Morgan v. Virginia Records and Briefs

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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 OP THE STATE
OF VIRGINIA

FILED DECEMBER 29, 1945.





SUPREME COURT OF THE UNITED STATES

APPEAL FROM THE SUPREME COURT OF APPEALS OF THE STATE

OCTOBER TERM, 1945

No. 704

IRENE MORGAN, APPELLANT, 
vs.

COMMONWEALTH OF VIRGINIA

OF VIRGINIA

IN D E X
Original Print

Proceedings in Supreme Court of Appeals of Virginia..............  1 1
Petition for writ of e r r o r ....................................................................... 1 1

Errors assigned ..................................................................................  2 1
Questions involved ...........................................................................  3 2
Statement of facts ...........................................................................  3 3
Argument .............................................................................................  7 7
Conclusion ..................................................................................................  22 23

Record from Circuit Court of Middlesex County............................ 23 24
Warrant and sheriff’s return............................................................ 23 24
Journal entry of hearing on appeal................................................  26 26
Judgment entry ..................................................................................... 27 28
Order suspending execution of ju d gm en t................................... 29 30
Bill of Exception No. 1— Evidence...........................................  30 30

R. P. Kelly ..................................................................................  30 31
C. M. B r isto w .............................................................................. 36 37
R. B. Segar..................................................................................  37 38
Irene Morgan .............................................................................. 39 40
Estelle F ie ld s .............................................................................. 42 44
Richard Scott ...........................................................................  44 45
W illie Robinson ....................................................................... 45 46
William  Garnett .......................................................................  45 47
Thomas Carter .........................................................................  46 47
Rachel Goldman ....................................................................... 46 47
Ruby Catlett .............................................................................. 46 48

J udd & D etw eiler  ( I nc . ) ,  P rin ters , W a sh in g to n , D . C., F ebruary 4, 1946.

— 2737



11 IN D EX

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 judgm ent..
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 a p p e a l....................................................................
Bond on appeal........................................... (omitted in printing). .
Citation and serv ice ................................(omitted in printing). .
Praecipe for transcript of rec o rd .......................................................
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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49
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52 
55 
78 
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80
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86 
88

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92

Print
49
50
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68 
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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, Micliie 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 be 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



5

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 w’ere 
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
hound bus (R., p. 12), and was entitled to transportation 
between the 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 hoarding 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 Micliie’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



\

designate in each bus seats or portions thereof to be 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 Avliose 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-

8



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 the 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 be 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. E. 50 (1923);

Thomphins 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. Ivy.), 62 F. 46 
(1894);

Brown v. Memphis C. R. Co. (C. C. Tenn.), 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 do 0. Ry. Co., 218 U. S. 71, 30 S. Ct. 
667, 54 L. Ed. 936 (1910);

Chesapeake & 0. 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 
from 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



18

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 Va. 639, 2 S. E. 2d 343 
(1939);

Hannabass v. Ryan, 164 Va. 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 Board v. Jones & Laughlin 
Steel Corp., 301 U. S. 1, 57 S. Ct. 615, 81 L. Ed. 893, 108 
A. L .R . 1352 (1937);

Crowell v. Benson, 285 U. S. 22, 52 S. Ct. 285, 76 L. Ed 
598 (1932);

South Utah Mines & Smelters v. Beaver County, 262 
U. 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);

Be 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 Laivs
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. By. Co., 235 XL S. 151, 35
S. Ct. 69, 59 L. Ed. 169 (1914);

Chiles v. Chesapeake & 0. By. Co., 218 U. S. 71, 30 S. Ct. 
667, 54 L. Ed. 936 (1910);

Chesapeake <& O. By. Co. v. Kentucky, 179 U. S. 388, 21
S. Ct. 101, 45 L. Ed. 244 (1900);

Louisville, N. O. <& T. By. Co. v. Mississippi, 133 U. S. 
587, 10 S. Ct. 348, 33 L. Ed. 784 (1890);

Washington, B. & A. Elec. B. Co. v. Waller, 53 App. 
D. C. 200, 289 F. 598, 30 A. L. R. 50 (1923);

South Covington & C. By. Co. v. Commonwealth, 181 Kv. 
449, 205 S. W. 603 (1918);

McCabe v. Atchison, T. & S. F. By. Co. (C. C. A., 8th), 
186 F. 966 (1911);

State v. Galveston, II. <& S. A. By. Co. (Tex. Civ. App.), 
184 S. W. 227 (1916);

O’Leary v. Illinois Central B. Co., 110 Miss. 46, 69 S. 713 
(1915);

State v. Jenkins, 124 Md. 376, 92 A. 773 (1914);
Chiles v. Chesapeake & O. By. Co., 125 Ivy. 299,101 S. W. 

386 (1907);
Southern Kansas By. 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 B y.’s Beceiver v. Lander, 104 Ivy. 431, 47 

S. W. 344 (1898);
Louisville, N. O. & T. By. 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. By. 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 he 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 he 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 he 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

S tate 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 be 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, Va.

