NAACP v. St. Louis-San Francisco RY. Co. Exceptions on Behalf of Complainants and Intervenors to the Report

    BEFOBE THE

31 ttlmitali' (Cmmm'rrr Commtajeton

N ational A ssociation fob the A d­
vancement of Colobed People, 
et al.,

Complainants,

v.

St. L ouis-San F bancisco Ry. Co., 
et al.,

Defendants.

Docket No. 31423

EXCEPTIONS ON BEHALF OF COMPLAINANTS AND 
INTERVENORS TO THE REPORT PROPOSED BY 

HOWARD HOSMER, EXAMINER, AND 
BRIEF IN SUPPORT THEREOF

R obebt L. Cabteb,
T hubgood M abshall,

Attorneys for Complainants 
and Intervenors.

Due Date: January 15, 1955.

OBAL ABGUMENT IS EEQUESTED



I N D E X

Exceptions on Behalf of Complainants and Inter- 
venors .........................................................................  1

Brief in Support of Exceptions....................................  3
I.—The Lease Between the Richmond Rail­

way Terminal Company and the Union 
News Company Sanctions the Use of the 
Premises of the Terminal Company for the 
Operation of Segregated Restaurant Fa­
cilities ............................................................  4

II.—An Interstate Carrier May Not Avoid Its 
Duty to Refrain From Undue Discrimina­
tion Against Travelers in Interstate Com­
merce Merely by Leasing Portions of Its 
Terminal Premises to Private Parties .. 5

III. —Union News Company is a Proper Party
Defendant in these Proceedings and it 
was Error to Dismiss the Complaint as to 
Them ..............................................................  7

IV. —The Operation of Restaurant Facilities in
the Station or Terminal of an Interstate 
Carrier is Subject to Regulation by Con­
gress Pursuant to its Plenary Powers 
Over Commerce ...........................................  8

V.—Section 3(1) is Broad Enough to Reach
the Discrimination Here in Question . . . .  12

VI.—The Precedents Support Our Contentions 
that the Commission Has Authority to 
Prohibit the Maintenance of Segregated 
Restaurants in Railroad Stations ................. 14

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

PAGE



11

Table of Cases Cited

American Warehousemen’s Association v. Inland 
Waterways Corp., 188 I. C. C. 13 (1931) .............. 11

Baltimore & Ohio R. R. Co. v. United States, 305 
U. S. 507 (1939) ........................................................  11

California v. United States, 320 U. S. 577 (1944) . . .  8
Chesapeake & Ohio Ry. v. United States, 11 F. Supp.

588 (S. D. D. Va. 1935), aff’d 296 U. S. 1 8 7 .......... 13
Crosby v. St. Louis, San Francisco Ry. et al., 112 

I. C. C. 239 (1926) ..................................................  16
Dayton Union Ry. Co. Tariff for Redcap Service,

256 I. C. C. 289 (1943) ............................................. 2,17
Dining Car Employees Union v. Atchison, Topeka &

Saute Fe Ry., 263 I. C. C. 789 (1945) ...................  18
Hastings Commercial Club, et al. v. Chicago Mil­

waukee & St. Paul Ry. Co., et al., 69 I. C. C. 489
(1922) ..........................................................................  15

Houston East & West Texas Ry. Co. v. United States,
234 U. S. 342 (1914) .................................................. 13

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

Island & Pacific Ry. Co., 218 U. S. 88 (1910) . . . .  13
Kirschbaum v. Walling, 316 U. S. 517 (1942) .......... 9
Louisville & Nashville R. R. Co. v. United States,

282 U. S. 740 (1931) .................................................  18
McCall v. California, 136 U. S. 104 (1890) .............. 12fn
Merchants Warehouse Co. v. United States, 283

U. S. 501 (1931) ......................................................... 13
Missouri, Kansas & Texas Ry., et al., Valuation 

Docket No. 828, 34 Valuation Reports (I. C. C.)
293 ................................................................................  15

Mitchell v. United States, 313 U. S. 80 (1941) . . . .  13

PAGE



Ill

Montgomery v. Chicago, B. & Q. R. R. Co., 228 F.
616 (CA 8th 1915)......................................................  14

Mornford v. Andrews, 151 F. 2d 511 (CA 5th 1945) . 8, 9
New York v. United States, 331 U. S. 284 (1947)___  13
Simpson v. Shepard, 230 U. S. 352 (1913) .............. 10
Southern Pacific Terminal Co. v. Interstate Com­

merce Commission, 219 U. S. 498 (1911)..............8,10,11
Southern Ry. Co. v. Hussey, 42 F. 2d 70 (CA 8th

1930), aff’d 283 U. S. 1 3 6 ......................................... 5, 6
Southwestern Produce Distributors v. Wabash R.

