a necessary con
comitant thereof, a means whereby the division may be ac
complished. Dissimilarity in definition of the persons to be
affected by the law produces in turn a geographical dis
similarity in the operation of the several laws to the extent
that carrier and passenger alike are seriously burdened,
confused and embarrassed. An examination of the law
of the states where legislative or judicial efforts in this di
rection have been made reveals that there is much diversity
and conflict in the rules governing the proportion of “ Negro
blood” necessary to classify a person as a “ Negro” or
“ colored person” .38
The terms “ colored person” and “ Negro” have been
variously defined as including all persons in whom there is
30 13 Okla. Stat. Ann. 189.
37 Ark. Stat., 1937 (Pope), Sec. 1201; Ky. Stat. Ann. (Carroll,
1930) Sec. 801; Md. Code (Flack), 1939, Art. 27, Sec. 516; 13 Okla.
Stat. Ann. 187; S. C. Code (1932) Sec. 8399 (applies to freights
with one passenger coach attached for local travel); Tenn. Code
(Michie), 1938, Sec. 5518 (if passenger coach is carried, the races
must be separated) ; Tex. Rev. Civ. Stat. (Vernon, 1936) Art. 6417,
Tex. Pen. Code (Vernon, 1936) Art. 1660; Va. Code Ann. (Michie,
1930) Sec. 3968. In North Carolina the Utilities Commission may
allow certain lines that run mixed trains to disregard the statute
because of the small number of Negro passengers. N. C. Gen. Stat.
1943, Sec. 60-95.
38 Some states have defined the terms by a general statute. Others
have defined them only with respect to particular subjects. In some
states, the definition varies according to the subject under considera
tion, so that a person may be classified as a colored person or Negro
for one purpose and as a white person for another. In states where
no statutory definition has been attempted, the courts are faced with
the difficulty of deciding the query as best they can.
23
ascertainable any quantum of “ Negro blood” whatever,39
or all persons of Negro or African descent,40 or only those
persons who are of “ Negro blood” to the third generation
inclusive,41 or the fourth generation inclusive,42 or who have
one-fourth43 or one-eighth 44 or more “ Negro blood” . The
range is so great that the same person making an inter
state trip may be a Negro or colored person in one state
through which he passes and a white person in another and
consequently may find himself faced with a criminal prose
cution because of a noncompliance with local laws necessi
tating a change of accommodations to conform to his chang
ing legal status.
Moreover, the definitions within the same state are fre
quently conflicting. Aside from those states which have a
39 Ala. Code, 1940, Tit. 1, Sec. 2 and Title 14, Sec. 360; Ark. Stat.
(Pope), 1937, Sec. 3290 (concubinage statute) and Sec. 1200 (sep
arate coach law ); Ga. Laws, 1927, p. 272; Ga. Code (Michie Supp.)
1928, Sec. 2177; N. C. Gen. Stat. 1943, Sec. 115-2 (separate school
law); Tenn. Code (Michie) 1938, Sec. 8396; Va. Code (Michie),
1942, Sec. 67.
40 Okla. Const., Art. XXIII, Sec. 11; Art. XIII, Sec. 3; 43 Okla.
Stat. Ann. 12 (inter-marriage law) ; 70 Okla. Stat. Ann. 452 (sep
arate school law) ; 13 Okla. Stat. Ann. 183 (separate coach law) ;
Tex. Rev. Civ. Stat. (Vernon), 1936, Art. 2900 (separate school
law); Art. 6417 (separate coach law ); Art. 4607 (inter-marriage
law).
41 Md. Code (Flack), 1939, Art. 27, Sec. 445 (intermarriage) ;
N. C. Const., Art. XIV, Sec. 8 (marriage); N. C. Gen. Stat., 1943,
Sec. 51-3 and 14-181 (marriage law); Tenn. Const., Art. XI, Sec!
14 (miscegenation); Tenn. Code (Michie), 1938, Sec. 8409 ’(mis
cegenation); Tex. Pen. Code (Vernon), 1936, Sec. 493 (miscege
nation). b
4“ 1’ la. Const., Art. XVI, Sec. 24 (marriage).
43 Ore. Comp. Laws, 1940, Sec. 23-1010 (intermarriage).
44 Fla. Stats., 1941, Sec. 1.01 (6 ) ; Ind. Stat. (Burns), 1933, Sec.
44-104 (intermarriage); Miss. Const., Sec. 263, Miss. Code, 1942,
Sec. 459 (intermarriage) ; Mo. Rev. Stat. 1939, Sec. 4651 (inter
marriage); N. D. Rev. Code Secs. 14-0304 and 14-0305 (inter
marriage) ; Ore. Comp. Laws, 1940, Sec. 23-1010 (intermarriage) ■
S. C. Const., Art. Ill, Sec. 33 (intermarriage).
24
general statute defining the terms, only three have been
found wherein the legislative definition is specifically ap
plicable to the transportation segregation laws.45 * Assum
ing that the definition in an act covering another field of
activity may be used as a pointer to show the general mean
ing of the terms in that jurisdiction, this course has not
always been followed.40 Besides, in some instances, two
conflicting definitions are to be found in the law of a single
state,47 in each of which instances the applicable criterion
as to transportation segregation is speculative. Since one
carrier may follow one rule, and another carrier the other,
and a third carrier a third rule with equal justification in
the light of the ambiguous character of the law, the harmoni
ous flow of interstate traffic can never be assured.
45 Arkansas, Oklahoma, Texas. See ante, footnotes 39, 40. See
also Lee v. Nezv Orleans G. N. Ry., 125 La. 236, 51 S. 182.
40 Compare Tucker v. Blease, 97 S. C. 303, 81 S. E. 668 with
Moreau v. Grandich, 114 Miss. 560, 75 S. 434.
47 Alabama: The Constitution, Sec. 102, formerly prohibited mar
riages of whites and persons of Negro blood no matter how remote
the strain, while the marriage law (Code, 1923, Sec. 5001) only pro
hibited marriages of whites with persons of Negro blood to the third
generation inclusive. This conflict was not removed until 1927 by
Acts, 1927, p. 219.
Tennessee: Two statutes define the term “ Negro” or “a person
of color” as including every person who has any Negro blood in his
veins (footnote 39) while the constitutional provision and the stat
ute forbidding interracial marriages (footnote 41) only prohibit the
union of whites and persons who have Negro blood to the third
generation inclusive.
Texas: The separate school law, separate coach law, and inter
marriage law all define the terms as including any descendant from
Negro ancestry (footnote 39), but the penal statute punishing mis
cegenation defines the term “ Negro” as including only those persons
who are of Negro blood to the third generation inclusive.
Kentucky: See footnote 48.
Florida: See footnote 48.
25
Furthermore, the definitions are subject to change at
any time and have frequently been changed in the past.48
48Alabama: Prior to 1927, the marriage law forbade marriages
of whites with persons of Negro blood to the third generation in
clusive. Ala. Code, 1923, Sec. 5001. This rule was changed in 1927
(footnote 47, supra) in order to conform the statute to the consti
tutional provision.
Florida: Two statutes define the word “ Negro” in such manner
as to embrace only those who have one-eighth or more Negro blood
(footnote 44), but the constitution (footnote 42) prohibits inter
racial marriages to the “ fourth generation inclusive.”
Georgia: Until 1927, a person was classified as colored only if
he had one-eighth or more Negro blood. Ga. Code (Michie), 1926,
Sec. 2177. In that year the definition was changed to include any
person having any ascertainable portion of Negro blood (see foot
note 39).
Kentucky: This State has no statutory definition. It was early
held that the old Virginia law providing that all persons having one-
fourth or more Negro blood were to be classified as colored persons
has been carried over into Kentucky at the time that State was
carved out of territory belonging to Virginia. Gentry v. McMinnis,
33 Ky. 382. However, in Mullins v. Belcher, 142 Ky. 673, 143 S. W.
1151, it was held that a child having one-sixteenth Negro blood
could not attend a white school, the court holding that any child
having an appreciable amount of Negro blood is colored. Never
theless, it has been decided that a person who looks white, has straight
hair, is of a copper complexion, and has other characteristics of a
white person is not a mulatto within the statute prohibiting the mar
riage of whites and Negroes or mulattos. Theophanis v. Theophanis,
244 Ky. 689, 57 S. W. (2d) 957.
Louisiana: It was first held in this state that all persons, includ
ing Indians, who were not of the white race were “ colored.” Adelle
v. Beaugard, 1 Mart. 183. In 1910, it was held that anyone having
an appreciable portion of Negro blood was a member of the colored
race within the meaning of the segregation law. Lee v. Nezu Orleans
G. N. Ry., 125 La. 236, 51 S. 182, supra footnote 45. In the same year,
however, it was decided that an octoroon was not a member of the
Negro or black race within the meaning of the concubinage law (La.
Act, 1908, No. 87). State v. Treadaway, 126 La. 300, 52 S. 500.
Shortly after the latter decision, the present concubinage statute was
enacted substituting the word “colored” for “ Negro.” La. Acts,
1910, No. 206, La. Crirn. Code (Dart), 1932, Art. 1128-1130. The
effect of the change is yet to be determined.
( Continued on page 26)
2 6
Commerce is thus subjected to additional harassment at
the hands of state legislatures whose every attempt at re
definition produces an increased burden upon passenger
and carrier alike.
Involving, as it did, a statute forbidding segregation,
this additional hazard was not drawn into issue in Hall v.
DeCuir. Legislative definition of the terms in question is
a later and comparatively modern development. However,
the ever-increasing danger to commerce stemming from the
unstable meaning of a vital factor in the general segrega
tion plan adds mightily to the conclusion there reached.
B. The Racial Arrangment of Interstate Passengers
Within a Vehicle in Transit Across a State Is Not
a Matter of Substantial Local Concern
The burden of the statute here upon interstate commerce
as hereinbefore elaborated is to be contrasted with the un
substantial character of the state’s claim of interest in the
subject matter. We are concerned here merely with persons
in transit through a state in a vehicle. Such persons are
in no sense integrated into the local community. Their
mere passage through the state does not menace any legiti
mate local interests. It is to be remembered that the peace
and good order of the passengers does not make the statute
inoperative. There. is no reason to apprehend that the
normal power of the state to enact and enforce criminal
( C o n tin u ed fr o m p a ge 2 5 )
North Carolina: On the issue of what children of mixed blood, if
any, should be permitted to attend white schools, it was held in Hare
v. Board, of Education, 113 N. C. 10, 18 S. E. 55, that the definition
employed in the marriage law would be determinative. This was
changed in 1903 by a statute providing that no child with Negro blood
in his veins should attend a white school. N. C. Pub. Laws, 1903,
Ch. 435, Sec. 22; N. C. Gen. Stats., 1943, Sec. 115-20.
Virginia: Va. Code, 1887, Sec. 49, provided that those who had
one-fourth or more Negro blood were to be considered colored. This
was changed in 1910 (Acts, 1910, p. 581) to read one-sixteenth or
more. It was again changed in 1930 by Acts, 1930, p. 97, to its pres
ent form. See footnote 39. Virginia also has a race registration act.
Va. Code, 1942 (Michie) Sec. 5099a.
27
laws concerning breaches of the peace is inadequate to con
trol the behavior of travelers. Indeed the very tendency of
enforced rearrangement of passengers as they travel from
state to state is to create disorder and dissension.
In this connection it is particularly noteworthy that in
Virginia itself and throughout the southern states where
segregation statutes are in force so many situations are ex
cepted from their operation as to make clear that there is
no pressing need for them.
The Virginia statute requiring segregation in railroad
coaches expressly exempts sleeping cars and chair cars.49
Thus on a single train some Negroes are segregated and
others are not. The Virginia statutes are silent concerning
any racial arrangements on dining cars. The entire field
of transportation by air is free of racial regulation.
Exceptions in other states are even more striking. The
very group of persons now under discussion, those traveling
in interstate commerce, is beyond the reach of state seg
regation laws in most southern states either by specific
statutory exclusion or judicial construction .50 There is no
evidence that domestic order or well being has suffered
thereby.
The exemption of first-class passengers from segrega
tion is of frequent occurrence.51 In Texas those riding on
excursion trains need not be segregated.52 Thus, neither
those occupying the most expensive accommodations nor the
cheapest have required segregation to preserve local tran
quility.
Provincial notions thus capriciously applied cannot be
founded on any basic local need. Their imposition upon
interstate commerce is wholly without justification.
49 Va. Code (Michie), 1942, Sec. 3968.
o0 See notes 13 and 14 supra, p. 12.
m ^ ^ d - Code (Flack) 1939, Art. 27, Sec. 510; N. C. Gen. Stats.
1943, Sec. 60-94; Texas Rev. Civ. Stats. (Vernon, 1936), Art. 6417
4477; Virginia Code (Michie), 3928, 1942.
52 See note 35.
28
C on clu sion
Hall v. DeCuir was decided seventy years ago, and many
of the cases following it are also precedents of past gener
ations. Today, commerce is vastly increased. It has far
greater need than ever before for freedom from obstacles
bred of provincialism. Moreover, Hall v. DeCuir was de
cided when the Civil War and the racial antagonisms
attendant to it were fresh in the minds and emotions of
men. Even then this Court was quite sure that the nation
to the exclusion of the states, must have control of this
aspect of interstate travel. Today we are just emerging
from a war in which all of the people of the United States
were joined in a death struggle against the apostles of
racism. We have already recognized by solemn subscrip
tion to the Charter of the United Nations, particularly
Articles One and Fifty Five thereof, our duty, along with
our neighbors, to eschew racism in our national life and to
promote “ universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction
as to race, sex, language, or religion. ’ ’ How much clearer,
therefore, must it be today, than it was in 1877, that the
national business of interstate commerce is not to be dis
figured by disruptive local practices bred of racial notions
alien to our national ideals, and to the solemn undertakings
of the community of civilized nations as well.
It is respectfully submitted that the judgment
appealed from should be reversed.
W illiam H. H astie,
Leon A. R ansom,
T htjbgood M arshall,
Attorneys for Appellant.
Spottswood W . R obinson, 3rd,
Of Counsel.
29
APPENDIX A
Michie— Virginia Code
4097z. S egregation of W hite and Colored Passengers.—
All passenger motor vehicle carriers, operating under the
provisions of chapter one hundred and sixty-one (a) of the
Code of Virginia, shall separate the white and colored pas
sengers in their motor busses and set apart and designate in
each bus or other vehicle, a portion thereof, or certain seats
therein, to be occupied by white passengers, and a portion
thereof or certain seats therein, to be occupied by colored
passengers, and such company or corporation, person or
persons that shall fail, refuse or neglect to comply with the
provisions of this section shall be guilty of a misdemeanor,
and upon indictment and conviction, shall be fined not less
than fifty dollars nor more than two hundred and fifty dol
lars for each offense. (1930, p. 343.)
4097aa. D iscrimination P rohibited.—
The said companies, corporations or persons so operat
ing motor vehicle carriers shall make no difference or dis
crimination in the quality or convenience of the accommoda
tions provided for the two races under the provision of the
preceding section. (1930, p. 343.)
4097bb. Driver M ay Change D esignation of S eats.—
The driver, operator or other person in charge of any
motor vehicle above mentioned, shall have the right, and he
is hereby directed and required at any time when it may be
necessary or proper for the comfort and convenience of
passengers so to do, to change the designation so as to in
crease or decrease the amount of space or seats set apart
for either race; but no contiguous seats on the same bench
30
shall be occupied by white and colored passengers at the
same time; and said driver, operator or other person in
charge of the vehicle, may require any passenger to change
his or her seat as it may be necessary or proper; the driver,
operator or other person in charge of said vehicle who shall
fail or refuse to carry out the provisions of this section shall
be deemed guilty of a misdemeanor, and upon conviction
thereof shall be fined not less than five dollars nor more
than twenty-five dollars for each offense. (1930, p. 343.)
4097cc. Drivers are Special P olicemen W ith P owers
of Conservators of the Peace.—
Each driver, operator or person in charge of any vehicle,
in the employment of any company operating the same,
while actively engaged in the operation of said vehicle, shall
be a special policeman and have all of the powers of con
servators of the peace in the enforcement of the provisions
of this act, and in the discharge of his duty as special police
man, in the enforcement of order upon said vehicles; and
such driver, operator or person in charge of said vehicle
shall likewise have the powers of conservators of the peace
and of special policemen while in pursuit of persons for dis
order upon said vehicles, for violating the provisions of
this act, and until such persons as may be arrested by him
shall have been placed in confinement or delivered over to
the custody of some other conservator of the peace or police
officer; and, acting in good faith, he shall be for the pur
poses of this chapter, the judge of the race of each pas
senger whenever such passenger has failed to disclose his
or her race. (1930, p. 344.)
31
4097dd. V iolation by P assengers; M isdemeanor;
E jection.—
All persons who fail while on any motor vehicle carrier,
to take and occupy the seat or seats or other space assigned
to them by the driver, operator or other person in charge
of such vehicle, or by the person whose duty it is to take up
tickets or collect fares from passengers therein, or who fail
to obey the directions of any such driver, operator or other
person in charge, as aforesaid, to change their seats from
time to time as occasions require, pursuant to any lawful
rule, regulation or custom in force by such lines as to as
signing separate seats or other space to white and colored
persons, respectively, having been first advised of the fact
of such regulation and requested to conform thereto, shall
be deemed guilty of a misdemeanor, and upon conviction
thereof shall be fined not less than five dollars nor more
than twenty-five dollars for each offense. Furthermore,
such persons may be ejected from such vehicle by any
driver, operator or person in charge of said vehicle, or
by any police officer or other conservator of the peace; and
in case such persons ejected shall have paid their fares upon
said vehicle, they shall not be entitled to the return of any
part of same. For the refusal of any such passenger to
abide by the request of the person in charge of said vehicle
as aforesaid, and his consequent ejection from said vehicle,
neither the driver, operator, person in charge, owner, man
ager nor bus company operating said vehicle shall be liable
for damages in any court. (1930, p. 344.)
212 [5038]
L a w y e r s P ress, I n c ., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300
■
I n T he
(Emirt of tht Irntpfr
October T erm, 1945
No. 704
I rene M organ
Appellant
vs.
Commonwealth op V irginia
A ppeal from the S upreme Court of A ppeals of V irginia
REPLY BRIEF OF APPELLANT
W illiam H. H astie
L eon A. R ansom
T hurgood M arshall
Attorneys for Appellant
Spottswood W . R obinson, II I
Of Counsel
Printed by Law Reporter Ptg. Co., B18 6th St., Washington, D. C.
TABLE OF CONTENTS
PAGE
Authority for F iling_____ ____________________ __.... 1
Argument _________________________________________ 1
I. The “ Police Power” Argument of Appellee Is
Predicated Upon an Erroneous Analysis of the
Present Problem______________________________ 1
A. The Involvement of Highway Travel Has No
Special Significance H ere__________________ 4
II. The Challenge of Appellant’s Right to Contest
the Constitutionality of the Statute Under Which
She Was Convicted Is Groundless_____________ 6
III. The Commonwealth Is Mistaken in Implying
National Intent to Leave the Matter in Question
to State Control _____________________________ 8
Conclusion _______________________________________ 9
TABLE OF CASES
Anderson v. Louisville & N. Ry., 62 F. 46 (C. C. K y.)__ 7
Baldwin v. Seelig, Inc., 294 U. S. 511________________ 4
Bowman v. Chicago & Northwestern Ry., 125 U- S. 465 7, 8
Bradley v. Public Utilities Comm., 289 U. S. 92-____ 5
Buchanan v. Warley, 245 U. S. 60 ___________________ 8
Buck v. Kuvkendall, 267 U. S. 307 _ _ _ 5
Bush Co. v. Maloy, 267 U. S. 317_____________________ 5
Caminetti v. United States, 242 U. S. 470____________ 7
Carrey v. Spencer, 36 N. Y. Supp. 886_______________ 7
Crandall v. Nevada, 6 Wall. 35______________________ 7
Continental Baking Co. v. Woodring, 286 U. S. 352 ...... 5
Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204- 7
Edwards v. California, 314 U. S. 160 _ 7
Hart v. State, 100 Md. 595, 60 Atl. 457_______________ 7
Hendrick v. Maryland, 235 U. S. 610_________________ 6
Hicklin v. Coney, 290 U. S. 169______________________ 5
Hirabavashi v. United States, 320 U. S. 8 1 __________ 9
Ingels v. Morf, 300 U. S. 290________ _______________ 6
Interstate Transit v. Lindsey, 283 U. S. 183 .... ........ 6
Kane v. New Jersey, 242 U. S. 160___________________ 6
Leisy v. Hardin, 135 U. S. 100_______________________
McCable v. Atchison, T. & S. F. Ry., 186 F. 966 (C.
C. A. 8th) _______________________________________
Michigan Public Utilities v. Duke, 266 U. S. 570______
Morf v. Bingaman, 298 U. S. 407____________________
Nebbia v. New York, 291 U. S. 502 ____________ ..._____
Nippert v. City of Richmond, Sup. Ct. No. 72, October
Term, 1945 ______________________________________
Pierce v. Society of Sisters, 268 U. S. 510____________
Powell v. Pennsylvania, 127 U. S. 678_______________
Public Utilities Comm. v. Attleboro Steam & Electric
Co., 273 U. S. 83____________ _____________________
Savage v. Jones, 225 U. S. 501_______________________
Shafer v. Farmers Grain Co., 268 U. S. 189__________
Schollenberger v. Pennsylvania, 171 U. S. 1 __________
Southern Pacific Co. v. Arizona, 325 U. S. 761________
Sprout v. South Bend, 277 U. S. 163__________________
State v. Jenkins, 124 Md. 376, 92 Atl. 773 ___ _________
Truax v. Raich, 239 U. S. 3 3 _____________ 1,_________
Twining v. New Jersey, 211 U. S. 78 _________________
United States v. Hill, 248 U. S. 420___________________
Washington, B. & A. Electric Ry. v. Waller, 53 App.
D. C. 200, 289 F. 598_______________________________
Williams v. Fears, 179 U. S. 270 _____________________
PAGE
4, 7
7,
7
7
STATUTES
Civil Rights Act, 18 Stat. 335________________________ 9
Federal Fugitive Felon Act, 48 Stat. 782____________ 7
O
i
0
5
<
1
I n T he
ûprmT Qkwrt of tij? 3lntteb States
October T erm, 1945
No. 704
Irene M organ
Appellant
vs.
Commonwealth of V irginia
A ppeal from the Supreme Court of A ppeals of V irginia
REPLY BRIEF OF APPELLANT
AUTHORITY FOR FILING
Pursuant to the privilege granted by paragraph 5 of Rule
27 of this Court, appellant, before the call of this case for
argument, files this Reply Brief addressed to arguments
advanced in the Brief of Appellee.
ARGUMENT
I
The “Police Power” Argument of Appellee Is Predicated
Upon an Erroneous Analysis of the Present Problem
Relying upon cases which have permitted states to im
pose racial segregation of passengers in intrastate com
merce, the Commonwealth has argued in Point III of its
brief that the questioned statute of Virginia is a “ reason
able, proper and valid exercise of the police power.” In so
9
arguing the Commonwealth has failed to recognize the
essential difference between the considerations involved in
determining whether a permissible regulation or classifi
cation has been made under the equal protection clause of
the 14th Amendment in a matter of merely local significance
and the considerations involved when a state is charged
with invading the exclusive jurisdiction of the nation under
the commerce clause. These two situations present distinct
problems and invoke different criteria of judgment. In one
case the question is whether government may impose the
regulation at all. In the other the inquiry is whether the
state must leave the matter for national determination.
In deciding what a state may do under the 14th Amend
ment in a situation of only local significance, this Court
recognizes that its function is narrowly limited. Judicial
judgment as to the utility or wisdom of the state’s action
is not involved. The state’s action may appear provincial,
ill considered or even hurtful to the community, yet be sus
tained. The national courts intervene only to supply the
minimum corrective necessary to secure the individual
against the injurious effect of regulations, classifications or
procedures which, even from the local view, must seem
arbitrary, outrageous and grossly unfair to all reasonable
persons. Beyond this the 14tli Amendment does not restrict
the vagaries of local government in the areas where regu
lation, if permitted at all, must be by the state.
The judicial function is vastly different where the state
is charged with invading an area of exclusive national juris
diction under the negative implications of the commerce
clause. If, as in the instant case, a state lays hands upon
commerce moving among the states, it has entered a field
of primary national concern. The dominance of the nation
in this area is clear.1 Congress may act to the exclusion of
1 “ The principle that, without controlling Congressional action, a state
may not regulate interstate commerce so as substantially to affect its flow
or deprive it of needed uniformity in its regulation is not to be avoided
by ‘simply invoking the convenient apologetics of the police power.’ ”
Southern Pacific Co. v. Arizona, 325 U. S. 761, 65 Sup. Ct. 1515, 1525.
3
the states and, without action by Congress, the power of the
several states is drastically limited by the negative implica
tions of the commerce clause. The state has no such free
dom to act in accord with local notions as is permitted under
the 14th Amendment. Thus in the circumstances of any
given case this Court is called upon to determine whether,
in the light of the dominant national interest in free com
merce, local interference is to be tolerated. In this process
the Court cannot escape an independent evaluation of the
purpose, significance and utility of the state regulation. In
no other way can it be decided whether interstate commerce
may reasonably be required to bear the burden which the
state seeks to impose upon it. If it appears to the Court that
no significant protection of legitimate and important local
interests is to be achieved by the regulation, then clearly
there is no justification for the imposition upon interstate
commerce. It is only when the Court finds that the px-ob-
able protection to the local community is so substantial in
relation to the burden imposed upon commerce as to make
that imposition unobjectionable, that the local regulation of
a field of national interest and authority may be permitted.
In brief, the determination of “ reasonableness” under
the 14th Amendment involves only the protection of the
individual against the most clearly arbitrary and intoler
able action of government. But, in cases arising under the
commerce clause, judgment must be exercised and state
impositions evaluated in the light of the relative functions
of state and nation in an area where admittedly the nation
is dominant.
This basic distinction between the considerations involved
in the application of the 14th Amendment to matters of only
local significance and in the application of the commerce
clause to preclude the states from infringing national juris
diction has repeatedly been recognized by this Court.2 Its
In Public Utilities Comm. v. Attleboro Steam & Electric Co., 273 U. S.
83, a state regulation of interstate power rates was invalidated despite
a clear showing that the rate was reasonable and that substantial local
interests would be jeopardized by a lower rate. Cf. Shafer v. Farmers
4
most striking exemplification occurs where in successive
cases a single statute is approved as a local regulation con
sistent with the 14th Amendment, but disapproved under
the commerce clause when applied to importations from
other states. Such was the history in this Court of both the
New York milk control law and the Pennsylvania statute
prohibiting the sale of oleomargarine.3
If the foregoing analysis is correct, the “ police power”
argument of the Commonwealth is beside the point. The
considerations developed in Point II of appellant’s brief are
decisive in placing regulations concerning racial segrega
tion in interstate commerce within the area of exclusive
national power.
A. The Involvement of Highway Travel Has No Special
Significance Here
The Commonwealth has sought to strengthen its “police
power” argument by the contention that the pronounce
ments of this Court seem to recognize a greater authority of
the state over vehicles moving upon its highways than over
railway trains.
It is true that this Court has recognized certain legitimate
concerns of the state with highways which do not extend
to railways. Thus the preservation and maintenance of
highways built by the state is a matter of state concern to
a greater degree than is the preservation and maintenance
of privately owned railways. Similarly, there are special
problems of safety characteristic of highway travel by a
Grain Co., 268 U. S. 189. As recently as Nippert v. City of Richmond,
No. 72, October Term, 1945, decided February 25, 1946, this Court pointed
out that the question of reasonableness in the due process or “juris
dictional” sense—there the fairness of a tax of only local factors should
be considered—differs from the question to be decided when there are
“other considerations of constitutional policy having reference to the
substantial effects, actual and potential, of the particular tax in suppress
ing or burdening unduly the commerce.” See also Leisy v. Hardin, 135
U. S. 100, 121-124.
“ With Baldwin v. Seelig, Inc., 294 U. S. 511, contrast Nebbia v. New
York, 291 U. S. 502, and with Schollenberger v. Pennsylvania, 171 U. S.
1, contrast Powell v. Pennsylvania, 127 U. S. 678.
5
miscellany of vehicles which do not arise in connection with
trains whose movement is restricted to fixed rails and is
usually controlled by a single operating agency. In these
matters, peculiar to highway travel, this Court has from
time to time concluded that regulations obviously appro
priate to the protection of the state’s special interests may
he imposed even though a burden upon interstate commerce
may result. But with reference to a subject matter, here the
racial segregation of passengers, as to which the highest
court of the state has said in this very case 4 that a policy of
segregation is not peculiar to highway travel hut applicable
equally to travel by public carriers moving on railways,
waterways or elsewhere, no special significance is attribut
able to the fact that a particular case arises out of highway
travel.
Cases involving the relation of the commerce clause to
various local regulations affecting highway travel show
that the foregoing analysis is consistent with the adjudica
tions of this Court.
Thus, while the state’s interest in minimizing dangerous
congestion peculiar to highway travel may justify its refusal
to permit a motor vehicle carrier to operate over a particular
state highway already overburdened with traffic,5 * the au
thority of the state is exceeded by a similar denial predi
cated not upon safety factors peculiar to highways, but
rather upon its notions of the adequacy of service.® Likewise,
while the state’s interest in minimizing local loss from all
too frequent highway collisions may sustain a statute re
quiring an interstate motor carrier to carry insurance or
furnish bond to indemnify persons damaged as a result of
its operations on state highways,7 its legitimate interests
are exceeded by a statute which requires the carrier to
4 See Record page 60.
“ Bradley v. Public Utilities Commission of Ohio, 289 U. S. 92.
“ Buck v. Kuykendall, 267 U. S. 307; Bush Company v. Maloy, 267
U. S. 317.
Hieklin v. Coney, 290 U. S. 169; Continental Baking Co. v. Woodring,
286 U. S. 352.
6
afford indemnity to the interstate shipper.8 Similarly, state
laws imposing fees upon those using its highways for pur
poses of interstate commerce with a view to raising funds
to defray the cost of maintenance, supervision and compen
sation for their use, are an appropriate exercise of state
power,9 but those exacting fees in excess of the amount
necessary for such purposes go beyond the special local in
terest in maintenance and are invalid.10 *
In brief, the fact that commerce moves over state high
ways rather than on railways or elsewhere becomes impor
tant only where the interest which particular legislation
seeks to subserve is peculiar to highways. No such con
sideration is involved where the issue is the power of the
state to impose upon interstate commerce a fixed policy with
respect to passenger seating, applicable alike to public
carriers by rail, water or highway.
II
The Challenge to Appellant’s Right to Contest the Consti
tutionality of the Statute Under Which She Was Con
victed Is Groundless
The position of the Commonwealth that appellant is with
out sufficient interest to assert the unconstitutionality of
the statute is predicated upon the erroneous view that she
is asserting a right of the carrier. But appellant’s position
is that the statute burdens the commerce in which she was
engaged, and of which she was a part, and was applied in
such manner as to injure her. Appellant champions no
interests other than her own, although in this case, as in
others, judicial inquiry into the burden upon commerce
goes beyond the impact of the questioned regulation upon
the litigants.
8 Michigan Public Utilities Commission v. Duke, 266 U. S. 570.
9 Hendrick v. Maryland, 235 U. S. 610; Kane v. New Jerseys, 242 U. S.
160; Morf v. Bingaman, 298 U. S. 407.
10 Sprout v. South Bend, 277 U. S. 163; Interstate Transit v. Lindsey,
283 U. S. 183; Ingels v. Morf, 300 U. S. 290.
7
In raising the invalidity of the law appellant is not offi
cious or an intermeddler. At the time the statute was en
forced against her, appellant was making an interstate jour
ney and in so doing was exercising her privilege to move
freely from one state to another. Whether her right so to
do has its source in the commerce clause, the 14th Amend
ment or the inherent character of Federal citizenship, its
existence is freely conceded.11 By the enforcement of the
law her trip was interrupted and under it she was prose
cuted. Unless she is afforded protection at the hands of
this Court, she will be penalized in accordance with its
provisions. If the law stands, the injury to appellant is
plain.
It is now settled that the transportation of persons across
state lines is interstate commerce.12 Like the person whose
goods are being transported in interstate commerce,13 the
passenger being transported therein is, with respect to such
transportation, as much engaged in interstate commerce
as is the carrier who furnishes the means of transporta
tion.14 In the freedom of that commerce from any uncon
stitutional burden appellant had a direct interest, and the
decided cases have uniformly recognized her standing to
complain.15
The basic fallacy in the Commonwealth’s argument is the
assumption that the statute burdens only the carrier. Sec-
n Crandall v. Nevada, 6 Wall. 35; see also Twining v. New Jersey, 211
U. S. 78; Williams v. Fears, 179 U. S. 270.
“ Edwards v. California, 314 U. S. 160; United States v. Hill, 248
U. S. 420; Caminetti v. United States, 242 U. S. 470; Covington & C.
Bridge Co. v. Kentucky, 154 U. S. 204. These cases also show that the
fact that the transportation is noncommercial in character is immaterial.
13 Savage v. Jones, 225 U. S. 501; Leisy v. Hardin, 135 U. S. 100;
Bowman v. Chicago & Northwestern Ry. Co., 125 U. S. 465.
14 Covington & C. Bridge Co. v. Kentucky, supra, at 218-219. See also
the Federal Fugitive Felon Act, May 18, 1934, e. 302, 48 Stat. 782, 18
U. S. C. Sec. 408e.
15 In many of the cases wherein the unconstitutionality of legislation
of the kind involved in this case was established, the issue was raised by
the passenger. Washington, B. & A. Elec. R. Co. v. Waller, 53 App. D. C.
200, 289 F. 598; McCabe v. Atchison, T. & S. F. Ry. Co., 186 F. 966
(C. C. A. 8th) ; Anderson v. Louisville & N. R. Co., 62 F. 46 (C. C. Ky.) ;
State v. Jenkins, 124 Md. 376, 92 Atl. 773; Hart v. State, 100 Md. 595, 60
AtJ. 457; Carrey v. Spencer, 36 N. Y. Supp. 886.
8
tion 5 of the Act, under which appellant was prosecuted, is
directed solely against the passenger and seeks to control
his conduct only. Moreover, the direct effect of the injunc
tions of the statute in terms addressed to the carrier and
requiring him to segregate passengers extends to the pas
senger who is the victim and real object of the legislation.
The carrier is by statutory compulsion merely the agency
of the state to carry out an unconstitutional imposition. In
such circumstances appellant may complain not only of
those provisions of the law which specifically mention her,
but also those which, by the simple expedient of compelling
the carrier to act, accomplish and make mandatory an un
constitutional invasion of her legally protected interests.16
I l l
The Commonwealth Is Mistaken in Implying National
Intent to Leave the Matter in Question to State
Control
The brief of the Commonwealth suggests17 that the fail
ure of Congress to legislate upon the matter in controversy
indicates a legislative intent that the states may so legislate.
There is no rational basis for such an inference. To the
contrary, ever since Hall v. DeCuir, Congress must have
understood that the states are without authority to regu
late interstate commerce in the manner now attempted by
Virginia. There is no occasion for legislation to accom
plish that result. National legislation would be necessary
only if Congress desired either to give the states the power
denied them in Hall v. DeCuir, or to take away from the
ca rrier the privilege of regulating the seating of passengers
according to race.
“ Savage v. Jones, supra; Bowman v. Chicago & Northwestern Ry. Co.,
supra; Truax v. Raich, 239 U. S. 33; Buchanan v. Warley, 245 U. S. 60;
Pierce v. Society of the Sisters, 268 U. S. 510.
17 At pages 24-25.
9
Moreover, the one effort of Congress to regulate this mat
ter occurred in the Civil Rights Acts.18 The national policy
against segregation in public places and upon public carriers
was there stated in the clearest language. The persistence
of such a policy as reflected by the Charter of the United
Nations is mentioned in the conclusion of Appellant’s orig
inal brief in this case. This Court, as recently as 1943,
speaking through the Chief Justice, stated that “ distinctions
between citizens solely because of their ancestry are by their
very nature odious to a free people whose institutions are
founded upon the doctrine of equality.” 19 And Mr. Justice
Murphy, concurring in the case, expressed the same basic
concept: “ Distinctions based on color and ancestry are
utterly inconsistent with our traditions and ideals.” 20
Thus both the action of Congress and the language of
this Court make it clear that national policy is opposed to
racial distinctions in areas of national dominance or concern.
CONCLUSION
Wherefore, it is respectfully submitted that the conten
tions of the Commonwealth are without merit and that, for
the reasons stated in the appellant’s original brief and in
this reply brief, the judgment of the Supreme Court of
Appeals of Virginia should be reversed.
W illiam H. H astie
L eon A. R ansom
T hurgood Marshall
Attorneys for Appellant
Spottswood W. R obinson, III
Of Counsel
“ 18 Stat. 335.
18 See Hirabayashi v. United States, 320 U. S. 81, 100.
20 I d . at 110.
IN THE
£>ujir£m£ (Urntrt ni tip States
October Term, 1945
No. 704
IRENE MORGAN, Appellant
v.
COMMONWEALTH OF VIRGINIA, Appellee
ON APPEAL FROM T H E SUPREM E COURT OF APPEALS OF VIRGINIA
MOTION FOR LEAVE TO FILE BRIEF AS A M I C U S
C U R IA E AND BRIEF IN SUPPORT THEREFOF
A merican Civil L iberties U nion,
A micus Curiae
Gregory H ankin ,
of the District of Columbia Bar,
Osmond K. F raenkel,
A rthur Garfield H ays,
V ictor W. R otnem,
of the New York Bar,
of Counsel.