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-



26

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 
he is charged, and shall not depart thence without 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 void 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 of 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

Journal E ntry of H earing— September 25, 1944
This day came the Attorney for the Commonwealth 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 E. 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 Bobinson, 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 be 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



29

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 which 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.



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 her 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 18th 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 17tli 
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.
I rene M organ

Appeal from Trial Justice, Violation of Section 4097dd of
1942 Code

[fol. 30] B ill of E xception N o. 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



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 16tli 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-

31



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, hut 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 tlie stub 
of the ticket o f 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, Va.

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. ( ) Tappahan’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 did; 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 he 
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 wTell-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. Segar.

Direct examination.
R. B. Segar testified that be 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 swore 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 16th 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 
[fol. 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 lier 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 wag not able to find a seat and so had to stand; that 
she did not move when the bus driver came back because 
she was 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 bags 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 11 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 
jail; 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 eacb community and knew wliat 
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.
I rene 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-cliief 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 he 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.
Irene 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 w7ould, 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 27tli 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 k  the Circuit Court op 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 tlie 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, January 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 Vir­
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 new 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 which action of the Court 
the defendant excepted.

V i r g i n i a :

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

Irene 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 Resisting 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 of A ppeals of V irginia 

Record No. 2974 

Present: All the Justices.

Irene M organ

v.
Commonwealth of V irginia

From the Circuit Court of the County of Middlesex 
J. Douglas Mitchell, Judge

Opinion by Justice 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 was 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, wlio 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 his 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 
[fob 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 he 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 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, 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.

Tbe 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.



60

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 vai’ious 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] Micliie’s Code of 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 United 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 carrv 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. BeCuir, 95 U. S. 485, 24 L. ed. 547; McCabe 
v. Atchison T. & 8. 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 R. 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 but 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



6 2

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 Ilart v. State, 100 
Md. 595, 60 Atl. 457; Carrey v. Spencer, 72 N. Y. S. R. 
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 Vir­
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, Yol. 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 H. R. 
182, (Congressional Record, Yol. 84, part 1, p. 27), and



65

again referred to tlie 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 II. 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 II. 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-Wliite 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



66

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 hound 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.

If 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 Avelfare. 
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 the front and rear of the bus, respectively. The 
result would be that the Segregation Act in its entirety 
would effectively be disrupted.

The point raised for the first time in the defendant’s 
reply brief that the Act is not constitutional because it 
delegates legislative power to a private corporation brings 
into the case a question not raised in the 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 
the attempt to inject it into the case for the first time by 
asserting it in the 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 had been properly raised. 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- 
[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; Scmmelson 
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 & Cincinnati 
Bridge Co. v. Kentucky, supra, where the State is allowed 
to act in the absence of legislation in this field by Congress. 
If 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 Supreme 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 P etition 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 Denying 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 o f  A ppeals o f  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 June, 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 fine 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 liy 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 
decisiop 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, 
Thurgood 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 or 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 be 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. 
Ray Doubles. Omitted in printing.

[fol. 86] I n the Supreme Court oe A ppeals op V irginia

[Title omitted]

P raecipe por T ranscript op 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



73

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 Vii1- 
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 pi'aecipe, 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,



74

and is to be filed in the Office of the Clerk of the Supreme 
Court of the United States within forty (40) days from the 
19th day of November, 1945.

Irene Morgan, Appellant, by William H. Hastie, 
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] In the Supreme Court of the U nited States

Statement of P oints on w h ich  A ppellant I ntends to
R ely and Designation of Parts of R ecord— Piled 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 he 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 Facts”  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 Virginia.

William H. Hastie, Spottswood W. Robinson, III, 
Attoi’ney for Appellant.

Service acknowledged this 29tlx day of December, 1945.
Abram P. Staples, Attorney for Appellee.

[fob 89a] [File endorsement omitted.]

[fob 90] I n the Supreme Court of the U nited S tates

Designation of A ppellee of A dditional Parts of R ecord to 
B e Printed— 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] S upreme Court of the U nited States

Order N oting P robable Jurisdiction— 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.

** /A
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)







IN  TH E

#it;tnniu' Court of the Ittttrfc States
October T erm, 1945

No. 704

IRENE MORGAN,

vs.
Appellant,

COMMONWEALTH OF VIRGINIA.

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 Below ______________________________________ 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



Table of Cases.

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. & O. 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-----------------------------------------------------------------------  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

ii
PAGE



Ill

McCabe v. Atcheson, Topeka and Santa Fe Rv. 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 IT. 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 U. S. 553________15, 36
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____    32
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______________________________________ 12
Western Union Tel. Co. v. Pendleton, 122 U. S. 347____ 11

PAGE



IV

Table of Statutes.