Co., 20 I. C. C. 458 (1911) .......................................  16,17
Swift & Co. v. United States, 196 U. S. 375 (1905) ..  12fn
Tobin v. Hudson Transit Lines, Inc., 95 F. Supp. 530 

(D. N. J. 1951) ..........................................................  8,9
United States v. Baltimore & Ohio R. R., 333 U. S.

169 (1948) ............................................................... 5,6,8,13
United States v. Pennsylvania R.R. Co., 105 F. Supp.

615 (E. D. Pa. 1952) ................................................. 9
Walling v. Atlantic Greyhound Corp., et al., 61 F.

Supp. 992 (E. D. S. C. 1945) .................................  8, 9
Walling v. Palmer, 67 F. Supp. 12 (M. D. Pa. 1946) .. 8

Other Authorities Cited

2 Sharfman, The Interstate Commerce Commission 
(1931)

PAGE

15



BEFORE THE

JttfrrBtate (Emmtu'm (Eommiasimt

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

Complainants,

v.

St. L ouis-S an F rancisco R y . Co., 
et al.,

Defendants.

Docket No. 31423

EXCEPTIONS ON BEHALF OF COMPLAINANTS AND
INTERVENORS TO THE REPORT PROPOSED BY 

HOWARD HOSMER, EXAMINER, AND 
BRIEF IN SUPPORT THEREOF

Come now the complainants, the National Association 
for the Advancement of Colored People, Ruby Hurley, 
Hattie Ballard, Wendell Ferguson, Clarence Morgan, 
Charlie Mae Hayes, A. S. Crishon, Gelene Payte, Russell 
L. Anderson, Jr., Ethel I. Berry, Elvira Craig, George 
Johnson, Eugene Gordon, Elliott J. Beal, Dorothy M. 
Scott Green, Janies Green, James G. Baptiste, and Warren 
Stetzel and intervenors, A. L. James, John L. LeFlore and 
T. E. McKinney, Jr., in the above-entitled proceedings and 
in the following particulars take issue with and except to 
the findings and conclusions in the report proposed by 
Howard Hosmer, Examiner.

I .
The complainants and intervenors except to the state­

ment in the proposed report (Sheet 17, paragraph 2, line 
10 et seq.) which states:



2

‘ 1 The lease is silent as to racial segregation. 
Terminal has certain powers of supervision for a 
purpose which may be described as policing. The 
lessee is obligated to comply with the requirements 
of the Department of Public Health, City of Rich­
mond, and with all other lawful governmental rules 
and regulations. The context, however, indicates 
that this requirement is for the purpose of keeping 
the premises in a neat, clean, and orderly condition, 
and does not render the lessee vicariously liable for 
violations of the Interstate Commerce Act.”

II.
Complainants and intervenors except to the statement 

in the proposed report (Sheets 17, 18, paragraph 3, line 
21 et seq.) which states:

‘ ‘ Even if the lunch rooms were directly operated 
by Terminal, however, it would be at least doubtful 
whether the operation could be regulated by the 
Commission, which on several occasions has ex­
pressed the view that, while station lunch-rooms and 
restaurants may serve the convenience of the general 
public, they are not on the same footing as waiting 
rooms in respect of the common-carrier responsi­
bilities of railroads. Southwestern Produce Dis­
tributors v. Wabash R. Co., 20 I. C. C. 458; Dayton 
Union Ry. Co. Tariff for Redcap Service, 256 I. C. C. 
289, 299. It is concluded, therefore, that the opera­
tions of the lunch rooms in the Broad Street Station 
may not be regulated under the Interstate Com­
merce Act.”

I I I .
Complainants and intervenors submit that it was error 

for the Commission to dismiss the complaint against the 
Union News Company.