I N D E X
PAGE
Motion fob L eave to F ile B rief as A micus Curiae..... i
BRIEF
Statement of the Case ............................................................ 1
I. The statute is unconstitutional as a substantial
burden on interstate commerce..... ....................... 2
II. The statute is unconstitutional under the due
process clause of the Fourteenth Amendment.... 7
III. The statute is unconstitutional under the equal
protection clause of the Fourteenth Amendment 12
Conclusion ......................................................................... 15
Cases Cited
Hebring v. Lee, 280 IT. S. I l l ........................................ 4
Morely v. Georgia, 279 U. S. 1 ................................ 10
So. Covington, etc., R. Companv v. Kentucky, 252
Ui S. 399 ....................................................................... 3
Washington ex rel. Seattle Title Trust Co. v. Roberge,
278 U. S. 116 ............................................................... 12
Yick Wo v. Hopkins, 118 U. S. 356 .............................. 13
Statutes
U. S. Constitution, Art. I, Sec. 8, cl. 3 ..................... ! 2
Michie’s Code of Virginia, 1942, Sections 4097z-
4097dd ................................................................... 1,7,8,10,
11,12,13
IN THE
(tart of tip llmirii States
October T erm, 1945
No. 704
Irene M organ, Appellant,
v.
Commonwealth of V irginia, Appellee.
ON APPEAL FROM TH E SUPREM E COURT OF APPEALS
OF VIRGINIA
Motion for Leave to File Brief as A m ic u s C uriae
May it Please the Court:
The undersigned as counsel for the American Civil
Liberties Union respectfully moves the Honorable Court
for leave to file the accompanying brief in this case as
Amicus Curiae. The consent of the attorney for the
appellant to the filing of this brief has been obtained.
Counsel for appellee has failed to give his consent.
Special reasons in support of this motion are set out'
in the accompanying brief.
Gregory H ankin ,
Counsel, American Civil Liberties
Union, Amicus Curiae.
March 4, 1946.
IN THE
&ttprfnu> QInurt nf th? Unittb States
October T erm, 1945
No. 704
Irene M organ, Appellant,
v.
Commonwealth of V irginia, Appellee..
ON APPEAL FROM TH E SUPREM E COURT OF APPEALS
OF VIRGINIA
4
BRIEF OF AMERICAN CIVIL LIBERTIES UNION,
A M I C U S C U R I A E
Statement of the Case
This appeal involves the constitutionality of the law
of Virginia segregating white and colored passengers in
public conveyances by motor vehicle within the State. The
statute under consideration is Chapter 128, pages 343-4
of the Acts of Assembly, 1930, reproduced in Michie’s
Code of Virginia, 1942, Sections 4097z-4097dd. It was up
held by the Virginia Supreme Court of Appeals on June
6, 1945. 184 Va. 24, 34 S* E. (2d) 491.
As applied to the facts of this particular case, the state
law is attacked as being in conflict with the Commerce
2
Clause (Art. I, Sec. 8, cl. 3) of the Federal Constitution.
Apart from its application, the law is attacked as being
on its face repugnant to the due process and equal pro
tection clauses of the Fourteenth Amendmfent.
I
The Statute is unconstitutional as a substantial
burden on interstate commerce.
»
It is submitted that the law under consideration is bound
to constitute a burden on interstate commerce in two re
spects: (a) it imposes a burden on the carrier, and (b) it
imposes a burden on the passenger.
(a) Burden on the Carrier.—It is well established that
every passenger carrier by motor vehicle, by virtue of the
fact that it is a public utility, must render service equally
and without discrimination. To observe this fundamental
requirement and yet to treat passengers as being divided
into separate and segregated classes, necessarily requires
some duplication of service. If the accommodations are
not duplicated, then the quality of service must suffer.
In practice, the quality of the service is reduced for the
less favored class, with the result that there is dis
crimination in the rendition of the utility service. Only by
remaining blind to the latter fact, may it be said that
there is no burden on interstate commerce, when a statute
requires that either separate buses, separate compartments
in buses, or separate seats be provided for white and
colored passengers. If it is assumed that there is no
discrimination, it must also be concluded that the statutory
requirement imposes a burden on interstate commerce in
the sense that there is an economic burden imposed upon
the carrier.
3
The court below seems to rely on the case of So. Cov
ington, etc., R. Company v. Kentucky, 252 U. S. 399, for
the proposition that the requirement of separate facilities
for white and colored passengers is merely an incidental
and indirect burden on interstate commerce. In that case,
however, the interstate transportation was incidental to
the transportation service rendered by the street railway
company, which operated an interurban service in the
State of Kentucky, and had a terminal across the river in
the City of Cincinnati. Here the appellant was a pas
senger on the Greyhound Bus Lines, travelling on a
through ticket from Hayes’ Store, Gloucester County,
Virginia, through the District of Columbia, to Baltimore,
Maryland. The interstate trip was not a mere incident
to an intrastate operation. Here the test is whether the
bus line could furnish separate buses, compartments, or
seats, so as to render equal service and yet not be sub
jected to a substantial economic burden, especially at this
time, when transportation facilities are most difficult to
obtain. We think it is a matter of common knowledge,
therefore one not requiring proof by evidence, that the
statute does impose a burden on the interstate carrier.
Even if the So. Covington case were applicable to in
terstate transportation by railroad or other similar means
of transportation, it must be pointed out that bus trans
portation is essentially different in this respect. It may
be argued that so long as the number of passengers would
justify it, a railroad may attach additional cars of equal
quality, or may divide a car into separate compartments.
In bus transportation such equal division of facilities
cannot be accomplished. It is the same bus, with but one
entrance that must accommodate all passengers as and
when they board the bus. The burden on the carrier
4
imposed by the requirements of this statute extends also
to the operation of the bus. In the ease of a railroad
train, the engineer is in charge of the physical movement
of the train while the conductor is in charge of the con
duct of the passengers thereon. The duties of the con
ductor in this respect do not interfere with the duties of
the engineer. An interstate bus is operated by one per
son, the driver. If he is to police the location (seating
and standing) of the passengers, that must interfere with
the movement of the vehicle in interstate commerce. The
requirements of this statute must of necessity interfere
with the proper scheduling of the interstate movement.
The court below, however, stressed the fact that the
carrier was not complaining of any burden imposed on
interstate commerce, and that “ in fact the carrier was
not even a party to this litigation.” Apparently the
court below invoked the rule that a person lias no stand
ing to attack the constitutionality of a statute on the
ground that it invades the rights of someone else.
Hebring v. Lee, 280 U. S. 111. But this rule is not in
point where a passenger complains that an economic
burden is imposed on the carrier. The carrier, as a pub
lic utility, is only a means for rendering a service to the
public with capital furnished by the investor. The
charges made by the carrier are based upon payment by
the passengers of all costs of operation plus capital
charges. In the last analysis, therefore, it is the pas
senger that pays all costs, and any requirements, impos
ing additional economic burdens on the carrier, ultimately
impose those burdens on the passengers. Therefore, the
passenger has standing to complain of this additional bur
den, when it is applied to interstate commerce.
(b) Direct Durden on the Passenger.—Interstate com
merce is also burdened by the statute under consideration
5
in the sense that the passengers in interstate commerce
are directly subjected to wholly unnecessary and un
reasonable inconvenience and discomfort. It is a matter
of common knowledge that with the reduction in the
manufacture of transportation facilities and the great in
crease in the amount of travel by bus in interstate com
merce, passengers often travel “ packed like sardines.” To
illustrate how the statute affects bus travellers, one may
imagine a bus full of passengers traveling from Balti
more, through the District of Columbia, to Norfolk, Vir
ginia. While these passengers are in Maryland and the
District of Columbia, they occupy whatever seats are
available, and when the number of passengers exceed the
number of seats, the newcomers occupy such standing
room as is available. As passengers leave the bus, the
standees occupy the seats left vacant. As soon as the
bus conies into the State of Virginia, however, the carrier
invokes its regulation, made pursuant to the statute,
that colored passengers must be seated from the rear
forward, while white passengers must occupy the seats
from the front to the rear. A reshuffling must take place,
so that there would be a distinct separation of the two
classes of passengers. Those sitting in front may be re
quired to occupy seats in the rear; those occupying seats
may be required to stand. Assuming that the passengers
have already been pushed about and reshuffled, so as to
comply with the requirements of the statute, the bus may
come to a stop where some white and colored passengers
are discharged and others are taken on, with the result
that another reshuffling may have to take place. There
is a distinct difference between the quality of service that
the interstate passengers, both white and colored, receive
in the State of Virginia, from what they receive in the
State of Maryland and in the District of Columbia. In
6
Virginia, the interstate passenger is not certain that, once
he has obtained a seat, he can ride in peace and comfort
to his destination. On the contrary, passengers have been
so pushed about and have been so subjected to discomfort
and humiliation, that they and the exasperated driver
have resulted to physical violence, which has resulted in
serious injury and even death.
Here again, even if it were said that a statute of the
character here involved would not constitute a burden on
interstate commerce as applied to transportation by rail,
the facts relating to bus transportation are so different
as to leave no doubt that there is a definite burden on
interstate commerce as applied to motor carrier trans
portation. Unlike a railroad train, a bus is a single
operating unit; unlike a railroad car, it has only one
entrance, and is not readily divisible into two sections
which may be said to be equally desirable. In the rear
of the bus, as in the instant case, there is one long bench
set against the back of the vehicle and running its whole
width which is less comfortable than the double seats on
either side of the aisle. The motion of the vehicle and
the gasoline fumes are more objectionable at the rear of
the bus. When passenger travel is heavy, the aisle of
the bus is crowded with standing passengers. If the bus
is so divided that the rear seats are allocated to the
Negro passengers, they must push and jostle the standing
passengers both when entering and leaving the bus, even
though they may be going only to the next stop. They
are not only allotted less desirable accommodations, but
are subjected to other acts of discrimination which will
be discussed later under the heading of equal protection.
What we emphasize here is that these passengers are
deprived of their right to equal and non-discriminatory
7
service by a public utility operating in interstate com
merce.
Therefore, we submit that quite apart from the
economic burden on the carrier, the statute imposes a
burden on the passengers engaged in interstate commerce
and particularly on the negro passengers in such com
merce.
II
The statute is unconstitutional under the due
process clause of the Fourteenth Amendment.
The statute is unconstitutional for the reasons that it
subjects passengers to arbitrary power vested in bus
operators, it fails to establish a standard of guilt which
may be made the basis of criminal prosecution, and is
otherwise arbitrary and unreasonable on its face. It is
urged that for these reasons the act must fall as in viola
tion of the due process provision of the Fourteenth
Amendment.
One must view realistically the provisions of this law
and the facts with which it assumes to deal. In this
connection, we shall limit ourselves to such facts as are
matters of common knowledge.
(1) The statute requires all motor vehicle carriers in
the state to separate white and colored passengers and
makes the failure, neglect or refusal so to segregate them
a misdemeanor (Sec. I097z). True, the statute also re
quires the carrier to “ make no difference or discrimination
in the quality or convenience of the accommodations pro
vided for the two races” (Sec. 4097aa). But failure,
neglect or refusal on the part of the carrier to obey this
requirement is not made a misdemeanor.
8
Accordingly, some seats in the rear of each bns are
usually designated for colored persons, while the seats to
the front of the division line are reserved for whites. In
some instances, as in the case at bar, the carrier posts a
general rule that colored passengers will be seated from
the rear forward, and white passengers will be seated
from the front. In such instances, the initial division line
is determined by the white passenger occupying a seat
farthest toward the rear.
So long as there are ample seats available on both sides
of the division line, both white and colored passengers can
ride in comparative comfort, although some passengers,
whether white and colored, do prefer the front seats,
while others choose to sit in the rear. If, however, there
are more white passengers than the number of seats avail
able for them, or more colored passengers than the number
of seats available for them, they must remain standing
either in the front or the rear of the bus without occupying
such seats as may be vacant beyond the division line.
This, itself, is arbitrary, unreasonable, capricious and
oppressive.
(2) The driver or operator of the bus is authorized
and obliged by the statute to change the division line when
such change is “ necessary or proper for the comfort or
convenience of the passengers, ” and to require any pas
senger to change his seat as it may be “ necessary or
proper. ’ ’ Failure, neglect or refusal to observe this
provision is a misdemeanor (Sec. 4097bb). The words
“ necessary or proper” whether with or without the
qualifying phrase “ for the comfort and convenience of the
passengers” may be a standard, but it is a standard so
broad and indefinite that the driver of the motor vehicle
can hardly be subjected to criminal prosecution without
violating the due process clause.
9
In practice, this requirement operates not to impose
any obligation on the driver, but rather to clothe him with
arbitrary power. As colored passengers board the bus,
they go to the rear; and as white passengers board the
bus, they remain in the front. After all the colored seats
are occupied, the colored passengers must stand in back
of the division line. So long as nothing is done by the
driver, the colored passengers must crowd in the rear,
even if there are more passengers than space available,
even if they must violate the physical law that no two
bodies can occupy the same space at the same time.
However, the bus driver may come to the rescue and ask
the white passengers to move up toward the front. Then
it is up to the white passengers to move up. So long as
there is a single white passenger who fails or refuses to
move up, whether because he finds it difficult, or incon
venient, or is simply unwilling to oblige, the colored
passengers may not occupy the vacant seats. Finally, if
the driver insists on his authority, he may stop the opera
tion of the bus and change the dividing line, either by
moving the designation or by informing the white pas
senger of the rule requiring him to change his seat. Then,
the white passenger, under the statute, must move up.
All this lies within the arbitrary judgment of the
driver. No matter how the passengers may be incon
venienced, so far as the question of seating or standing
room is concerned, the driver can always take refuge in
the consideration that the bus must move on to its
destination and that travel should not be interrupted
for the purpose of moving the dividing line to the front
or rear, in order to accommodate some of the passengers.
Of necessity, the determination of this question must be
left entirely to the judgment of the driver. In fact, the
greater the need to accommodate the passengers by mov-
ing the dividing line, as, for example, when many passen
gers board or leave the bus at the various stops, the
greater also is the need to let them suffer, else the buses
will not operate according to schedule. Obviously, this
cannot be said to be reasonable legislation regulating
transportation.
(3) For the purposes of this law, the driver is the
judge of the race of each passenger, whenever the passen
ger fails to disclose his or her race (Sec. 4097cc). What
constitutes sufficient “ disclosure” of race is not provided
for by the statute. Obviously, the statute does not mean
that if the passenger claims to be of one race or another,
the claim is binding on the driver. Here again this
criminal statute is so lacking in definiteness as to be vio
lative of the due process clause. However, there are still
further difficulties. What about those instances where a
person, no matter how dark in complexion, or how light,
is unable to state with any assurance that he is either
white or black? The statute clothes the bus driver with
authority to determine facts about which anthropologists
have been battling for years. Such methods of determin
ing racial status may be quite in order where people are
ruled by absolute decree. There it may be proper to
determine that Japanese are Aryans, while others (of the
white race) are not. There it may be proper for some
Goering to say: “ Wer ein Jude ist, bestimme ich.” (I
determine who is a Jew.) But under our Constitution,
it is improper even for a legislature to determine by fiat
facts which are properly the subject of proof Morely v.
Georgia, 279 U. S. 1. Such determination of fact cannot
be left to the operator of a motor vehicle.
(4) Each passenger must occupy the seat assigned to
him by the driver and must obey his directions to change
10
11
his seat from time to time as occasions require, “ pur
suant to any lawful rule, regulation or custom.’ ’ (Sec.
4079dd). Failure to obey is a misdemeanor. Thus, the
passengers, both white and colored, may not be permitted
to ride unmolested in peace and comfort, save at the will
of the driver. He may require them to change their seats
any number of times for any reason, and have them
occupy any seats he selects for them, so long as no two
contiguous seats are occupied by white and colored pas
sengers (Sec. 4097bb).
(5) One further illustration will dispel any doubt as to
the arbitrary and unreasonable character of the statute.
The Virginia law provides that if a passenger does not
obey the driver’s direction to occupy the seat designated,
or to change seats, he may be ejected; and, if he is
ejected, neither the person ejecting him, that is the driver
or operator of the bus, nor the owner of the bus, nor the
manager, nor the bus company, is liable in damages in any
court (Sec. 4097dd). This provision goes far beyond the
limitations on any public officer in the use of force. This
provision evidently applies, no matter how arbitrary or
unreasonable the conduct of the driver, no matter how
great the force he used, and no matter bow great the in
jury to the person ejected. In other words, under this
provision, any passenger failing to obey the driver is not
only guilty of a misdemeanor, but becomes an outlaw.
Tn the court below, the appellant argued that the
statute constituted an unconstitutional delegation of legis
lative power, and the court below overruled this con
tention. Tt is admitted that the question of delegation of
power, as such, is not a Federal question, but one arising
under the State constitution. Therefore, we do not urge
this point here. There is a phase to this question, how-
12
ever, which is definitely Federal in character; namely, that
if the delegation of power is such as to clothe private
persons with arbitrary governmental power, such a dele
gation is violative of the due process clause of the Four
teenth Amendment. See Washington ex rel. Seattle Title
Trust Co. v. Roberge, 278 U. S. 116. As in the Roberge
case, so here, arbitrary governmental power is vested in
the carriers and their agents who are private persons.
The difference between the Roberge case and the one at
bar lies in the fact that here the statute in a blanket
manner makes each driver of a motor vehicle a special
policeman (Sec. 4097cc). There is nothing on the face
of the statute to show that the driver must pass any
tests in order to assume the duties of a public officer.
This provision only accentuates the fact that the em
ployees of the transportation company are clothed with
arbitrary governmental power. Surely, had the statute
in the Roberge case similarly designated all property
owners as zoning commissioners, that Avould hardly have
affected the ruling in that case.
We submit that the law under consideration is so
arbitrary and unreasonable on its face, that irrespective
of any application, it is contrary to the due process clause
of the Fourteenth Amendment.
Ill
The statute is unconstitutional under the equal
protection clause of the Fourteenth Amendment.
What was said above was based on the assumption
(contrary to fact) that the treatment accorded to both
white and colored persons is exactly the same. It is a
matter of common knowledge that the treatment is not
13
the same, and this Court can take judicial notice of the
fact that the treatment of the two races results in dis
crimination against the colored, not against the white,
race.
The provision in the statute requiring no discrimina
tion in the accommodations (Sec. 4097aa) gives only lip
service to the decisions of this Court that segregation of
races is violative of the equal protection clause, unless
equal accommodations are made available both to white
and colored persons. Equal accomodations are not pro
vided, and that is a fact known to everybody. In opera
tion and effect, the statute, and the rule of the carrier,
result in unequal accomodations. Cf. Yick Wo v. Hopkins,
118 II. S. 356.
Even if equal accommodations were provided, how
ever, there would still be a violation of the equal protec
tion clause if the service provided is discriminatory.
We must appeal to this Court for a reconsideration of
its own fundamental concepts underlying this question of
race discrimination. We submit that to say that segrega
tion of races in public transportation is not violative of
the equal protection clause, so long as equal service is
rendered, is a contradiction in terms. The segregation is
the very thing that makes the service unequal and dis
criminatory, by far more so than differences in the com
fort of the seats, the amount of congestion, the age, model,
speed, vibrations of the buses, and all other physical
factors which are attributes of the transportation service.
A carrier by motor vehicle, like a carrier by rail,
water or air does not merely furnish accommodations for
carrying passengers from one point to another. The
carrier furnishes a service which has attributes other
than, and in addition to, the physical facilities used for
14
the act of transporting. The sum total of these attributes
constitute what one may call the quality of service. Each
passenger is entitled to the same equality of service as
any other passenger. This is what is meant by equal and
non-discriminatory service. If it is part of the service to
furnish a luncheon or supper to the passengers, as is
done by the air lines, each passenger is entitled to the
luncheon or supper, and no passenger may be discrimi
nated against. If, as part of the service, passengers are
courteously treated, as they should be by the employees
of all carriers, each passenger has a right to receive the
same courteous treatment as any other passenger. In
the rendition of transportation service, it is implied that
passengers would be free from physical abuse on the part
of the carrier or its agents, and no passenger may he dis
criminated against by being subjected to such abuse. We
submit that it is not too much to expect that passengers
be free from psychological or social abuse on the part of
the carrier and its agents. Many persons would much
rather submit to physical abuse than to abuse because of
their race, which is treated as if it were a social stigma.
The word “ white” or the word “ colored” denotes a
person whose skin has a white or black pigment, or a
blend of the two; just as the words “ aryan” and “ non-
aryan” denote persons of certain anthropological classi
fication. But the words “ white” and “ colored” , like the
words “ aryan” and “ non-aryan” ,* also bear connotations
which are far reaching. They are employed by some
persons not as descriptive, but as evaluative, terms. They
are intended as, and have the effect of, designations of
“ superiority” and “ inferiority.” When thus used, it
makes little difference whether the words used are
* Technically these words refer to a specific language rather than an ethnic
group.
15
“ white” and “ colored” , or “ socially superior” and
“ socially inferior.” The effect is the same.
If, as part of a transportation service, some passen
gers are enabled to ride in comfort, while others are sub
jected to discomfort, there is discrimination; and it is of
little importance whether the discomfort results from a
hard seat, or from being clothed with indicia of inferi
ority. And if this unequal treatment is meted out to the
passengers by the carrier under the authority of the
State, there is a violation of the equal protection clause
of the Fourteenth Amendment. A fortiori, a state law,
the operation and effect of which is to require such un
equal treatment, must be held violative of this constitu
tional prohibition.
CONCLUSION
It is respectfully urged that the statute here in
volved be declared unconstitutional and the case
ordered dismissed.
Respectfully submitted,
A merican Civil Liberties U nion,
A micus Curiae.
Gregory H an k in ,
of the District of Columbia Bar,
Osmond K. F raenkel,
A rthur Garfield H ays,
V ictor W . R otnem,
of the New York Bar,
Of Counsel.
IN THE
Supreme (Enurt of tlje T&nxUb States
October T erm, 1945
No. 704
IRENE MORGAN,
vs.
Appellant,
COMMONWEALTH OF VIRGINIA.
APPENDICES
W illiam H. H astie,
L eon A. R ansom,
T hurgood M arshall,
Attorneys for Appellant.
Spottswood W . R obinson, 3rd,
Of Counsel.
Alabama, Statutes, 1940
Title 1, Section 2— Meaning of certain words and terms.
—The following words, wherever they appear in this Code,
shall have the signification attached to them in this section
unless otherwise apparent from the context:
The word “ person” includes a corporation as well as a
natural person.
The word “ writing” includes typewriting and printing
on paper.
The word “ oath” includes affirmation.
The words “ signature” or “ subscription” include mark
when the person cannot write, if his name is written near
the mark, and witnessed by a person who writes his own
name as a witness.
The words “ lunatic” or “ insane” or the term “ non
compos mentis” include all persons of unsound mind.
The word “ property” includes both real and personal
property.
The term “ real property” includes lands, tenements,
and hereditaments.
The term “ personal property” includes money, goods,
chattels, things in action and evidence of debt, deeds, and
conveyances.
The word “ circuit” means judicial circuit.
The word “ negro” includes mulatto.
The word “ mulatto” or the term “ person of color”
means a person of mixed blood descended on the part of
the father or mother from negro ancestors, without refer
ence to or limit of time or number of generations removed.
The word “ justice” , when applied to a magistrate,
means justice of the peace.
The term “ justice of the peace” , if not otherwise ex
pressed, includes a notary public having and exercising
the jurisdiction of a justice of the peace, within the precinct
or ward for which he is appointed.
The word “ preceding” means next before.
The word “ following” means next after.
2
The word “ state” , when applied to the different parts
of the United States, includes the District of Columbia,
and the several territories of the United States.
The term “ United States” includes the territories
thereof, and the District of Columbia.
The words “ jury” or “ juries” include courts or judges
in all cases when a jury trial is waived, or when the court
or judge is authorized to ascertain and determine the facts
as well as the law.
The word “ month” means a calendar month.
The word “ year” means a calendar year; but, whenever
the word “ year” is used in reference to any appropria
tions for the payment of money out of the treasury, it shall
mean fiscal year.
(1927, p. 716.)
Title 14, Section 360—Marriage, adultery, and fornica
tion between white persons and negroes.—If any white
person and any negro, or the descendant of any negro inter
marry, or live in adultery or fornication with each other,
each of them shall, on conviction, be imprisoned in the
penitentiary for not less than two nor more than seven
years. (1927, p. 219.)
Title 48, Section 196—Separate coaches for whites and
blacks.—All railroads carrying passengers in this state,
other than street railroads, shall provide equal but separate
accommodations for the white and colored races, by pro
viding two or more passenger cars for each passenger train,
or by dividing the passenger cars by partitions, so as to
secure separate accommodations.
Section 197. Conductor must assign each passenger a
seat in the car designated for his color.— The conductor of
each passenger train is authorized and required to assign
each passenger to the car or the division of the car, when
it is divided by a partition, designated for the race to which
such passenger belongs; and if any passenger refuses to
occupy the car, or the division of the car, to which he is
assigned by the conductor, such conductor may refuse to
carry such passenger on the train, and for such refusal
neither the conductor nor the railroad company shall be
3
liable in damages. But this section shall not apply to
cases of white or colored passengers entering this state
upon railroads under contracts for their transportation
made in another state where like laws to this do not prevail.
Title 48, Section 268— Separate accommodations for
white and colored passengers.—All passenger stations op
erated or kept by any motor transportation company shall
have separate waiting rooms or space and separate ticket
windows for the white and colored races hut such accom
modations for the races shall be equal. All motor trans
portation companies or operators of vehicles carrying pas
sengers for hire in this state, whether intrastate or inter
state passengers, shall at all times provide equal but sepa
rate accommodations for the white and colored races, by
providing separate vehicle or separate compartments on
each vehicle or by dividing the vehicle by a partition con
structed of metal, wood, strong cloth or other material as
to obstruct the vision between the sections, and shall also
distinguish the separate sections for the separate accom
modation of the races. The conductor or agent of the motor
transportation company in charge of any vehicle is author
ized and required to assign each passenger to the division
of the vehicle designated for the race to which such pas
senger belongs; and if the passenger refuses to occupy the
division of the vehicle, to which he is so assigned by the
conductor or agent of such motor transportation company,
such conductor or agent of such motor transportation com
pany may refuse to cari-y such passenger on said vehicle,
and for such refusal neither the conductor or agent of the
motor transportation company, nor the motor transporta
tion company shall be liable in damages, but this section
shall not apply to cases of white or colored passengers
entering this state upon vehicles under contracts for their
transportation made in another state where like laws to
this do not prevail. Any motor transportation company or
person violating the provisions of this section shall be
guilty of a misdemeanor and upon conviction shall be fined
not more than five hundred dollars for each offense and
each day’s violation of the same shall constitute a separate
offense.
4
Alabama, Code, 1923
Section 5001. Marriage, adultery, and fornication be
tween white persons and negroes.—If any white person and
any negro, or the descendant of any negro, to the third
generation, inclusive, though one ancestor of each genera
tion was a white person, intermarry, or live in adultery or
fornication with each other, each of them must, on convic
tion, be imprisoned in the penitentiary for not less than
two nor more than seven years.
Alabama, Acts, 1927
P. 219.
No. 214.) (H. 583. Jones of Bullock.
AN ACT
To amend Section 5001 of the Code of 1923
Be it Enacted by the Legislature of Alabama: That
Section 5001 of the Code of 1923 be amended so as to read
as follows: Section 5001 (7421) (5096) (4018) (4189)
(3602) (61) marriage, adultery, and Fornication Between
White Persons and Negroes.—If any white person and any
negro, or the descendant of any negro intermarry, or live
in adultery or fornication with each other, each of them
must, on conviction, be imprisoned in the penitentiary for
not less than two nor more than seven years.
Approved August 2, 1927.
Arkansas, Statutes, 1937 (Pope)
Section 1190. Equality of accommodations. All rail
way companies carrying passengers in this State shall pro
vide equal but separate and sufficient accommodations for
the white and African races by providing two or more pas
senger coaclies for each passenger train; provided, each
railway company carrying passengers in this State may
carry one partitioned car, one end of which may be used
by white passengers and the other end by passengers of the
0
African race, said partition to be made of wood, and they
shall also provide separate waiting rooms of equal and suf
ficient accommodations for the two races at all their pas
senger depots in this State. Act April 1, 1893, Section 1, p.
200.
Section 1191. Exception as to street cars. The fore
going section shall not apply to street railroads. In the
event of the disabling of a passenger coach, or coaches, by
accident or otherwise, said company shall be relieved from
the operation of this act until its train reaches a point at
which it has additional coaches. Id., Section 1.
Section 1192. Passengers to occupy places assigned.
No person or person shall be permitted to occupy seats in
coaches or waiting rooms other than the ones assigned to
them on account of the race to which they belong; provided,
officers in charge of prisoners of different races may be
assigned with their prisoners to coaches where they will
least interfere with the comfort of other passengers; pro
vided, further, that Section 1190 shall not apply to em
ployees of a train in the discharge of their duties, nor shall
it be construed to apply to such freight trains as carry pas
sengers. Id., Section 1.
Section 1193. Separate sleeping and chair cars. Car
riers may haul sleeping or chair cars for the exclusive use
of either the white or African race separately, but not
jointly. Id., Section 1.
Section 1194. Short lines. On all lines of railway less
than thirty miles long, passenger coaches may be divided
hv partition. Id., Section 1.
Section 1195. Duty of officers. The officers of such pas
senger trains and the agents at such depots shall have
power, and are required to assign each passenger or person
to the coach or compartment or room used for the race to
which such passenger or person belong. Acts 1891, p. 15,
Section 2.
6
Section 1196. Penalty. Any passenger or person in
sisting on going into a coach or compartment or room to
which hy race lie does not belong shall be liable to a fine
of not less than ten dollars nor more than two hundred dol
lars, and any officer of any railroad company assigning a
passenger or person to a coach or compartment or room
other than the one set aside for the race to which said pas
senger or person belongs shall be liable to a fine of twenty-
five dollars. Id., Section 2.
Section 1197. Duty of passenger. Should any passen
ger refuse to occupy the coach or compartment or room
to which he or she is assigned by the officer of such railway
company, said officer shall have the power to refuse to carry
such passenger on his train, and should any passenger, or
any other person not passenger, for the purpose of occupy
ing or waiting in such sitting or waiting-room not assigned
to his or her race, enter said room, said agent shall have the
power, and it is made his duty, to eject such person from
such room, and for such acts neither they nor the railway
company which they represent, shall be liable for damages
in any of the courts of this State. Id., Section 2.
Section 1198. Railroad’s noncompliance—penalty. All
railway companies that shall refuse or neglect to comply
with the provisions and requirements of this act shall be
deemed guilty of a misdemeanor, and shall, upon convic
tion before any court of competent jurisdiction, be fined
not less than one hundred dollars nor more than five hun
dred dollars, and every day that such railway company
shall fail to comply with the provisions of this act, and
every train run in violation of the provisions hereof, shall
be a separate offense; and any conductor or other em
ployees of such passenger train having charge of the same
or any agent at such depot who shall refuse or neglect to
carry out the provisions of this act shall, on conviction,
be fined not less than twenty-five dollars nor more than
fifty dollars for each offense. Id., Section 3.
Section 1199. Posting law. All railroad corporations
carrying passengers in this State, other than street rail-
7
roads, shall keep this law posted up in a conspicuous place
in each passenger coach and waiting-room. Id., Section 3.
Section 1200. Races defined. Persons in whom there
is a visible and distinct admixture of African blood shall,
for the purposes of this act, be deemed to belong to the
African race; all others shall be deemed to belong to the
white race. Id., Section 4.
Section 1201. Freight trains. The railroad companies
shall not be required to furnish separate coaches in freight
trains for the white and African races. Act February 21,
1898, Section 1.
Section 1202. Duty to operate. All persons, companies
or corporations operating any street car line in any city
of the first class, in the State of Arkansas, are hereby re
quired to operate separate cars or to separate the white
and colored passengers in the cars operated for both, and
to set apart or designate in each car or coach so operated
for both a portion thereof or certain seats therein to be
occupied by white passengers, and a portion thereof or
certain seats therein to be occupied by colored passengers.
Act March 27, 1903, p. 178, Section 1.
Section 1203. Equality of accommodations. No persons,
companies or corporations so operating street cars shall
make any difference or discrimination in the quality or
convenience of the accommodations provided for the two
races under the provisions of this act. Id., Section 2.
Section 1204. Control of conductor. The conductor or
other person in charge of any car or coach so operated
upon any street car line shall have the right at any time,
when in his judgment it may be necessary or proper for
the comfort or convenience of passengers so to do, to
change the said designation so as to increase or decrease
the amount of space or seats set apart for either race, or
he may require any passenger to change his seat when or
so often as the change in the passengers may make such
changes necessary. Id., Section 3.
8
Section 1205. Passengers to take designated seats. All
passengers on any street car line shall be required to take
the seat assigned to them, and any person refusing to do
so shall leave the car, or, remaining upon the car, shall be
guilty of a misdemeanor, and upon conviction shall be
fined in any sum not to exceed twenty-five dollars. Id.,
Section 4.
Section 1206. Penalty. Any person, company or cor
poration failing to operate separate cars, or to set apart
or designate portions of the cars operated for the sep
arate accommodation of the white and colored passengers
as provided by this act, shall be guilty of a misdemeanor,
and upon conviction shall be fined in any sum not to exceed
twenty-five dollars. Id., Section 5.
Section 1207. Extra or special cars. Nothing in this
act shall be construed to prevent the running of extra or
special cars for the exclusive accommodation of either
white or colored passengers, if the regular cars are oper
ated as required by this act. Id., Section 6.
Section 3290. “ Person of negro race” defined. The
words “ person of negro race,” as used in this act, shall
be held to apply and include any person who has in his or
her veins any negro blood whatever. Id. Section 3.
N il. Segregation or W hite and Colored on B usses.
Section 6921. Busses required to designate separate
seats for whites and colored. All persons, firms, companies
or corporations operating any motor propelled vehicle for
the transportation of passengers over the highways of the
State of Arkansas, are hereby required to designate sep
arate seating space in each bus for the accommodation of
white and colored passengers.
Section 6922. Designation—How made. Such designa
tion shall be by means of a sign with letters of at least
four inches and of sufficient size as to be visible and dis
cernible at all times, in front of which all white passengers
9
shall be seated and behind which all colored passengers
shall be seated. Id. Section 2.
Section 6923. Eights of Bus Operator. The operator
or other person in charge of any such vehicle shall have
the right at any time, when it may be necessary or proper
in his judgment, for the comfort, convenience or accommo
dation of the passengers, to change said designation so as
to increase or decrease the amount of space or seats set
apart for either race by moving the sign hereinbefore re
quired, or he may require any passenger to change his seat
when or so often as the change in passengers may require.
Id. Section 3.
Section 6924. No discrimination in service. No per
sons, firms, companies or corporations so operating motor
propelled passenger carrying vehicles shall make any
difference or discrimination in the quality or convenience
of the accommodations provided for the two races here
under. Id. Section 4.
Section 6925. Passenger to take seat assigned. All
passengers on any motor propelled passenger carrying
vehicle shall be required to take the seat assigned to them,
and any person refusing to do so shall leave the vehicle,
or remaining upon the vehicle, shall be guilty of a mis
demeanor, and upon conviction shall be fined in any sum
not exceeding Twenty-five Dollars for the first offense;
and upon conviction for a second offense shall be fined
Five Hundred Dollars or sentenced to one year in jail, or
both fined and imprisoned. Upon refusal of any passenger
to leave the vehicle as aforesaid the operator or person
in charge shall proceed to the nearest town, city, hamlet
or village, and thereupon it shall be the duty of the first
available peace officer to remove said passenger and sub
ject him to arrest. Id. Section 5.
Section 6926. Violation—penalty. Any person, firm,
company or corporation failing to designate portions of
busses for separate accommodations of white and colored
passengers as provided by this act, shall be guilty of a
10
misdemeanor, and upon conviction shall be fined in any
sum not to exceed Twenty-five Dollars. Id. Section 6.
Section 6927. Not applicable to certain busses. Noth
ing in this act shall be construed to prevent the run of
extra or special busses or motor propelled passenger carry
ing vehicles for the exclusive accommodation of either
white or colored passengers, if the regular cars are op
erated as required by this act. Id. Section 7.
Acts of Arkansas, 1943
ACT 180.
A n A ct to Amend Act No. 124 of 1937, Approved February
24, 1937, and for Other Purposes.
Be It Enacted by the General Assembly of the State of
Arkansas:
Section 1 . B usses R equired to Separate Seats for
W hite and Colored. All persons, firms, companies or cor
porations operating any motor propelled vehicle for the
transportation of passengers over the streets and highways
of the State of Arkansas, are hereby required to designate
separate seating spaces in each such vehicle for the ac
commodation of white and colored passengers, and shall
cause the white and colored passengers to remain segre
gated in the seats and spaces so designated.
Section 2. D esignation— How M ade. Such designation
shall be by means of a sign with letters of at least four
inches and of sufficient size as to be visible and discernible
at all times, which shall be posted in a prominent place
at both the front and back of such vehicle and which shall
direct that all white passengers shall seat from the front
of the vehicle toward the back, and all colored passen
gers shall seat from the rear of the vehicle forward.
Section 3. D uties of the Operator or Other P erson
in Charge of S uch V ehicle. The operator or other per
son in charge of such vehicle shall have the right and
11
duty, at any time, when it may be necessary or proper in
his judgment, for the comfort, convenience or accommoda
tion of the passengers, to change such designation so as to
increase or decrease the amount of space or seats set
apart for either race, he may request any passenger to
change his seat when or so often as the change in pas
sengers may require.
Section 4. No D iscrimination Service. No person,
firms, companies or corporations so operating motor pro
pelled passenger-carrying vehicles shall maintain any dif
ference in the quality or convenience of the accommodations
provided for the two races hereunder.