3

BRIEF IN SUPPORT OF EXCEPTIONS 

Statement

Complainants instituted the instant proceedings to test 
the legality of defendants’ practices in maintaining racially 
segregated facilities for Negro interstate passengers in 
railroad coaches, passenger waiting rooms and in station 
restaurants. Complainants contended that such practices 
constituted undue and unreasonable prejudice within the 
purview of Section 3(1) of the Interstate Commerce Act. 
Mr. Hosmer, Examiner, has found that the practices com­
plained of with respect to railroad coaches and passenger 
waiting rooms constitute unlawful discrimination pro­
scribed under the Interstate Commerce Act and has recom­
mended that an order prohibiting such practices in the 
future be entered. With this phase of the report com­
plainants are in full accord.

Mr. Hosmer also concluded that the segregation of 
Negro and white passengers with respect to the use and 
enjoyment of railroad station restaurant facilities is not 
subject to the jurisdiction of the Commission under the 
Interstate Commerce Act. With this phase of the report 
we take exception.

The authorities conclusively demonstrate, we submit, 
that jurisdiction has been conferred upon the Commission 
to prohibit discrimination in the use and enjoyment of 
restaurant facilities operated within railway terminals. 
The Commission has unquestioned power to issue cease 
and desist orders binding both the carrier and lessee opera­
tor to operate the restaurant facility without discrimina­
tion as to race or color and in conformity with the require­
ments of the Interstate Commerce Act.

We further submit that the Union News Company is 
a proper party defendant to these proceedings, and it was 
error for the Commission to have ordered the complaint 
dismissed as to them.



4

I .

The lease between the Richmond Railway Terminal 
Company and the Union News Company sanctions the 
use of the premises of the Terminal Company for the 
operation of segregated restaurant facilities.

The Richmond Railway Terminal Company, pursuant 
to a lease which is filed as Exhibit 2 as a part of this rec­
ord, grants to the Union News Company the exclusive 
right to operate eating facilities within the Broad Street 
Station. The lease itself makes manifest the fact that the 
Richmond Terminal Railway Company is aware of and 
condones the use of its premises by the Union News Com­
pany for the operation of racially segregated restaurant 
facilities, and, we submit, to conclude that the lease is 
silent as to racial segregation is to misread its provisions.

In paragraph one of the current lease, the terminal 
space in question is described in the following terms:

“ Luncheonette and soda fountain room; kitchen 
previously used as Oyster bar; storeroom adjacent 
to kitchen which was part of the original kitchen; 
colored lunchroom and kitchen.’ ’

Paragraph seven of the lease refers to “ the marble counter 
in the colored lunch room”  as being the property of the 
Richmond Terminal Railway Company. Certainly these 
references make clear that, at the very least, the Richmond 
Terminal Railway Company was aware of the fact that 
the Union News Company was maintaining within the 
Broad Street Station segregated eating facilities—a lunch 
room for colored persons and one for white persons. While 
the lease does appear to envisage independent operation 
by Union News, paragraph nine of the lease empowers the 
Richmond Terminal to require that employees of Union 
News comply with reasonable requirements with respect



5

to the propriety of their conduct. Pursuant to this pro­
vision it seems clear that Richmond Terminal meant to 
protect itself and its premises against impropriety on the 
part of Union News and its employees. Certainly it does 
not stretch the imagination or the law to construe this 
provision as vesting in the Richmond Terminal power to 
insist that the Union News Company in its operations 
within the Broad Street Station comply with the law. That 
this provision authorized the Richmond Terminal to require 
Union News to serve all persons without restrictions based 
upon race or color pursuant to the Interstate Commerce 
Act seems evident beyond question.

We submit that the lease sanctions the practices which 
are the subject of complaint and that the carrier had ulti­
mate authority under the lease to prohibit the discrimina­
tion here involved.

I I .

An interstate carrier may not avoid its duty to 
refrain from undue discrimination against travelers in 
interstate commerce merely by leasing portions of its 
terminal premises to private parties.

In our judgment the Examiner has properly found that 
carriers may not segregate passengers in railway stations 
without violating their duties under the Interstate Com­
merce Act. Once it is established that a carrier owes a 
statutory duty to travelers in interstate commerce, the 
carrier may not avoid this obligation simply by leasing 
parts of its premises to other parties. It is a well-estab­
lished principle, both under the Interstate Commerce Act 
and at common law, that a common carrier may not avoid 
its obligations to interstate shippers or to the traveling 
public by a mere leasing device. United States v. Baltimore 
& Ohio R. R. Co., 333 U. S. 169 (1948); Southern Ry. Co. v. 
Hussey, 42 F 2d 70 (C A. 8th 1930),aff’d 283 U. S. 136.



6

In United States v. Baltimore <& Ohio R. R., supra, 
Justice Black speaking for the Court asserted, at page 
175, that “ It would be strange had this legislation left a 
way open whereby carriers could engage in discriminations 
merely by entering into contracts for the use of trackage. 
In fact, this Court has long recognized that the purpose of 
Congress to prevent certain types of discriminations and 
prejudicial practices could not be frustrated by contracts 
even though the contracts were executed long before enact­
ment of the legislation.”

In Southern Ry. Co. v. Hussey, supra, it was held that 
where a lessor carrier owes a clear legal duty toward a 
person, the duty may not be avoided by any arrangement 
which a carrier may make with any other person. If 
any part of the duty is delegated to another, the Court 
stated, the latter becomes an agent of the carrier and in 
that respect the carrier is held responsible for the agents’ 
acts.

Thus, in the instant case the defendant carrier, owing 
a clear duty to travelers in interstate commerce not to 
discriminate against them on terminal premises owned 
by the carrier, may not avoid this duty by a lease to third 
parties which practices racial discrimination with respect 
to use and enjoyment of the leased premises.

It is somewhat unrealistic to conclude that the carrier 
is somehow an innocent bystander as between the lessee 
operator and the Negro passenger complaining of dis­
crimination. For it is the carrier itself which determines 
the practices on its premises. Here the signs and segre­
gated waiting rooms in the Broad Street Station (although 
segregation is not rigidly enforced) were the practices 
which led to and condoned the Union News Company in its 
operation of segregated eating facilities within the Broad 
Street Station. No problem such as the discriminatory 
practices here complained of would have arisen, if the Bich-



7

mond Terminal Railway Company had operated its termi­
nal in the manner required by the Interstate Commerce Act. 
We submit that here the carrier is primarily responsible 
for the fact that Union News Company discriminates 
against Negro passengers with respect to the use and 
enjoyment of restaurant facilities within the Broad Street 
Station. As such it should be required to cease discrimi­
nating against Negro passengers within the terminal and 
should be held required to prohibit such practices on part 
of persons operating a public facility on its premises.

I I I .

Union News Company is a proper party defendant 
in these proceedings and it was error to dismiss the 
complaint as to them.

The Commission erred in dismissing this complaint 
against the Union News Company. It is a proper party 
defendant and is subject to the Commission’s jurisdic­
tion with respect to violations of the Interstate Commerce 
Act complained of in these proceedings.

Section 42 of the Interstate Commerce Act provides 
that “ In any proceeding for the enforcement of the provi­
sions of the statutes relating to interstate commerce, . . . 
it shall be lawful to include as parties, in addition to the 
carrier, all persons interested in or affected by the rate, 
regulation, or practice under consideration, and inquiries, 
investigations, orders and decrees may be made with refer­
ence to and against such additional parties in the same 
manner, to the same extent, and subject to the same provi­
sions as are or shall be authorized by law with respect to 
carriers.”



8

Thus, in United States v. Baltimore & Ohio R. R., supra, 
the Supreme Court found that a stockyard company which 
had entered into an agreement with a carrier which re­
sulted in a discrimination against persons and commodi­
ties, was properly made a party to a proceeding against 
the carrier and that a cease and desist order against it 
was justified by the terms of Section 42. Justice Black 
stated at page 172, note 2 that:

“ We . . . find no merit to the contention that we 
should by interpretation restrict that section’s [§ 42] 
broad language. . . . ”

Similarly, in the instant case, the Union News Company 
as a party interested and affected by the practice under 
consideration, falls within the purview of Section 42 and is 
a proper party defendant in these proceedings.

IV.

The operation of restaurant facilities in the station 
or terminal of an interstate carrier is subject to regula­
tion by Congress pursuant to its plenary powers over 
commerce.

The federal courts in upholding various types of regu­
lation have held that terminal facilities owned by interstate 
carriers are within the reach of Congress under its com­
merce powers. California v. United States, 320 U. S. 577 
(1944); Southern Pacific Terminal Co. v. Interstate Com­
merce Commission, 219 U. S. 498 (1911); Mornford v. 
Andrews, 151 F. 2d 511 (C. A. 5th 1945); Tobin v. Hudson 
Transit Lines, Inc., 95 F. Supp. 530 (D. N. J. 1951); Wall­
ing v. Atlantic Greyhound Corp. et al., 61 F. Supp. 992 
(E. D. S. C. 1945); Walling v. Palmer, 67 F. Supp. 12 (M .D. 
Pa. 1946).