Section 5. P assenger to T ake Seat A ssigned. All pas
sengers on any motor propelled passenger-carrying
vehicle shall be required to take a seat or space assigned
to them, and any person refusing to do so shall immedi
ately leave the vehicle, or if he remains upon the vehicle,
he shall be guilty of a misdemeanor, and upon conviction
shall be fined in any sum not less than $25.00 or more than
$500.00, or sentenced to the county jail for not less than one
month or more than six months, or by both fine and im
prisonment. Upon refusal of any passenger to leave the
vehicle as aforesaid, the operator or person in charge
shall proceed to the nearest town, city, hamlet or village,
and thereupon it shall be the duty of the operator or other
person in charge of such vehicle to make complaint to the
first available peace officer, whose duty it shall be to re
move said passenger and subject him to arrest. The fail
ure on the part of the operator or other person in charge
of such vehicle to cause the white and colored passengers
to take and remain in the seats and spaces provided for
them, or the failure of such operator or other person in
charge of such vehicle to immediately cause the arrest of
any passenger refusing to comply with the request to take
or remain in the seat and space so designated, shall be
deemed a misdemeanor, and upon conviction, such opera
tor or other person shall be fined in any sum not less than
$25.00 or more than $500.00.
12
Section 6. (Any person, firm, company or corporation
failing to designate portions of motor vehicles) for separate
accommodations of white and colored passengers as pro
vided by this Act, or who shall fail or refuse to require
the operator or other person in charge of such motor ve
hicle, as their employee, to cause the white and colored
passengers to take and remain in the seats and spaces
designated for them, or who fails to require the operator
or other person in charge of such vehicle, in their employ,
to cause an immediate arrest of any passenger refusing
to take and remain in the seat or space assigned to him,
shall be guilty of a misdemeanor, and shall be fined in any
sum not less than $25.00 or more than $500.00; any per
sons, firms, companies or corporations failing or refusing
to comply wfith the provisions of this Act shall be liable
for any damages to persons or property arising out of any
disturbance caused by the failure to enforce the segregation
of white and colored passengers.
Section 7. Not A pplicable to Certain Motor. V ehicles.
Nothing in this Act shall be construed to prevent the run
of extra or special motor propelled passenger-carrying
vehicles for the exclusive accommodations of either white
or colored passengers, if the regular cars are operated as
required by this Act.
Provided, further that this Act shall not apply to Motor
Coaches operated in lieu of Street Cars on City streets
under city franchises and regulations.
A pproved: March 6, 1943.
Florida, Constitution, Article XVI
Section 24. Intermarriage of white persons and ne
groes prohibited.—All marriage between a white person
and a negro, or between a white person and a person of
negro descent to the fourth generation, inclusive, are here
by forever prohibited.
13
Florida, Statutes, 1941
1.01 Definitions.—In construing these statutes and each
and every word, phrase, or part hereof, where the con
text will permit:
(1) The singular includes the plural and vice versa.
(2) The masculine includes the feminine and neuter
and vice versa.
(3) The word “ person” includes individuals, children,
firms, associations, joint adventures, partnerships, estates,
trusts, business trusts, syndicates, fiduciaries, corporations
and all other groups or combinations.
(4) The word “ writing” includes handwriting, print
ing, typewriting and all other methods and means of form
ing letters and characters upon paper, stone, wood, or other
materials.
(5) The words “ lunatic” , “ insane persons” and other
like terms include idiots, lunatics, insane persons, non
compos mentis and persons of deranged or unsound mind.
(6) The words “ negro” , “ colored” , “ colored persons” ,
“ mulatto” or “ persons of color” , when applied to per
sons, include every person having one-eightli or more of
African or negro blood.
(7) The word “ oath” includes affirmations.
(8) Reference to any office or officer includes any person
authorized by law to perform the duties of such office.
(9) Reference to the population or number of inhabi
tants of any county, city, town, village or other political
sub-division of the state, shall be taken to be that as shown
by the last preceding official state or federal census.
(10) The words “ public body” , “ body politic” or
“ political sub-division” include counties, towns, villages,
special tax school districts, special road and bridge dis
tricts and all other districts in this state.
14
(11) Crude turpentine gum (oleoresin), the product of
a living tree or trees of the pine species, and gum-spirits-
of-turpentine and gum resin as processed therefrom, shall
be taken and understood to be agricultural products, farm
products and agricultural commodities.
352.07 Separate accommodations for white and negro
passengers on electric cars.—All persons operating urban
and suburban (or either) electric cars as common carriers
of passengers in this state, shall furnish equal but sep
arate accommodations for white and negro passengers on
all cars so operated.
352.08 Method of division in electric ears.—The sep
arate accommodations for white and negro passengers di
rected in Section 352.07 shall be by separate cars, fixed
divisions, movable screens, or other method of division in
the cars.
352.09 Divisions to be marked “ For White” or “ For
Colored.” — The car or division provided for wThite pas
sengers shall be marked in plain letters in a conspicuous
place. “ For White,” and the car or division provided for
negro passengers shall be marked in plain letters in a con
spicuous place, “ For Colored.”
352.10 Not to apply to nurses.—Nothing in Sections
352.07, 352.08, 352.09, 352.12, 352.13, 352.14 or 352.15 shall
be so construed as to apply to nurses of one race attending
children or invalids of the other race.
352.11 Operating extra cars for exclusive use of either
race.—Sections 352.07-352.15 shall not be so construed as
to prevent the running of special or extra cars, in addi
tion to the regular schedule cars, for the exclusive accom
modation of either white or negro passengers.
352.12 Separation of races; penalty.—Any person op
erating urban and suburban (or either) electric cars as
common carriers of passengers in this state, failing, re
fusing or neglecting to make provisions for the separation
of the white and negro passengers on such cars as re-
15
quired by law, shall, for each offense, be deemed guilty of
a misdemeanor, and upon conviction thereof shall be fined
not less than fifty dollars nor more than five hundred dol
lars. This penalty may be enforced against tbe president,
receiver, general manager, superintendent or other person
operating such cars.
352.13 Duty of conductors; penalty.—The conductor or
other person in charge of any such car shall see that each
passenger is in the car or division furnished for the race
to which such passenger belongs, and any conductor or
other person in charge of such car who shall permit any
passenger of one race to occupy a car or division provided
for passengers of the other race, shall be deemed guilty of
a misdemeanor, and upon conviction thereof shall be pun
ished by a fine of not exceeding twenty-five dollars, or by
imprisonment in the county jail for not exceeding sixty
days.
352.14 Violation by passengers; conductor may arrest
and eject; penalty.—Any passenger belonging to one race
who willfully occupies or attempts to occupy any such car,
or division thereof, provided for passengers of the other
race, or who occupying such car or division thereof, re
fuses to leave the same when requested so to do by the
conductor or other person in charge of such car, shall be
deemed guilty of a misdemeanor, and upon conviction
thereof shall be punished by a fine of not exceeding fifty
dollars, or by imprisonment in the county jail for not ex
ceeding three months. The conductor or other person in
charge of such car is vested with full power and authority
to arrest such passenger and to eject him or her from the
car.
352.15 Each day of refusal separate offense.—Each day
of refusal, failure or neglect to provide for the separation
of the white and negro passengers as directed in this chap
ter shall constitute a separate and distinct offense.
16
Georgia, Code, 1933
Section 18-206. Separate cars or compartments for
white and colored passengers; seats; lights; ventilation.—
Railroad companies doing business in this State shall fur
nish equal accommodations, in separate cars or compart
ments of cars, for white and colored passengers, and when
a car is divided into compartments, the space set apart for
white and colored passengers respectively may be propor
tioned according to the proportion of usual and ordinary
travel by each on the railroad or line on which the cars are
used. Such companies shall furnish to the passengers com
fortable seats and shall have the cars well and sufficiently
lighted and ventilated. Officers or employees having charge
of railroad cars shall not allow white and colored passengers
to occupy the same car or compartment.
Section 18-207. Duty to assign passengers to their cars;
police powers of conductors.—All conductors or other em
ployees in charge of passenger cars shall assign all pas
sengers to their respective cars, or compartments of cars,
provided by the said companies under the provisions of
Section 18-206 and all conductors of street cars and busses
shall assign all passengers to seats on the cars under their
charge, so as to separate the white and colored races as
much as practicable; and all conductors and other employees
of railroads and all conductors of street cars and busses
shall have, and are hereby invested with, police powers to
carry out said provisions.
Section 18-208. Remaining in seat, compartment or car
other than that to which assigned.—No passenger shall re
main in any car, compartment, or seat, other than that to
which he has been assigned. The conductor and any and
all employees on such cars are clothed with power to eject
from the train or car any passenger who refuses to remain
in the car, compartment or seat assigned to him.
Section 18-209. Nurses and servants excluded from op
eration of law.—The provisions of the preceding three sec
tions shall not apply to colored nurses or servants in at
tendance on their employees.
17
Section 18-210. White and colored passengers on sleep
ing cars to be separated.—Sleeping-car companies and rail
road companies operating sleeping cars in this State shall
have the right to assign all passengers to seats and berths
under their charge, and shall separate the white and col
ored races in making said assignment, and the conductor
and other employees on the train to which sleeping cars may
be attached shall not permit white and colored passengers
to occupy the same compartment: Provided, that nothing
in this section shall be construed to compel sleeping-car
companies or railroads operating sleeping cars to carry
persons of color in sleeping or parlor cars: Provided, that
this section shall not apply to colored nurses or servants
traveling with their employers. A conductor or other em
ployee of a sleeping car, as well as a conductor or other
employee of the train to which a sleeping car may be at
tached, shall have full police power to enforce this section.
(Acts 1899, p. 66.)
Section 18-9906. Employee failing to assist in ejecting
passenger from sleeping car.—A conductor or other em
ployee of a sleeping car, or of a train carrying sleeping
cars, who shall fail or refuse to assist in ejecting a passen
ger violating the provisions of section 18-210 shall be guilty
of a misdemeanor.
Section 18-9907. Failure to keep water or lights in pas
senger cars.—A violation of section 18-211, requiring rail
road companies to keep an adequate supply of good, pure
drinking water in each passenger car at all hours, and
lights during the night for the use of passengers, shall be
a misdemeanor.
Section 18-9908. Conductor or agent of railroad fail
ing to furnish water or lights.—Any conductor or agent of
a railroad, who, after being requested by a passenger to
furnish a sufficient supply of water to the passengers in
each car, or light at night, shall pass any depot or station
without so doing, may be indicted in any county through
which the railroad of which he is agent or conductor runs,
and shall be punished as for a misdemeanor.
18
Section 18-9909. Failure of railroad to install cinder
deflectors on passenger coaches.—Any railroad company-
refusing or neglecting to comply with Section 18-212, with
regard to installing cinder deflectors on passenger coaches,
shall be deemed guilty of a misdemeanor, and upon con
viction thereof shall be fined in the sum of not less than
$500 or more than $1,000 for each coach not equipped as re
quired by said section.
Section 18-9910. Failure to supply railway station ac
commodations for passengers.—A failure by a railroad
company to comply with Section 18-213, in relation to a
lighted and comfortable room for passengers, shall be a
misdemeanor.
Section 68-616. Carriage of Avhite or colored passen
gers, or both.—Motor common carriers may confine them
selves to carrying either white or colored passengers; or
they may provide different motor vehicles for carrying
white and colored passengers; and they may carry white
and colored passengers in the same vehicle, but only under
such conditions of separation of the races as the Commis
sion may presci’ibe.
1928 Supplement to Georgia Code
Section 2177. (Section 1820.) Who are persons of
Color.—All negroes, mulattoes, mestizos, and their de
scendants, having any ascertainable trace of either negro
or African, West Indian, or Asiatic Indian blood in their
veins, and all descendants of any person having either
negro or African, West Indian, or Asiatic Indian blood in
his or her veins, shall be known in this State as persons of
color. Acts 1865-6, p. 239; 1927, p. 272.
19
Georgia, Laws of 1927
P ersons of Colob; Mabriage; R egistry.
No. 317.
An Act to define who are persons of color and who are
white persons, to prohibit and prevent the intermar
riage of such persons, and to provide a system of regis
tration and marriage licensing as a means for accom
plishing the principal purpose, and to provide punish
ment for violations of the provisions of this Act, and
for other purposes.
Section 1. Be it enacted by the General Assembly of the
State of Georgia, that Section 2177 of the Civil Code of
Georgia of 1910, (Acts 1865-6, page 239), being an Act to
define persons of color, be and the same is hereby amended
as follows: By striking therefrom the words “ one-eighth”
and inserting in lieu thereof the following words: “ any
ascertainable trace of either, ’ ’ and by adding and inserting
after the word “ African” and before the word “ blood”
the following words: “ West Indian, or Asiatic Indian,”
and by adding and inserting after the word “ veins” and
before the word “ shall” the following words: “ and all
descendants of any person having either Negro or African,
West Indian, or Asiatic Indian blood in his or her veins,”
so that said Section 2177 as amended shall read as follows:
“ All negroes, mulattoes, mestizos, and their descendants,
having any ascertainable trace of either Negro or African,
West Indian, or Asiatic Indian blood in their veins, and
all descendants of any person having either Negro or
African, West Indian, or Asiatic Indian blood in his or her
veins, shall he known in this State as persons of color.”
Section 2. Be it further enacted, that upon the passage
of this Act the State Registrar of Vital Statistics, under
the supervision o f the State Board of Health, shall prepare
a form for the registration of individuals, whereon shall
be given the racial composition of such individual, as Cau
casian, Negro, Mongolian, West Indian, Asiatic Indian,
20
Malay, or any mixture thereof, or any other non-Caucasic
strains, and if there be any mixture, then the racial com
position of the parents and other ancestors in so far as as
certainable, so as to show in what generation such mixture
occurred. Said form shall also give the date and place of
birth of the registrant, name, race, and color of the parents
of registrant, together with their place of birth if known,
name of husband or wife of registrant, with his or her place
of birth, names of children of registrant with their ages
and place of residence, place of residence of registrant for
the five years immediately preceding registration, and such
other information as may be prescribed for identification
by the State Registrar of Vital Statistics.
Section 3. Be it further enacted, that the State Regis
trar of Vital Statistics shall supply to each local registrar
a sufficient number of such forms to carry out the provi
sions of this Act.
Section 4. Be it further enacted, that each local regis
trar shall personally or by deputy, upon receipt of said
forms, cause each person in his district or jurisdiction to
execute said form in duplicate, furnishing all available in
formation required upon said form, the original of which
form shall be forwarded by the local registrar to the State
Registrar of Vital Statistics, and a duplicate delivered to
the ordinary of the county. Said form shall be signed by
the registrant, or, in case of children under fourteen years
of age, by a parent, guardian, or other person -standing in
loco parentis. The execution of such registration certifi
cate shall be certified to by the local registrar.
Section 5. I f the local registrar have reason to believe
that any statement made by any registrant is not true, he
shall so write upon such certificate before forwarding the
same to the State registrar or ordinary, giving his reason
therefor.
Section 6. It shall be unlawful for any person to refuse
to execute said registration certificate as provided in this
Act, or to refuse to give the information required in the
execution of the same; and any person who shall refuse to
21
execute such certificate, or who shall refuse to give the in
formation required in the execution of the same, shall he
guilty of a misdemeanor, and shall be punished as pre
scribed in Section 1065 of the Penal Code of Georgia of
1910. Each such refusal shall constitute a separate offense.
Section 7. The local registrar shall collect from each
registrant a registration fee of thirty cents, fifteen cents
of which shall go to the local registrar and fifteen cents of
which shall go to the State Board of Health, to be used in
defraying expenses of the State Bureau of Vital Statistics.
If any registrant shall make affidavit that through poverty
he is unable to pay said registration fee of thirty cents, the
local registrar shall receive a registration fee of only ten
cents for such registration, which sum shall be paid out of
the funds of the State Bureau of Vital Statistics, and the
State Bureau of Vital Statistics shall receive no fee for such
registration. This section shall not apply to the registra
tion or births or deaths, the registration of which is other
wise provided for.
Section 8. Be it further enacted, that it shall be a felony
for any person to wilfully or knowingly make or cause to
be made a registration certificate false as to color or race,
and upon conviction thereof such person shall be punished
by imprisonment in the penitentiary for not less than one
year and not more than two years. In such case the State
registrar is authorized to change the registration certificate
so that it will conform to the truth.
Section 9. Be it further enacted, that upon the passage
of this Act, the State Registrar of Vital Statistics shall
prepare a form for application for marriage license, which
form shall require the following information to be given
over the signature of the prospective bride and groom;
name and address; race and color; place of birth; age; name
and address of each parent; race and color of each parent;
and whether the applicant is registered with the Bureau
of Vital Statistics of this or any other State, and, if reg
istered, the county in which such registration was made.
The State Registrar of Vital Statistics shall at all times
22
keep the ordinaries of each county in this State supplied
with a sufficient number of said form of application for mar
riage license to care for all applications for marriage li
cense. Each prospective bride and each prospective groom
applying for marriage license shall fill out and execute said
application in duplicate.
Section 10. Be it further enacted, that upon such ap
plications for marriage license being filed with the ordinary
by the prospective bride and prospective groom, the ordi
nary shall forward the original of such application to the
State Registrar of Vital Statistics, and retain the duplicate
of such application in his files.
Section 11. Be it further enacted, that the ordinary
shall withhold the issuing of any marriage license until a
report upon such application has been received from the
State Registrar of Vital Statistics. Said report from the
State Registrar of Vital Statistics shall be forwarded to
the ordinary by the next return mail, and shall state
whether or not each applicant is registered in the Bureau
of Vital Statistics; if registered, the report shall state
whether the statements made by each applicant as to race
and color are correct according to such registration cer
tificate. If the registration certificate in the office of the
Bureau of Vital Statistics show that the statement of either
applicant as to race or color are untrue, the report of the
State Registrar of Vital Statistics shall so state, and in such
case it shall be illegal for the ordinary to issue a marriage
license to the applicants, until the truth of such statements
of the applicants shall have been determined in a legal
proceeding brought against the ordinary to compel the
issuing of such license. I f the report from the State Regis
trar of Vital Statistics shows that the applicants are not
registered, and if the State Bureau of Vital Statistics has
no information as to the race or color of said applicants,
then the ordinary shall issue the marriage license if he has
no evidence or knowledge that such marriage would be
illegal. I f one of the applicants is registered with the State
Bureau of Vital Statistics and the other applicant is not
so registered, if the records of the Bureau of Vital Statis-
23
tics contain no information to disprove the statements of
either applicant as to color or race, then the ordinary shall
issue the marriage license, if he has no evidence or knowl
edge that such marriage would be illegal. Provided, that
where each party is registered and such registration cer
tificate is on file in the office of the ordinary of the county
where application for marriage license is made, it shall not
be necessary for the ordinary to obtain any information
from the State Bureau of Vital Statistics; and provided
further, that when any person who has previously regis
tered as required herein moves to another county, he may
file with the ordinary of the county of his new residence a
certified copy of his registration certificate, which shall
have the same effect as if such registration had been made
originally in said county.
Section 12. Be it further enacted, that where any ap
plication for marriage license shows that such applicant
was not born in this State and is not registered with the
Bureau of Vital Statistics of this State, the ordinary shall
forward a copy of such application to the State Registrar
of Vital Statistics of this State, and shall also forward a
copy of the application to the clerk of the superior or cir
cuit court, as the case may be, of the county of the appli
cant’s birth, and another copy to the Bureau of Vital Statis
tics, at the capitol of the State, of the applicant’s birth, with
the request that the statements therein contained he veri
fied. If no answer he received from such clerk or Bureau
of Vital Statistics within ten days, the ordinary shall issue
the license if he have no evidence or knowledge that such
marriage would be illegal. If an answer be received within-
ten days, showing the statement of such applicant to he
untrue, the ordinary shall withhold the issuing of the license
until the truth of such statements of the applicant shall
have been determined in a legal proceeding brought against
the ordinary to compel the issuing of such license. In
all cases where answers are received fi'om such clerk or
Bureau of Vital Statistics, a copy of the answer shall be
forwarded to the State Registrar of Vital Statistics of this
State.
24
Section 13. Be it further enacted, that when a marriage
license is issued by the ordinary, it shall be returned to the
ordinary by the officer or minister solemnizing the marri
age, and forwarded by the ordinary to the State Registrar
of Vital Statistics, to be permanently retained by said
registrar.
Section 14. Be it further enacted, that the term “ white
person” shall include only person of the white or Cau
casian race, who have no ascertainable trace of either
Negro, African, West Indian, Asiatic Indian, Mongolian,
Japanese, or Chinese blood in their veins. No person shall
be deemed to be a white person any one of whose ancestors
has been duly registered with the State Bureau of Vital
Statistics as a colored person or person of color.
Section 15. Be it further enacted, that from and after
the passage of this Act it shall he unlawful for a white per
son to marry any save a white person. Any person, white
or otherwise, who shall marry or go through with a mar
riage ceremony in violation of this provision shall be guilty
of a felony, and shall be punished by imprisonment in the
penitentiary for not less than one nor more than two years,
and such marriage shall be utterly void.
Section 16. Be it further enacted, that any person who
shall make or cause to be made, a false statement as to race
or color of himself or parents, in any application for mar
riage license, shall be guilty of a felony, and shall be
punished by imprisonment in the penitentiary for not less
than two nor more than five years.
Section 17. Be it further enacted, that any ordinary
who shall issue a marriage license without complying with
each and every provision of this Act shall be guilty of and
punished as for a misdemeanor.
Section 18. Be it further enacted, that if any civil
officer, minister, or official of any church, sect, or religion,
authorized to perform a marriage ceremony, shall wilfully
or knowingly perform any marriage ceremony in violation
of the terms of this Act, he shall be guilty of and punished
as for a misdemeanor.
25
Section 19. Be it further enacted, that if any case of
a marriage in violation of the provisions of this Act is
reported to the State Registrar of Vital Statistics, he shall
investigate such report, and shall turn over to the Attor
ney-General of the State the information obtained through
such investigation.
Section 20. Be it further enacted that when any birth
certificate is forwarded to the Bureau of Vital Statistics,
showing the birth of a legitimate child to parents one of
whom is white and one of whom is colored, it shall be the
duty of the State Registrar of Vital Statistics to report
the same to the Attorney-General of the State, with full
information concerning the same. Thereupon it shall be
the duty of the Attorney-General to institute criminal pro
ceedings against the parents of such child, for any viola
tion of the provisions of this Act which may have been
committed.
Section 21. Be it further enacted, that it shall he the
duty of the Attorney-General of the State, as well as the
duty of the Solicitor-General of the Superior Court where
such violation occurs, to prosecute each violation of any
of the provisions of this Act, when the same is reported
to him by the State Registrar of Vital Statistics. If the
Attorney-General fails or refuses to prosecute any such
violation so reported to him by the State Registrar of Vital
Statistics, the same shall be grounds for impeachment of
the Attorney-General, and it shall be the duty of the State
Registrar of Vital Statistics to institute impeachment pro
ceedings against the Attorney-General in such case.
Section 22. Be it further enacted, that this Act shall
be effective immediately upon its passage and approval
by the Governor of the State.
Section 23. Be it further enacted, that all laws and parts
of laws in conflict with this Act be and the same are hereby
repealed.
Approved August 20, 1927.
26
Indiana (Burns), Statutes, 1933
Section 44-104. Void marriages.— The following mar
riages are declared void :
First. When either party had a wife or husband living
at the time of such marriage.
Second. When one of the parties is a white person and
the other possessed of one-eighth or more of negro blood.
Third. When either party is insane or idiotic at the
time of such marriage.
Kentucky, Revised Statutes, 1942
Section 276.440 [795; 796; 799; 801] Separate coaches
or compartments for white and colored passengers.
(1) Every company operating railroad cars or coaches
on any railroad line within this state, and every railroad
company doing business in this state upon lines of railroad
leased or wholly or partly owned by it, shall furnish sepa
rate coaches or compartments for the transportation of
the white and colored passengers on its lines of railroad.
Where separate compartments are used, the compartments
shall be separated by a good and substantial partition, with
a door therein. Each separate coach or compartment shall
bear, in some conspicuous place, appropriate words in plain
letters indicating the race for which it is set apart. The
company shall make no difference or discrimination in the
quality, convenience or accommodations in the coaches or
compartments set apart for white and colored passengers.
(2) The conductor or manager of each train carrying
passengers shall assign each white or colored passenger to
Iris respective coach or compartment. I f any passenger re
fuses to occupy the coach or compartment to which he is
assigned, the conductor or manager may refuse to carry
such passenger on his train, and may put such passenger
off the train. Neither the conductor, manager nor railroad
company shall be liable for damages for refusing to carry
such passenger or putting him off the train.
27
(3) This section does not apply to the transportation
of employes of railroads, or of nurses in charge of other
persons, or of officers in charge of prisoners, nor does it
apply to the transportation of passengers in any caboose
car attached to a freight train.
Kentucky, Statutes (Carroll), 1930
Section 801. Persons to whom act not applicable.—The
provisions of this act shall not apply to employees of rail
roads or persons employed as nurses, or officers in charge
or prisoners nor shall the same apply to the transporta
tion of passengers in any caboose car attached to a freight
train.
Louisiana, General Statutes (D ari), 1939
Section 5307. Separate accommodations for white and
colored races.—All bus companies, corporations, partner
ships, persons or associations of persons carrying passen
gers for hire in their busses, carriages or vehicles in this
state shall provide equal but separate accommodations for
Ihe white and colored races by designating separate seats
or compartments so as to secure separate accommodations
for the white and colored races; no person or persons shall
be permitted to occupy seats or compartments other than
the ones assigned to them on account of the race they be
long to.
Section 5308. Violation by passenger or operator—Pen
alty.—The person in charge of such busses, carriages or
vehicles shall have power and is hereby required to assign
each passenger to a seat or compartment used for the race to
which such passenger belongs; any passenger insisting upon
going into a seat or compartment to which by race he or she
does not belong, shall be liable to a fine of twenty-five dol
lars ($25.00) or in lieu thereof, be imprisoned for the period
of not more than thirty days in the parish prison, and any
person in charge or officer of any bus, carriage or vehicle
28
insisting on assigning a person to a seat or compartment
other than the one set aside for the race to which said pas
senger belongs, shall be liable to a fine of twenty-five dol
lars ($25.00), or in lieu thereof to imprisonment for a period
of not more than thirty days in the parish prison; and
should any passenger refuse to occupy the seat or compart
ment to which he or she is assigned by the person in charge
or officer of such bus, carriage or vehicle, said person in
charge or officer shall have the power to refuse to carry
such passenger on his car or cars, and for such refusal
neither he nor the bus company, corporation, partnership,
person or association of persons which he represents shall
be held for damages in any of the courts in this state.
Section 5309. Violation by companies and officers—
Penalty.—All officers and directors of bus companies, cor
porations, partnerships, persons or associations carrying
persons for hire over the public highways of the state, who
shall refuse or neglect to comply with the provisions and
requirements of this act, shall be deemed guilty of a misde
meanor and shall, upon conviction before any court of com
petent jurisdiction, be fined not less than fifty dollars
($50.00), nor more than three hundred dollars ($300.00),
or be imprisoned in the parish jail for not less than fen
days nor more than sixty days, or both fined and impris
oned at the discretion of the court.
Section 8130. Accommodations for white and colored
races on trains—Provision—Use.—All railway companies
carrying passengers in their coaches in this state, shall pro
vide equal but separate accommodations for the white, and
colored races, by providing two or more passenger coaches
for each passenger train, or by dividing the passenger
coaches by a partition so as to secure separate accommoda
tions ; provided, that this section shall not be construed to
apply to street railroads. No person or persons, shall be
permitted to occupy seats in coaches, other than, the ones,
assigned, to them on account of the race they belong to.
Section 8131. Assignment of compartments—Enforce
ment—Penalties.—The officers of such passenger trains
29
shall have power and are hereby required to assign each
passenger to the coach or compartment used for the race
to which such passenger belongs; any passenger insisting
on going into a coach or compartment to which by race he
does not belong, shall be liable to a tine of twenty-five dol
lars ($25.00), or in lieu thereof to imprisonment for a
period of not more than twenty (20) days in the parish
prison, and any officer of any railroad insisting on assign
ing a passenger to a coach or compartment other than the
one set aside for the race to which said passenger belongs
shall be liable to a. fine of twenty-five dollars ($25.00), or
in lieu thereof to imprisonment for a period of not more
than twenty (20) days in the parish prison; and should any
passenger refuse to occupy the coach or compartment to.
which he or she is assigned by the officer of such railway;
said officer shall have power to refuse to carry such pas
senger on his train, and for such refusal neither he nor the
railway company which he represents shall he liable for
damages in any of the courts of this state.
Section 8132. Disobedience of law by railroad em
ployees—Penalties—Posting of Law—Limits on applica
tion of law.—All officers and directors of railway companies
that shall refuse or neglect to comply with the provisions
and requirements of this act shall be deemed guilty of a
misdemeanor and shall upon conviction before any court
of competent jurisdiction be fined not less than one hun
dred dollars ($100.00) nor more than five hundred dollars
($500.00) ; and any conductor or other employees of such
passenger train, having charge of the same, who shall re
fuse or neglect to carry out the provisions of this act shall
on conviction be fined not less than twenty-five dollars
($25.00) nor more than fifty dollars ($50.00) for each of
fense. All railroad corporations carrying passengers in
this state other than street railroads shall keep this law
posted up in a conspicuous place in each passenger coach
and ticket office; provided that nothing in this act shall be
construed as applying to nurses attending children of
the other race; or prisoners in charge of sheriffs or their
deputies, or other officers.
30
Section 8188. Accommodations for white and colored
races on street cars—Provision—Use—All street railway
companies carrying passengers in their cars in this state
shall provide equal but separate accommodations for the
white and colored races by providing two or more cars or
by dividing their cars by wooden or wire screen partitions
so as to secure separate accommodations for the white and
colored races, no person or persons shall be permitted to
occupy seats in cars or compartments other than the ones
assigned to them on account of the race they belong to.
Section 8189. Assignment of compartments—Enforce
ment—Penalties.— The officers of such street cars shall
have power and are hereby required to assign each passen
ger to the car or compartment used for the race to which
such passenger belongs; any passenger insisting upon going
into a car or compartment to which by race he or she does
not belong shall be liable to a fine of twenty-five dollars
($25.00), or in lieu thereof be imprisoned for a period of
not more than thirty (30) days in the parish prison, and
any officer of any street railway insisting on assigning a
passenger to a car or compartment other than the one set
aside for the race to which said passenger belongs, shall
be liable to a fine of twenty-five dollars ($25.00) or in lieu
thereof, to imprisonment for a period or not more than
thirty (30) days in the parish prison; and should any pas
senger refuse to occupy the car or compartment to which
he or she is assigned by the officer of such street railway,
said officer shall have the power to refuse to carry such
passenger on his car or cars, and for such refusal neither
he nor the street railway company which he represents
shall be liable for damages in any of the courts of this state.
Criminal Code (D art), 1932
Section 1128. Concubinage, white and colored per
sons—Penalty.— Concubinage between a person of the Cau
casian or white race and a person of the colored or black
race is hereby made a felony, and whoever shall be con
victed thereof in any court of competent jurisdiction, shall
31
for each offense be sentenced to imprisonment at the dis
cretion of the court for a term of not less than one month
nor more than one year with or without hard labor.
Section 1129. Proof of violation of act— Concubinage
defined.—Living together or cohabitation of persons of the
Caucasian and of the colored races shall be proof of the
violation of the provisions of Section 1 of this act. For the
purpose of this act, concubinage is hereby defined to be the
unlawful cohabitation of persons of the Caucasian and of
the colored races whether open or secret.
Section 1130. Charging grand jury concerning act.—
It shall be the duty of the judges of the several district
courts of this state to specially charge the grand juries
upon this act.
Maryland, Code (Flack), 1939 Article 27
Section 445. All marriages between a white person and
a negro, or between a white person and a person of negro
descent, to the third generation, inclusive, or between a
white person and a member of the Malay race or between
a negro and a member of the Malay race, or between a per
son of negro descent, to the third generation, inclusive, and
a member of the Malay race, are forever prohibited, and
shall be void; and any person violating the provisions of
this Section shall be deemed guilty of an infamous crime,
and punished by imprisonment in the penitentiary not less
than eighteen months nor more than ten years; provided,
however, that the provisions of this Section shall not apply
to marriages between white persons and members of the
Malay race, or between negroes and members of the Malay
race, or between persons of negro descent, to tbe third
generation, inclusive, and members of the Malay race, ex
isting prior to June 1, 1935.
Section 510. All railroad companies and corporations,
and all persons running or operating cars or coaches hy
steam on any railroad line or track in the State of Mary
land, for the transportation of passengers, are hereby re-
32
quired to provide separate cars or coaches for the travel
and transportation of the white and colored passengers on
their respective lines of railroad; and each compartment
of a new car or coach, divided by a good and substantial
partition, with a door or place of exit from each division,
shall be deemed a separate car or coach within the meaning
of this section, and each separate car, coach or compart
ment shall bear in some conspicuous place appropriate
words, in plain letters, indicating whether it is set apart
for white or colored passengers.
Section 511. The railroad companies and corporations
and persons aforesaid shall make no difference or discrim
ination in quality of or convenience or accommodation in
the cars, coaches or compartments set apart for white and
colored passengers.
Section 512. Any railroad company or corporation or
person that shall fail, refuse or neglect to comply with the
provisions of Sections 510 and 511 shall be deemed guilty
of a misdemeanor, and, upon indictment and conviction
thereof, shall be fined not less than three hundred dollars
nor more than one hundred dollars for each offense.
Section 513. The conductors and managers on all rail
roads shall have power and are hereby required to assign
to each white or colored passenger his or her respective
car, coach or compartment, and, should any passenger re
fuse to occupy the car, coach or compartment to which he
or she may be assigned by the conductor or managers, shall
have the right to refuse to carry such passenger on his
train, and may put such passenger off his train, and for
such refusal or putting off the train neither the conductor,
manager nor railroad company or corporation, or person
owning or operating the same shall be liable for damages
in any court; and the passenger so refusing to occupy the
car, coach or compartment to which he or she may be as
signed by the conductor or manager shall be deemed guilty
of a misdemeanor, and, on indictment and conviction there
of, shall be fined not less than five dollars nor more than
fifty dollars, or he confined in jail not less than thirty days,
or both, in the discretion of the court, for each offense.
33
Section 514. Any conductor or manager on any railroad
who shall fail or refuse to perform the duties imposed upon
him by Section 513 shall be deemed guilty of a misde
meanor, and, upon indictment and conviction thereof, shall
be fined not less than twenty-five dollars and not more than
fifty dollars for each offense.
Section 515. The following words contained in Section
510, to wit: “ and each compartment of a car or coach di
vided by a good substantial partition, by a door or place of
exit from each division shall be deemed a separate car or
coach within the meaning of this section,” shall not apply
to the counties of Prince George’s, Charles, St. Mary’s,
Calvert and Annie Arundel, so that in said counties there
shall be separate cars or coaches for the travel and trans
portation of the white and colored passengers on the re
spective lines of railroad, and a car divided by a compart
ment shall not be deemed a separate car or coach within
the meaning of this section, but a combination car, not over
one-third of which is used for baggage or mail, for the pur
poses of this section shall be deemed a separate car, and
each separate car or coach shall have in some conspicuous
place, both outside and inside, appropriate words and plain
letters indicating whether it is set apart for white or col
ored passengers; provided, this section shall not apply to
trains making no scheduled intermediate service stops be
tween their termini.
Section 516. The provisions of the six preceding sec
tions shall not apply to employes of railroads, or to per
sons employed as nurses, or to officers in charge of pris
oners, whether the said prisoners are white or colored, or
both white and colored, or to the prisoners in their custody,
nor shall the same apply to the transportation in any
caboose car attached to a freight train, nor to parlor nor
sleeping cars, nor through express trains that do no local
business.
Section 517. It shall be the duty of any captain, purser
or other officer in command of any steamboat carrying pas
sengers and plying in the waters within the jurisdiction of
the State of Maryland to assign white and colored passen
34
gers on said boats to the respective locations they are to
occupy as passengers while on said boat; and it shall be
the duty of said captain, purser or other officer in command
to separate, as far as the construction of his boat and due
consideration for the comfort of the passengers will per
mit, the white and colored passengers on said boat in the
sitting, sleeping and eating apartments; provided, however,
that no discrimination shall be made in the quality and con
venience of accommodation afforded passengers in said
locations; and provided, that this section and the two suc
ceeding sections shall not apply to nurses or attendants
traveling with their employers, nor to officers in charge of
prisoners, whether the said prisoners are white or colored,
or both white and colored, or to prisoners in their custody.
Section 518. Any captain, purser or other officer in
command of any steamboat as aforesaid who shall refuse
to carry out the provisions of Section 517 shall he deemed
guilty of a misdemeanor, and upon indictment in any court
having jurisdiction, and conviction thereof, shall he fined
not less than twenty-five dollars and not more than fifty
dollars for each offense.
Section 519. Any passenger traveling on any steamboat
plying in the waters within the jurisdiction of this State
who shall wilfully refuse to occupy the location, whether
of sitting, sleeping or eating, set apart or assigned by the
captain, purser or other officer in command of such boat,
shall be deemed guilty of a misdemeanor, and on indict
ment in any court having jurisdiction, and conviction there
of, shall be fined not less than five dollars nor more than
fifty dollars, or be confined in jail not less than thirty days,
in the discretion of the court, for each offense; and such
passenger may be ejected from the said boat by the officers
thereof at any wharf or landing place of said boat, and, if
necessary, such assistance may be invoked by the person in
charge of said boat as he may require to eject such passen
ger; and provided, that in case of such ejectment neither
the captain nor other person in charge of such boat, nor the
steamboat company or corporation or person owning or
operating such boat shall not be liable in damages in any
court.
Section 520. It shall be the duty of every person, firm
or corporation owning and operating steamboats on the
Chesapeake Bay, between the city of Baltimore and points
on said bay or its tributaries, to provide separate toilet or
retiring rooms, and separate sleeping cabins on their re
spective steamboats, on or before the first day of July, in
the year nineteen hundred and eight, for white and colored
passengers, under a penalty of a fine of fifty dollars for
each and every day said steamboats may be operated upon
the waters aforesaid in violation of this section, and the
provisions of the four preceding sections shall apply in the
assigning of passengers to the use of the toilet, or retiring-
rooms, and the sleeping quarters set apart for the respec
tive white and colored passengers.
Mississippi, Code, 1942
Section 459. Unlawful marriages—between white per
son and negro or Mongolian prohibited.— The marriage of
a white person and a negro or mulatto or person who shall
have one-eiglitli or more of negro blood, or with a Mon
golian or a person who shall have one-eighth or more of
Mongolian blood, shall be unlawful, and such marriage shall
be unlawful and void; and any party thereto, on conviction,
shall be punished as for marriage within the degrees pro
hibited by the last two sections; and any attempt to evade
this and the two preceding sections by marrying out of this
state and returning to it shall be within them.
Section 7784. Equal but separate accommodations for
the races.—Every railroad carrying passengers in this state
shall provide equal but separate accommodations for the
white and colored races by providing two or more passen
ger cars for each passenger train, or by dividing the pas
senger cars by a partition to secure separate accommoda
tion ; and the conductor of such passenger train shall have
power, and is required, to assign each passenger to the car,
or the compartment of a car, used for the race to which
such passenger belongs; and should any passenger refuse
to occupy the car to which he or she is assigned by the con-
36
ductor, the conductor shall have power to refuse to carry
such passenger on the train, and for such refusal neither
he nor the railroad company shall be liable for damages in
any court.
Section 7785. Separate accommodations for races—ap
plicable to street railways.—All persons or corporations
operating street railways, carrying passengers in their cars
in this state, and every common carrier by motor vehicle as
defined by chapter 148 of the laws of 1938, carrying pas
sengers in this state shall provide equal, hut separate, ac
commodations for the white and colored races, by dividing
such passenger bus or street cars by a partition to secure
separate accommodations; and the operator of such pas
senger buses shall have power, and is required, to assign
each passenger to the compartment of a bus used for the
race to which such passenger belongs; and should any pas
senger refuse to occupy the compartment to which he or
she is assigned by the operator, the operator shall have
power to refuse to carry such passenger on the bus, and
for such refusal neither he nor the bus company, nor street
railway company, shall be liable for damages in any court.
Provided, however, that such partition of compartments
may be adjustable and movable.
Section 7786. Passengers required to occupy compart
ments to which they are assigned.— Officers of such street
cars and motor vehicles as defined by chapter 148 of the
laws of 1938 [Title 37, ch. 4] shall have power and are re
quired to assign each passenger to the car or compartment
used for the race to which such passenger belongs. Any
passenger insisting upon going into a car or compartment
to which by race he or she does not belong shall be liable
to a fine of twenty-five dollars ($25.00), or in lieu thereof
be imprisoned for a period of not more tlian thirty (30)
days in the county jail; and any officer of any street rail
way, or motor vehicle, as herein defined, insisting on as
signing a passenger to a car or compartment other than
the one set aside for the race to which said passenger be
longs shall be liable to a fine of twenty-five dollars ($25.00),
or in lieu thereof, to imprisonment for a period of not more
37
than thirty (30) days in the county jail; and should any
passenger refuse to occupy the car or compartment to
which he or she is assigned by the officer of such street rail
way, or motor vehicle, said officer shall have power to re
fuse to carry such passenger on his car or cars, and for such
refusal neither he nor the street railway company, or com
mon carrier by motor vehicle, which he represents shall be
liable for damages in any court.
Constitution
iSection 263. The marriage of a white person with a
negro or mulatto, or person who shall have one-eighth or
more of negro blood, shall be unlawful and void.
Missouri, Revised Statutes, 1939
Section 4651. Illegal marriages.—No person having one-
eighth part or more of negro blood shall be permitted to
marry any white person, nor shall any white person be
permitted to marry any negro or person having one-eighth
part or more or negro blood; and every person who shall
knowingly marry in violation of the provisions of this sec
tion shall, upon conviction, be punished by imprisonment
in the penitentiary for two years, or by fine not less than
one hundred dollars, or by imprisonment in the county jail
not less than three months, or by both such fine and im
prisonment; and the jury trying any such case may de
termine the proportion of negro blood in any party to such
marriage from the appearance of such person. R. S. 1929,
Section 4263.
North Carolina, Constitution
Section 8. Intermarriage of whites and negroes pro
hibited.—All marriages between a white person and a
negro, or between a white person and a person of negro
descent to the third generation, inclusive, are hereby for
ever prohibited. (Convention 1875.)
38
North Carolina, General Statutes, 1943
Section 14-181. Miscegenation.—All marriages between
a white person and a negro, or between a white person and
a person of negro descent to the third generation inclusive,
are forever prohibited, and shall be void. Any person vio
lating this section shall be guilty of an infamous crime, and
shall be punished by imprisonment in the county jail or
state’s prison for not less than four months nor more than
ten years, and may also be fined, in the discretion of the
court.
Section 51-3. Want of capacity; void and voidable mar
riages.—All marriages between a white person and a negro
or indian, or between a white person and person of negro
or indian descent to the third generation, inclusive, or be
tween a Cherokee indian of Robeson county and a negro,
or between a Cherokee indian of Robeson county and a per
son of negro descent to the third generation, inclusive, or
between any two persons nearer of kin than first cousins,
or between a male person under sixteen years of age and
any female, or between a female person under fourteen
years of age and any male, or between persons either of
whom has a husband or wife living at the time of such mar
riage, or between persons either of whom is at the time
physically impotent, or is incapable of contracting from
want of will or understanding, shall be void: Provided,
double first cousins may not marry; and Provided further,
that no marriage followed by cohabitation and the birth
of issue shall be declared void after the death of either of
the parties for any of the causes stated in this section, ex
cept for that one of the parties was a white person and the
other a negro or indian, or of negro or indian descent to
the third generation, inclusive, and for bigamy.
Section 60-94. Separate accommodations for different
races.—All railroad and steamboat companies engaged as
common carriers in the transportation of passengers for
hire, other than street railways, shall provide separate but
equal accommodations for the white and colored races at
passenger stations or waiting-rooms, and also on all trains
39
and steamboats carrying passengers. Such accommoda
tions may be furnished by railroad companies either by
separate passenger cars or by compartments in passenger
cars, which shall be provided by the railroads under the
supervision and direction of the utilities commission: Pro
vided, that this shall not apply to relief trains in cases of
accident, to Pullman or sleeping cars, or through express
trains that do not stop at all stations and are not used
ordinarily for traveling from station to station, to negro
servants in attendance on their employers, to officers or
guards transporting prisoners, nor to prisoners so trans
ported.
Section 60-95. Certain carriers may be exempted from
requirement.— The utilities commission is hereby author
ized to exempt from the provisions of Section 60-94 steam
boats, branch lines and narrow-gauge railroads and mixed
trains carrying both freight and passengers, if in its judg
ment the enforcement of the same be unnecessary to secure
the comfort of passengers by reason of the light volume
of passenger traffic, or the small number of colored pas
senger travelers on such steamboats, narrow-gauge rail
roads, branch lines or mixed trains.
Section 60-96. Use of same coach in emergencies.—
When any coach or compartment car for either race shall
be completely filled at a station where no extra coach or
car can be had, and the increased number of passengers
could not be foreseen, the conductor in charge of such train
may assign and set apart a portion of a car or compart
ment assigned for passengers of one race to passengers of
the other race.
Section 60-97. Penalty for failing to provide separate
coaches.—Any railroad or steamboat company failing to
comply in good faith with the provisions of Sections 60-94
to 60-96 shall be liable to a penalty of one hundred dollars
per day, to be recovered in an action brought against such
company by any passenger on any train or boat of any rail
road or steamboat company which is required by this chap
ter to furnish separate accommodations to the races, who
lias been furnished accommodations on such railroad train
40
or steamboat only in a car or compartment with a person
of a different race in violation of law.
Section 60-135. Separate accommodations for different
races; failure to provide misdemeanor.—All street, in-
terurban and suburban railway companies, engaged as com
mon carriers in the transportation of passengers for hire
in the state of North Carolina, shall provide and set apart
so much of the front portion of each car operated by them
as shall he necessary, for occupation by the white passen
gers therein, and shall likewise provide and set apart so
much of the rear part of such car as shall be necessary, for
occupation by the colored passengers therein, and shall re
quire as far as practicable the white and colored passen
gers to occupy the respective parts of such car so set apart
for each of them. The provisions of this section shall not
apply to nurses or attendants of children or of the sick or
infirm of a different race, while in attendance upon such
children or such sick or infirm persons. Any officer, agent
or other employee of any street railway company who shall
willfully violate the provisions of this section shall be guilty
of a misdemeanor, and upon conviction shall be fined or
imprisoned in the discretion of the court.
Section 60-136. Pasengers to take certain seats; viola
tion of requirement misdemeanor.— Any white person en
tering a street car or other passenger vehicle or motor bus
for the purpose of becoming a passenger therein shall, in
order to carry out the purposes of Section 60-135, occupy
the first vacant seat or unoccupied space nearest the front
thereof, and any colored person entering a street car or
other passenger vehicle or motor bus for a like purpose
shall occupy the first vacant seat or unoccupied space near
est the rear end thereof, provided, however, that no con
tiguous seat on the same bench shall be occupied by white
and colored passengers at the same time, unless and until
all the other seats in the car have been occupied. Upon re
quest of the person in charge of the street car or other pas
senger vehicle or motor bus, and when necessary in order
to carry out the purpose of providing separate seats for
white and colored passengers, it shall be the duty of any
41
white person to move to any unoccupied seat toward or in
the front of the car, vehicle or bus, and the duty of any
colored person to move to any unoccupied seat toward or
in the rear thereof, and the failure of any such person to
so move shall constitute prima facie evidence of an intent
to violate this section. Any person violating the provisions
of this section shall be guilty of a misdemeanor and, upon
conviction, shall be fined not more than fifty dollars or im
prisoned not exceeding thirty days. Any such person may
also be ejected from the car, vehicle or bus by the person
charged with the operation thereof. Each person now or
hereafter charged with the operation of any such street
car, passenger vehicle or motor bus is hereby invested with
police powers and authority to carry out the provisions of
this section.
Section 60-137. No liability for mistake in assigning
passengers to wrong seat.—No street, suburban or interur-
ban railway company, its agents, servants or employees,
shall he liable to any person on account of any mistake in
the designation of any passenger to a seat or part of a car
set apart for passengers of the other race.
Section 62-109. Regulatory powers of commission;
separation of races.— The commission is hereby vested with
power and authority to supervise and regulate every motor
vehicle carrier under this article; to make or approve the
rates, fares, charges, classifications, rules and regulations
for service and safety of operation and the checking of
baggage of each such motor vehicle carrier; to supervise
the operation of union passenger stations in any manner
necessary to promote harmony among the operators and
efficiency of service to the traveling public; to fix and pre
scribe the speed limit, which may be less but shall not be
greater than that prescribed by law; to regulate the ac
counts and to require the filing of annual and other reports
and of other data by such motor vehicle carriers; to require
the increase of equipment capacity to meet public con
venience and necessity; and to supervise and regulate motor
vehicle carriers in all other matters affecting the relation
ship between such carriers and the traveling and shipping
public. The commission shall have power and authority,
42
by general order or otherwise, to prescribe rules and regu
lations applicable to any and all motor vehicle carriers,
and the said commission is authorized, directed and em
powered, whenever the public convenience and necessity
may require, to increase, or decrease, or suspend tempo
rarily the service upon any route for which a franchise
certificate has been issued; and is hereby authorized, em
powered, and directed to see that such rules and regula
tions and all, and singularly, the provisions of this article
are enforced. The commission shall require any motor ve
hicle carrier operating on a franchise granted by the utilities
commission and coming within the provisions of this ar
ticle, if engaged in the transportation of both white and
colored passengers for hire, to provide separate but equal
accommodations for the white and colored races at pas
senger stations or waiting rooms where the carrier re
ceives passengers of both races and/or on all busses or
motor vehicles operating on a route or routes over which
such carrier transports passengers of both races. Such
accommodations may be furnished either by separate motor
vehicles or by equal accommodations in motor vehicles.
Provided that any requirement as to separate accommoda
tion for the races shall not apply to specially chartered
motored vehicles or to negro servants and attendants on
their employers, or to officers or guards transporting pris
oners; and provided that operators of motor vehicles or
bus lines or taxicabs engaged in the transportation of pas
sengers of one race only shall not he required to provide
any accommodations for the other race, and provided that
an operator shall not be required to furnish any accommo
dations to the other race over a line or route where he has
undertaken and is engaged in the transportation of passen
gers of only one race, and provided, further, that nothing
contained in this section shall be construed to declare op
erators of busses and/or taxicabs common carriers.
Section 115-2. Separation of races.— The children of
the white race and the children of the colored race shall be
taught in separate public schools, but there shall be no dis
crimination in favor of or to the prejudice of either race.
All white children shall be taught in the public schools pro-
43
vided for the white race, and all colored children shall be
taught in the public schools provided for the colored race;
but no child with negro blood, or what is generally known
as Croatan Indian blood, in his veins, shall attend a school
for the white race, and no such child shall be considered a
white child. The descendants of the Croatan Indians, now
living in Robeson, Sampson, and Richmond counties, shall
have separate schools for their children.
North Dakota, Revised Code, 1943
Section 14-0304. Marriage Between White Person and
Negro Person Void; Penalty. No white person residing or
being in this state shall intermarry with any negro person.
Every such marriage shall be void. Each of the contracting
parties, upon conviction, shall be punished by imprison
ment in the penitentiary for a term of not more than ten
years, or by a fine of not more than two thousand dollars,
or by both such fine and imprisonment.
Section 14-0305. Definition of a Negro Person. Every
person who shall have one-eighth or more of negro blood
shall be deemed and held to be a colored person or negro.
Oklahoma, Constitution
A rticle X III
Section 3. Separate schools for white and colored chil
dren.— Separate schools for white and colored children with
like accommodation shall be provided by the Legislature
and impartially maintained. The term “ colored children,”
as used in this section, shall be construed to mean children
of African descent. The term “ white children” shall in
clude all other children.
A rticle X X III
Section 11. Colored race— Negro race—White race.—
Wherever in this Constitution and laws of this State, the
44
word or words, “ colored” or “ colored race,” “ negro” or
“ negro race,” are used, the same shall be construed to mean
or apply to all persons of African descent. The term “ white
race” shall include all other persons.
Oklahoma, Statutes, Annotated
T itle 13
Section 181. Separate coaches or compartments.—
Every railway company, urban or suburban car company,
street car or interurban car, railway company, lessee, man
ager or receiver thereof, doing business in this State, as a
common carrier of passengers for hire shall provide sep
arate coaches or compartments, as hereinafter provided,
for the accommodation of the white and negro races, which
separate coaches or cars shall be equal in all points of com
fort and convenience. (R. L. 1910, Section 860.)
Section 182. Separate waiting rooms.-—Every railroad
company, street car company, urban, suburban, or inter
urban car company shall provide for and maintain separate
waiting rooms at all their passenger depots for the accom
modation of the white and negro races, which separate wait
ing rooms shall be equal in all points of comfort and con
venience. Each waiting room shall bear in a conspicuous
place words in plain letters indicating the race for which
it is set apart. It shall be unlawful for any person to use,
occupy or to remain in any waiting room, toilet room, or at
any water tank in any passenger depot in this State, set
apart to a race to which he does not belong. (R. L. 1910,
Section 861.)
Section 183. Negro defined.—The term negro, as used
herein, includes every person of African descent, as defined
by the Constitution. (R. L. 1910, Section 862.)
Section 184. Separate coach and separate compartment
defined.—Each compartment of a railway coach, divided by
a good and substantial wooden partition, with a door
45
therein shall be deemed a separate coach within the mean
ing of this Article, and each separate coach shall bear in
some conspicuous place appropriate words in plain letters
indicating the race for which it is set apart; and each com
partment of an urban or suburban car company, inter-
urban car or railway company, or street car company,
divided by a board or marker, placed in a conspicuous place,
bearing appropriate words in plain letters, indicating the
race for which it is set apart, shall be sufficient as a sep
arate compartment within the meaning of this Article.
(R. L. 1910, Section 863.)
Section 185. Penalty—Separate offenses.—Any railway
company, street car company, urban or suburban car com
pany, or interurban car or railway company, lessee, man
ager or receiver thereof, which shall fail to provide its cars
bearing passengers, with separate coaches or compartments
as above provided, or fail to provide and maintain separate
waiting rooms as provided herein, shall be liable for each
and every failure to a penalty of not less than one hundred
nor more than one thousand dollars, to be recovered by
suit in the name of the State, in any court of competent
jurisdiction, and each trip run with such railway train,
street car, urban, suburban or interuban car without such
separate coach or compartment shall be deemed a separate
offense. (R. L. 1910, Section 864.)
Section 186. Passengers violating statute—Penalty—
Refusal to carry—Ejection.—If any passenger upon a rail
way train, street car, urban, suburban or interurban car
provided with separate coaches or compartments as above
provided shall ride in any coach or compartment not desig
nated for his race, after having been forbidden to do so
by the conductor in charge of the train or car, or shall re
main in any waiting room not set apart for the race to
which he belongs, he shall be guilty of a misdemeanor, and
upon conviction shall be fined not less than five nor more
than twenty-five dollars.
Should any passenger refuse to occupy the coach or
compartment or room to which he or she is assigned by the
46
officer of such railway company, said officer shall have the
power to refuse to carry such passenger on his train, and
should any passenger or any other person not a passenger,
for the purpose of occupying or waiting in such sitting or
waiting room not assigned to his or her race, enter said
room, said agent shall have the power and it is made his
duty to eject such person from such room, and for such
neither they nor the railroad company which they represent
shall be liable for damages, in any of the courts of this State.
(R. L. 1910, Section 865.)
Section 187. Exceptions to application of act.—The provi
sions of this act shall not be so construed as to extend to of
ficers having in custody any person or persons, or employees
upon trains or cars in the discharge of their duties, nor shall
it be construed to apply to such freight trains as carry pas
sengers in cabooses, provided that nothing herein contained
shall be construed to prevent railway companies in this state
from hauling sleeping cars or dining cars or chair cars at
tached to their trains for use exclusively for either white or
negro passengers separately but not jointly and, provided
further, that the Corporation Commission shall have power
and authority to exempt any station or depot from the re
quirements of this act, for such period of time as may he
ordered in any city or town where no negroes reside.
Section 189. Extra or special trains.—Nothing in this
Article shall be construed to prevent the running of extra or
special trains or cars for the exclusive accommodation of
either white or negro passengers, if the regular trains or
cars are operated as required by this Act and upon regular
schedule. (R. L. 1910, Section 868.)
T itle 43
Section 12. Miscegenation prohibited.— The marriage of
any person of African descent, as defined by the Constitu
tion of this State, to any person not of African descent, or
the marriage of any person not of African descent to any
person of African descent, shall he unlawful and is hereby
prohibited within this State. (R. L. 1910, Section 3894.)
47
T itle 47
Section 201. Carriers to provide separate compart
ments.—Every bus or transportation company, corpora
tion, individual, lessee, manager or receiver thereof, doing
business in this state as a common carrier of passengers
for hire between fixed termini, shall provide separate com
partments, as hereinafter provided, for the accommodation
of the white and negro races, which separate compartments
shall be equal in all points of comfort and convenience.
(Laws 1931, p. 184 [S. B. No. 21], Section 1.)
Section 202. Separate waiting rooms at stations or de
pots.—Every bus or transportation company, corporation,
individual, lessee, manager or receiver thereof, doing busi
ness in this state as a common carrier between fixed termini
shall provide for and maintain separate waiting rooms at
their stations or depots for the accommodation of white and
negro races, which separate waiting rooms shall be equal in
all points of comfort and convenience. Each waiting room
shall bear in a conspicuous place words in plain letters in
dicating the race for which it is set apart. It shall be un
lawful for any person to use, occupy, or to remain in any
waiting room, toilet room, or in any depot or station in this
state set apart to the race to which he does not belong.
(Laws 1931, p. 184 [S. B. No. 21], Section 2.)
Section 203. Persons regarded as negroes.— The term
“ negro,” as used herein includes every person of African
descent, as defined by fhe Constitution. (Laws 1931, p. 185
[S. B. No. 21], Section 3.)
Section 204. Separate compartment, what constitutes.
—Each compartment of a bus or motor vehicle divided by,
or indicated by a board or marker placed in a conspicuous
place bearing words in plain letters indicating the race for
which it is set apart shall be deemed a separate compart
ment within the meaning of this Act. (Laws 1931, p. 185
[S. B. No. 21], Section 4.)
48
Section 205. Motor vehicle defined.—The tei’m “ motor
vehicle” when used in this Act shall mean any automobile,
motor bus or any other self propelled vehicle carrying pas
sengers for hire between fixed termini not operated or
driven upon fixed rails, or track. (Laws 1931, p. 185 [S. B.
No. 21], Section 5.)
Section 206. Failure to comply with act—-Punishment.
—Any bus company, motor vehicle company, transporta
tion company, lessee, manager or receiver thereof, who
shall fail to provide its vehicles under the provisions of
this Act, with separate coaches or compartments, as above
provided, or fail to provide and maintain separate wait
ing rooms as provided herein, shall be liable for each and
every failure to a penalty of not less than One Hundred
($100.00) Dollars, nor more than Five Hundred ($500.00)
Dollars, to be recovered by suit in the name of the state in
any court of competent jurisdiction, and each trip run with
such vehicle or motor bus, as defined herein, without any
separate compartment shall be deemed a separate and dis
tinct offense. (Laws 1931, p. 185 [S. B. No. 21], Sec
tion 6.)
Section 207. Violations by passengers—Refusal to
carry—Ejection from waiting room.—If any passenger
upon motor bus or vehicle, as defined in this Act, provided
Avith separate compartment as above provided, shall ride
in any compartment not designated for his race after hav
ing been forbidden to do so by the driver or person in
charge of said vehicle or bus, or shall remain in any wait
ing room not set apart for the race to which he belongs, he
shall be guilty of a misdemeanor and upon conviction
thereof shall be fined not less than Ten ($10.00) Dollars
nor more than Twenty-five ($25.00) Dollars. Should any
passenger refuse to occupy the compartment or room to
which he is assigned by the officer or employee of such
motor vehicle or bus company, said officer or employee
49
shall have the power and the authority to refuse to carry
said passenger on his motor vehicle, and should any pas
senger or any other person not a passenger, for the pur
pose of occupying or waiting in such waiting room not as
signed to his race, enter said room, said agent or employee
shall have the power and it is made his duty to eject such
person from such room, and for such neither they nor the
motor vehicle or bus company which they represent shall
be liable for damage in any of the courts of this state.
(Laws 1931, p. 185 [S. B. No. 21], Section 7.)
Section 208. Persons excepted from application of this
Act.—The provisions of this Act shall not be so construed
as to extend to officers having in custody any person or
persons, or employees, upon motor vehicles in the discharge
of their duties. (Laws 1931, p. 186 [S. B. No. 21], Sec
tion 8.)
Section 209. Exclusion from compartment or removal
from vehicle by driver.—-Drivers or persons in charge of
any motor bus or vehicle provided with separate compart
ments shall have the authority to refuse any passenger ad
mittance to any compartment in which they are not entitled
to ride under the provisions of this Act, and the person
in charge of such motor vehicle or bus shall have author
ity, and it shall be his duty to remove from said motor
vehicle any passenger not entitled to ride therein under the
provisions of this Act and upon refusal to do so shall be
guilty of a misdemeanor and upon conviction shall be fined
in a sum of not less than Ten ($10.00) Dollars nor more
than Two Hundred and Fifty ($250.00) Dollars, and the
company, corporation, individual, manager, agent, em
ployee or other officer, shall not be held for damages
for any lawful removal of a passenger as herein provided.
(Laws 1931, p. 186 [S. B. No. 21], Section 9.)
50
Section 210. Disposition of fines.—All fines collected
under the provisions of this Act shall go to the Court fund
of the county in which conviction is had. (Laws 1931, p.
186 [S. B. No. 21'], Section 10.)
T itle 70
Section 452. Definition of terms.— The term “ colored,”
as used in the preceding section shall be construed to mean
all persons of African descent who possess any quantum
of negro blood, and the term “ white” shall include all other
persons. The term “ public school,” within the meaning
of this article, shall include all schools provided for, or
maintained, in whole or in part, at public expense. (Laws
1913, ch. 219, p. 571, art. 15, Section 2.)
Oregon, Compiled Laws, 1940
Section 23-1010. Miscegenation: Unlawfulness of inter
marriage of races: Validity of purported marriage. Here
after it shall not be lawful within this state for any white
person, male or female, to intermarry with any negro,
Chinese, or any person having one-fourth or more negro,
Chinese, or Kanaka blood, or any person having more than
one-lialf Indian blood; and all such marriages, or attempted
marriages, shall be absolutely null and void.
South Carolina, Code, 1942
Section 8396. Separate coaches for white and colored—
toilet compartments.—All railroad and steam ferries and
railroad companies engaged in this State as common car
riers of passengers for hire, shall furnish separate coaches
or cabins for the accommodation of white and colored pas
sengers : provided, equal accommodations shall be supplied
to all persons without distinction of race, color or previous
condition, in such coaches or cabins: provided, further that
all first class coaches and cabins shall be provided with a
51
toilet compartment at each end of such coaches or cabins;
on one of which compartments shall be placed the word
“ women” and on the other compartment shall be placed
the word “ men” ; the toilet compartment for women shall
be provided with a hopper seat, and, in addition, either with
seats for at least two persons, or a lavatory, as the carrier
may elect. The public service commission of this State
shall, at a hearing upon due notice to all railroads, steam
ferries and railroad companies engaged in this State as
common carriers of passengers for hire, to which this sec
tion shall apply, determine when said carriers shall make
the changes contemplated and provided for in this article.
Section 8399. Exceptions to sections 8396 to 8398.— The
provisions of sections 8396 to 8398 shall not apply to nurses
on trains, nor to narrow gauge roads, or branch lines, nor
roads under forty miles in length, or to relief trains in case
of accident, or to through vestibule trains not intended or
used for local travel, nor to regular freight trains with a
passenger coach attached for local travel, nor to officers
or guards transporting prisoners, nor to prisoners or luna
tics being so transported: provided, that all railroads op
erated by steam under forty miles in length shall furnish
separate apartments for white and colored passengers:
provided, further, that where said railroads under forty
miles in length operate both a daily passenger train and a
freight train, with or without a coach attached, said rail
road shall be required to furnish separate apartments for
white and colored passengers only on the said passenger
trains: provided, also, that the provisions hereof shall not
apply to electric railroads. Provided, further, that as to
trains consisting of not more than one passenger car unit,
operated principally for the accommodation of local travel,
although operated both intrastate and interstate, and ir
respective of the motive power used, the public service com
mission is hereby authorized to make such modifications,
changes and exceptions in and to the requirements of sec
tions 8396 to 8398, inclusive, as in its best judgment may
he feasible and reasonable in the circumstances, and the
regulations established by the commission pursuant to this
52
authority shall constitute exceptions to the provisions of
sections 8396 to 8398, inclusive.
Section 8530-1. Passenger motor vehicle carriers sep
arate white and colored passengers.— (1) Required—pen
alties.—All passenger motor vehicle carriers, operating in
the State of South Carolina shall separate the white and
coloi’ed passengers in their motor buses and set apart and
designate in each bus or other vehicle, a portion thereof, or
certain seats therein, to be occupied by white passengers,
and a portion thereof, or certain seats therein, to be occu
pied by colored passengers, and such company or corpora
tion, person or persons that shall fail, refuse or neglect to
comply with the provisions of this sub-section shall be guilty
of a misdemeanor, and upon indictment and conviction, shall
be fined not less than fifty dollars nor more than two hun
dred and fifty dollars for each offense.
South Carolina, Constitution
A rticle III
Section 33. Marriages of whites and negroes— sexual
intercourse.— The marriage of a white person with a negro
or mulatto, or person who shall have one-eiglitli or more of
negro blood, shall be unlawful and void. No unmarried
woman shall legally consent to sexual intercourse who shall
not have attained the age of fourteen years.
Tennessee, Code (Michie), 1938
Section 5518. Separate coaches or apartments for
white and colored races.—All railroads carrying passen
gers in the state (other than street railroads) shall provide
equal but separate accommodations for the white and col
ored races, by providing two or more passenger cars for
each passenger train, or by dividing the passenger cars by
a partition, so as to secure separate accommodations; but
any person may be permitted to take a nurse in the car or
compartment set aside for such persons. This law shall
53
not apply to mixed and freight trains which only carry one
passenger or combination passenger and baggage car, hut,
in such cases, the one passenger car so carried shall always
be partitioned into apartments, one apartment for the
whites and one for the colored.
Section 5519. Conductors must separate passengers.—
The conductors of such passenger trains shall have power,
and are required, to assign passengers to the car or com
partments of the car when it is divided by a partition, used
for the race to which such passengers belong, and, should
any passenger refuse to occupy the car to which lie is as
signed by such conductor, said conductor shall have power
to refuse to carry such passenger on his train; and, for
such refusal, neither he nor the railroad company shall he
liable for any damages in any court.
Section 5520. Failure of companies and conductors to
comply; penalties.—All railroad companies that shall fail,
refuse, or neglect to comply with the requirements of sec
tion 5518 shall be guilty of a misdemeanor, and be fined not
less than one hundred nor more than five hundred dollars;
and any conductor who shall fail, neglect, or refuse to
carry out the provisions of this law shall be fined not less
than twenty-five nor more than fifty dollars for each offense.
Section 5527 3079al. Portions of car to be set apart
and designated for each race.—All persons, companies, or
corporations operating any street car line in the state are
required, where white and colored passengers are carried
or transported in the same car or cars, to set apart and
designate in each car or coach, so operated, a portion there
of or certain seats therein to he occupied by white passen
gers, and a portion thereof or certain seats therein to be
occupied by colored passengers; but nothing in this article
shall be construed to apply to nurses attending children or
other helpless persons of the other race. (1905, ch. 150,
sec. 1.)
Section 5528 3079a2. Printed sign to indicate cars or
parts of cars for each race.—Large printed or painted signs
shall be kept in a conspicuous place in the car or cars, or the
parts thereof set apart or designated for the different races,
on which shall be printed or painted, if set apart or desig
nated for the white people, and it being a ear so designated
or set apart, “ This car for white people.” I f a part of a car
is so designated, then this sign, “ This part of car for white
people.” If set apart or designated for the colored race,
this sign to be displayed in a conspicuous place as follows,
“ This car for the colored race.” If any part of a car is set
apart or designated for said race, then this sign as follows,
“ This part of the car for the colored race.”
Section 5529 3079a3. Conductor may increase or dimin
ish space for either race, or require change of seats.— The
conductor or other person in charge of any car or coach so
operated upon any street car line shall have the right at
any time, when in his judgment it may he necessary or
proper for the comfort or convenience of passengers so to
do, to change the said designation so as to increase or de
crease the amount of space or seats set apart for either
race, or he may require any passenger to change his seat
when or so often as the change in the passengers may make
such change necessary.
Section 5530 3079a4. Passengers to take seats assigned
by conductor and designated for their race; refusal and re
maining on car is a misdemeanor.—All passengers on any
street car line shall be required to take the seats assigned
to them, and any person refusing to do so shall leave the
car or remaining upon the car shall be guilty of a misde
meanor, and upon conviction shall be fined in any sum not
to exceed twenty-five dollars; provided, no conductor shall
assign any person or passenger to a seat except those desig
nated or set apart for the race to which said passenger
belongs.
Section 5531 3079a5. Failure to set apart portions of
car for each race is a misdemeanor.—Any person, company,
or corporation failing to set apart or designate separate
portion of the cars operated for the separate accommoda
tion of the white and colored passengers, as provided by
this article, shall be guilty of a misdemeanor and fined in
any sum not to exceed twenty-five dollars.
Section 5532 3079a6. Special cars for exclusive accom
modation of either race.—Nothing in this article shall he
construed to prevent the running of extra or special cars
for the exclusive accommodation of either white or colored
passengers, if the regular cars are operated as required by
this article.
Section 8409 4186 (2437, 2437a). Whites, negroes, etc.,
not to intermarry or cohabit.—The intermarriage of white
person with negroes, mulattoes, or persons of mixed
blood descended from a negro, to the third generation in
clusive, or their living together as man and wife in this
state, is prohibited. (1822, ch. 19, sec. 1; 1870, cli. 39, sec.
1; const., art. 11, sec. 14.)
Constitution
A rticle XI
Section 14. The intermarriage of white persons with
negroes, mulattoes, or persons of mixed blood, descended
from a negro to the third generation, inclusive, or their liv
ing together as man and wife, in this State, is prohibited.
The Legislature shall enforce this section by appropriate
legislation.
Texas, Revised Civil Statutes (Vernon), 1936
Art. 2900. [2897-8] Separate schools.—All available
public school funds of this State shall be appropriated in
each county for the education alike of white and colored
children, and impartial provisions shall be made for both
races. No white children shall attend schools supported for
colored children, nor shall colored children attend schools
supported for white children. The terms “ colored race”
and “ colored children,” as used in this title, include all
persons of mixed blood descended from negro ancestry.
[Acts 1905, p. 263.]
Art. 4607. [4613] [2959] [2843] Certain intermarriages
prohibited.—It shall not be lawful for any person of Cau-
56
casian blood or their descendants to intermarry with A fri
cans or the descendants of Africans. If any person shall
violate any provision of this article, such marriage shall be
null and void. [P. D., 4670; P. C., 346.]
Art. 6417. [6746 to 6753] Separate coaches.—1. Every
railway company, street car company, and interurban rail
way company, lessee, manager, or receiver thereof, doing-
business in this State as a common carrier of passengers
for hire, shall provide separate coaches or compartments,
as hereinafter provided, for the accommodation of white
and negro passengers, which separate coaches or compart
ments shall be equal in all points of comfort and con
venience.
2. “ Negro” defined.—The term “ negro” as used here
in, includes every person of African descent as defined by
the statutes of this State.
3. “ Separate coach” defined.—Each compartment of a
railroad coach divided by good and substantial wooden par
titions with a door therein shall be deemed a separate
coach within the meaning of this law, and each sepa
rate coach shall bear in some conspicuous place appro
priate words in plain letters indicating the race for which
it is set apart; and each compartment of a street car or
interurban car divided by a board or marker placed in a
conspicuous place, bearing appropriate Avords in plain let
ters indicating the race for which it is set apart, shall be
sufficient as a separate compartment within the meaning of
this law.
4. Penalty.—Any railway company, street car company,
or intrurban railroad company, lessee, manager or receiver
thereof, which shall fail to provide its cars bearing pas
sengers with separate coaches or compartments, as above
provided for, shall be liable for each failure to a penalty
of not less than one hundred nor more than one thousand
dollars, to be recovered by suit in the name of the State;
and each trip run with such train or street car or interurban
car without such separate coach or compartment shall be
deemed a separate offense.
57
5. Exceptions.—This article shall not apply to any ex
cursion train or street car or interurban car as such for
the benefit of either race, nor to such freight trains as carry
passengers in cabooses, nor be so construed as to prevent
railroad companies from hauling sleeping cars, dining or
cafe cars or chair cars attached to their trains to he used
exclusively by either race, separately but not jointly, or to
prevent nurses from traveling in any coach or compartment
with their employer, or employes upon the train or cars in
the dischai'ge of their duty.
6. Law to be posted.—Every railroad company carry
ing passengers in this State shall keep this law posted in a
conspicuous place in each passenger depot and each pas
senger coach provided in this law.
7. Duty of conductor.— Conductors of passenger trains,
street cars, or interurban lines provided with separate
coaches shall have the authority to refuse any passenger
admittance to any coach or compartment in which they are
not entitled to ride under the provisions of this law, and
the conductor in charge of the train or street car or inter
urban car shall have authority, and it shall be his duty, to
remove from a coach or street car, or interurban car, any
passenger not entitled to ride therein under the provisions
of this law. [Acts 1891, p. 44; Acts 1907, p. 58; G. L. vol.
10, p. 46.]
Te&as, Revised Penal Code (Vernon), 1936
Art. 493. [484] [347] [327] “ Negro” and “ white per
son.” — The term “ negro” includes also a person of mixed
blood descended from negro ancestry from the third genera
tion inclusive, though one ancestor of each generation may
have been a white person. Any person not included in
the foregoing definition is deemed a white person within
the meaning of this law.
Art. 1659. [1523] [1010] Separate coaches.—1. Every
railway company, street car company and interurban rail
way company, or any person or the agent of any person,
58
firm, or corporation wlio operates an interurban, commer
cial motor vehicle in carrying passengers for hire between
any cities, towns, or villages of this State, lessee, manager,
or receiver thereof doing business in this State as a com
mon carrier of passengers for hire shall provide separate
coaches or compartments for the accommodation of white
and negro passengers.
2. “ Negro” defined. The term negro as used herein
includes every person of African descent as defined by the
Statutes of this State.
3. (a) “ Separate Coach” defined. Each compartment
of a railroad coach divided by good and substantial wooden
partitions with a door therein, shall be deemed a separate
coach within the meaning of this law, and each separate
coach shall bear in some conspicuous place appropriate
words in plain letters indicating the race for which it is set
apart.
(b) Separate compartments for street car, interurban
car and commercial motor vehicle defined. Each street car,
interurban car or commercial motor vehicle having a board
or marker placed in a conspicuous place bearing appro
priate words in plain letters indicating the race for which
space is set apart, shall be sufficient as a separate com
partment within the meaning of this law.
4. Violating separate coach law. I f any passenger upon
a train or street car, interurban car or commercial motor
vehicle provided with separate coaches or compartments
as above provided shall ride in any coach or compartment
not designated for his race after having been forbidden
to do so by the conductor in charge of the train, he shall
be fined not less than Five Dollars ($5) nor more than
Twenty-five Dollars ($25).
5. Duty of Conductor. Conductors of passenger trains,
street cars, interurban lines, or commercial motor vehicle
provided with separate coaches shall have the authority to
refuse any passenger admittance to any coach or compart
ment in which they are not entitled to ride under the pro-
59
visions of this law, and the conductor in charge of the train
or street car, interurban car or commercial motor vehicle
shall have authority, and it shall be his duty, to remove
from a coach or street car, or interurban car or commercial
motor vehicle any passenger not entitled to ride therein
under the provisions of this law, and upon his refusal
to do so knowingly he shall be fined not less than Five
Dollars ($5) nor more than Twenty-five Dollars ($25).