9

The courts have held that janitors, porters and other 
employees performing services in terminals of interstate 
carriers are within the reach of the wage and hour pro­
visions of the Fair Labor Standards Act. Mornford v. 
Andrews, supra; Tobin v. Hudson Transit Lines, Inc., 
supra; Walling v. Atlantic Greyhound Corp., supra.

In these cases, the courts have reasoned that the opera­
tion of a terminal is a necessary part of the business of an 
interstate carrier and is a part of interstate commerce. 
Thus, janitorial employees are held to be “ in commerce”  
and under the jurisdiction of the Fair Labor Standards 
Act. Mornford v. Andrews, supra; Walling v. Atlantic 
Greyhound Corp., supra.

It may be noted also that the operation of the Fail- 
Labor Standards Act has been extended even to main­
tenance workers employed by the owner of a loft building 
in which space was rented by persons producing goods 
principally for interstate commerce. Kirsclihaum v. Wall- 
ing, 316 U. S. 517 (1942). In the Kirschbaum case, the court 
specifically noted that this application of the law was proper 
even though Congress, in enacting the Fair Labor Stand­
ards Act, did not legislate to the full extent of its power to 
regulate commerce, as it had done in enacting the discrim­
ination provisions of the Interstate Commerce Act.

Thus, it would seem difficult to rebut a contention that 
Congress may prohibit an interstate carrier from using its 
property in such a manner as to accomplish or allow dis­
crimination against travelers in interstate commerce.

There is also no question but that if these restaurant 
facilities were operated directly by the Richmond Terminal 
Railway Company that in such operation the carrier must 
conform to the provisions of the Interstate Commerce Act. 
See United States v. Pennsylvania Railroad Co., 105 F. 
Supp. 615, 619 (E. D. Pa. 1952).



10

In Southern Pacific Terminal Co. v. Interstate Com­
merce Commission, supra, the Supreme Court held that it 
was within the power of Congress under the Commerce 
Clause and within the jurisdiction of the Interstate Com­
merce Commission under Section 3(1) of the Interstate 
Commerce Act to prohibit the use of terminal property by 
a carrier in such a manner as to give an undue preference 
to a shipper by affording him facilities not afforded to other 
shippers for the storage and manufacture of products 
destined for shipment in interstate commerce. In the 
Court’s view, the fact that the goods in question were 
stored on terminal property and destined for interstate 
commerce was sufficient to bring this case within the regu­
latory power of Congress and the jurisdiction of the Inter­
state Commerce Commission.

In the instant case the major reason for the mainte­
nance of a restaurant in Broad St. Station is for the con­
venience of the travelling public using the station. Thus, 
the fact that the defendant carrier uses its terminal prop­
erty in such a manner as to cause a discrimination against 
persons destined for travel in interstate commerce is suf­
ficient to bring this case within the control of Congress and 
the jurisdiction of the Interstate Commerce Commission.

Nor may the cases be distinguished by a claim that res­
taurant facilities operated on a carrier’s terminal property 
serve some persons who do not travel in interstate com­
merce. It is well established that the power of Congress 
to regulate interstate commerce is not limited by the fact 
that intrastate transactions may have become so inter­
woven therewith that the effective government of the for­
mer is incidental to control of the latter. Simpson v. Shep­
ard, 230 U. S. 352 (1913).



11

Certainly whether the services from which the dis­
crimination arises are a necessity is of no relevance in 
determining whether Congress has the power or the Inter­
state Commerce Commission the jurisdiction to prohibit 
a particular form of discrimination. Indeed the dis­
crimination held within the power of Congress and the 
Interstate Commerce Commission to prohibit in the 
Southern Pacific Terminal Co., supra, was not one arising 
from the operation of services which the carrier was 
required to provide. Storage and warehousing services 
are not functions which a carrier is required to perform 
either at common law or under the Interstate Commerce 
Act, Yet the Supreme Court held in the Southern Pacific 
Terminal Co. that Congress has the power to prohibit 
discrimination in affording such services on a carrier’s 
terminal property when the carrier elects to render them. 
American Warehousemen’s Association v. Inland Water­
ways Corp., 188 I. C. C. 13 (1931). This principle was 
reiterated in Baltimore & Ohio R. R. Co. v. United States, 
305 U. S. 507 (1939). There the Supreme Court held that 
Section 3(1) was violated by defendant carriers’ furnishing 
to shippers warehousing services, including storage, handl­
ing and insurance, for less than the cost to defendants 
where such services at similar rates were not open to all 
shippers alike. The Court upheld the Interstate Commerce 
Commission’s order even though in another part of the 
opinion it noted that these practices by carriers were not 
transportation services.