6. Fines to go to School Fund. All fines collected under
the provisions of this law shall go to the available common
school fund of the county in which conviction is had. Prose
cutions under this law may be instituted in any county
through or into which said railroad may be run or have
an office. [As amended Acts 1935, 44tli Leg., p. 387, ch.
147, Section 1.]
Art. 1660. Exceptions.—The preceding article shall not
apply to any excursion train or street car or interurban car
as such for the benefit of either race, nor to such freight
trains as carry passengers in cabooses, nor be so construed
as to prevent railroad companies from hauling sleeping
cars, dining or cafe cars or chair cars attached to their
trains to be used exclusively by either race, separately but
not jointly, or to prevent nurses from traveling in any coach
or compartment with their employer, or employes upon
the train or cars in the discharge of their duty.
Art. 1661. Preference in transportation.— By the word
“ preference” as used in this article is meant any advan
tage, privilege, right, opportunity, precedence, choice,
favor, priority, or gain that is or may be, or is sought or
purposed to be accorded, granted, given, allowed, permitted
or extended to any person, place, or thing, as against any
other person, place, or thing in the receipt, carriage, trans
portation, movement, placing, storing, handling, caring for
or delivery of any freight, commodity or article, or any
railroad car or by any common carrier in this State, or
any agent or employe thereof. Any person who shall ask,
solicit, demand, or receive, directly or indirectly, from any
person, corporate or otherwise, any money, reward, favor,
60
benefit, or other thing of value, or the promise of either,
as a consideration for procuring or effecting, or with the
intent of the person asking, soliciting, demanding, charging
or receiving the same, or the promise thereof, that such
person can or will, seek or undertake to procure or effect
any preference in the receipt, carriage, transportation, stor
ing, movement, placing, handling, caring for, or delivery of
any freight, commodity or article, or any railroad car by
any common carrier in this State or any agent or employe
thereof, shall be fined not less than one hundred nor more
than one thousand dollars and be imprisoned in jail not
less than thirty days nor more than six months. [Acts
1921, p. 34.]
Virginia, Code (M ichie), 1942
Section 67. Colored persons and Indians defined.—
Every person in whom there is ascertainable any negro
blood shall be deemed and taken to be a colored person,
and every person not a colored person having one-fourth
or more of American Indian blood shall be deemed an
American Indian; except that members of Indian tribes
living on reservations allotted them by the Commonwealth
of Virginia having one-fourth or more of Indian blood
and less than one-sixteenth of negro blood shall be deemed
tribal Indians so long as they are domiciled on said reser
vations. (Code 1887, Section 49; 1910, p. 581; 1930, p. 97.)
Section 3962. Separate cars for white and colored pas
sengers.—All persons, natural or artificial, who are now,
or may hereafter be, engaged in running or operating any
railroad in this State by steam for the transportation of
passengers are hereby required to furnish separate cars
or coaches for the travel or transportation of the white and
colored passengers on their respective lines of railroad.
Each compartment of a coach divided by a good and sub
stantial partition, with a door therein, shall be deemed a
separate coach within the meaning of this section, and
each separate coach or compartment shall bear in some
conspicuous place appropriate words in plain letters, in-
61
dicating the race for which it is set apart. (Id., cli. 4,
Section 28.)
Section 3963. Company to make no discrimination in
quality of accommodations for white and colored passen
gers.—No difference or discrimination shall be made in the
quality, convenience or accommodation in the cars or
coaches or partitions set apart for white and colored pas
sengers under the preceding section. (Id., ch. 4, Section
29.)
Section 3964. Liability for failure to comply with two
preceding sections.—Any railroad company or companies,
person or persons, that shall fail, refuse, or neglect to
comply with the provisions of the two preceding sections
shall be deemed guilty of a misdemeanor, and upon indict
ment and conviction thereof shall be fined not less than
three hundred nor more than one thousand dollars for each
offense. (Id., ch. 4, Section 30.)
Section 3965. Conductors to assign white and colored
passengers to their respective compartments.—-The conduc
tors or managers on all such railroads shall have power,
and are hereby required, to assign to each white or colored
passenger his or her respective car, coach, or compart
ment. If the passenger fails to disclose his race, the con
ductor and managers, acting in good faith, shall be the sole
judges of his race; and if any passenger refuse to occupy
the car, coach, or compartment to which he or she may be
assigned by the conductor or manager, said conductor or
manager shall have the right to refuse to carry such pas
senger on his train, and may put him off his train. For
such refusal and putting off of the train, neither the man
ager, conductor, nor railroad company shall be liable for
damages in any court. (Id., ch. 4, Section 31.)
Section 3966. Penalty for failure to carry out provi
sions of preceding section.—Any conductor or manager on
any such railroad who shall fail or refuse to carry out
the provisions of the preceding section shall be deemed
guilty of a misdemeanor, and upon indictment and convic
tion thereof, shall be fined not less than twenty-five nor
62
more than fifty dollars for each offense. (Id., ch. 4, Sec
tion 32.)
Section 3967. When portion of one compartment may
be assigned to passengers of another race.—When any
coach or compartment of a car for either race shall be
completely filled, where no extra coaches or cars can he
had, and the increased number of passengers could not be
foreseen, the conductor in charge of such train is hereby
authorized to assign and set apart a portion of the car or
compartment assigned to passengers of one race to passen
gers of another race. (Id., ch. 4, Section 33.)
Section 3968. Application of preceding sections.—The
provisions of sections thirty-nine hundred and sixty-three,
thirty-nine hundred and sixty-four, thirty-nine hundred and
sixty-five and thirty-nine hundred and sixty-six shall not
apply to employees on railroads or to persons employed as
nurses, or to officers in charge of prisoners, or lunatics,
whether said prisoners or lunatics are white or colored, or
both white and colored, or to prisoners in his custody, nor
shall the same apply to the transportation of passengers in
any caboose car attached to a freight train, nor to Pullman
Cars, nor to through or express trains that do no local
business.
Section 3978. Electric railway companies to separate
white and colored passengers.—All urban, interurban, and
suburban electric railway companies or other persons op
erating trains, cars or coaches by electricity for the car
riage of passengers, shall separate the white and colored
passengers in their cars and set apart and designate in
each car or coach a portion thereof, or certain seats therein
to be occupied by white passengers, and a portion thereof,
or certain seats therein, to be occupied by colored pas
sengers, and such company or corporation, person or per
sons that shall fail, refuse or neglect to comply with the
provisions of this section shall be guilty of a misdemeanor,
and upon indictment and conviction they shall be fined not
less than fifty dollars nor more than two hundred and fifty
dollars for each offense.
63
Section 3979. Discrimination as to quality of accommo
dation for races not permitted; heating cars.—The said
companies, corporation or persons so operating trains,
cars or coaches upon such lines of railroad or railway
shall make no difference or discrimination in the quality
and convenience of the accommodations provided for the
two races, under the provisions of the preceding section.
Said companies, corporations or persons so operating
trains, coaches or cars upon such lines of railroad or rail
way shall in cold weather reasonably heat the several apart
ments of all cars carrying passengers therein. (1902-3-4,
p. 968, cli. 4, Section 42; i906, p. 92.)
Section 3980. May decrease or increase space for either
race.— The conductor, manager or other person in charge
of any car or coach so operated upon any such line of
railroad or railway as is mentioned in section thirty-nine
hundred and seventy-eight shall have the right, and he is
hereby directed and required at any time when it may be
necessary or proper for the comfort and convenience of
passengers so to do, to change the designation so as to
increase or decrease the amount of space or seats set apart
for either race; but, no contiguous seats on the same
bench shall be occupied by white and colored passengers
at the same time (unless or until all of the other seats in
said car shall be occupied); and said conductor or manager
may require any passenger to change his or her seat as
often as it may be necessary or proper; the said conductor
or manager of any such railroad or railway who shall fail
or refuse to carry out the provisions of this section shall
be deemed guilty of a misdemeanor, and upon conviction
thereof shall be fined not less than five dollars nor more
than twenty-five dollars for each offense. (1902-3-4, ch. 4,
Section 43; 1906, p. 92.)
Section 3981. Conductor and motorman conservators of
the peace.—Each conductor and motorman in the employ
ment of said company, and upon the cars of said company,
shall be a special policeman, and have all the powers of
conservators of the peace in the enforcement of the provi
sions of this chapter, and in the discharge of his duty as
64
special policeman in the enforcement of order upon said
cars and said right of way; and such conductors and motor-
men shall likewise have the powers of conservators of
the peace and of special policemen while in pursuit of per
sons for disorder upon said cars and right of way for vio
lating the provisions of this chapter, and until such persons
as may be arrested by such conductor or motorman shall
have been placed in confinement, or delivered over to the
custody of some other conservator of the peace or police
officer; and, acting in good faith, he shall be, for the pur
poses of this chapter, the judge of the race of each pas
senger, whenever such passenger has failed to disclose
his or her race. (1902-3-4, p. 968, ch. 4, Section 45; 1906,
p. 92.)
Section 3982. Provisions not to apply to employees,
nurses, etc.— The provisions of sections thirty-nine hundred
and seventy-eight, thirty-nine hundred and eighty, and
thirty-nine hundred and eighty-one shall not apply to em
ployees engaged in conducting; managing or operating said
trains, cars, or coaches, nor to persons employed as nurses,
nor officers in charge of prisoners or lunatics. (1902-3-4,
p. 968, ch. 4, Section 47; 1906, p. 92.)
Section 3983. Penalty for failure to obey conductor in
respect to seats assigned.—All persons who fail, while on
any coach or car used for the carriage of passengers for
hire by any company or corporation, or person or persons,
on any railway line, whether the motive power thereof be
steam or electricity, or other motive power, or whether
said coach or car be on a street railway or interurban rail
way or a steam railway, to take and occupy the seat or
seats or other space assigned to them by the conductor,
manager or other person in charge of such car or coach,
or whose duty it is to take up tickets or collect fares from
passengers therein, or who fail to obey the direction of any
such conductor, manager or other person, as aforesaid, to
change their seats from time to time, as occasions require,
pursuant to any lawful rule, regulation or custom in force
on such lines as to assigning separate seats or compart
ments, or other space, to white and colored passengers,
65
respectively, being first advised of tlie fact of sucb regu
lation and requested to conform thereto, shall be deemed
guilty of a misdemeanor, and upon conviction thereof shall
be fined not less than five nor more than twenty-five dollars
for each offense. Furthermore, such persons may be ejected
from said car, and from the right of way of said company
by any conductor, motorman or manager of said company,
or by any police officer or other conservator of the peace;
and in case such persons ejected shall have paid their
fares upon said car, they shall not he entitled to a return
of any part of the same. (1910, p. 335.)
Section 4022. Separation of white and colored passen
gers; discrimination; application of section.—It shall be
the duty of the captain, purser, or other officer in command
of any steamboat carrying passengers and plying in the
waters within the jurisdiction of the Commonwealth, to
assign white and colored passengers on said boats to the
respective location they are to occupy as passengers while
on said boats, and to separate the white and colored pas
sengers on said boats in the sitting, sleeping, and eating
apartments: but, no discrimination shall be made in the
quality and convenience of accomodation afforded passen
gers in said location. This section shall not apply to nurses
or attendants traveling with their employers, nor to officers
in charge of prisoners or lunatics. (1902-3-4, p. 968, ch. 6,
Section 1.)
Section 4023. Penalty for not complying with provi
sions of preceding section.—Any captain, purser, or other
officer in command of said boat who shall fail or refuse
to carry out the provisions of the preceding section shall
be deemed guilty of a misdemeanor and upon conviction
thereof shall be fined not less than twenty-five dollars nor
more than one hundred dollars for each offense.
Section 4024. Passenger to occupy place assigned; pen
alty for disorderly conduct; duty of officer in charge.—
Any passenger or passengers traveling on any steamboat
plying in the waters within the juridiction of the Common
wealth, who shall wilfully refuse to occupy the location,
66
whether of sitting, sleeping, or eating, set apart or assigned
by the captain, purser, or other officer in command of such
boat, or behaves in a riotous or disorderly manner, shall
be deemed guilty of a misdemeanor, and on conviction
thereof shall be fined not less than five dollars nor more
than fifty dollars, or confined in jail not less than thirty
days, or both, in the discretion of the court; and such per
sons may be ejected from said boat by the officers thereof
at any landing place of said boat; and, if necessary, such
assistance may be invoked by such person in charge of
such boats as they may require to eject such passenger.
Section 4025. Officer of wharf or landing; officers of
vessels, etc., to be conservators of the peace.— The presi
dent or general manager of any steamship or steamboat
company, whose boats ply in the waters within the jurisdic
tion of this State, may, with the approbation of the circuit
court of any county, or the corporation court of any city,
where the said steamship or steamboat company has a
wharf or landing, appoint one or more police agents, who
shall have authority upon the said wharf or landing, and
at other places within this State belonging to such com
pany, to exercise all the powers which can lawfully be ex
ercised by any constable for the preservation of the peace,
the arrest of offenders and disorderly persons, and for the
enforcement of the laws against crime; and such president
or general manager may remove any such agent at his
pleasure: provided, that any circuit or corporation court
giving such consent may at any time revoke it. Masters
of steamships or steamboats, and wharf or landing agents,
shall be conservators of the peace, and they, and each of
them, shall have the same power to make arrests that jus
tices have, except that the masters of steamships and
steamboats shall only have such power on board their
respective vessels, and the agents at their respective places
of business; and the said masters and agents may cause
any person so arrested by them to be detained and delivered
to the proper authorities for trial as soon as practicable.
Section 4026. Owners of steamboat wharves to provide
thereat suitable accommodations for the patrons of steam-
6 7
boats using the same.— The owner or owners of any steam
boat wharf shall provide at their wharves suitable accom
modations for the patrons of the steamboats using said
wharves. The said accommodation shall consist of separate
and noncommunicating rooms for the white and colored
races, and said rooms shall be properly lighted and heated
from one-half hour before the scheduled arrival of the boat
and until such time after the departure thereof as will
provide for the accommodation of passengers leaving said
boat: but, the provisions of this section shall not apply
to those wharves at which steamers arrive and depart be
tween seven o ’clock in the morning and seven o ’clock in
the evening, at which there are public houses open for the
public, and at which the public are comfortably cared
for while waiting for said boats. Any owner or owners
of wharves aforesaid who fail to comply with any of the
provisions of this section shall be deemed guilty of a mis
demeanor, and upon conviction thereof shall be fined not
less than five nor more than twenty dollars for each offense.
This section, however, shall not apply to any wharf where
no wharfage is charged.
L awyers Press, I nc., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300
TRANSCRIPT OF RECORD
Supreme Court of the United States
OCTOBER TERM, 1945
No. 704
IRENE MORGAN, APPELLANT,
vs.
COMMONWEALTH OF VIRGINIA
APPEAL PROM THE SUPREME COURT OF APPEALS OF THE STATE
OP VIRGINIA
FILED DECEMBER 29, 1945.
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1945
No. 704
IRENE MORGAN, APPELLANT,
vs.
COMMONWEALTH OF VIRGINIA
APPEAL FROM THE SUPREME COURT OF APPEALS OF THE STATE
OF VIRGINIA
Proceedings in Supreme Court of Appeals of Virginia.......... 1
Petition for writ of error.................................................... 1
Errors assigned ............................................................ 2
Questions involved ....................................................... 3
Statement of facts ....................................................... 3
Argument .................................................................... 7
Conclusion ........................................................................ 22
Record from Circuit Court of Middlesex County.................... 23
Warrant and sheriff’s return........................................... 23
Journal entry of hearing on appeal................................... 26
Judgment entry .............................................................. 27
Order suspending execution of judgment......................... 29
Bill of Exception No. 1—Evidence................................ 30
R. I>. Kelly ............................................................ 30
C. M. Bristow...................................................... 36
R. B. Segar............................................................ 37
Irene Morgan......................................................... 39
Estelle Fields......................................................... 42
Richard Scott ....................................................... 44
Willie Robinson .................................................... 45
William Garnett .................................................... 45
Thomas Carter ..................................................... 46
Rachel Goldman .................................................... 46
Ruby Catlett ......................................................... 46
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Judd & Detweiler (Inc.), Printers, W ashington, D. C., February 4, 1946.
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Record from Circuit Court of Middlesex County—Continued
Original
Bill of Exception No. 2—Motion to strike evidence........
Bill of Exception No. 3—Motion to set aside judgment..
Bill of Exception No. 4—Motion in arrest of judgment..
Clerk’s certificate .........................................................
Judgment, case of resisting arrest, October 18, 1944___
Opinion, Gregory, J...............................................................
Judgment ...........................................................................
Recital as to filing of petition for rehearing.........................
Order denying petition for rehearing...................................
Petition for appeal and assignments of error.......................
Order allowing appeal..................................................
Bond on appeal................................(omitted in printing) ..
Citation and service....................... (omitted in printing)..
Praecipe for transcript of record ........................................
Clerk’s certificate............................ (omitted in printing)..
Statement of points to be relied upon and designation of rec
ord .................................................................................
Designation by appellee of additional parts of record..........
Order noting probable jurisdiction......................................
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1
[fol. 1]
IN THE SUPREME COURT OF APPEALS OF VIRGINIA
AT RICHMOND
Record No. 2974
I rene M organ
versus
Commonwealth of V irginia
Petition for Writ of Error
To the Honorable Judges of the Supreme Court of Appeals
of Virginia:
Your petitioner, Irene Morgan, respectfully represents
that on the 16th day of July, 1944, a warrant was issued
upon the oath of R. P. Kelly charging that, on the date
aforesaid, she did “ Unlawfully refuse to move back on the
Greyhound Bus in the section for colored people” ; that
whereupon she was tried in the Circuit Court of Middlesex
County without a jury, trial by jury having been waived,
upon an amended warrant charging that, on the date afore
said, she did “ Unlawfully refuse and fail to obey the direc
tion of the driver or operator of the Greyhound Bus Lines
to change her seat and to move to the rear of the bus and
occupy a seat provided for her, in violation of section 5 of
the Act, Michie Code of 1942, section 4097dd” ; that where
upon the said Court found her guilty of said offense and
sentenced her to pay a fine of Ten ($10.00) Dollars, and
final judgment thereupon was entered on the 18th day of
October, 1944.
A transcript of the record in this case and of the judg
ment therein is herewith filed as a part of this petition.
[fol. 2] E rrors A ssigned
Your petitioner is advised and represents to your Honors
that the said judgment is erroneous, and that she is ag
grieved thereby in the following particulars, namely:
First. The action of the Court in overruling petitioner’s
motion, first made at the conclusion of the presentation of
the Commonwealth’s evidence-in-chief, to strike the evi-
1— 704
2
dence of the Commonwealth and dismiss the case upon the
ground that the evidence introduced by the Commonwealth
was legally insufficient to sustain a conviction of the crime
charged in the amended warrant, upon which she was being
tried and that no judgment thereupon could lawfully be
rendered against her, for the following reasons, to-wit:
that the law upon which the prosecution was based could
not constitutionally be applied to her as she was, as shown
by the evidence, an interstate passenger traveling upon the
vehicle of an interstate public carrier, and that its applica
tion to such a passenger would be in violation of Article I,
Section 8, of the Constitution of the United States; and that
under settled rules of construction said law could not be
construed to apply to a passenger in interstate commerce,
and that it must he construed as limited in its operation to
passengers in intrastate commerce; which motion was re
newed and again overruled at the conclusion of the entire
case after both the Commonwealth and your petitioner had
rested.
Bill of Exception No. 2, Record, pp. 34-35.
Second. The action of the Court in overruling petitioner’s
motion to set aside said Court’s decision and judgment of her
guilt of the aforesaid offense, and to award her a new trial,
which motion was predicated upon the same grounds and
reasons aforesaid, and upon the additional ground and
reason that said decision and judgment of her guilt was
contrary to the evidence, and lacking in evidence sufficient
to support the same.
Bill of Exception No. 3, Record, pp. 36-37.
Third. The action of the Court in overruling petitioner’s
motion for a new trial, which motion was predicated upon
the same grounds and reasons aforesaid, and upon the addi
tional ground and reason that said Court’s decision and
judgment of her guilt was contrary to the evidence, and
lacking in evidence sufficient to support the same.
[fol. 3] Bill of Exception No. 4, Record, pp. 38-39.
Questions I nvolved in the A ppeal
These assignments of error present two questions:
First: Is the statute upon which petitioner was prose
cuted, if construed as applicable to a passenger in interstate
commerce, constitutional?
3
Second. Should the statute upon which petitioner was
prosecuted be construed as limited in its operation to pas
sengers in intrastate commerce, and, therefore, as inappli
cable to petitioner?
Statement of the F acts
In the statement of the facts and the argument, petitioner
will be referred to as the defendant, in accordance with the
position occupied by her in the trial court.
On July 16, 1944, defendant, who is a Negro or colored
person (R., pp. 9, 21), was a passenger upon a bus of the
Richmond Greyhound Lines, Inc. She boarded the bus at
Hayes Store, in Gloucester County, Virginia, and was
traveling to the City of Baltimore, Maryland (R., pp. 9, 21).
R. P. Kelly, an employee of the Greyhound Lines for six
years, was the driver in charge and control of the bus (R.,
pp. 9, 11, 21).
When the bus arrived in Saluda, Virginia, the driver per
ceived defendant and another colored woman, the latter
carrying an infant, seated in a seat forward of the long
seat in the extreme rear of the bus (R., pp. 9, 10). Defend
ant was requested by the driver to move from said seat,
and, upon her refusal so to do, the driver procured a war
rant charging the offense for which she was prosecuted in
the court below.
As to the condition of the bus, the events occurring and
the circumstances leading up to and surrounding defend
ant’s refusal to leave her seat, the testimony introduced by
the Commonwealth and the defendant, respectively, is in
hopeless conflict. Defendant concedes the binding effect
of the decision of the trial court in this regard, but submits
that as it was shown without contradiction that she and the
Greyhound Company were, respectively, interstate pas
senger and carrier, she could not be prosecuted for violating
the statute aforesaid upon the basis of either the Common
wealth’s or her own evidence.
The evidence of the Commonwealth, consisting chiefly of
the testimony of the bus driver, tended to show that at the
[fol. 4] time defendant’s removal from the seat was sought,
there were two vacancies on the long rear seat in the
extreme rear of the bus, which seat is designed to accommo
date five persons, and was then occupied by three colored
passengers; that all other seats in the bus were occupied;
4
that defendant and her seatmate were requested to move
back into these seats, the driver advising- them that under
the rules of the bus company, he was required to seat white
passengers from the front of the bus backward and colored
passengers from the rear of the bus forward; that defend
ant refused to move, whereupon the driver procured a
warrant charging her with a violation of the segregation
law through her refusal to move.
On the other hand, defendant’s version, which was cor
roborated by the testimony of four other witnesses, includ
ing Estelle Fields, her seatmate, was that the seat in ques
tion became vacant when the bus stopped in Saluda; that
she then moved from the long rear seat which, from Hayes
Store to Saluda, had been occupied by six or seven passen
gers, including herself, into said seat, the latter being the
only vacant seat in the bus; that about five minutes later a
white couple boarded the bus, whereupon the driver ap
proached defendant and her seatmate and told them that
they must get up so that the white couple might sit down;
that she, the defendant, informed the driver that she was
willing to exchange the seat she occupied for another on
the bus, but was unwilling to stand, in reply to which the
driver stated that colored passengers would be seated only
after all white passengers had obtained seats that when
asked by defendant where she would sit if she relinquished
the seat she occupied the driver said nothing; that at the
time she was directed to move, there were no vacant seats
either on the long rear seat or elsewhere in the bus.
A second charge was lodged against the defendant as a
consequence of events which allegedly occurred when the
Sheriff and Deputy Sheriff of Middlesex came on the bus to
execute the warrant obtained by the bus driver. The claim
of the Commonwealth in this connection was that defendant
resisted said officers in the discharge of their duties. This
claim was substantially denied by defense witnesses, but
defendant was convicted of the second offense also. By
consent of the Commonwealth, the defendant, and the
Court, both charges were tried together (R., p. 3), but no
appeal from the conviction on the resisting charge was
taken.
It appeared without controversy that the sources of the
difficulties aboard the bus, whatever they may have been,
were the efforts to remove defendant from the seat which
she occupied. The bus driver admitted that neither he nor
[fol. 5] anyone else on the bus had any difficulties whatso
ever with defendant until he sought to move her from her
seat (R., p. 16), and both the Sheriff and Deputy Sheriff
testified that defendant was in all respects orderly and well-
behaved and caused no trouble whatsoever until efforts were
commenced to remove her from the seat (R., pp. 18, 20).
The driver also testified that under the rules of the bus
company all colored passengers were required to be seated
from the rear of the bus forward and that all white pas
sengers from the front of the bus backward, and that the
general custom and policy pursued by his company upon
buses traveling in or through the State of Virginia was to
assign seats to colored and white passengers in this manner
(R., p. 16), and so far as the record discloses, the sole
ground upon which defendant’s removal was sought and
effected was that she is a Negro.
That defendant, at the time she allegedly committed the
offense with which she was charged, and for which she was
convicted, was a passenger traveling in interstate com
merce upon the vehicle of an interstate public carrier, is
conclusively established by the uncontroverted evidence for
the Commonwealth as well as the defendant.
The Richmond Greyhound Lines, Incorporated, is regu
larly engaged in the business of transporting passengers
for hire and reward from points within the State of Vir
ginia to various points throughout the United States, in
cluding the City of Baltimore, Maryland, and was so en
gaged on July 16, 1944, the date upon which the events for
which defendant was prosecuted occurred (R., p. 12). Pas
sengers traveling to points outside the State of Virginia
are, and were, on this day, regularly taken aboard its buses
in Gloucester County, Virginia, including Hayes Store,
and transported therein to points outside the State of Vir
ginia (R., p. 12).
On July 15, 1944, defendant had purchased from the
regular agent of the Richmond Greyhound Lines, Incorpo
rated, at its ticket office at Hayes Store, Virginia, a through
ticket for transportation from Hayes Store to Baltimore,
Maryland (R., pp. 12,13, 21). The stub of this ticket, which
was introduced into evidence (R., p. 13), sets forth Hayes
Store as the point of departure and Baltimore as the point
of destination (R., p. 13). Defendant, as the holder of said
6
ticket, thereby became entitled to transportation from
Hayes Store, Virginia, to Baltimore, Maryland, in a Grey-
bound bus (R., p. 12), and was entitled to transportation
between tbe points aforesaid on July 16, 1944, in the bus
upon which occurred the incidents out of which the prose
cution grew (R., p. 12).
Upon boarding the bus at Hayes Store, for transportation
[fol. 6] to Baltimore, defendant surrendered the ticket and
R. P. Kelly, the driver, accepted the same (R., pp. 12, 21).
Kelly was personally driving and operating the bus from
the City of Norfolk, Virginia, to Baltimore (R., pp. 9, 11).
This bus regularly made and was on that day making a
continuous or through trip from Norfolk to Baltimore,
traveling by way of and through the City of Washington,
District of Columbia (R., pp. 11, 12).
After the arrest of defendant and her removal from the
bus, Kelly prepared a transfer or token, identified at the
trial by both Kelly (R., pp. 13, 14) and defendant (R., pp.
21, 22), in order that defendant might employ it for trans
portation from Saluda, Virginia, to Baltimore, Maryland,
or for a cash refund of the fare paid for that portion of
her trip between the said two points (R., p. 14). Kelly
punched this transfer at the appropriate places to show
Saluda as the point of beginning and Baltimore as the point
of ending of the incompleted portion of her trip (R., pp.
14, 15).
Kelly testified that he would not have prepared or issued
a transfer showing Saluda as the point of beginning and
Baltimore as the point of ending, unless defendant had held
a ticket entitling her to transportation on his bus to Balti
more (R., p. 15); and that he knew that all of the colored
passengers remaining on the bus in Saluda, after those
destined there had been discharged, held tickets to and were
traveling to Baltimore, Maryland (R., p. 15). Defendant
testified that she had no intention of leaving the bus prior
to its arrival in Baltimore (R., p. 21).
At the conclusion of the presentation of the Common
wealth’s evidence-in-chief, defendant moved to strike the
evidence of the Commonwealth and to dismiss the case,
upon the ground that the evidence for the Commonwealth
was legally insufficient to sustain a conviction of the offense
with which she was charged, and that no judgment there
upon could lawfully be rendered against her, for the reason
that the statute upon which the prosecution was based
7
could not constitutionally be applied to her as she was, as
shown by the evidence, an interstate passenger traveling
upon the vehicle of an interstate public carrier, and that its
application to such a passenger would be in violation of
Article I, Section 8, of the Constitution of the United States,
and also for the reason that under settled rules of construc
tion said law could not be construed to apply to a passenger
in interstate commerce, and that it must be construed as
limited in its operation to passengers in intrastate com
merce (R., pp. 4, 20, 21, 34). At the conclusion of the entire
case, after both the Commonwealth and the defendant had
[fol. 7] rested, this motion was renewed (R., pp. 4, 5, 32,
33, 34, 35). After the Court had returned a finding that
defendant was guilty of the offense charged (R., p. 5), de
fendant moved to set aside said finding (R., pp. 5, 6, 36, 37),
and also moved for a new trial (R., pp. 6, 38, 39) upon the
same grounds and for the same reasons. Each of said
motions the Court overruled, to which action of the Court
defendant in each instance excepted. Final judgment was
entered sentencing defendant to pay a fine of $10.00 (R.,
pp. 6, 7).
A rgument
I
The Statute Upon Which the Prosecution was Based, if
Construed As Applicable to Defendant, a Passenger
in Interstate Commerce, Is Unconstitutional
and Void.
The Statutes Involved
In 1930, the General Assembly of Virginia enacted a
statute described by its title as “ An Act to provide for the
separation of white and colored passengers in passenger
motor vehicle carriers within the State; to constitute the
drivers of said motor vehicles special policemen, with the
same powers given to conductors and motormen of electric
railways by general law.” (Acts of Assembly, 1930, Chap.
128.)
This statute, now appearing as Sections 4097z to 4097dd
of Michie’s Code of Virginia, 1942, requires all passenger
motor vehicle carriers to separate the white and colored
passengers in their motor busses, and to set apart and
8
designate in each bus seats or portions thereof to he occu
pied, respectively, by the races, and constitutes the failure
and refusal to comply with said provisions a misdemeanor
(Sec. 4097z); forbids the making of any difference or dis
crimination in the quality or convenience of the accommo
dations so provided (Sec. 4097aa); confers the right and
obligation upon the driver, operator or other person in
charge of such vehicle, to change the designation so as to
increase or decrease the amount of space or seats set apart
for either race at any time when the same may be necessary
or proper for the comfort or convenience of passengers so
to do; forbids the occupancy of contiguous seats on the
same bench by white and colored passengers at the same
time; authorizes the driver or other person in charge of the
vehicle to require any passenger to change his or her seat
[fol. 8] as it may be necessary or proper, and constitutes
the failure or refusal of the driver, operator or other person
in charge of the vehicle, to carry out these provisions a
misdemeanor (Sec. 4097bb); constitutes each driver, oper
ator, or other person in charge of the vehicle, while actively
engaged in the operation of the vehicle, a special policeman,
with all of the powers of a conservator of the peace in the
enforcement of the provisions of this statute, the mainte
nance of order upon the vehicle, and while in pursuit of
persons for disorder upon said vehicle, for violating the
provisions of the act, and until such persons as may be
arrested by him shall have been placed in confinement or
delivered over to the custody of some other conservator of
the peace or police officer, and protects him against the
consequences of error in judgment as to the passenger’s
race, where he acts in good faith and the passenger has
failed to disclose his or her race (Sec. 4097cc). Section
4097dd, upon which the prosecution in this case was based,
reads as follows:
“ All persons who fail while on any motor vehicle carrier,
to take and occupy the seat or seats or other space assigned
to them by the driver, operator or other person in charge of
such vehicle, or by the person whose duty it is to take up
tickets or collect fares from passengers therein, or who fail
to obey the directions of any such driver, operator or other
person in charge, as aforesaid, to change their seats from
time to time as occasions require, pursuant to any lawful
rule, regulation or custom in force by such lines as to assign
9
ing separate seats or other space to white and colored
persons, respectively, having been first advised of the fact
of such regulation and requested to conform thereto, shall
be deemed guilty of a misdemeanor, and upon conviction
thereof shall be fined not less than five dollars nor more than
twenty-five dollars for each offense. Furthermore, such
persons may be ejected from such vehicle by any driver,
operator or person in charge of said vehicle, or by any
police officer or other conservator of the peace; and in case
such persons ejected shall have paid their fares upon said
vehicle, they shall not be entitled to the return of any part
of same. For the refusal of any such passenger to abide by
the request of the person in charge of said vehicle as afore
said, and his consequent ejection from said vehicle, neither
the driver, operator, person in charge, owner, manager nor
bus company operating said vehicle shall be liable for
damages in any court.”
[fol. 9] The Defendant’s Contention
Defendant is unconcerned with the applicability of the
statute aforesaid to passengers whose journeys commence
and end within the state. Nor does she base her contention
of invalidity upon a claim of inequality or inferiority
in the accommodations afforded members of her race.
Her position is that since it appears without controversy
that she was a passenger in interstate commerce upon an
interstate carrier, the statute could not constitutionally
apply, and therefore affords no basis for her prosecution.
Such Statutes Are Unconstitutional and Void When Appli
cable to Interstate Passengers
That state laws of the kind upon which this prosecution
was based cannot be permitted to operate upon interstate
commerce is apparent from principles too well known and
settled to require citation of authority.
In recognition of the necessity of uniformity through
national control in the regulation of commerce among the
states, the Constitution of the United States, in Article I,
Section 8, confers the regulatory power upon Congress and
invests it with power to determine what these regulations
shall be. Whenever the subject matter of regulation is
in its nature national, and admits of only one uniform
10
system or plan of regulation, the power of Congress is
exclusive, and cannot be encroached upon by the states.
There is no room for the operation of the police power of
the state where the legislature passes beyond the exercise
of its legitimate authority and undertakes to regulate in
terstate commerce by imposing burdens upon it.
It has therefore been flatly declared by the highest Court
in the land that legislation which seeks to direct the inter
state carrier with respect to the policy which it is to pursue
in transporting the races is unconstitutional and void.
Halil v. DeCuir, 95 U. S. 485, 24 L. Ed. 547 (1877).
In that case the defendant was the owner of a steam
boat licensed under Federal law for the coasting trade
plying between New Orleans, Louisiana, and Vicksburg,
Mississippi, and touching at intermediate points within
and without Louisiana. Plaintiff, a Negro, took passage
from New Orleans to Hermitage, Louisiana. Upon being
refused a place in a cabin set apart by defendant for ex
clusive occupancy by white persons, plaintiff brought an
action for damages under the Louisiana Act of 1869, which
[fol. 10] prohibited “ discrimination” because of race or
color, and provided a right of action to recover damages.
The defense was that the statute was inoperative as re
gards the defendant because, as to him, it was an attempt
to regulate commerce among the states. The trial court
gave judgment for the plaintiff, which was affirmed by
the Supreme Court of Louisiana. In the Supreme Court
of the United States, the judgment was reversed. The
Court pointed out that the state court had construed the
statute and held that it applied to interstate commerce,
and that it guaranteed a passenger in interstate commerce
equal rights and privileges in all parts of the conveyance,
without discrimination on account of race or color, and
that this construction was binding upon the Supreme Court
and therefore excluded from the case all questions concern
ing its application to intrastate passengers. The Court,
by Chief Justice Waite, said:
“ But we think it may safely be said that state legislation
which seeks to impose a direct burden upon interstate com
merce, or to interfere directly with its freedom, does en
croach upon the exclusive power of Congress. The statute
now under consideration in our opinion occupies that posi-
11
tion. * * * "While it purports only to control tlie car
rier when engaged within the state, it must necessarily
influence his conduct to some extent in the management
of his business throughout his entire voyage. His dispo
sition of passengers taken up and put down within the
State, or taken up to be carried without, cannot but affect
in a greater or less degree those taken up without and
brought within, and sometimes those taken up and put down
without. A passenger in the cabin set up for the use of
whites without the state must, when the boat comes within,
share the accommodations of that cabin with such colored
persons as may come on board afterwards if the law is
enforced. It was to meet just such a case that the com
mercial clause in the Constitution was adopted. * * *
Each state could provide for its own passengers and regu
late the transportation of its own freight, regardless of
the interests of others— * * * On one side of the river
or its tributaries he might he required to observe one set
of rules, and on the other another. Commerce cannot flour
ish in the midst of such embarrassment. No carrier of
passengers can conduct his business with satisfaction to
himself, or comfort, to those employing him, if on one side
of a State line his passengers, both white and colored,
must be permitted to occupy the same cabin, and on the
other be kept separate. Uniformity in the regulations by
[fol. 11] which he is to be governed from one end to the
other of his route is a necessity in his business. ’ ’
Pointing out that the exclusive legislative power, as re
spects interstate commerce, rests in Congress, the Court
further said:
“ This power of regulation may be exercised without
legislation as well as with it. By refraining from action,
Congress, in effect, adopts as its own regulations those
which the common law or the civil law, where that prevails,
has provided for the government of such business.”
It was further held that Congressional inaction left the
carrier free to adopt reasonable rules and regulations, and
the statute in question sought to take away from him that
power. It was therefore concluded that
“ If the public good require such legislation it must come
from Congress and not from the States.”
12
Mr. Justice Clifford, in a concurring opinion, pointed out
that
“ Unless the system or plan of regulation is uniform, it
is impossible of fulfillment. Mississippi may require the
steamer carrying passengers to provide two cabins and
tables for passengers, and may make it a penal offense for
white and colored persons to be mixed in the same cabin or
at the same table. If Louisiana may pass a law forbidding
such steamer from having two cabins and two tables—one
for white and the other for colored persons—it must be
admitted that Mississippi may pass a law requiring all
passenger steamers entering her ports to have separate
cabins and tables, and make it penal for white and colored
persons to be accommodated in the same cabin or to be
furnished with meals at the same table. Should state legis
lation in that regard conflict, then the steamer must cease
to navigate between ports of the states having such con
flicting legislation, or must be exposed to penalties at every
trip.”