Thus, even if it be conceded that terminal restaurants 
are not necessary carrier services, it is clear that Congress 
has the power to prohibit discrimination arising against



12

travelers in interstate commerce from the operation of 
euch services when provided.1

V .

Section 3(1)  is broad enough to reach the dis­
crimination here in question.

Section 3(1) of the Interstate Commerce Act provides 
that: “ It shall be unlawful for any common carrier . . .  to 
make, give or cause any undue or unreasonable preference 
or advantage to any particular person . . .  in any respect 
whatsoever or to subject any particular person . . .  to 
any undue or unreasonable prejudice or disadvantage in 
any respect whatsoever.”

It will be noted that this section is not in any way 
qualified or limited in its terms and has been construed

1 If there exists a test based upon the nature of the service pro­
vided rather than upon the persons whom it serves, it is perhaps the 
one propounded by the Supreme Court in McCall v. California, 136 
U. S. 104 (1890). In that case the court struck down as a burden 
on interstate commerce a municipal license tax imposed upon an 
agent of a railroad company whose duties were to solicit passenger 
traffic and who sold no tickets but merely took customers to railroad 
companies which would sell them. There the court rejected the 
suggestion that the essentiality of the business to the commerce of 
the road was the test of whether the business was a part of inter­
state commerce. Rather, the court said, “ The test is, was the busi­
ness a part of the commerce of the road? Did it assist or was it 
carried on with the purpose to assist, in increasing the amount of 
passenger traffic on the road?”

There is little question that a restaurant business operated on 
terminal property would be subject to regulation as commerce under 
this test. Moreover, it should be noted that the criterion used in the 
McCall case was for the purpose of determining whether a state regu­
lation was a burden on interstate commerce, a test more stringent 
than that used to determine whether Congress has the right to enact 
legislation under its power to regulate interstate commerce. Swift & 
Co. v. United States, 196 U. S. 375, 399 (1905).



13

by the courts as a sweeping prohibition against all forms 
of discrimination which Congress had the power to pro­
scribe. Thus, in Houston East & West Texas Ry. Co. v. 
Lnited States, 234 U. S. 342 (1914), Justice Hughes, speak­
ing for the Court at page 356, said of Section 3(1) that 
“ this language is certainly sweeping enough to embrace 
all of the discriminations of the sort described, which it 
was within the power of Congress to condemn. . . .  It is 
apparent from the legislative history of the act that the 
evil of discrimination was the principal thing aimed at 
and there is no basis for the contention that Congress 
intended to exempt any discriminatory action or practice 
of interstate carriers affecting interstate commerce which 
it had authority to reach.”

This principle, that Section 3(1) is comprehensive 
enough to prohibit any discrimination which Congress had 
the powei to reach under the Commerce Clause, along with 
the principle that the Act itself was primarily aimed at 
erasing discrimination in all of its various manifestations 
and at establishing uniformity of treatment for all users 
of interstate transportation facilities, has been reaffirmed 
many times by federal courts. Interstate Commerce Com­
mission v. Chicago Rock Island & Pacific Ry. Co., 218 
U. S. 88 (1910); Merchants Warehouse Co. v. United 
States, 283 U. S. 501 (1931); Mitchell v. United States, 
313 U. S. 80 (1941); Howitt, et al. v. United States, 328 
U. S. 189 (1946); New York v. United States, 331 U. S. 
284 (1947); United States v. Raltimore & Ohio R. R. Co., 
supra; Chesapeake & Ohio Ry. v. United States, 11 F. 
Supp. 588 (S. W. W. Va. 1935), aff’d 296 U. S. 187.

It is clear, we submit, that Congress possesses power 
under the Commerce Clause to prohibit discrimination 
against interstate travelers in the furnishings of eating 
facilities upon the terminal property of an interstate



14

carrier. Moreover, the language of Section 3(1) is suffi­
ciently inclusive to leave no doubt that Congress intended 
to accomplish this purpose with the enactment of the 
Interstate Commerce Act.

V I .

The precedents support our contentions that the 
Commission has authority to prohibit the maintenance 
of segregated restaurants in railroad stations.

It is clear from the decisions that the federal courts 
have considered the regulation of restaurants and other 
facilities maintained on terminal property as within the 
primary jurisdiction of the Interstate Commerce Commis­
sion and thus, necessarily within the power of Congress 
to regulate under the commerce clause.

In Montgomery v. Chicago B. <£ Q. R. R. Co., 228 F. 
616 (C. A. 8th 1915) plaintiff brought an action claiming 
that defendant railroad operated its station restaurant, 
which was open to the public, passengers and railroad 
employees in a manner which resulted in an undue preju­
dice against the plaintiff. Taking note of a rule of the 
Interstate Commerce Commission that carriers subject to 
the act might provide eating houses for passengers and 
employees, subject to certain regulations, and that prop­
erty for the use of eating houses might be regarded as 
necessary and intended for the use of carriers in the con­
duct of their business, the court held that the complaint 
was within the primary jurisdiction of the Interstate Com­
merce Commission.

The court stated that the “ case presented is one which 
calls for primary reference to the Commission, to determine 
whether the establishment of a railway eating house . . .



15

was a legitimate exercise of administrative discretion on 
the part of the carrier and whether the reasonable rule 
established by the Commission has been fairly observed in 
the present instance.”

In making valuations of property called for by Section 
19 of the Interstate Commerce Act the Interstate Com­
merce Commission is required to divide property owned 
by a carrier into that owned or used for the purpose of a 
common carrier and that held for other purposes. See 
Section 19(b). It may be noted that under this section the 
Commission has held a building in a railroad terminal, 
which is leased to private parties for restaurant purposes 
and used primarily by the carrier’s passengers and em­
ployees, to be a necessary common carrier facility. Mis­
souri, Kansas <& Texas Ry. et al., Valuation Docket No. 828, 
34 Valuation Reports (I. C. C.) 293, 328.

The Commission, however, would not be required to 
hold that restaurant facilities are necessary common car­
rier facilities in order to hold that they are within the 
jurisdiction of the Interstate Commerce Act, for as noted 
supra, Congress has prohibited all common carrier activi­
ties resulting in unreasonable prejudice which it has the 
authority to regulate. Moreover, the Act in defining a rail­
road as a common carrier subject to its provisions states 
that a railroad “ shall include . . . terminal facilities of 
every kind used or necessary in the transportation of 
persons or property designated herein.”  (emphasis added.) 
Section 1(3). This phrase has been interpreted so as to 
include, inter alia, “ station grounds” , Hastings Commer­
cial Club, et al. v. Chicago Milwaukee & St. Paul Ry. Co., 
et al., 69 I. C. C. 489, 494 (1922) and has been construed 
as vesting in the Commission jurisdiction of railroads and 
all of their physical facilities. 2 Sharfman, T he I nter­
state Commerce Commission, p. 5, 1931.



16

In addition, in specific instances the Interstate Com­
merce Commission has indicated that it would exercise 
jurisdiction over restaurant and similar facilities in rail­
road terminals where discrimination resulted from their 
operation. Southwestern Produce Distributors v. Wabash 
R. R. Co., 20 I. C. C. 458 (1911), Crosby v. St. Louis, Scm 
Francisco Ry. et al., 112 I. C. C. 239 (1926).

Southwestern Produce Distributors v. Wabash R. R. Co., 
supra, cited by the Examiner at sheet 17 of his proposed 
report as precedent for holding that the Interstate Com­
merce Commission has no jurisdiction over the operation 
of station lunchrooms, is in fact authority for quite the 
opposite proposition. In that case the Commission held 
that the defendant railroad, which had given the use of its 
terminal premises to a company for the purpose of con­
ducting a fruit auction, did not unjustly discriminate 
against plaintiff by refusing to accord it equal facilities 
for conducting such operations. But the basis for the hold­
ing was that while a common carrier must serve the travel­
ing and shipping public on equal terms, the carrier owed 
no duty to a plaintiff who fell into neither class.