The same reasons which operated to destroy the consti
tutionality of the statute there involved operate equally
to render unconstitutional legislation which seeks to compel
a separation of interstate passengers upon a racial basis.
Consequently, notwithstanding decisions in two states to
the contrary, which have elsewhere been disapproved,
[fol. 12] Illinois Central Railroad Company v. Redmond,
119 Miss. 765, 81 S. 115 (1919);
Southern Railway Co. v. Norton, 112 Miss. 302, 73 S. 1
(1916);
Alabama <& Vicksburg Ry. Co. v. Morris, 103 Miss. 511,
60 S. 11 (1912);
Smith v. State, 100 Tenn. 494, 49 S. W. 566 (1900);
the conclusion has been uniformly reached in the federal
courts, and in the majority of state courts, that statutes
requiring separate accommodations for white and Negro
passengers are unconstitutional when applied to interstate
passengers.
Washington, R. & A. Elec. R. Co. v. Waller, 53 App. D.
C. 200, 289 F. 598, 30 A. L. R. 50 (1923);
Thompkins v. Missouri, K. <& T. Ry. Co. (C. C. A. 8th)
211 F. 391 (1914);
13
McCabe v. Atchison, T. & S. F. Ry. Co. (C. C. A. 8th)
186 F. 966 (1911);
Anderson v. Louisville & N. R. Co. (C. C. Ky.), 62 F. 46
(1894);
Brown v. Memphis & C. R. Co. (C. C. Term.), 5 F. 499
(1880);
State v. Galveston H. & S. A. Ry. Co. (Tex. Civ. App.),
184 S. W. 227 (1916);
Huff v. Norfolk & S. R. Co., 171 N. C. 203, 88 S. E. 344
(1916);
State v. Jenkins, 124 Md. 376, 92 A. 773 (1914);
Hart v. State, 100 Md. 596, 60 A. 457 (1905);
Carrey v. Spencer (N. Y. Sup. Ct.), 36 N. Y. S. 886 (1895);
State ex rel. Abbott v. Hicks, 44 La. Ann. 770, 11 S. 74
(1892).
Such also has been the position of the Supreme Court of
the United States where the same opinion has, in decisions
subsequent to Hall v. DeCuir, been intimated or assumed.
McCabe v. Atchison, T. & S. F. Ry. Co., 235 U. S. 151, 35
S. Ct. 69, 59 L. Ed. 169 (1914);
Chiles v. Chesapeake & 0. Ry. Co., 218 U. S. 71, 30 S. Ct.
667, 54 L. Ed. 936 (1910);
Chesapeake & O. Ry. Co. v. Kentucky, 179 U. S. 388, 21 S.
Ct. 101, 45 L. Ed. 244 (1900);
Plessy v. Ferguson, 163 U. S. 537,16 S. Ct. 1138, 41 L. Ed.
256 (1896) ;
[fol. 13] Louisville, N. 0. & T. Ry. Co. v. Mississippi, 133
U. S. 587, 10 S. Ct. 348, 33 L. Ed. 784 (1890).
In McCabe v. Atchison, Topeka & S. F. Ry. Co., supra, the
Eighth Circuit Court of Appeals was faced with the 1907
Oklahoma statute which required separate coaches and
waiting rooms for white and colored passengers, and pro
vided penalties for its violation by either the passengers or
the carrier. Before the act went into effect, five Negro citi
zens of Oklahoma brought a suit in equity against five rail
road companies to enjoin them from making racial distinc
tions upon the ground, inter alia, that the statute was re
pugnant to the commerce clause of the Federal Constitu
tion. In holding that the act would be unconstitutional if
applicable to interstate passengers, the Court said:
“ It may be conceded that, if it applies to interstate trans
portation, it is a regulation of interstate commerce within
14
the meaning of the Constitution. We think this follows
fi’om the doctrine laid down by the Supreme Court in Hall
v. DeCuir, 95 U. S. 485, 24 L. Ed. 547.' * * * For like
reasons, the Oklahoma law, if as properly construed, it
embraces or relates to interstate commerce, at all, would
also be a regulation of that commerce. It compels carriers
when operating in that state to exclude colored persons
from cars or compartments set apart for white persons.
The only difference between the Louisiana and the Okla
homa law is that the one compels carriers to receive into
and the other to exclude colored persons from cars or com
partments carrying white persons. They act alike directly
upon the carrier’s business as its passenger crosses the
state line. Hence, if one is a regulation of interstate com
merce, the other must be. The contention, therefore, that
the provisions of the Oklahoma statute do not amount to a
regulation of interstate commerce, if they concern that com
merce at all, is untenable.”
Likewise, in State ex rel. Abbott v. Hicks, supra, the de
fendant, a Pullman official, was prosecuted for violation of
the 1890 Louisiana act requiring separate coaches for the
races. There was a plea to the jurisdiction and a motion to
quash the information on the ground that the passenger
involved was an interstate passenger. The lower court sus
tained a demurrer to the plea and motion, and the defendant
took the case to the Supreme Court of Louisiana on certio
rari, where the judgment was reversed. This court, con
struing the decision in Louisville, New Orleans & Texas
Ry. Co. v. Mississippi, supra, held:
[fol. 14] “ The terms of the decision left no doubt that the
Court (Supreme Court of the United States) regarded the
statute as unconstitutional if it applied to interstate pas
sengers, and only upheld it because construed by the Su
preme Court of Mississippi as applicable only to domestic
passengers. * * * These decisions leave no room for
question that the jurisprudence of the United States Su
preme Court holds such statutes as the one here presented
to be only valid in so far as they apply to domestic trans
portation of passengers or goods, and that, as applicable to
interstate passengers or carriage, they are regulations of
interstate commerce, prohibited to the states by the con
stitution of the United States.”
Again, in Huff v. Norfolk <& Southern R. Co., supra, plain
tiff, a white deputy sheriff who was carrying a Negro
15
prisoner from Norfolk, Virginia, to Newbern, North Caro
lina, was compelled by defendant to ride in a coach on de
fendant’s train maintained for the exclusive occupancy of
Negro passengers, in compliance with the statute of North
Carolina requiring separate accom-odations for the races.
He then brought this action for damages. In holding that
the statute could not be applied to this case, the court said:
“ While there is learned and forcible decision to the con
trary (Smith v. State, 100 Tenn. 494, 46 S. W. 566), it seems
to be the trend of opinion and the decided intimation of the
Supreme Court of the United States, on the subject that
state legislation of this character may not extend to a case
of interstate traffic.”
And, in Hart v. State, supra, the appellant, a Negro, held
a ticket from New York to Washington entitling him to
transportation over a line extending from Pennsylvania
through Delaware and into Maryland. Upon his refusal to
take the seat assigned to him, he was indicted under the 1904
Maryland statute requiring separate coaches for white and
colored passengers. A plea in abatement was filed, where
upon the trial court sustained a demurrer to the plea and
appellant was thereupon convicted. Upon appeal, however,
the conviction was reversed. It was argued by the Attorney
General for the state that the statute was constitutional as
a police measure, although it affected interstate passengers,
to which contention the court replied that
“ Although the state has power to adopt reasonable police
regulations to secure the safety and comfort of passengers
[fol. 15] on interstate trains while within its borders, it is
well settled, as we have seen, that it can do nothing which
will directly burden or impede the interstate traffic of the
carrier, or impair the usefulness of its facilities for such
traffic. When the subject is national in its character and
admits and requires uniformity of regulation affecting alike
all the states, the power is in its nature exclusive, and the
state cannot act. The failure of Congress to act as to mat
ters of national character is, as a rule, equivalent to a dec
laration that they shall be free from regulation or restric
tion by any statutory enactment, and it is well settled that
interstate commerce is national in its character. Applying
these general rules to the particular facts in this case, and
bearing in mind the application of the expressions used in
16
Hall v. DeCuir to cases involving questions more or less
analogous to that before us, we are forced to the conclusion
that this statute cannot be sustained to the extent of making
interstate passengers amenable to its provisions. When a
passenger enters a car in New York under a contract with
a carrier to be carried through to the District of Columbia,
if when he reaches the Maryland line, he must leave that
car, and go into another, regardless of the weather, the
hour of the day or the night, or the condition of his health,
it certainly would, in many instances, be a great incon
venience and possible hardship. It might be that he was
the only person of his color on the train, and no other
would get on in the State of Maryland, but he, if the law is
valid against him, must, as soon as he reaches the state
line, leave the car he started in, and go into another, which
must be furnished for him, or subject himself to a criminal
punishment. ’ ’
and that, therefore, the statute could not be sustained under
the police power. The court added that it was convinced
that if the Supreme Court of the United States were called
to pass upon the precise question, it would hold such statute
invalid as applicable to interstate passengers.
In Anderson v. Louisville £ N. R. Co., supra, plaintiff and
his wife were forced, by the defendant, to occupy seats in
the Negro coach upon two separate trips. Upon the first,
they were traveling as first class passengers from Evans
ville, Indiana, to Madisonville, Kentucky, and were re
quired to move into said coach when the train reached Ken
tucky. On the second trip, the trip was wholly within
Kentucky. Suit was then brought against defendant
wherein the court considered the constitutionality of the
1892 Kentucky statute calling for separate but equal facili-
[fol. 16] ties for the races. It was held that the statute was
invalid as its language was broad enough to extend its ap
plication to interstate as well as intrastate passengers and
therefore constituted it a regulation of interstate commerce.
Defendant’s demurrer was accordingly overruled.
In Carrey v. Spencer, supra, plaintiff, a Negro, bought a
ticket for passage from New York to Knoxville, Tennessee.
At or near the Tennessee line he was moved into the coach
provided for Negro passengers pursuant to the provisions
of the Tennessee separate coach law. This suit was for
damages, being brought in a New York Court because de
17
fendant company was in the hands of a receiver and the
court of receivership had granted plaintiff leave to sue in
New York. It was held that plaintiff was entitled to judg
ment, on the ground that the Tennessee statute, as applied
to an interstate passenger, was unconstitutional.
In Thompkins v. Missouri, K. <& T. Ry. Co., supra, plain
tiff, a Negro, sued for damages arising from his ejection
from a Pullman car in Oklahoma, and for his arrest, con
viction and fine for disturbing the peace. He was a pas
senger from Kansas City, Missouri to McAlester, Okla
homa. The Oklahoma statute was in question, one of de
fendant’s positions being that it acted in conformity there
with. It was held that, as plaintiff was an interstate pas
senger, the statute was irrelevant.
In Brown v. Memphis & C. R. Co., supra, plaintiff, a
Negro, sued for her exclusion from the ladies’ car on one
of defendant’s trains upon her refusal to take a seat in the
smoking car. There was at the time a statute of Tennessee
providing that all common law remedies for the exclusion
of any person from public means of transportation were
thereby abrogated, that no carrier should be bound to carry
any person whom he should for any reason choose not to
carry, that no right of action should exist in favor of any
person so refused admission, and that the right of carriers
as to the exclusion of persons from their means of transpor
tation should be as perfect as that of any private person.
Following Hall v. DeCuir, it was held that so far as this
statute purported to apply to interstate passengers, it was
unconstitutional, being a regulation of interstate commerce.
So long as uniform regulation remain a sine qua non of
the growth of the interstate carrier, the orderly conduct of
its business, and the protection of the national interest
therein, the recognition of a power in the states to deter
mine whether interstate traffic while within their boundaries
[fol. 17] shall be subject to a legislative policy of segrega
tion or non-segregation of the races is conducive only to a
result which the commerce clause was intended to forbid.
While such legislation purports merely to control the car
rier while within the territorial limits of the state, it neces
sarily influences its conduct in the management of its busi
ness throughout its entire route, since all passengers, inter
state as well as intrastate, are affected by the carrier’s dis-
2—704
1 8
position of its passengers pursuant thereto. Since each
state could legislate in its own interest without regard for
the consequences, and the various enactments could differ
in provision, a compliance with all would produce the kind
of confusion and embarrassment in the midst of which com
merce could not flourish. When it is perceived that the
recognition of the validity of a state law requiring the
segregation of the races would in turn necessitate the same
recognition of a non-segregation statute, there is no limit
to the carrier’s burden.
Such injurious consequences are already at hand. An ex
amination of the law of the six jurisdictions contiguous to
Virginia demonstrates the diversity of policy in our imme
diate section of the nation. Two such jurisdictions (West
Virginia and the District of Columbia) do not attempt to
segregate the races in either interstate or intrastate com
merce. Three others (Maryland, North Carolina and Ken
tucky) have, as appears from the second part of this argu
ment, construed their laws as limited in operation to intra
state traffic. Only one (Tennessee) has held its law appli
cable to the interstate passenger. Not a single state on the
Atlantic seaboard from Maine to Florida has decided that
its state policy in this regard can control any other than its
domestic commerce. Situated as it is in the path of a chan
nel of interstate transportation, Virginia should not provide
a stumbling block.
II
The Statute Upon Which This Prosecution Was Based
Should Be Construed As Limited in Its Operation to
Passengers in Intrastate Commerce, and Therefore As
Inapplicable to Defendant
If limited in operation to intrastate passengers, the stat
ute upon which this prosecution was based is valid, insofar
as the commerce clause of the Federal Constitution is con
cerned. Defendant’s position in this connection is that as
a matter of statutory construction rather than constitu-
[fol. 18] tional limitation, this statute did not apply to
her. Well established canons compel this conclusion.
The Applicable Rules of Construction
Where the validity of a statute is assailed and there are
two possible interpretations, by one of which the statute
19
would be unconstitutional and by the other it would be
valid, the Court should adopt the construction which will
uphold it and bring it into harmony with the Constitution,
if its language will permit.
Miller v. Commonwealth, 172 Ya. 639, 2 S. E. 2d 343
(1939);
Hannabass v. Ryan, 164 Ya. 519, 180 S. E. 416 (1935);
Commonwealth v. Carter, 126 Va. 469, 102 S. E. 58
(1920);
Commonwealth v. Armour & Co., 118 Va. 242, 87 S. E.
610 (1916).
The duty of the court to so construe a statute as to save
its constitutionality when it is reasonably susceptible of two
constructions includes the duty of adopting a construction
that will not subject it to a succession of doubts as to its
constitutionality. It is well settled that a statute must be
construed, if fairly possible, so as to avoid not only the
conclusion that it is unconstitutional, but also serious doubt
upon that score.
National Labor Relations Roard v. Jones dk Laughlin
Steel Corp., 301 U. S. 1, 57 S. C't. 615, 81 L. Ed. 893, 108
A. L .R . 1352 (1937);
Crowell v. Renson, 285 U. S. 22, 52 S. Ct. 285, 76 L. Ed.
598 (1932);
South Utah Mines & Smelters v. Reaver County, 262
IT. S. 325, 43 S. Ct. 577, 67 L. Ed. 1004 (1923);
Ann Arbor R. Co. v. United States, 281 U. S. 658, 50 S. Ct.
444, 74 L. Ed. 1098 (1930);
Re Keenan, 310 Mass. 166, 37 N. E. 2d 516, 137 A. L. R.
766 (1941).
In order to uphold the statute, the courts may restrict its
application to the legitimate field of legislation, unless the
act indicates a different intention on the part of its framers.
A statute should not be given a broad construction if its
validity can be saved by a narrower one.
South Utah Mines and Smelters v. Beaver County, supra;
[fol. 19] Schuylkill Trust Co. v.' Pennsylvania, 302 U. S.
508, 58 S. Ct. 295, 82 L. Ed. 392 (1938);
United States v. Walters, 263 U. S. 15, 44 S. Ct. 10, 68
L. Ed. 137 (1923);
20
Schoberg v. United States (C. C. A., 6th), 264 F. 1
(1920);
Mints v. Baldwin (D. C., N. Y.), 2 F. Supp. 700 (1933).
The Construction of Carrier Racial Segregation Laws
In the vast majority of cases wherein there has arisen a
question as to the validity of a state carrier racial segrega
tion law upon the ground that it amounted to an unconstitu
tional interference with interstate commerce, the law has
been construed as limited in its operation to passengers in
intrastate commerce.
McCabe v. Atchison, T. & S. F. Ry. Co., 235 U. S. 151, 35
S. Ct. 69, 59 L. Ed. 169 (1914);
Chiles v. Chesapeake <& 0. Ry. Co., 218 U. S. 71, 30 S. Ct.
667, 54 L. Ed. 936 (1910);
Chesapeake & O. Ry. Co. v. Kentucky, 179 U. S. 388, 21
S. Ct. 101, 45 L. Ed. 244 (1900);
Louisville, N. O. & T. Ry. Co. v. Mississippi, 133 U. S.
587, 10 S. Ct. 348, 33 L. Ed. 784 (1890);
Washington, B. <L A. Flee. R. Co. v. Waller, 53 App.
D. C. 200, 289 F. 598, 30 A. L. R. 50 (1923);
South Covington <& C. Ry. Co. v. Commonwealth, 181 Kv.
449, 205 S. W. 603 (1918);
McCabe v. Atchison, T. & S. F. Ry. Co. (C. C. A., 8th),
186 F. 966 (1911);
State v. Galveston, LL. & S. A. Ry. Co. (Tex. Civ. App.),
184 S. W. 227 (1916);
O’Leary v. Illinois Central R. Co., 110 Miss. 46, 69 S. 713
(1915);
State v. Jenkins, 124 Md. 376, 92 A. 773 (1914);
Chiles v. Chesapeake & 0. Ry. Co., 125 Ky. 299,101 S. W.
386 (1907);
Southern Kansas Ry. Co. v. State, 44 Tex. Civ. App. 218,
99 S. W. 166 (1906); “
Hart v. State, 100 Md. 596, 60 A. 457 (1905);
Ohio Valley R y.’s Receiver v. Lander, 104 Ky. 431, 47
S. W. 344 (1898);
Louisville, N. O. & T. Ry. Co. v. State, 66 Miss. 662, 6 S.
203 (1889);
State, ex rel., Abbott v. Hicks, 44 La. Ann. 770, 11 S. 74
(1892).
21
[fol. 20] Thus, in McCabe v. Atchison, T. & S. F. Ry. Co.,
supra, a case involving the 1907 Oklahoma law which re
quired separate coaches for the races, and providing penal
ties for its violation, five Negroes, citizens of Oklahoma,
brought suit in equity before the law went into effect against
five railroad companies to restrain its enforcement upon
the ground, inter alia, that it was repugnant to the com
merce clause. Of course, the highest court of Oklahoma
had not construed the act. There was a demurrer to the
bill which the trial court sustained. Upon appeal to the
Circuit Court of Appeals for the Eighth Circuit, the judg
ment below was affirmed upon the ground that the act, in
the absence of a different construction by the state court,
must be construed as applying to intrastate transportation
exclusively, and therefore as not contravening the com
merce clause. The Circuit Court of Appeals said on this
score:
“ The question, then, is whether that statute, when prop
erly construed, applies to interstate transportation, or
whether it is limited in its application to that transporta
tion which has its origin and ending within the confines
of the state. No provision is found in the act indicating
in any express terms that it was intended to apply to inter
state commerce. All its provisions concerning the subject
of legislation are general. Thus Section 1 provides that
‘ every railway company * * * doing business in this
state, * * * shall provide separate coaches,’ etc. Sec
tions 2 and 6 make it unlawful ‘ for any person’ to occupy
any waiting room or ride in any coach not designated for
the race to which he belongs. While, therefore, the lan
guage of the act, literally construed, is comprehensive
enough to include railroads doing interstate business, and
include passengers while making interstate trips, it neither
in express terms nor by any implication other than that
involved in the general language employed, manifests any
intention to invade the exclusive domain of congressional
legislation on the subject of interstate commerce. Local
transportation, or that which is wholly within the state
only, being within the competency of the state legislature,
would naturally be presumed to have been alone contem
plated in the law enacted by it. The constitutional inhibi
tion against a state legislating concerning interstate com
22
merce, and the uniform decisions of courts of high and
controlling authority, emphasizing and enforcing that in
hibition, without doubt, were actually as well as construc
tively known to the members of the legislature of Okla
homa. It is unreasonable to suppose they intended to leg
islate upon a subject known by them to be beyond their
[fol. 21] power, and upon which an attempt to legislate
might imperil the validity of provisions well within their
power. Any other view would imply insubordination and
recklessness, which cannot be imputed to a sovereign state. ”
Upon appeal to the Supreme Court of the United States,
the same conclusion was reached and the rule of interpreta
tion applied by the Circuit Court of Appeals confirmed.
Likewise, in Chesapeake & 0. Ry. Co. v. Kentucky, supra,
there was a review of the conviction of the railroad com
pany, an interstate carrier, under the 1892 statute which
provided that all railroads in the state must furnish sepa
rate but equal accommodations for the races. Defendant,
in the trial court, had contended that the statute was uncon
stitutional as a regulation of interstate commerce. Its
demurrer predicated upon this ground was overruled. The
Court of Appeals of Kentucky construed the act as apply
ing only to intrastate passengers, and affirmed the convic
tion, which the Supreme Court of the United States likewise
affirmed. Said the latter Court, through Mr. Justice
Brown:
“ Of course this law is operative only within the state.
* * * The real question is whether a proper construction of
the act confines its operation to passengers whose journeys
commence and end within the boundaries of the state or
whether a reasonable interpretation of the act requires
colored passengers to be assigned to separate coaches when
traveling from and to points in other states. * * #
“ This ruling (of the Court of Appeals of Kentucky) ef
fectually disposes of the argument that the act must be con
strued to regulate the travel or transportation on the rail
roads of all white and colored passengers, while they are in
the state without reference to where their journey com
mences and ends, and of the further contention that the
policy would not have been adopted if the act had been con
23
fined to that portion of the journey which commenced and
ended within the state lines.
“ Indeed, we are by no means satisfied that the Court of
Appeals did not give the correct construction to this statute
in limiting its operation to domestic commerce. It is
scarcely courteous to impute to a legislature the enactment
of a law which it knew to be unconstitutional, and if it were
well settled that a separate coach law was unconstitutional,
as applied to interstate commerce, the law applying on its
face to all passengers should be limited to such as the legisla
ture was competent to deal with. The Court of Appeals has
found this to be the intention of the General Assembly in
[fol. 22] this case, or as least, that if such were not its in
tention, the law may be supported as applying alone to
domestic commerce. In thus holding the act to be severable,
it is laying down a principle of construction from which
there is no appeal. ’ ’
There is ample room for this Court to avoid all constitu
tional difficulties with respect to the statute in question. It
is not in terms applicable to interstate passengers. It has
never been construed in this respect by this Court. It is not
necessary to impute a frustrated motive to the legislature
when settled principles require the limitation of its opera
tion in order to remove all doubt as to its validity.
Conclusion
Your petitioner submits that for the reasons set forth in
this her petition, which is hereby adopted as her opening
brief, the judgment of the trial court is erroneous, and
should be set aside, and prays that a writ of error may be
granted to said judgment, and a supersedeas thereto
awarded, and that the same may be reviewed and reversed.
Counsel for the petitioner hereby request that they be per
mitted to argue orally the matters contained in this petition
upon the application for a writ of error and supersedeas,
and certify that a copy hereof has been forwarded by regis
tered mail to the Honorable Lewis Jones, Commonwealth’s
Attorney for Middlesex County, Virginia, who was Com
monwealth’s Attorney when this case was tried and who
prosecuted the same on behalf of the Commonwealth. Said
copy was mailed on the 5th day of February, 1945. The
24
original hereof is filed in the office of the Clerk of this court
in Richmond, Virginia.
Irene Morgan, Petitioner, By Spottswood W. Robin
son, III, Of Counsel.
Hill, Martin & Robinson, Consolidated Bank Building,
Richmond 19, Virginia, Counsel for Petitioner.
[fol. 23] Certificate
I, Martin A. Martin, an attorney practicing in the Su
preme Court of Appeals of Virginia, do certify that in my
opinion the judgment complained of in the foregoing peti
tion is erroneous and should be reviewed.
Martin A. Martin, Consoliadted Bank Building,
Richmond 19, Virginia.
Received February 5, 1945.
M. B. Watts, Clerk.
March 6, 1945. Writ of error and supersedeas awarded
by the Court. Bond $100.
M. B. W.
I n Circuit Court of M iddlesex County
W arrant— Filed July 22,1944
State of V irginia,
County of Middlesex, to-wit:
To any Sheriff or Police Officer:
Whereas R. P. Kelly has this day made complaint and
information on oath before me, G. C. Bourne, Justice of the
Peace of the said County, that Irene Morgan in said county
did on the 16th day of July, 1944: Unlawfully Refuse to
move back on the Greyhound Bus in the section for colored
people,
These are, therefore, to command you, in the name of the
Commonwealth, to apprehend and bring before the Trial
Justice of the said County, the body (bodies) of the above
accused, to answer the said complaint and to he further
dealt with according to law. And you are also directed to
25
[fol. 24] summon-------------- color -------- Address ------ as
witnesses.
Given under my hand and seal, this 16th day of July, 1944.
G. C. Bourne, J. P. (Seal.)
R everse Side of Said W arrant :
Docket No. A 1450, Court No. 330 File 40
Commonwealth
v.
I rene M organ (c), Hayes Store, Ya.
Warrant of Arrest
Executed this, the 16 day of July, 1944, by arresting
Irene Morgan.
R. B. Segar, Sheriff.
Upon the examination of the within charge, I find the
accused
July 18, 1944.
Upon a plea of not guilty to the within charge, and upon
examination of witnesses, I find the accused guilty as
charged and fix his punishment at a fine of $10.00 and —
days in jail and costs. Appeal noted. Bail set at $500.00.
Let to Bail.
Catesby G. Jones, Trial Justice.
Fine .................................. $10.00
Costs ................................. 5.25
Total ..................... $15.25
Filed July 22,1944.
C. W. Eastman, Clerk.
State of V irginia,
County of Middlesex, to-wit:
I, G. C. Bourne a justice of the peace in and for the
[fol. 25] County aforesaid, State of Virginia, do certify
that Mrs. Irene Morgan and Mrs. Ethel Amos, Sr., as her
surety, have this day each acknowledged themselves in
2 6
debted to the Commonwealth of Virginia in the sum of
Five Hundred Dollars ($500.00), to be made and levied of
their respective goods and chattels, lands, and tenements
to the use of the Commonwealth to be rendered, yet upon
this condition: That the said Irene Morgan, shall appear
before the Trial Justice Court of Middlesex County, on the
18th day of July, 1944, at 10 A. M., at Saluda, Virginia,
and at any time or times to which the proceedings may be
continued or further heard, and before any court thereafter
having or holding any proceedings in connection with the
charge in this warrant, to answer for the offense with which
lie is charged, and shall not depart thence Avithout the
leave of said Court, the said obligation to remain in full
force and effect until the charge is finally disposed of or
until it is declared \roid by order of a competent court: and
upon the further condition that the sa id -------------- shall
keep the peace and be of good behavior for a period of
— days from the date hereof.
Given under my hand, this 16th day of July, 1944.
G. C. Bourne, J. P.
Costs— T. J. Court
Warrant ............................. $1.00
Trial ..................................... 2.00
Arrest ................................. 1-00
I n Circuit Court op M iddlesex County
[Title omitted]
Appeal from Trial Justice: Misdemeanor: Violation of
Section 4097dd of 1942 Code
[Title omitted]
[fol. 26] Appeal from Trial Justice: Misdemeanor: Resist
ing Arrest
J ournal E ntry of H earing— September 25, 1944
This day came the Attorney for the Commomvealth and
the accused came to the bar with her counsel, and by con
sent of both parties these two cases are to be heard on the
evidence heard in both cases together and by consent of all
27
parties trial by jury was waived in both cases, and the
defendant agreed to submit her case to the Judge of this
Court for trial and disposition according to law, and mo
tion was made by the Attorney for the Commonwealth to
amend the warrant as follows: State of Virginia, County
of Middlesex, to-wit: To Any Sheriff or Police Officer:
Whereas R. P. Kelly, operator of the Greyhound Bus has
this day made complaint and information on oath before
me, G. C. Bourne, Justice of the Peace of the said County,
that Irene Morgan in the said County did on the 16 day of
July, 1944, Unlawfully refuse and fail to obey the direction
of the driver or operator of the Greyhound Bus Lines to
change her seat and to move to the rear of the bus and
occupy a seat provided for her, in violation of Section 5
of the Act, Michie Code of 1942, section 4097dd, which
motion was granted by the Court and to which ruling the
defendant excepted.
After the evidence for the Commonwealth was in, the
defendant moved to strike out all the evidence of the Com
monwealth and to dismiss the case wherein she was charged
of a violation of Section 4097dd of the Code, upon the
grounds that the defendant, Irene Morgan, was shown by
the evidence for the Commonwealth to be a passenger in
the interstate commerce upon an interstate public carrier,
towit, the Greyhound Bus, that she was a through passenger
from Hayes Store, Gloucester County, Virginia, to Balti
more, Maryland, that Section 4097dd of the Code of Vir
ginia could not constitutionally apply to interstate passen
gers and that its application to such passengers would vio
late Article I, Section 8 of the Constitution of the United
States, and that said Section 4097dd should, under settled
rules of construction, be construed as inapplicable in opera
tion to passengers in intrastate commerce; and also moved
to strike out all the evidence of the Commonwealth and to
dismiss the case wherein she was charged with resisting an
officer of the law in the discharge of his duty, upon the same
grounds previously advanced in support of her motion to
strike all the evidence of the Commonwealth and to dis
miss the case wherein she was charged with a violation of
Section 4097dd of the Code, and upon the additional
[fol. 27] grounds that the arrest of her person sought to
be made in this case was illegal, and that her conduct was
therefore within her privilege to resist an unlawful arrest.
28
These Motions the Court overruled, to which action of the
Court the defendant excepted.
After all the evidence for the Commonwealth and the
defendant respectively, was in, and both the Commonwealth
and the defendant had rested, defendant renewed her mo
tion to strike out all the evidence for the Commonwealth
in each of the cases aforesaid, upon the same grounds re
spectively, previously advanced in support of the motion
to strike made at the conclusion of the Commonwealth’s
case-in-chief, and upon the additional ground that the
conviction of the defendant in either case would constitute
a violation of her rights under the Fourteenth Amendment
to the Constitution of the United States. These motions
the Court overruled, to which action of the Court the de
fendant excepted.
And the Judge of this Court reserves his decision in each
case until October 18th, 1944.
I n Circuit Court of M iddlesex County
[Title omitted]
J udgment— October 18, 1944
This day came the Attorney for the Commonwealth and
the accused, Irene Morgan came to the bar with her counsels,
Spottswood Robinson, III, and Linwood Smith, and the
Court having maturely considered of its judgment in this
case doth find the defendant Guilty: Thereupon the defend
ant moved the Court to set aside its findings of facts and
grant the defendant a new trial upon the grounds that the
said findings of fact were contrary to the law and the evi
dence and assigned in support of said motion the following
reasons:
(1) That the law upon which the prosecution was based
could not he constitutionally applied to the defendant, an
interstate passenger, and that its application to a passen
ger in interstate commerce was a violation of Article I,
Section 8, of the Constitution of the United States;
[fol. 28] (2) That under settled rules of construction
said law could not be construed to apply to a passenger in
interstate commerce, and that it must be construed as lim
ited in its application to intrastate passengers:
(3) That the conviction of the defendant would, under
the circumstances of this case, constitute a violation of her
rights under the Fourteenth Amendment of the Constitution
of the United States; and that (4) said findings of facts
were contrary to the evidence, and lacking in evidence suffi
cient to support them. This motion the Court overruled,
to which action of the Court the defendant excepted.
Defendant moved the Court to grant her a new trial,
upon the ground that her conviction was erroneous under
the law and contrary to the evidence, and assigned as rea
sons in support of this motion the same reasons previously
advanced in support of the motion to set aside the findings
of fact and to grant the defendant a new trial. This motion
the Court overruled, to which action of the Court the de
fendant excepted.
Defendant moved the Court to arrest the judgment in
this case upon the ground of errors of law and fact appar
ent upon the face of the record in the case, and assigned
as reasons in support of this motion the same reasons
previously advanced in support of the motion to set aside
the findings of fact and to grant the defendant a new trial.
This motion the Court overruled, to which action of the
Court the defendant excepted.
The Court having found the said Irene Morgan guilty
as charged in said warrant doth sentence the said Irene
Morgan to pay a fine to the use of the Commonwealth of
Ten Dollars and the costs in this behalf expended.
Whereupon, the defendant indicated to the Court her
intention of applying to the Supreme Court of Appeals of
Virginia for a writ of error to the judgment of the Court
in this case, and moved the Court to grant a suspension
of the execution of the judgment entered in this case. There
upon, the Court granted said motion and granted a sus
pension of the execution of the judgment for a period of
sixty days from date within which period counsel for the
defendant might present to the Court bills of exception
in said case, and granted to defendant leave to apply to
the Court for additional time within wliich to present to,
and have acted upon by, the Supreme Court of Appeals of
Virginia, a petition for writ of error to the judgment in
this case.
29
30
[fol. 29] I n Circuit Court of M iddlesex County
[Title omitted]
Order S uspending E xecution of J udgment—Filed Decem
ber 7, 1944
This day came the defendent by lier counsel and moved
the Judge rendering the judgment in this case to further
suspend the execution of the judgment and sentence here
tofore rendered and imposed in this case on the 18tli day
of October, 1944, in order to permit the defendant to present
a petition for a writ of error to said judgment to the Su
preme Court of Appeals of Virginia, and to have the same
acted upon by said Court.
Whereupon, it appearing that the defendant has applied
to said Judge, who is the Judge of this Court, for the
signing and sealing of her several Bills of Exception, the
same having been this day signed, sealed, enrolled and
saved to her, and made a part of the record in this case,
within sixty days of the final judgment in this case, and
that the defendant desires and intends to present to the
Supreme Court of Appeals of Virginia a petition for a writ
of error to the judgment herein. It is hereby adjudged
and ordered that execution of the said judgment and sen
tence be and the same is hereby suspended until the 17th
day of February, 1945, and thereafter until such petition
is acted upon by the Supreme Court of Appeals of Vir
ginia if such petition is actually filed on or before the 17th
day of February, 1945.
I n the Circuit Court of M iddlesex County
Case 330
Commonwealth ' of V irginia
v.
Irene M organ
Appeal from Trial Justice, Violation of Section 4097dd of
1942 Code
[fol. 30] B ill of E xception No. 1— Filed December 7, 1944
Be it remembered that on the trial of this case the fol
lowing evidence on behalf of the Commonwealth and of the
31
defendant, respectively, as hereinafter denoted, is all of
the evidence that was introduced:
Witnesseth for the Commonwealth.
R. P. Kelly.
Direct examination:
R. P. Kelly testified that he lives in Norfolk, Virginia;
that he is an employee of the Greyhound Lines, and has
been employed by said company for the last six years;
that on the 16th day of July, 1944, he was engaged in his
duties and was driving, and was in charge and' control of,
a Greyhound bus from Norfolk, Virginia, to Baltimore,
Maryland; that Irene Morgan, the defendant, was a pas
senger on his bus on July 16, 1944; that the defendant is
a colored person; that she boarded the bus at Hayes Store,
in Gloucester County, Virginia; that when she boarded the
bus at Hayes Store the bus was crowded; that all seats
were occupied and both white and colored passengers were
standing in the aisle; that after the arrival of the bus in
Saluda, at about 11 A. M. on that day, and the discharge
of the white and colored passengers destined there, there
were six white passengers standing, but no colored pas
sengers standing; that at this time he perceived the defend
ant and another colored woman, the latter carrying an
infant, seated in the second seat forward of the long seat
in the extreme rear of the bus, the seat in which they were
so seated being, in a view toward the rear of the bus, on
the left side of the aisle; that at this time he also saw two
vacant seats on the long rear seat, which long rear seat
was partly occupied by colored passengers; that he re
quested the defendant and her seatmate to move back into
the two vacant seats on the long rear seat; that the defend
ant’s seatmate started to change her seat, but the defend
ant pulled her back down into the seat; that the defendant
refused to change her seat as requested; that he, the wit
ness, thereupon explained to her the bus rules and regula
tions as to seating colored and white passengers on busses,
and informed her that he was required to seat white pas-
[fol. 31] sengers from the front of the bus backward and
colored passengers from the rear of the bus forward.
At this point the witness produced a booklet in evidence
which he identified as the Manual of Rules for Bus Opera-
32
tors of the Greyhound Lines, and testified that said Manual
contained, on pages 34 and 35 thereof, a rule of said com
pany. Thereupon, the Commonwealth introduced into evi
dence the booklet containing the rule aforesaid, the same
being marked as Exhibit “ A ” , which rule read as follows:
E xhibit “ A ”
“ T-22 Rights Reserved: This company reserves the
right to refuse transportation to any and all persons for
the following reasons:
“ (c) This company reserves full control and discretion
as to the seating of passengers and the right to change
such seating at any time during the trip except on divisions
or runs where specific seat reservations are made, in which
case, passengers shall retain the seats assigned them unless
same be contrary to any laws or governmental regulations. ’ ’
The witness further testified that to his request that the
defendant so move her seat, the defendant replied that she
knew the rules and regulations of the bus company and that
the front one-half of the bus was for white passengers and
the rear one-half of the bus was for colored passengers;
that after the defendant refused to change her seat, he left
the bus and secured from the Justice of the Peace at Saluda
a warrant charging her with violating the Virginia segre
gation law: that Sheriff R. B. Segar boarded the bus with
the warrant and asked the defendant to change her seat
and attempted to read the warrant to her, but she knocked
the warrant out of the Sheriff’s hand; that the woman
seated besides the defendant moved, but the defendant
refused to move, whereupon the sheriff and his deputy,
C. M. Bristow, took her off the bus.
The witness further testified that when the bus arrived
in Saluda, after discharging passengers there, there were
three colored passengers seated on the long- rear seat and
two vacant seats thereon; that all other seats on the bus
were occupied; that six white passengers, but no colored
passengers were standing.