The Commission emphasized that its holding was predi­
cated on the fact that the evidence disclosed no discrimina­
tion against shippers or members of the traveling public. 
After equating the auction with restaurants and other 
facilities conducted on terminal property, the Commission 
held that it was without authority to act “ unless in some 
way, such use of a terminal property [for an auction] cre­
ates preferences or discriminations as between shippers or 
travelers.”  [emphasis added]. If this were the fact, the 
Commission declaimed, the case “ might stand in quite a 
different light.”

In Crosby v. St. Louis San Francisco Ry. et al., supra, 
the Commission again indicated that where ample proof of



17

discrimination was produced, it would prohibit such dis­
crimination in restaurant facilities on a carrier’s terminal 
premises. In that case defendant filed motions to dis­
miss the specifications in plaintiffs’ complaint on the ground 
that the allegations even if true did not constitute violations 
of the Act. Defendant’s motions were sustained except as 
to certain allegations, among which was plaintiff’s com­
plaint that Negro passengers were discriminated against 
in restaurant facilities furnished at defendant’s depot. 
Although the Commission later held for defendant on the 
ground that plaintiff had not produced sufficient evidence 
to warrant the finding of undue prejudice, it specifically 
assumed jurisdiction of plaintiff’s claim that the opera­
tion of a restaurant in defendant’s terminal resulted in 
undue discrimination.

Thus, the Interstate Commerce Commission has indi­
cated that where undue prejudice in the operation of ter­
minal restaurant facilities is proved (as it has been in the 
instant case), the Commission will exei'cise its jurisdiction 
to prohibit such discrimination.

Dayton Union Ry. Co., 256 I. C. C. 289 (1943) is not 
authority to the contrary. There the Commission held 
merely that Section 6 of the Interstate Commerce Act 
required defendant carrier to file a tariff stating the 
charge made by it for the service of carrying baggage 
by its porters in railway stations. The Commission, in 
passing, distinguished redcap service from other con­
veniences including lunch counter services which a rail­
road might provide. In making this distinction, the Com­
mission employed language quite similar to that used in 
Southwestern Produce Distributors v. Wabash R. R. Co., 
supra, and nowhere even implied that the Interstate Com­
merce Commission was without authority or jurisdiction to 
halt discrimination against Negroes traveling in interstate



18

commerce, arising out of the operation of restaurant facili­
ties on an interstate carrier’s terminal property.

Nor does Dining Car Employees Union v. Atchison, 
Topeka £  Sante Fe Ry., 263 I. C. C. 789 (1945) aid defend­
ant’s cause. There the Interstate Commerce Commission 
held that it was not unlawful discrimination for railroads 
to issue free transportation to some of its employees while 
refusing to issue them to plaintiffs. This holding was in 
harmony with the ruling of the Supreme Court in Louisville 
& Nashville R.R. Co. v. United States, 282 U. S. 740 (1931) 
that the distribution of free passes is an exceptional case 
not within the purview of Section 3(1) because special 
provision is made for it in other sections of the Interstate 
Commerce Act (specifically Sections 1 and 22). Thus, 
holdings in pass cases have no application to other cases 
brought under Section 3(1) of the Interstate Commerce 
Act and do not support the contention that the Com­
mission lacks jurisdiction to prohibit the type of dis­
crimination complained of here. Both court decisions and 
holdings of the Commission itself leave no doubt that the 
Commission has power to require the restaurant facilities 
operated upon terminal property be open to all members 
of the travelling public without distinction as to race or 
color.

Conclusion

W herefore, for the reasons hereinabove stated, it is 
respectfully submitted that those portions of the report 
proposed by the Examiner, Howard Hosmer, which would 
hold that restaurant facilities in railway stations are not 
subject to the Interstate Commerce Act be rejected and 
an order issued granting complainants, intervenors and



19

all the Negro travelling public relief against being sub­
jected to racial discrimination in the use and enjoyment 
of restaurant facilities operated within railroad stations. 
In all other particulars we respectfully submit that the 
proposed report should be adopted.

Robert L. Carter,
T hurgood M arshall,

Attorneys for Complainants 
and Intervenors.

Due Date: January 15, 1955.

Certificate of Service

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

Dated at New York, N. Y., this 14th day of January, 
1955.

R obert L. Carter.



Supreme Printing Co., Inc., 114 W orth Street, N. Y. 13, BEekman 3-2320