[fol. 32] Cross-examination:
On cross examination R. P. Kelly testified that he had
been employed by the Greyhound Lines for six years; that
he was the driver of and in charge of the bus upon which
33
the incidents testified occurred; that he was personally
driving and operating the said bus from the City of Nor
folk, Virginia, to the City of Baltimore, Maryland; that
the said bus made and was making a continuous or through
trip from Norfolk to Baltimore, traveling by way of and
through the City of Washington, District of Columbia.
He testified further that the Greyhound Lines is regularly
engaged in the business of transporting passengers for hire
from points within the State of Virginia to various points
throughout the United States, including the City of Balti
more, Maryland, and was so engaged on the 16th day of
July, 1944; that passengers traveling to points outside
the State of Virginia are and were, on the date aforesaid,
regularly taken aboard its busses in Gloucester County,
Virginia, including Hayes Store, and transported therein
to points outside the State of Virginia.
At this point the witness was shown a ticket stub and
identification check, and requested to identify the same,
whereupon the witness testified that the same was the stub
of a ticket issued by the Greyhound Lines on July 15, 1944,
at its ticket office at Hayes Store, in Gloucester County,
Virginia; that the ticket which had been attached to said
stub entitled the holder thereof to transportation in a Grey
hound bus from Hayes Store, in Gloucester County, Vir
ginia, to the City of Baltimore, Maryland; that the holder
of said ticket was entitled to transportation from Hayes
Store, in Gloucester County, Virginia, to the City of Balti
more, Maryland, on the 16th day of July, 1944, in the bus
which he drove and operated; that he could not identify
the stub as the stub of the ticket which had been surrendered
to him by the defendant when she boarded the bus and
which he had accepted, but that said stub could be the stub
of the ticket of the defendant. Thereupon, the defendant
introduced into evidence the stub aforesaid, the same being
marked as Exhibit “ B ” , which stub contained the follow
ing words, figures and marks on the front side thereof:
3—704
34
[fol. 33] E xhibit “ B ”
A 65748 K
Issued by
Richmond Greyhound Lines, Inc.
Richmond, Ya.
In selling this ticket for transportation over the lines of
another carrier, the issuing carrier acts as agent only and
assumes no responsibility beyond its own line.
Baggage may be checked in accordance with tariff regu
lations and limitations. Unchecked baggage, parcels, or
other effects are carried at passenger’s risk.
Void L. H. RISTOW,
A fter..................... General Traffic Manager.
Identification Check
Not good for passage or refund
Last Coupon
Reads to Baltimore, Md.
This check should be retained by the passenger until desti
nation is reached subject to inspection by the driver at any
time, and is to be surrendered to the driver when the pas
senger’s journey is completed.
Printed in U. S. A.
Exhibit “ B ” , the stub aforesaid, contained the follow
ing words, figures and marks on the reverse side thereof:
Greyhound July 15,1944, Hayes Store, Va.
The witness was then shown a green paper, and requested
to identify the same whereupon the witness testified that
the same was a transfer or token of the Greyhound Lines:
that he recognized the same from the holes punched there
in; that after the defendant was arrested and moved from
the bus in Saluda, he, the witness, prepared the same in
order that the defendant might employ it for transporta
tion from Saluda, Virginia, to Baltimore, Maryland, or for
[fol. 34] a cash refund of the fare paid for that portion
35
of her trip between the said two points; that he punched
holes in it at the appropriate places to show Saluda, Vir
ginia, as the point of beginning, and Baltimore, Maryland,
as the point of ending, of the incompleted portion of her
trip; that he issued the same without the previous knowl
edge or request of the defendant.
Thereupon, the defendant introduced into evidence the
transfer aforesaid, the same being marked as Exhibit
“ C ” , which transfer contained no words or figures on the
reverse side thereof, but contained the following words,
figures and marks on the front side thereof, and also con
tained three punch marks, one at each of the three places
indicated by the figure “ X ” :
E xhibit “ C ” .
Richmond Greyhound Lines, Inc.
Form Tr. - 2 NO. 27768
Foreign ( ) R. G. (X )
Valid for Transportation
from or to Stations Punched
Alexandria, Va. ( ) Richmond, Va. ( )
Brays Fork, Va. ( ) Suffolk, Va. ( )
Ft. Belvoir, Va. ( ) T. B. Jet. Md. ( )
Ft. Eustis, Va. ( ) Tappalian’k, Va. ( )
Fredericksburg, Va. ( ) Triangle, Va. ( )
La Plata, Md. ( ) Waldorf, Md. ( )
Lee Hall, Va. ( ) Warsaw, Va. ( )
Newport News, Va. ( ) Washington, D. C. ( )
Norfolk, Va. ( ) Williamsburg, Va. ( )
Petersburg, Va. ( ) Balto, Md„ (X)
Portsmouth, Va. ( ) Saluda, Va. (X )
Subject to Tariff Limitations of
Ticket for which Transfer is Issued
The witness further testified that he would not have
prepared or issued a transfer showing Saluda, Virginia,
[fol. 35] as the point of beginning and Baltimore, Mary
land, as the point of ending, unless the defendant had held
a ticket entitling her to transportation on his bus to Balti
36
more, Maryland; that defendant held a ticket entitling her
to transportation to Baltimore, Maryland; that he knew
that all of the colored passengers remaining on the bus in
Saluda, after those destined to Saluda had been discharged
from the bus in Saluda, held tickets to and were traveling
to Baltimore, Maryland, and that defendant held a ticket
to and was traveling to Baltimore, Maryland.
The witness testified further that the bus arrived in Sa
luda at about 11 A. M .; that after its arrival there, and
after the passengers destined to Saluda had left the bus,
there were three colored passengers seated on the long
seat in the extreme rear of the bus; that there were two
vacant seats on the said rear seat; that said long rear seat
is designed to accommodate a maximum of five passengers;
that the defendant and the other colored woman sitting
beside her occupied the seat second forward of the long
rear seat on the left side of the aisle; that all other seats
in the bus, except the two vacant on the long rear seat, were
occupied; that all colored passengers were seated; and
that six white passengers were standing.
He testified further that he told the defendant and her
seatmate to move from the seat they then occupied into
the long rear seat; that he told them that under the rules
of the bus company they would have to sit in the long rear
seat, and attempted to explain to her the rules and regula
tions of the bus company; whereupon the defendant said
that she knew as much about the bus rules as he d id ; that
he also told them that he was required to seat colored pas
sengers from the rear of the bus forward, and white pas
sengers from the front of the bus backward; that under
the rules of the bus company all colored passengers were
required to be seated from the rear of the bus forward, and
that all white passengers were required to be seated from
the front of the bus backward, and that the general custom
and policy pursued by his company upon busses traveling
in or through the State of Virginia was to assign separate
seats to white and colored passengers in the manner stated.
He testified further that he never made an effort to move
any other passenger or passengers on the bus except the
defendant and her seatmate; that he never did anything
more than request that they move to the two vacant seats
[fol. 36] on the long rear seat, and that his direction in
this regard was made solely to the defendant and her seat-
mate; that neither he nor anyone else on the bus had any
37
difficulties whatsoever with the defendant until he sought
to procure her removal from the seat that she occupied.
At this point Estelle Fields was presented before the
witness, and the witness was requested to look at her and
identify her. The witness than stated that he could not
identify this person, and that he did not remember whether
she was the person who was seated beside the defendant
or not.
The witness denied that he was seeking the removal of
the defendant and her seatmate in order to obtain seats
for a white couple which boarded the bus in Saluda; he
denied that he at any time stated that colored passengers
would be seated only after all white passengers were seated;
he testified that after the defendant refused to change her
seat, he left the bus and swore out the warrant for her
arrest upon the charge of refusing to move her seat.
C. M. Bristow.
Direct examination:
C. M. Bristow testified that he is deputy sheriff of Middle
sex County; that he accompanied Sheriff R. B. Segar to
the Greyhound bus on July 16, 1944, at about 11 o ’clock
A. M., to execute the warrant sworn out against defendant
by the bus driver; that when they boarded the bus no
colored passengers were standing; that white passengers
were standing; that he saw the defendant and another
colored woman seated in the second seat forward from the
long rear seat; that there were two vacant seats on the
long rear seat; that when Sheriff R. B. Segar was reading
the warrant of arrest to the defendant, she snatched the
warrant out of his hand and threw it behind her seat; that
the sheriff requested the defendant and her seatmate to
move from the seat they occupied; that the defendant’s
seatmate got up and took one of the vacant seats on the
long rear seat; that the defendant refused to move from
the seat; that when they tried to arrest the defendant and
take her off the bus, the defendant struck at the witness,
but did not hit him, and kicked Sheriff Mr. Segar three
times on his leg; that the defendant stated that she would
neither move her seat nor get off the bus; that he and the
[fol. 37] sheriff took the defendant from the bus and put
her in the jail at Saluda; that R. P. Kelly, the driver and
38
operator of the bus, had obtained the issuance of the war
rant, and had pointed the defendant out to the sheriff
and him.
Cross-examination:
On cross examination C. M. Bristow testified that he is
the deputy sheriff of Middlesex County, Virginia; that lie
has considerable experience in arresting persons charged
with crime; that he had assisted Sheriff Segar on nearly
every arrest made during the time he has been deputy
sheriff; that the defendant was seated on the second seat
forward of the long rear seat in the rear of the bus; that
there were two vacant seat spaces on the long rear seat;
that the long rear seat was partly occupied by colored
passengers; that several white passengers were standing-
in the aisle; that the defendant was in all respects orderly
and well-behaved and caused no trouble whatsoever until
efforts were commenced to remove her from the seat she
occupied.
At this point Estelle Fields was presented before the
witness, and the witness was requested to look at her and
identify her. The witness then stated that he could not
identify this person, and that — did not remember whether
she was the person who was seated beside the defendant
or not.
R. B. S egar.
Direct examination.
R. B. Segar testified that he is the Sheriff of Middlesex
County, Virginia, and has been sheriff of the County for
forty years; that on July 16, 1944, at about 11 o ’clock
A. M., when the Greyhound bus operated by R. P. Kelly
stopped in Saluda, Virginia, Kelly SAvore out and obtained
a warrant for the arrest of the defendant for refusing to
change her seat as required by Virginia law; that he, ac
companied by C. M. Bristow, his deputy, went on the bus
to execute the warrant; that when he attempted to read
the warrant to the defendant, she snatched it from his
hand and threw it behind her seat; that he requested the
defendant and her seatmate to move; that the defendant
refused to so move, and kicked him twice on his leg; that
the colored woman seated beside the defendant got up out
39
[fol. 38] of the seat when he requested her to, move; that
the defendant stated that she would not move her seat,
and that she would not get off the bus; that he and C. M.
Bristow took the defendant from the bus and put her in
jail in Saluda; that his (the witness’ ) back was to the
rear of the bus, and that he could not see whether there
were any vacant seats in the rear of the bus or not; that
when he so boarded the bus his badge as Sheriff of Middle
sex County, was pinned on his shirt, and that he wore
no coat.
Cross-examination:
On cross examination Sheriff R, B. Segar testified that
he had had considerable experience in arresting persons
charged with crime; that he did not know whether there
were any vacant seats on the long rear seat or not, but
that he entered the bus to execute the warrant of arrest;
that he did not look any further to the rear of the bus
than the seat which the defendant and her seatmate oc
cupied; and was not in a position to say if there were
any vacant seats on the bus; that he thought that the
defendant and her seatmate sat in the third seat forward
of the long rear seat, rather than in the second seat for
ward of the long rear seat; that the defendant was sitting
quietly in the seat when he boarded the bus and approached
her, and that so far as he knew she was well-behaved and
caused no trouble whatsoever until he attempted to read
the warrant of arrest to her and move her out of her
seat; that the warrant was procured and sworn out by
the bus driver.
At this point Estelle Fields was presented before the
witness, and the witness was requested to look at her and
identify her. The witness then stated that he could not
identify this person, and that he did not think she was
the person who was seated beside the defendant or not.
Upon this testimony the Commonwealth rested its case.
Thereupon the defendant moved the Court to strike out
all the evidence of the Commonwealth, and to dismiss the
case wherein she was charged with a violation of Section
4097dd of the Code of Virginia, as fully set forth in Bill
of Exception No. 2, to which reference is hereby made, to
which reference is hereby made, and upon the grounds
40
and for the reasons therein set forth. This motion the
Court overruled, to which action of the Court the defend
e d . 39] ant excepted, and thereupon offered the following
evidence in her behalf.
Evidence for the Defendant.
Irene Morgan.
Direct examination:
Irene Morgan testified that she is the defendant in this
case; that she is a Negro or colored person; that she
resides both in Gloucester County, Virginia, and in Balti
more, Maryland; that on the 15th day of July, 1944, she
purchased from the regular agent of the Greyhound Lines
a through ticket for transportation from Hayes Store, in
Gloucester County, Virginia, to the City of Baltimore,
Maryland; that on the 16tli day of July, 1944, she boarded
a Greyhound bus, which was operated and driven by R.
P. Kelly, at Hayes Store, and surrendered her ticket to
him, for transportation to Baltimore; that her ticket was
accepted by the bus driver; that she had no intention of
leaving the bus prior to its arrival in Baltimore.
At this point the defendant was presented with the
ticket stub and identification check, marked as Exhibit
“ B ” , and set forth hereinbefore in this Bill of Exception,
whereupon she testified that the same was the stub of the
ticket which she had purchased on July 15, 1944, and which
she had surrendered to the operator of the bus. The de
fendant was then presented with the green paper pre
viously identified by the witness R. P. Kelly as the trans
fer or token which he issued, marked as Exhibit “ C ” , and
set forth hereinbefore in this Bill of Exception, whereupon
the defendant testified that said paper was issued to her
and given to her by the said R. P. Kelly after she, the
defendant, had been removed from the bus in Saluda.
The defendant further testified that at the time she
boarded the bus at Hayes Store, there were four or five
colored persons already seated on the long seat in the
extreme rear of the bus, that the seats on each side of the
aisle immediately forward of the long rear seat were oc
cupied, by colored persons; that the seats second forward
of the long rear seat were occupied by two colored persons
41
seated on the right side of the aisle (in a view from front to
rear of the bus) and by two white passengers seated on
the left side of the aisle; that the seat- third forward of
the long rear seat were occupied by two colored persons
on the right side of the aisle and by a white woman and
[fob 40] a white child on the left side of the aisle; that
she, the defendant took a seat on the long rear seat, and
that a colored man, who also boarded the bus at Hayes
Store, also took a seat on the long rear seat, thus making
a total of six or seven passengers occupying the long rear
seat; that numerous persons, both white and colored, were
standing in the aisle.
The defendant testified further that between Hayes Store
and Saluda, the two colored passengers occupying the
seat second forward from the long rear seat on the right
side of the aisle got off the bus, whereupon two white
passengers occupied said seat; that the bus arrived in
Saluda about 11 o ’clock A. M.; that at the time the bus
arrived there, colored persons occupied the long rear seat,
there being about six or seven in all occupying that seat,
the seats immediately forward of the long rear seat on
each side of the aisle and the seat third forward of the
long rear seat on the right side of the aisle, while white
passengers occupied all of the remaining seats in the bus,
including the seats on each side of the aisle second forward
from the long rear seat, and the seat third forward of the
long rear seat on the left side of the aisle; that upon
arrival in Saluda, the white woman and the white child
who previously occupied the seat third forward on the left
side of the aisle left the bus; that she, the defendant,
thereupon moved into said seat, occupying the half of
said seat next to the window; that a colored woman, who
was, as the defendant later learned, Estelle Fields, and
who was carrying an infant in her arms, boarded the bus
and took the vacant seat beside the defendant.
At this point Estelle Fields was presented before the
defendant, and the defendant was requested to look at her
and identify her. The defendant then stated that the said
Estelle Fields was the person who carried the infant and
who took the seat beside the defendant.
The defendant further testified that there were still
a large number of persons of each race standing in the
aisle; that after she and Estelle Fields had sat in the
said seat for about five minutes, a white woman accom
42
panied by a white man boarded the bus, which was still
standing in Saluda, that thereupon the bus driver ap
proached the defendant and Estelle Fields, and told them
that they must get up so that the white couple might sit
down; that she, the defendant thereupon informed the driv-
[fol. 41] er that she was willing to change her seat to an
other seat in the bus, but that she was unwilling to stand
for the remainder of her trip; that she also told the bus
driver that it was her understanding of the laws of Vir
ginia that colored persons were entitled to occupy the
seats from the center of the bus to the rear, and that white
passengers were entitled to occupy the seats from the
center of the bus to the front; that in reply the bus driver
announced that colored persons would be seated only after
all white persons had obtained seats; that when asked by
the defendant where she, the defendant, would sit if she
relinquished the seat in which she was sitting, the bus
driver said nothing; that at the time she was told to move,
there were no vacant seats in the bus; that at no time did
the bus driver offer her another seat, or attempt to move
another passenger or passengers in order that seat space
for her might be procured, or ask any person or persons
on said bus except the defendant and Estelle Fields, to
move from or relinquish their seats; that the bus driver
never said anything to her concerning the requirements
of the laws of Virginia, but she did say to the bus driver
that she knew as much about the rules of the bus company
as he did; that at no time did she, the defendant, pull
Estelle Fields back into the seat or in any way interfere
with her movements or otherwise attempt to prevent her
from leaving the seat.
The defendant testified further that the bus driver then
left the bus, and returned later with the sheriff and the
deputy sheriff; that she did not know who the persons
accompanying the bus driver were; that she never saw
any badge or other indication of official authority upon
either; that the sheriff approached her with a sheet of
paper in his hand, the purport of which she did not know;
that the sheriff merely stated: “ I have a warrant” ; that
she, the defendant, thereupon inquired: “ A warrant for
whom?” and asked for what the warrant was issued; that
the sheriff said nothing and immediately put the paper into
his pocket; that she did not, as stated by witnesses for the
Commonwealth snatch the paper from his hand, or throw
43
it behind the seat, or in any way touch the paper or interfere
with the sheriff’s possession thereof; that after placing
the paper in his pocket, the sheriff asked her whether she
would move out of the seat; that she thereupon told him
that she was willing to exchange her seat for another seat
on the bus, but that she was not willing to stand; that
without more she was seized by the arms by the sheriff
and his deputy and forcibly taken from the bus; that she
[fol. 42] did hold on the seat in an effort to maintain her
position therein, but at no time did she kick the sheriff
or strike at the deputy sheriff or attempt in any manner to
inflict bodily harm or injury upon either; that injury was
inflicted to her arms and shoulders from the rude manner
in which she was removed from the bus; but that aside
from this there was no further violence and no further
words between the parties; that she was placed in the
jail in Saluda and kept there from about 11:30 A. M.
until about 5:00 or 6:00 P. M. on July 16th, 1944, when
she was released on bail fixed in the sum of $500.00.
Cross-examination:
On cross examination the defendant testified that there
were no vacant seats on the long rear seat, or elsewhere
in the bus when the bus driver and sheriff respectively,
asked her to move; that there were a large number of
persons, both white and colored, standing in the aisle at
that time; that she told the bus driver, and also the sheriff,
when they, respectively, told her to relinquish her seat,
that she would move to any other seat in the bus, but
would not stand; that she told the bus driver that she
thought that under the laws of Virginia the space in the
bus from the center to the rear thereof was for occupancy
by colored passengers, and that from the center to the
front thereof was for occupancy by white passengers; that
the bus driver did not at any time said anything to her
concerning the requirements of the laws of Virginia, that
rather the bus driver stated that colored passengers would
not be seated until all white passengers had been seated;
that she, the defendant, did not pull Estelle Fields back
into the seat as testified to by the bus driver; that she did
not snatch, or try to snatch, the warrant from the sheriff,
or throw the same behind the seat; that she did not kick
the sheriff; that she did not strike at the deputy sheriff.
44
Estelle Fields.
Direct examination:
Estelle Fields testified that she is a native of Middlesex
County, Virginia, but that she now resides in Philadelphia,
Pennsylvania; that on the 16th day of July, 1944, she
boarded a Greyhound bus in Saluda, Virginia, en route to
[fol. 43] Philadelphia at about 11:00 o ’clock A. M .; that
this was the same bus upon which the defendant, Irene
Morgan, was riding; that she did not know Irene Morgan
at that time; that on this day and at this time she was
carrying an infant in her arms; that when she boarded
the bus there was only one seat vacant therein; that that
seat was the seat beside the defendant and was the half
of the seat next to the aisle on the left-hand side of the
aisle looking to the rear of the bus; that there were no
vacant seats on the long rear seat, or elsewhere in the
bus; that a large number of persons of both races were
standing in the aisle; that she sat into the seat beside the
defendant, and held the infant in her lap; that the bus
driver then came back towards them; that there were no
available seats in the bus at this time; that the bus driver
stated that no colored passengers would he seated until
all white passengers had been seated; that the seat im
mediately behind the seat occupied by the defendant and
the witness were occupied by two white passengers, but
that notwithstanding this fact the driver made no effort
to shift the defendant and her to another seat in the bus;
that neither she nor the defendant moved pursuant to the
demand of the bus driver; that she, the witness made no
effort to move; that the defendant at no time pulled her
back into the seat, or' attempted to keep her from moving
therefrom; that the driver left the bus and returned later
with the sheriff and his deputy; that the deputy sheriff
came up and told them to move from the seat; that she,
the witness, then got out of the seat, but had to stand
in the aisle, as there was no other vacant seat in the bus;
that she did not hear the sheriff say that he had a warrant;
that she never saw a warrant; that the sheriff never read
a warrant to the defendant; that so far as she, the witness,
knew, the defendant did not snatch a warrant from the
sheriff; that she, the witness did not see the defendant
kick the sheriff, or strike at the deputy or use violence
against either; that the sheriff demanded that the defend
45
ant relinquish her seat; that the defendant stated that she
was willing to exchange the seat she then occupied for any
other seat in the bus, but that she, the defendant, was
unwilling to stand; that after the defendant refused to
move from the seat, the sheriff and the deputy sheriff
seized the defendant and pulled her from the seat and
took her off the bus; that the defendant tried to keep her
seat, and held on to the seat when they tried to remove
her, but that she, the defendant, did not strike at the offi
cers, or either of them, or subject either to violence; that
[fol. 44] she, the witness, continued the trip standing; that
a passenger offered to hold the baby and did hold the baby
until she, the witness, was able some time later to obtain
a seat.
Cross-examination:
On cross examination Estelle Fields testified that there
never were any vacant seats on the long rear seat; that
the only vacant seat she saw anywhere in the bus when
the bus was standing in Saluda was the seat beside the
defendant, which she, the witness took; that she got out
of the seat when the sheriff asked her to move, but that
she was not able to find a seat and so had to stand; that
she did not move when the bus driver came back because
she wTas not sure whether the bus driver was speaking to
her; that she did not see the defendant kick the sheriff,
or strike at his deputy, or either; that she did not see the
defendant snatch the warrant from the sheriff; that she
did not see a warrant; that the defendant tried to keep
her seat when the sheriff and deputy took her out of the
seat, but that the defendant did not strike at either.
Richard Scott.
Direct examination:
Richard Scott testified that on the 16th day of July,
1944, he boarded a Greyhound bus in Norfolk, Virginia,
and traveled thereon to Saluda, Virginia; that this was
the same bus on which the defendant rode; that the de
fendant boarded the bus at Hayes Store, Virginia; that
when the bus arrived in Saluda, the defendant sat in the
third seat forward of the long rear seat on the left side
of the aisle; that when she so sat there this seat was the
46
only vacant seat on the bus; that at this time there was no
vacant seat on the long rear seat; that he, the witness,
and Willie Robinson were sitting on the long rear seat
when the bus arrived at Saluda; that there were six or
seven persons seated on the long rear seat between Hayes
Store and Saluda; that he, the witness, and Willie Robin
son left the bus at Saluda; that when they got up out of
their places on the long rear seat, other passengers in the
bus, who were then standing, immediately sat in the seats
thereon which they vacated; that when they left the bus
there were numerous persons both white and colored, stand
ing in the aisle; that he did not see the bus driver try to
[fol. 45] move the defendant; that he did not see the sheriff
or the deputy sheriff, that he left the bus before any further
events occurred.
Cross examination:
On cross examination Richard Scott testified that he and
Willie Robinson left the bus when the same stopped in
Saluda, and that consequently he saw none of the incidents
occurring between the bus driver and the defendant, or the
sheriff of deputy sheriff and the defendant.
Willie Robinson.
Direct examination:
Willie Robinson testified that on the 16tli day of July,
1944, he got on a Greyhound bus in Norfolk, Virginia; that
he traveled on said bus to Saluda, Virginia; that this was
the same bus on which the defendant rode; that the defend
ant got on the bus at Hayes Store, Virginia; that he and
Richard Scott were seated on the long rear seat; that there
were about six or seven persons seated on the long rear seat
when the bus arrived in Saluda; that upon arrival in
Saluda, the defendant moved into the third seat forward
of the long rear seat on the left side of the aisle; that
when she so moved the seat into which she moved was
the only vacant seat in the bus; that he and Richard
Scott left the bus in Saluda; that when they got up
from the long rear seat standing passengers immediately
sat in the seats thereon which they so vacated; that when
they left the bus there were a number of persons of each
race standing in the aisle; that he saw none of the events
47
occurring with respect to efforts to move the defendant from
the seat, he having left the bus before they took place.
William Garnett.
Direct examination:
William Garnett testified that on the 16th day of July,
1944, he took his sister, who was traveling to Pennsylvania,
to the bus at Saluda; that he went aboard the bus with his
sister’s hags and placed the bags in the bus for her; that the
bus which he so entered was standing in the bus depot in
Saluda at about 11 o ’clock A. M. on this day, that the bus
was crowded, with both white and colored passengers
standing in the aisle; that he looked about the bus in an
[fol. 46] effort to find his sister a seat, but that all seats in
the bus were occupied; that he left the bus; that when he so
left the bus his sister was still standing.
Thomas Carter.
Direct examination:
Thomas Carter testified that on the 16th day of July, 1944,
he was in Saluda, Virginia, at the Greyhound bus depot at
about H o ’clock A. M .; that the bus depot is across the street
from the ja il; that about this time he saw the sheriff and the
deputy sheriff bringing the defendant from the bus to the
ja il; that the defendant was then peaceably accompanying
the sheriff and deputy, and was offering no resistance to
either, but that she was then being handled roughly and
rudely by the sheriff and the deputy.
Rachel Goldman.
Direct examination:
Rachel Goldman testified that she resides in Gloucester
County, Virginia; that she knew the defendant, Irene Mor
gan ; that she had known the defendant practically all of her
life ; that she, the witness, had resided in Gloucester County,
Virginia, and also in Baltimore, Maryland; that she knew
the defendant both in Gloucester and in Baltimore; that
during the time she had known the defendant she, the wit
ness, had heard the defendant’s character and reputation
for peace and good order, and for truth and veracity,
48
discussed by the members of each community and knew what
her community reputation is in each respect; that her com
munity reputation for peace and good order is good both in
Gloucester County and in Baltimore; that the defendant’s
community reputation in each place for truth and veracity
is good; that during the time she had known the defendant
she had never heard anything said which detrimentally
affected her community reputation in either respect.
Ruby Catlett.
Direct examination:
Ruby Catlett testified that she resides in Gloucester
County, Virginia; that she knew the defendant, Irene Mor
gan ; that she had known the defendant for a long time; that
she, the witness, had resided both in Gloucester County and
[fol. 47] Baltimore, Maryland; that she knew the defend
ant both in Baltimore and in Gloucester County; that during
the time she had so known the defendant, she, the witness,
had heard the defendant’s character and reputation for
peace and good order, and for truth and veracity discussed
by members of each community and knew what her com
munity reputation is in each respect; that her community
reputation in each place for peace and good order is
good; that her community reputation in each place for
truth and veracity is good; that during the time she had so
known the defendant she had never heard anything said
which detrimentally affected her character in either respect.
Upon this testimony the defendant rested her case.
The Commonwealth thereupon rested its case.
The defendant then renewed her motion that the Court
strike out all of the evidence of the Commonwealth, and
dismiss the case wherein she was charged with a violation
of Section of 4097dd of the Code of Virginia, as fully set
forth in Bill of Exception No. 2, to which reference is hereby
made, and upon the grounds and for the reasons therein set
forth. This motion the Court overruled, to which action of
the Court the defendant excepted.
Each and every witness testifying in the case, as afore
said, was first sworn according to law.
And the defendant tendered this her Bill of Exception
No. 1 on the 27th day of November, 1944, and prayed that
the same be signed, sealed and enrolled as a part of the
record in this case, which is accordingly done this 7th day
of December, 1944.
J. Douglas Mitchell, Judge of the Circuit Court of
Middlesex County. (Seal.)
[File endorsement omitted.]
49
I n the Circuit Court of M iddlesex County
Commonwealth of V irginia
y.
Irene M organ
[fol. 48] B ill of E xception N o. 2—Filed December 7, 1944
Be it remembered that on the trial of this case when the
Commonwealth had completed its presentation of its evi
dence-in-chief and had rested, the defendant moved to strike
all of the evidence of the Commonwealth and to dismiss the
case upon the grounds that the evidence introduced by the
Commonwealth was legally insufficient to sustain a convic
tion of the crime charged in the amended warrant, upon
which she was being tried, and that no judgment there
upon could lawfully be rendered against her, for the follow
ing reasons, towit: that the law upon which the prosecution
was based could not constitutionally be applied to the de
fendant who was, as shown by the evidence of the Common
wealth, an interstate passenger, traveling upon the vehicle
of an interstate public carrier, and that its application to
such a passenger would be in violation of Article I, Section
8, of the Constitution of the United States; and that under
settled rules of construction said law could not be construed
to apply to a passenger in interstate commerce, and that it
must be construed as limited in its operation to passengers
in intrastate commerce.
The Court overruled said motion, to which action of the
Court the defendant thereupon excepted.
At the conclusion of the case when both the Common
wealth and the defendant had rested, the defendant renewed
her motion to strike all evidence of the Commonwealth, and
to dismiss the case, upon the ground that the evidence intro
duced by the Commonwealth was legally insufficient to sus-
4—704
50
tain a conviction of the crime charged in the amended war
rant, upon which she was being tried, and that no judgment
thereupon could lawfully be rendered against her, for the
following reasons, to-wit: that the law upon which the prose
cution was based could not constitutionally be applied to the
defendant who was, as shown by the evidence both for the
Commonwealth and the defendant, an interstate passenger,
traveling upon the vehicle of an interstate public carrier,
and that its application to such a passenger would be in
violation of Article I, Section 8, of the Constitution of the
United States; that under settled rules of construction said
law could not be construed to apply to a passenger in inter
state commerce, and that it must be construed as limited in
its operation to passengers in intrastate commerce; and
that the conviction of the defendant would, under the cir
cumstances of this case, constitute a violation of her rights
under the Fourteenth Amendment of the Constitution of
[fol. 49] the United States. The Court overruled said
motion, to which action of the Court the defendant there
upon excepted, and tendered this her Bill of Exception No.
2 on the 27th day of November, 1944, and prayed that the
same be signed, sealed and enrolled as a part of the record
in this case, which is accordingly done this 7th day of De
cember, 1944.
J. Douglas Mitchell, Judge of the Circuit Court of
Middlesex County. (Seal.)
[File endorsement omitted.]
I n the Circuit Court of M iddlesex County
Commonwealth of V irginia
v.
I rene M organ
B ill of E xception N o. 3—Filed December 7, 1944
Be it remembered that on the trial of this case the Com
monwealth and the defendant, to sustain their several
issues, introduced several witnesses who testified as fully
set forth in the statement of testimony certified by the
Honorable J. Douglas Mitchell, Judge of the Circuit Court
of Middlesex County, Virginia, who presided at the trial
51
(said certificate and statement of testimony being con
tained and set forth at length in defendant’s Bill of Excep
tion No. 1, and asked to be read as if here inserted), and
which evidence was presented to the Court, trial by jury
having been waived, and after hearing the same and at
the conclusion thereof, the Court decided that the defend
ant was guilty of the charge set forth in the amended war
rant upon which she was tried, to-wit: “ That the defend
ant did unlawfully refuse and fail to obey the direction
of the driver or operator of the Greyhound Bus Lines to
change her seat and move to the rear of the bus and occupy
a seat provided for her, in violation of section 5 of the Act,
Michie Code of 1942, section 4097dd. ”
Whereupon the defendant moved the Court that said
judgment be set aside and a new trial be awarded the de
fendant, and that the Court arrest judgment therein and not
pronounce the same, on the grounds that no judgment
could lawfully be rendered against her in this case, for
[fol. 50] the following reasons, to-wit: that the law upon
which the prosecution was based could not constitutionally
be applied to the defendant, an interstate passenger, travel
ing upon the vehicle of an interstate public carrier, and that
its application to such a passenger was in violation of Ar
ticle I, Section 8, of the Constitution of the United States;
that under settled rules of construction said law could
not be construed to apply to a passenger in interstate com
merce, and that it must and should be construed as limited
in its operation to passengers in intrastate commerce; that
the conviction of the defendant would, under the circum
stances of this case, constitute a violation of her rights
under the Fourteenth Amendment of the Constitution of
the United States; and that said finding and verdict were
contrary to the evidence, and lacking in evidence sufficient
to support the same.
The Court overruled said motion, to which ruling and
action of the Court the defendant thereupon excepted, and
tendered this her Bill of Exception No. 3 on the 27th day
of November, 1944, and prayed that the same be signed,
sealed and enrolled as a part of the record in this case,
which is accordingly done this 7th day of December, 1944.
J. Douglas Mitchell, Judge of the Circuit Court of
Middlesex County. (Seal.)
[File endorsement omitted.]
52
I n the Circuit Court of M iddlesex County
Commonwealth of V irginia
v.
Irene M organ
B ill of E xception N o. 4— Filed December 7, 1944
Be it remembered that on the trial of this case the Com
monwealth and the defendant, to sustain their several
issues, introduced several witnesses who testified as fully
set forth in the statement of testimony certified by the
Honorable J. Douglas Mitchell, Judge of the Circuit Court
of Middlesex County, Virginia, who presided at the trial
(said certificate and statement of testimony being contained
and set forth at length in the defendant’s Bill of Excep-
[fol. 51] tion No. 1, and asked to be read as if here in
serted), and which evidence was presented to the Court,
trial by jury having been waived, and after hearing the
same and at the conclusion thereof, the Court decided that
the defendant was guilty of the charge set forth in the
amended warrant upon which she was tried, to-wit: that
the defendant did “ Unlawfully refuse and fail to obey
the direction of the driver or operator of the Greyhound
Bus Lines to change her seat and move to the rear of the
bus and occupy a seat provided for her, in violation of
section 5 of the Act, Michie Code of 1942, section 4097dd.”
Whereupon, and after the Court had overruled the de
fendant’s motion to set aside said judgment, as set forth
in detail in defendant’s Bill of Exception No. 3, and asked
to be read as if here inserted, the defendant moved the
Court to award her a new trial, and that the Court arrest
judgment therein and not pronounce the same, upon the
same grounds and for the same reasons assigned in sup
port of her prior motion to set aside the said judgment,
as set forth at length in defendant’s Bill of Exception No.
3, to which reference is hereby made for the grounds and
reasons assigned in support of this her motion for a new
trial, and asked to be read as if here inserted.
The Court overruled said motion, to which ruling and
action of the Court the defendant thereupon excepted,
and tendered this her Bill of Exception No. 4 on the 27th
day of November, 1944, and prayed, that the same be
53
signed, sealed and enrolled as a part of the record in this
case, which is accordingly done this 7th day of Decem
ber, 1944.
J. Douglas Mitchell, Judge of the Circuit Court of
Middlesex County. (Seal.)
[File endorsement omitted.]
Clerk ’s Certificate
V irginia :
I n the Clerk ’s Office of the Circuit Court of the County
of M iddlesex, J anuary 10, 1945
I, C. W. Eastman, Clerk of the Circuit Court of the
County of Middlesex, Virginia, do hereby certify that the
foregoing is a true, accurate and complete transcript of
the record in the case of Commonwealth of Virginia, Plain-
[fol. 52] tiff, versus Irene Morgan, Defendant, as appears
on file and of record in my office aforesaid and which I, as
Clerk of said Court, have been requested by counsel for
said defendant to copy for the purpose of its presentation,
along with a petition for a writ of error to the judgment
in said case, to the Supreme Court of Appeals of V ir
ginia.
And I further certify that it affirmatively appears from
the papers filed in said case the Honorable Lewis Jones,
Commonwealth’s Attorney for the County of Middlesex,
Virginia, who was counsel of record for said plaintiff, had
due written notice of the intention of said defendant to
apply for the foregoing transcript of record and of the
time and place at which such application would be made,
and, further, that such counsel had due written notice of
the time and place at which the foregoing bills of excep
tion would be presented to the Honorable J. Douglas
Mitchell, Judge of the Circuit Court of the County of
Middlesex, Virginia, to be signed, sealed, and enrolled as
and made a part of the record in this case.
Given under my hand and seal of said Court this 10th
day of January, 1945.
C. W. Eastman, Clerk of the Circuit Court of Mid
dlesex County, Virginia. (Seal.)
54
V irginia :
I n the Circuit Court of M iddlesex County
Case 331. File 40
Commonwealth
v.
I rene M organ
Resisting Arrest
J udgment— October 18, 1944
This day came the Attorney for the Commonwealth and
the accused, Irene Morgan came to the bar with her coun
sel, Spottswood Robinson III, and Linwood Smith, and
the Court having maturely considered of its judgment in
this case doth find the defendant Guilty; thereupon the
defendant moved the Court to set aside its findings of fact
and grant the defendant a new trial, upon the ground that
said findings of fact were contrary to the law and the evi
dence, and assigned as reasons in support of said motion
the same reasons previously advanced in support of the
motion to set aside the findings of fact and to grant the
[fol. 53] defendant a new trial in the case wherein she was
adjudged guilty of a violation of Section 4097dd of the
code, and the additional reason that the arrest of her per
son sought to be made in this case was illegal, and that
her conduct was therefore within her privilege to resist
an unlawful arrest. This motion the Court overruled, to
which action of the Court the defendant excepted. De
fendant moved the Court to grant her a new trial, upon
the ground that her conviction was erroneous under the
law and contrary to the evidence, and assigned as reasons
in support of this motion the same reasons previously
advanced in support of her motion to set aside the findings
of fact and to grant the defendant a new trial in the case
wherein she was adjudged guilty of Violating Section 4097dd,
and the additional reason previously advanced in support
of her motion to set aside the findings of fact and to grant
her a neAV trial in this case. This motion the Court over
ruled, to which action of the Court the defendant excepted.
The Court doth sentence the said Irene Morgan to pay a
55
fine to the use of the Commonwealth of One Hundred Dollars,
and the costs in this behalf expended, the said fine and costs
to be paid within thirty (30) days from the rising of this
Court. It is further ordered that the said Irene Morgan
enter into a bond before the Clerk of this Court on or
before October 19th, 1944, with sufficient security in the sum
of Five Hundred Dollars for her appearance on the 1st
day of November Term, to-wit: November 27th, 1944,
and the said Irene Morgan was recognized in the sum of
Fifty Dollars for her appearance in this Court on the
19th day of October, 1944.
Defendant moved the Court to arrest the judgment
in this case upon the grounds of errors of law and fact
apparent upon the face of the record in the case, and
assigned as reasons in support of this motion the same
reason previously advanced in sup-ort of her motion to
set aside the findings of fact and to grant the defendant a
new trial in the case wherein she was adjudged guilty of
violating Section 4097dd, and the additional reason previ
ously assigned in support of her motion to set aside the
findings of fact and to grant her a new trial in this case.
This motion was overruled, to Avhich action of the Court
the defendant excepted.
V irginia :
I n the Circuit Court of M iddlesex County
The foregoing order entered on the 18th day of October,
[fol. 54] 1944, in the Criminal Case Numbered 331 on the
Docket of this Court, in the Style of
I rene M organ
v.
Commonwealth
Appeal from Trial Justice: Misdemeanor. Resisting
Arrest
is attached hereto with the consent of all parties to show
the disposition of this case, as it was tried with the consent
of all parties along with and upon the same evidence heard
56
in the Criminal Case Numbered 330 on the Docket of this
Court in the Style of
I rene M organ
v.
Commonwealth
Appeal from Trial Justice: Misdemeanor. Violation of
Section 4097dd of 1942 Code
on which the defendant has indicated her desire and inten
tion to present to the Supreme Court of Appeals of Vir
ginia a petition for a writ of error to the judgment
herein. The case Numbered 331 Desisting Arrest being
off the Criminal Docket of the Court as the fine and costs
have been paid.
January 10th, 1945.
Teste:
C. W. Eastman, Clerk of the Circuit Court of the
County of Middlesex.
A Copy— Teste:
M. B. Watts, C. C.
[fol. 55] I n Supreme Court oe A ppeals of V irginia
Record No. 2974
Present: All the Justices.
I rene M organ
v.
Commonwealth of V irginia
From the Circuit Court of the County of Middlesex
J. Douglas Mitchell, Judge
Opinion by J ustice H erbert B. Gregory—June 6, 1945
The plaintiff in error was found guilty of a violation of
section 4097dd of the Virginia Code (Michie), Acts 1930,
p. 344, and fined $10 and costs. She attacks the judgment
of the lower court upon the ground that the statute does
57
not apply to her because she wa6 an interstate passenger
on an interstate bus and, if it does, it is unconstitutional.
The facts, briefly, are as follows: On July 16, 1944, the
plaintiff in error, who will be hereinafter referred to as
the defendant, was a passenger upon a bus of the Richmond
Greyhound Lines, Inc. She was a member of the Negro
race, and had purchased a ticket at Hayes Store, in Glou
cester county, Virginia, to Baltimore, Maryland. The bus
on which she was riding was operated from Norfolk, Vir
ginia, to Baltimore, Maryland. Upon arriving at Saluda,
Middlesex county, Virginia, she was sitting in the second
seat toward the front from the long seat in the extreme rear
of the bus. There were two vacant spaces upon the long rear
[fol. 56] seat, and six white passengers were standing. The
bus driver requested the defendant and her seatmate, another
woman of the Negro race, to change their seats and occupy
the two vacant spaces on the rear seat. The seatmate at
tempted to make the exchange but as she sought to arise she
was pulled back by the defendant. The defendant refused
to change her seat as requested. The bus driver explained
to her the rules and regulations of the company as to seat
ing colored and white passengers on buses, and informed
her that he was required to seat white passengers from the
front of the bus toward the rear and colored passengers
from the rear of the bus forward.
Exhibit “ A ” sets forth the regulation of the company.
It is in this language:
“ T-22 Rights Reserved: This company reserves the
right to refuse transportation to any and all persons
for the following reasons:
“ (c) This company reserves full control and discretion
as to the seating of passengers and the right to change such
seating at any time during the trip except on divisions or
runs where specific seat reservations are made, in which
case, passengers shall retain the seats assigned them unless
[fol. 57] same be contrary to any laws or governmental reg
ulations. ”
Upon the refusal of the defendant to change her seat the
driver of the bus caused a warrant to be sworn out for her.
The sheriff and a deputy boarded the bus with the warrant
and requested the defendant to change her seat. The sheriff
attempted to read the warrant to her but she snatched it
58
out of liis hand and threw it behind the seat. The woman
seated beside the defendant moved but the defendant again
refused to move, whereupon, the sheriff and his deputy
arrested her and took her off the bus. When they at
tempted to remove her from the bus the defendant struck
at the deputy but did not hit him. She kicked the sheriff
three times on his leg, and reiterated that she would neither
change her seat nor get off the bus. The officers placed her
in jail.
In addition to being tried for a violation of sec. 4097dd,
she was also tried at the same time for resisting arrest and
found guilty upon that charge and adjudged to pay a fine
of $100 and costs. She has not sought a writ of error to
this judgment. The writ of error here is to the judgment of
the court finding the defendant guilty of a violation of sec
tion 4097dd.
There are two questions presented by the assignments of
[fol. 58] error. First, is the statute upon which the de
fendant was prosecuted, if construed as applicable to a
passenger in interstate commerce, constitutional? Second,
should the statute upon which the defendant was prosecuted
be construed as limited in its operation to passengers in
intrastate commerce, and therefore as inapplicable to the
defendant?
The decisive questions present only questions of law. It
is conceded by counsel for the defendant that the facts as
found by the court below are binding upon the defendant.
Section 4097dd reads as follows:
“ Violation by passengers; misdemeanor; ejection.—All
persons who fail while on any motor vehicle carrier, to
take and occupy the seat or seats or other space assigned to
them by the driver, operator or other person in charge of
such vehicle, or by the person whose duty it is to take up
tickets or collect fares from passengers therein, or who
fail to obey the directions of any such driver, operator or
other person in charge, as aforesaid, to change their seats
from time to time as occasions require, pursuant to any
lawful rule, regulation or custom in force by such lines as
to assigning separate seats or other space to white and
[fol. 59] colored persons, respectively, having been first ad
vised of the fact of such regulation, and requested to con
form thereto, shall be deemed guilty of a misdemeanor, and
upon conviction thereof shall be fined not less than five
59
dollars nor more than twenty-five dollars for each offense.
Furthermore, such persons may be ejected from such
vehicle hy any driver, operator or person in charge of said
vehicle, or by any police officer or other conservator of the
peace; and in case such persons ejected shall have paid their
fares upon said vehicle, they shall not be entitled to the
return of any part of same. For the refusal of any such
passenger to abide by the request of the person in charge
of said vehicle as aforesaid, neither the driver, operator,
person in charge, owner, manager nor bus company operat
ing said vehicle shall be liable for damages in any court. ’ ’
In 1930 the General Assembly of Virginia enacted the
statute known as Chapter 128, found in the 1930 Acts at
pages 343 and 344. The title of the Act is “ An Act to
provide for the separation of white and colored passengers
in passenger motor vehicle carriers within the State;
to constitute the drivers of said motor vehicles special
policemen, with the same powers given to conductors and
motormen of electric railways by general law.” The pres-
[fol. 60] ent Code sec. 4097dd is the latter portion of the
Act.
The Act provides that all passenger motor vehicles
operating under Chapter 161-A of the Code shall segregate
passengers according to color, and that any carrier failing
to comply shall be fined.
The Act also provides that those so operating motor
vehicles shall make no difference or distinction in the quality
or convenience of the accommodations provided for the two
races.
The Act further provides that the driver or operator or
other person in charge of any motor vehicle above-mentioned
shall have the right, and he is directed, to require at any
time when it may be necessary or proper for the comfort or
convenience of passengers so to do, to change the designa
tion so as to increase or decrease the amount of space
or seats set apart for either race, and that any driver or
operator of a bus who shall fail or refuse to carry out the
provisions of this section shall be guilty of a misdemeanor.
The Act further provides that the operator of such
vehicle shall be a special policeman and have all the
powers of a conservator of the peace in the enforcement
[fol. 61] of the provisions of the Act.
6 0
Then follows the latter portion of the Act now known as
sec. 4097dd of the present Code (Michie), which has already
been quoted.
It is conceded that on the bus upon which the defendant
was riding there were provided equal facilities for both
races, and that there was no difference or discrimination in
the quality or convenience of the accommodations provided
for the two races.
The Attorney General has made a motion to dismiss the
writ of error, but the ultimate view of the court will render
it unnecessary to pass upon that motion.
The public policy of the Commonwealth of Virginia, as
expressed in the various legislative Acts, is and has been
since 1900 to separate the white and Negro races on public
carriers. As to railroads, see Acts of 1906, pages 236 and
237, carried in Michie’s Code of 1942 as secs. 3962-3968;
as to steamboats, see Acts of 1900, page 340, carried in
Michie’s Code 1942 as secs. 4022-4025; as to electric or
street cars, see Acts of 1902-03-04, page 990, carried in
Michie’s Code 1942 as secs. 3978-3983, and as to motor
vehicles see Acts of 1930, pages 343 and 344, carried in
[fol. 62] Michie’s Code o f 1942 as secs. 4097z, 4097aa,
4097bb, 4097cc, and 4097dd.
So far as we are advised no case contesting the validity
of any of these segregation Acts as applied to interstate
passengers has been previously before this court, or any
attempt made to repeal them.
Article 1, sec. 8, clause 3, of the Constitution of the United
States provides that Congress shall have the power “ to reg
ulate commerce with foreign nations, and among the several
states, and with the Indian Tribes.” And Article 10 of the
amendments to the Constitution of the Unite'd States pro
vides: “ The powers not delegated to the United States by
the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people.”
Under the tenth amendment there is reserved to the
States the right to exercise the police power. The State
may enact legislation under the authority of the police
power, even though such legislation may incidentally af
fect interstate commerce.
The Virginia segregation statutes have been enacted
under the police power of the State reserved to it in the
tenth amendment to the U. S. Constitution.
61
[fol. 63] Unless it is shown that the statute here chal
lenged directly or unreasonably interferes with interstate
commerce it is a valid enactment. There is no evidence in
this case that the rule of the carrier or the statute under
which it was promulgated does so. The burden of proof
on this issue rested upon the defendant and she has failed
to carry it. Bourjois, Inc. v. Chapman, 301 U. S. 183, 57
S. Ct. 691, 81 L. ed. 1027.
It must be borne in mind that here the carrier is not
contending that interstate commerce is unreasonably bur
dened by the statute. It does not contend that the statute
places any added expense upon it or that it is inconvenienced
or that it is against peace and good order to separate the
races as it does under its rule. In fact the carrier was not
even a party to this litigation.
The general rule is that if the enactment which requires
the segregation of races according to color directly or
unreasonably interferes with commerce it is not constitu
tional. Hall v. DeCuir, 95 U. S. 485, 24 L. ed. 547; McCabe
v. Atchison T. <& S. F. R. Co., 235 U. S. 151, 59 L. ed. 169,
35 S. Ct. Rep. 69. But unless the regulation unreasonably
burdens commerce it is valid.
In South Covington and C. St. R. Co. v. Kentucky, 252
[fol. 64] U. S. 399, 64 L. ed. 631, 40 Sup. Ct. Rep. 378, it
was held that a Kentucky street railway may be required
by statute of that State to furnish separate cars or separate
compartments in the same car for white and negro passen
gers, although its principal business is the carriage of pas
sengers in interstate commerce between Cincinnati, Ohio,
and Kentucky cities across the Ohio river. It was held
that such a requirement affects interstate commerce only
incidentally and does not subject it to unreasonable de
mands.
It was also held in Smith v. State, 100 Tenn. 494, 41
L. R. A. 432, 46 S. W. 566; Alabama and B. R. Co. v. Morris,
103 Miss. 511, 60 So. 11, Ann. Cas. 1915B, 613, and So. R.
Co. v. Norton, 112 Miss. 302, 73 So. 1, that State statutes
providing for separate hut equal accommodations for white
and colored races on railroads are valid police regulations
and that they apply both to intrastate and interstate travel.
In these cases comment is made that the Supreme Court has
not directly passed upon the validity of such statutes and
that the ultimate settlement of the question rests with that
62
court. It is also suggested in the Morris case that until
that court decides against the validity of such statutes,
the court wil be impelled to adhere to the belief that the
[fol. 65] law is not only beyond criticism from a constitu
tional standpoint but is also a reasonable and wise exer
cise of the police power of the State.
There are cases from several States which support the
contention that a segregation statute is unconstitutional
as respects interstate passengers. See Hart v. State, 100
Md. 595, 60 Atl. 457; Carrey v. Spencer, 72 N. Y. S. E.
108, 36 N. Y. Supp. 886; Washington B. <& A. Elec. R. Co.
v. Waller, 53 App. D. C. 200, 289 Fed. 598, 30 A. L. R. 50.
See also annotation in 30 A. L. R. at p. 55, where a number
of cases are collected.
The defendant places strong reliance upon the case of
Hall v. DeCuir, 95 U. S. 485, 24 L. ed. 547. That case arose
in 1877 under a Louisiana statute enacted in 1869 which re
quired that no regulation of any carrier should make any
discrimination on account of the race or color of the pas
senger. The plaintiff was a member of the Negro race and
she sought accommodations on an intrastate journey in
Louisiana on a steamboat operated by one Benson, which
plied on the Mississippi river between New Orleans, Louisi
ana, and Vicksburg, Mississippi. She was refused ac
commodations in the cabin set apart for white persons,
and sued Benson for damages as provided in the statute,
[fol. 66] He maintained that he was engaged in interstate
commerce and that the Louisiana statute could have no
application to him, and that he could promulgate any rules
he desired. The Supreme Court of Louisiana held the
statute applicable and that it was not a regulation of inter
state commerce. The case was appealed to the Supreme
Court of the United States and there reversed, the Court
holding that the statute was an unreasonable burden upon
interstate commerce and therefore in violation of the
Constitution.
The court found as a fact that the Louisiana Act was
a direct interference with interstate commerce, while in the
case at bar the challenged Act has not been shown nor
found to be an interference with interstate commerce.
In the Hall case it is apparent that the Louisiana Act
was not enacted in pursuance of the police power of the
State, while the Virginia Act was enacted under the police
power.
63
It is also noted that the Louisiana statute prohibited
the segregation of the races and that the rule of the
carrier required such segregation, while in Virginia
our statute not only requires separation of the races on
public carriers but the carrier in this instance has a rule
[fol. 67] promulgated under the statute providing for the
seating of passengers in the bus, and reserving to itself
the right to change such seating at any time during the
trip.
The Louisiana statute and the rule of the carrier were
in direct conflict. To enforce the rule of the carrier would
have been to violate the terms of the statute, while to en
force the terms of the statute would have been to violate
the rule of the carrier. No such situation exists in V ir
ginia. In the case at bar the rule of the carrier, instead
of being at variance with the provisions of the statute,
is entirely consistent with it—the rule having been made
under the terms of the statute.
There is a conflict in the many cases dealing with State
statutes which require the separation of the white and
colored races by public carriers. No case from the Supreme
Court of the United States has directly considered the
issue raised in the case at bar. It is needless for us to
refer to all of the cases or to attempt to discuss and dis
tinguish them. Each case must largely depend upon its
own facts, and if a statute results in imposing a direct or
unreasonable burden upon interstate commerce it should
be declared unconstitutional. On the other hand, if it
creates no such burden, it is not obnoxious to the Con
stitution.
[fol. 68] In 11 Am. Jur., Commerce, sec. 8, the rule con
trolling the division and classification of powers is stated
thus:
“ The constitutional provision which confers upon Con
gress the power ‘ to regulate commerce with foreign na
tions, and among the several States, and with the Indian
tribes’ grants all of the authority which the United States
has over commerce. The respective powers of Congress
and the States under this provision are divided into three
fields: (1) That in which the authority of Congress is
exclusive; (2) that in which the power of the State is
exclusive; and (3) that in which the State may act in the
absence of legislation by Congress. The line of division
64
between Congressional and State power over commerce is
a question for judicial decision, depending upon the words
of the Federal Constitution. * * * ”
In Covington <& Cincinnati Bridge Co. v. Commonwealth
of Kentucky, 154 U. S. 204, 14 S. Ct. 1087, 38 L. ed. 962,
it was held that the adjudications of the Supreme Court of
the United States with respect to the power of the States
over the general subject of commerce are divisible into
three classes: “ First, those in which the power of the
State is exclusive; second, those in which the States may
act in the absence of legislation by Congress; third, those
[fol. 69] in which the action of Congress is exclusive and
the States cannot interfere at all.”
In the case at bar the defendant contends that Congress
possesses the exclusive power in matters relating to inter
state commerce, and that the States cannot act at all, while
the Attorney General contends that the case at bar falls
within the second class set out in the Covington case, and
that the State may act in the absence of legislation by
Congress.
It appears that certain members of Congress have at
tempted to induce Congress to invade the so-called segrega
tion field, but so far without success. On three occasions it
has expressly refused to legislate on the subject. On Janu
ary 5, 1938, Representative Mitchell introduced the follow
ing bill in Congress to amend U. S. C. title 49, sec. 3(1).
(See H. R. 8821, Congressional Record, Vol. 83, part 1,
p. 74) :
“ It shall be unlawful to segregate any persons traveling
as interstate passengers on any carrier subject to the pro
visions of this Act, or in railroad stations, waiting rooms,
rest rooms, lunch rooms, restaurants, dining cars, or in
any other accommodations provided for passengers travel
ing interstate, on account of such passengers’ race, color,
or religion; and any such discrimination or attempted dis-
[fols. 70-71] crimination shall subject the offending carrier,
its officers, agents, servants, and employees, to the penalties
hereinafter provided for violation of this Act.”
This bill was referred to the Committee on Interstate and
Foreign Commerce but was never reported out.
On January 3, 1939, the bill was re-introduced as II. R.
182, (Congressional Record, Vol. 84, part 1, p. 27), and
65
again referred to the same committee. This committee
was studying and developing the Interstate Commerce
Act, and the Transportation Act of 1940, (See Pocket Sup
plement to U. S. C. A., Vol. 49, title Transportation), was
finally enacted, but the bill was not reported out nor were its
provisions incorporated in any other measure.
On January 3, 1941, the bill was re-introduced as H. R.
112 (Congressional Record, Vol. 87, part 1, p. 13), and for
the third time it was not reported out of committee.
There is now pending in the Committee on Interstate and
Foreign Commerce a bill known as H. R. 1925, which it is
again sought to abolish segregation on public carriers.
What the fate of this latest attempt will be, is, of course,
not known.
This continued refusal of the Congress to legislate in
[fol. 72] the segregation field demonstrates its desire that
the matter be left where it is now; that is, that the several
States, under their police power, be permitted to continue
to legislate in this field, subject only to the limitation
that they shall not directly or unreasonably burden inter
state commerce.
The Supreme Court has held that a State may tax inter
state commerce even though it increases the cost of doing
business. Even interstate business must pay its way. The
bare fact that one is carrying on interstate commerce does
not relieve him from many forms of State taxation which
add to the cost of his business.
In McGoldrick v. Berwind-White Coal Mining Co., 309
U. S. 33, 60 S. Ct. 388, 84 L. ed. 565, Mr. Justice Stone,
speaking for the court, said: “ Section 8 of the Constitution
declares that Congress shall have power * * * to
regulate commerce with foreign nations and among the
several States. * * * In imposing taxes for State
purposes a State is not exercising any power which the
Constitution has conferred upon Congress. It is only when
the tax operates to regulate commerce between the States
or with foreign nations to an extent which infringes the
authority conferred upon Congress that the tax can be
[fol. 73] said to exceed constitutional limitations.” Citing
cases.
And again the Justice said: “ In few of these cases
could it he said with assurance that the local tax does not,
in some measure, affect the commerce or increase the cost
5— 704
6 6
of doing it. But in them as in other instances of con
stitutional interpretation so as to insure the harmonious
operation of powers reserved to the States with those con
ferred upon the national government, courts are called upon
to reconcile competing constitutional demands, that com
merce between the States shall not be unduly impeded
by State action and that the power to lay taxes for the
support of State government shall not be unduly cur
tailed.”
Thus a State may tax interstate commerce and increase
the cost of doing that business. Commerce is bound to
he affected and burdened. However, under the case just
referred to, as long as the State tax does not infringe
the authority conferred upon Congress to regulate com
merce among the several States, it is not invalid.
I f State taxation statutes are constitutional even though
they add to the cost of doing an interstate business, it would
certainly seem logical that a segregation statute which
[fol. 74] is not shown to affect interstate commerce in any
way, except perhaps to improve it, would also be valid.
I f the defendant here and her seatmate had complied with
the rule of the carrier and had occupied the rear vacant
seats assigned them, then two of the six white passengers
could have been seated. Thus complying with the rule of
the carrier and the statute not only would not have directly
or unreasonably impaired interstate commerce but it would
have aided it.
It is conceded that in so far as the commerce clause is
concerned the Virginia Act is valid, if restricted in its ap
plication to intrastate passengers. It is said that the Act is
severable, and we are asked to so hold, and to invalidate it
as to interstate passengers.
The language of the statute embraces all motor vehicles
and all passengers, both interstate and intrastate. If the
statute were held to be valid as to intrastate passengers
and invalid as to interstate passengers, a condition would
exist that would adversely disturb the peace and welfare.
Then an interstate white passenger could occupy the rear
seat with an intrastate Negro passenger, and an interstate
Negro passenger could occupy a front seat with an intra-
[fol. 75] state white passenger. This would tend to con
fusion and disorder, and in effect, to allow the interstate
Negro and white passengers to have the run of the entire
bus, while confining the intrastate white and colored pas
67
sengers to tbe front and rear of the bus, respectively. The
result would be that tbe Segregation Act in its entirety
would effectively be disrupted.
The point raised for the first time in tbe defendant’s
reply brief that the Act is not constitutional because it
delegates legislative power to a private corporation brings
into tbe case a question not raised in tbe pleadings in the
court below or in the assignments of error or in the petition
for a writ of error. It was not an issue in the case, and
tbe attempt to inject it into the case for tbe first time by
asserting it in tbe reply brief is violative of rule 22 of this
court.
However, we do not think there would be any merit in the
point if it bad been properly raised. Tbe statute, when read
in its entirety, clearly demonstrates that no power is dele
gated to the carrier to legislate and determine what conduct
shall be considered a crime. Tbe statute simply describes
conditions which must first be found to exist before it be-
[fol. 76] comes applicable. There is no uncertainty about
the conditions that must exist before the offense is complete.
The statute itself condemns the defendant’s conduct as a
violation of law and not the rule of the carrier. An interest
ing and exhaustive annotation on “ Permissible Limits of
Delegation of Legislative Power” is found in 79 L. ed. of
the U. S. Supreme Court Reports, beginning at page 474,
following the case of Panama Refining Co. v. Ryan, 293 U. S.
388. At page 496 (79 L. ed.) the specific point is discussed
and the pertinent cases cited. They are: Whaley v. State,
168 Ala. 152, 52 So. 941, 30 L. R. A. (N. S.) 499; Samuelson
v. State, 116 Tenn. 470, 95 S. W. 1012,115 Am. St. Rep. 805,
and Re O’Neill, 41 Wash. 174, 83 P. 104, 3 L. R. A. (N. S.)
558, 6 Ann. Cas. 869.
In Virginia the statute demands equality of treatment
of the white and Negro races by the carriers as well as
equality in the facilities provided by the carriers for them.
A statute which would permit inequalities in these respects
would be invalid. Here the segregation statutes are en
forced against the members of the white as well as against
those of the Negro race. They must be enforced equally
and without discrimination against both races. Davis v.
Commonwealth, 182 Va. 760, 30 S. E. 2d 700.
We are of the opinion the statute does not result in a
[fol. 77] discrimination against either the white or the
Negro race, and that it does no violence to the fourteenth
6— 704
68
amendment to the U. S. Constitution (see Plessy v. Fergu
son, 163 U. S. 537, 41 L. ed. 256).
The silence of Congress on this subject places it in the
“ second” category outlined in Covington d Cincinnati
Bridge Co. v. Kentucky, supra, where the State is allowed
to act in the absence of legislation in this field by Congress.
I f Congress desires to nullify State segregation statutes
as applicable to interstate passengers it has the power to
do so under the commerce clause. However, until Congress
pre-empts this legislative field by proper enactment the
States continue to have the right to segregate the white and
colored races on public carriers. That Congress probably
will not enter this field is evidenced by the fact that since
January 5, 1938, for more than seven years it has refused
to act, though at each session since then it has had the sub
ject before it and has been urged to abolish segregation.
Our conclusion is that the statute challenged is a reason
able police regulation and applies to both intrastate and
interstate passengers. It is not obnoxious to the commerce
clause of the Constitution.
The judgment is affirmed.
Affirmed.
[fol. 78] In S upreme Court of A ppeals of V irginia
Record No. 2974
I rene M organ, Plaintiff in error,
against
Commonwealth of V irginia, Defendant in error
Upon a writ of error and supersedeas to a judgment
rendered by the Circuit Court of Middlesex county on the
18th day of October, 1944.
J udgment— June 6,1945
This day came again the parties, by counsel, and the court
having maturely considered the transcript of the record of
the judgment aforesaid and arguments of counsel, is of
opinion, for reasons stated in writing and filed with the
record, that there is no error in the judgment complained
of. It is therefore considered that the same be affirmed, and
69
that the plaintiff in error pay to the Commonwealth thirty
dollars damages, and also her costs by her expended about
her defense herein.
Which is ordered to be certified to the said circuit court.
I n Supreme Court of A ppeals of V irginia
[Title omitted]
Recital as to F iling of Petition for R ehearing—July 2,
1945
The petition of plaintiff in error in this cause for a re
hearing of the judgment of this court rendered on the 6th
day of June, 1945, was this day received and the filing
thereof is here noted of record.
I n S upreme Court of A ppeals of V irginia
Order D enying Petition for R ehearing— September 4,
1945
On mature consideration of the petition of the plaintiff
[fol. 79] in error to set aside the judgment entered herein
on the 6th day of June, 1945, and grant a rehearing thereof,
the prayer of the said petition is denied.
[fol. 80] I n the S upreme Court of A ppeals of V irginia
Petition for A ppeal and A ssignment of E rrors
To the Honorable Preston W. Campbell, Chief Justice of
the Supreme Court of Appeals of Virginia:
Now comes Irene Morgan, appellant in the above-entitled
cause, by her attorneys, and respectfully shows that:
On the 6th day of J une, 1945, in the above-entitled cause,
the Supreme Court of Appeals of Virginia, the highest
Court of said State in which a decision in said cause could be
had, rendered a judgment against appellant and in favor of
appellee, affirming a judgment of the Circuit Court of the
70
County of Middlesex, Virginia, designated as Case No. 330,
in which judgment said Circuit Court convicted appellant of
a violation of the statute of the State of Virginia known and
designated as Chapter 128, Acts of Assembly of 1930, pages
343-344, and sentenced her to pay a tine of Ten ($10.00)
Dollars.
On the 2nd day of July, 1945, appellant filed with the
Supreme Court of Appeals of Virginia her Petition for
Rehearing, which Petition was denied by said Court on the
4th day of September, 1945, whereupon the judgment of
said Court became final. In the record and proceedings and
in the rendition of said judgment, and in permitting the
same to become final, manifest error occurred greatly to
appellant’s damage, whereby appellant is aggrieved and
does hereby appeal from said judgment to the Supreme
[fol. 81] Court of the United States.
In the record and proceedings and in the rendition of said
judgment there was drawn in question by appellant herein
the validity of the above-cited statute of the State of Vir
ginia under which she was convicted, on the ground that said
statute was in contravention of, and repugnant to, the pro
visions of Clause 3 of Section 8 of Article I of the Constitu
tion of the United States, which confers upon the Congress
the exclusive right to regulate commerce among the several
States. The decision and judgment of the Supreme Court
of Appeals of Virginia were in favor of the validity of said
statute and against the rights, privileges and exemptions
specifically set up and claimed by appellant herein under
said clause of the Constitution of the United States, all of
which is fully apparent in the record and proceedings of the
cause and in the rendition of said decision and judgment.
A ssignment of E rrors
Appellant assigns the following errors in the record and
proceedings of said cause:
I
The Supreme Court of Appeals of Virginia erred in
rendering judgment affirming the judgment of the Circuit
Court of the County of Middlesex, Virginia, holding that
the statute of the State of Virginia, known as Chapter
128, Acts of Assembly of 1930, pages 343-344, as ap
plied to appellant, a passenger traveling on an interstate
71
journey in a vehicle moving in interstate commerce, is not
repugnant to the provisions of Clause 3 of Section 8 of
Article I of the Constitution of the United States.
II
The Supreme Court of Appeals of Virginia erred in
rendering judgment affirming the judgment of the Circuit
[fol. 82] Court of the County of Middlesex, Virginia, hold
ing that the powers reserved to the States under the tenth
Amendment of the Constitution of the United States include
the power to enforce a State statute compelling the racial
segregation of passengers on public carriers against a
person traveling on an interstate journey in a vehicle mov
ing in interstate commerce.
P rayer for R eversal
For which errors appellant prays that the said decision
and judgment of the Supreme Court of Appeals of Virginia
in the above-entitled cause be reviewed by the Supreme
Court of the United States, that the appeal herein operate
as a supersedeas and suspension of the judgment of the
Circuit Court of Middlesex County, Virginia, that the said
decision and judgment of the Supreme Court of Appeals of
Virginia be reversed, and that a judgment be rendered in
favor of appellant.
Irene Morgan, Appellant, By William H. Hastie,
Tlmrgood Marshall, Spottswood W. Robinson, III,
Counsel for Appellant.
Spottswood W. Robinson, III, Consolidated Bank Build
ing, Richmond, 19, Virginia.
[fols. 83-84] I n the Supreme Court of the U nited States
[Title omitted]
Order A llowing A ppeal— November 19, 1945
Irene Morgan, the appellant in the above-entitled cause,
having prayed for the allowance of an appeal in this cause
to the Supreme Court of the United States from the judg
ment rendered and entered in the above-entitled cause by
the Supreme Court of Appeals of Virginia, and having, on
72
the 19th day of November, 1945, duly presented and filed
her Petition for Appeal and Assignment of Errors and
Prayer for Reversal therein contained, and a Statement as
to Jurisdiction, pursuant to the statutes and rules of the
Supreme Court of the United States in such cases made and
provided, and the same having been considered:
It is ordered that an appeal he and hereby is allowed to
the Supreme Court of the United States from the Supreme
Court of Appeals of Virginia as prayed in said petition, and
that the Clerk of the Supreme Court of Appeals of Virginia
shall prepare and certify a transcript of the record and
proceedings in the above-entitled cause and transmit the
same to the Supreme Court of the United States within
forty (40) days from the date hereof.
It is further ordered that bond for costs on appeal be and
the same hereby is fixed in the sum of 200 Dollars, and that
upon approval of bond in said amount the appeal herein
shall operate as a supersedeas and suspension of the judg
ment of the Circuit Court of the County of Middlesex,
Virginia, entered in the above-entitled cause.
Dated this 19th day of November, 1945.
Harlan F. Stone, Chief Justice of the United States.
[fol. 84a] Bond on appeal for $200.00 approved. Omitted
in printing.
[fol. 85] Citation in usual form showing service on M.
Kay Doubles. Omitted in printing.
[fol. 86] I n the Supreme Court of A ppeals op V irginia
[Title omitted]
P raecipe for T ranscript of R ecord
To the Clerk of said Court:
You are hereby requested to make a transcript of the
record to be filed in the Supreme Court of the United States
pursuant to an appeal in the above-styled cause, and to
include in said transcript of record the following papers
and exhibits, to-wit:
1. All the original record in the Supreme Court of Ap
peals of Virginia, on writ of error to the Circuit Court of
the County of Middlesex, Virginia.
2. The opinion of the Supreme Court of Appeals of Vir
ginia, rendered June 6, 1945.
3. The judgment of the Supreme Court of Appeals of
Virginia, entered June 6, 1945, affirming the judgment of
the Circuit Court of the County of Middlesex, Virginia.
4. The certificate of the Clerk of the Supreme Court of
Appeals of Virginia noting the filing of the petition for
rehearing.
5. The judgment of the Supreme Court of Appeals of
Virginia, rendered September 4, 1945, denying the petition
for rehearing.
6. The petition for appeal to the Supreme Court of the
United States, including the assignment of errors and the
prayer for reversal.
7. The statement of Irene Morgan, Appellant, in support
of the jurisdiction of the Supreme Court of the United
[fol. 87] States to review the above-styled cause on appeal.
8. The order of the Supreme Court of the United States
allowing appeal and fixing the amount of bond.
9. The notice directing attention of appellee to the pro
visions of Rule 12, paragraph 3, of the rules of the Supreme
Court of the United States, with acknowledgement of
service of said notice and acknowledgement of service of
copies of the petition for appeal and assignment of errors,
order allowing the appeal, and statement in support of
jurisdiction.
10. The citation on appeal to the Commonwealth of Vir
ginia, and the certificate of service thereof upon the Com
monwealth of Virginia.
11. The bond for costs on appeal and approval thereof.
12. This praecipe, with acknowledgement of service
thereof.
13. Certificate of the Clerk of the Supreme Court of Ap
peals of Virginia to the correctness of the record as to this
praecipe.
The said transcript is to be prepared as required by law
and the rules of the Supreme Court of Appeals of Virginia
and the rules of the Supreme Court of the United States,
73
74
and is to be filed in the Office of the Clerk of tbe Supreme
Court of tbe United States within forty (40) days from tbe
19th day of November, 1945.
Irene Morgan, Appellant, by William H. Ilastie,
Spottswood W. Robinson, III, of Counsel for Ap
pellant.
Due and legal service of the above praecipe is hereby
acknowledged and accepted, and all other and further serv
ice is hereby waived.
This 6th, day of December, 1945.
Abram P. Staples, Atty. Gen. of Virginia, by M.
Ray Doubles, Asst. Atty. Gen. of Virginia.
[fol. 88] Clerk’s certificate to foregoing transcript omit
ted in printing. (Seal.)
[fol. 89] I n the Supreme Court of the U nited States
Statement of P oints on w h ich A ppellant I ntends to
R ely and D esignation of Parts of R ecord— Filed Jan
uary 5,1946
Pursuant to Rule 13, page 9 of the Revised Rules of this
Court, appellant states that she intends to rely upon all
the points in her Assignment of Errors.
Appellant deems the entire record as filed in the above
entitled cause, necessary for consideration of the points
relied upon, except for the following parts of the record
which are not essential and may be omitted from the record
to be printed by the Clerk of the Supreme Court of the
United States.
1. Those portions of the Petition for Writ of Error en
titled “ Statement of the Pacts” and “ Argument” begin
ning at page 3 and ending in the middle of page 22 of the
record as filed and printed in the Supreme Court of Appeals
of Virginia.
2. The “ Record of Case 331. File 40,” beginning near
the bottom of page 52 and ending in the middle of page 54
75
of the record as filed and printed in the Supreme Court of
Appeals of Vii-ginia.
William H. Hastie, Spottswood W. Robinson, III,
Attorney for Appellant.
Service acknowledged this 29tli day of December, 1945.
Abram P. Staples, Attorney for Appellee.
[fol. 89a] [File endorsement omitted.]
[fol. 90] I n the Supreme Court of the U nited States
Designation of A ppellee of A dditional P arts of R ecord to
B e P rinted— Filed January 4, 1946
The appellee, Commonwealth of Virginia, designates the
following additional parts of the record as filed which it
thinks are necessary for the consideration of appellant’s
assignments of error, to-wit:
Record from Supreme Court of Appeals of Virginia.
All parts of the said Record omitted in the appellant’s
designation, viz.:
1. Those portions of the Petition for Writ of Error
entitled “ Statement of the Facts” and “ Argument” be
ginning at page 3 and ending in the middle of page 22 of the
Record as filed and printed in the Supreme Court of Ap
peals of Virginia.
[fob 91] 2. The “ Record of Case 331. File 40” , beginning
near the bottom of page 52 and ending in the middle of page
54 of the Record as filed and printed in the Supreme Court
of Appeals of Virginia.
Commonwealth of Virginia, by Abram P. Staples,
Attorney General of Virginia and Counsel for Ap
pellee.
Service of the foregoing statement of designation of
additional parts of the Record the appellee thinks necessary
for the consideration of the assignments of error relied on
by the appellant is hereby accepted, and the receipt of a
76
copy thereof is hereby acknowledged for and on behalf of
the appellant this 29th day of December, 1945.
Spottswood W. Robinson, III, Attorney for Appel
lant.
[fol. 91a] [File endorsement omitted.]
[fol. 92] Supreme Court of the UNiTfeD S tates
Order N oting P robable J urisdiction— January 28, 1946
The statement of jurisdiction in this case having been
submitted and considered by the Court, probable jurisdic
tion is noted.
Mr. Justice Jackson and Mr. Justice Rutledge took no
part in the consideration of this question.
Endorsed on Cover: File No. 50,407. Virginia, Supreme
Court of Appeals. Term No. 704. Irene Morgan, Appel
lant, vs. Commonwealth of Virginia. Filed December 29,
1945. Term No. 704 0. T. 1945.
(2737)