PAGE
A  I fl h / l  TY1 Q _

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, MicMe (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 _________________________________19,23

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

Louisiana—
Acts, 1910, No. 206_______________________________  25
Criminal Code (Dart) 1932, Arts. 1128-1130..... .......  25
General Statutes (Dart) 1939—

Secs. 8130-8132, 8181 to 8189___________________ 19
Secs. 5307-5309 _______________________________  20

Maine—
Revised Statutes, 1930, Ch. 134, Secs. 7-10_________  19

Maryland—
Code (Flack) 1939, Art. 2 7 -

Sec. 445 _____________________________________21,23
Secs. 510-516 ________________________________  19
Secs. 517-520 _________________________________  20
Art. 27, Sec. 438______________________________  22

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 
147 __________________________________________  19

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

PAGE



VI

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_________________  23
General Statutes, 1943—

Sec. 14-181 ___________________________________ 23
Sec. 51-3 _____________________________________ 23
Secs. 60-94 to 60-97____________________19,20,21,22
Secs. 60-135 to 60-137 ________________________  19
Sec. 62-109 ___________________________    20
Sec. 115-2 ___________________________________23,25

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

PAGE



Oregon—
Compiled Laws, 1940, Sec. 23-1010-------------------------  23

Pennsylvania—
Statutes (Purdon)—

Title 18, Sec. 1211 ___________________________  19
Title 18, Secs. 4653-4655 ______________________ 19

Rhode Island—
General Laws, 1938—

Ch. 606, Secs. 27-28____________________________  19
Ch. 612, Secs. 47-48____________________________  19

South Carolina—
Code, 1942-

Sec. 8396 ___________________________________ 19, 20
Sec. 8399 ___________________________________21,22
Secs. 8490-8498 ______________________________  19
Secs. 8530-8531 ______________________________  20

Constitution, Article III, Sec. 33--------------------------- 23
Tennessee—

Code (Michie) 1938-
Secs. 5518-5520______________________________ 19,22
Secs. 5527-5532 ______________________________  19
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

V ll
PAGE



V lll

United States Code, Title 48—
PAGE

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 
Code (Michie) 1942-

Sec. 67 _________
Sec. 3928 _______
Secs. 3962-68 ___
Secs. 3978-83 ___
Secs. 4022-26 ___
Secs. 4097z-dd —
Sec. 4097z ______
Sec. 4097aa _____
Sec. 4097cc _____
Sec. 4097dd ____
Sec. 5099a ---------

Washington—
Rev. Statutes (Remington) 1932, Sec. 2686_____ 19

Wisconsin—
Statutes, 1941, Sec. 340.75

___________ 23
___________ 26
.18,19, 21, 22, 26 

.18,19
__________18,20
___________4, 20
___________4,18
________ __4,18
___________5,18
______ 2, 3, 5,18
___________  25

19



IN  TH E

§>upx?m? Court of tljr Httttrii ^tatro
October T erm, 1945

No. 704

I rene M organ,

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 filed 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; 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 
as it may be 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-



5

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 

(his 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.



8

ARGUMENT

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 *

*95 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 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,4 Chiles v. 
Chesapeake & Ohio Ry. Co.,5 6 and McCabe v. Atchison, 
Topeka and Santa Fe Ry. Co.,0 this Court discussed Hall 
v. DeCuir and reaffirmed and restated with approval the 
reasoning of that case.

2133 U. S. 587.
3163 U. S. 537.
4179 U. S. 388.
5 218 U. S. 71.
6 235 U. S. 151.



1 0

In South Covington & C. St. Ry. Co. v. Kentucky,7 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,8 and 
on this basis affirmed the conviction. This Court made a

7 252 IT s 399
8 181 Ky. 449, 205 S. W. 603.



1 1

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.9 Mr. 
Justice Day, 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. ’ ’ 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 M issou ri v. K ansas Natural Gas C o., 265 U. S. 298, 310; South  

Covington &  C . S t. R y . C o. v. Covington, 235 U. S. 537, 548; M in n e­
sota R ate Cases, 230 U. S. 352, 401; H a n ley v. K ansas C ity Southern  
R y . C o., 187 U. S. 617, 620; Louisville &  N . R . Co. v. Eubank, 184 
U. S. 27, 40; Cleveland, C. C . &  S t. L . R y . Co. v. Illinois, 177 U. S. 
514, 518; R h od es v. Iow a , 170 U. S. 412, 424; Covington  &  C . B ridge  
Co. v. K en tu ck y , 154 U. S. 204, 215; B ow m a n  v. Chicago &  N . W . R . 
Co., 125 U. S. 465, 486; W este rn  Union Tel. C o. v. Pendleton, 122 
U. S. 347, 357; W abash, S t. L . &  P . R y . C o. v. Illinois, 118 U. S. 
557, 565.

12 325 U. S. 761.



1 2

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 W ashington, B . &  A .  R y . v. W aller, 53 App. D. C. 200, 289 
Fed. 598; T om pkin s v. M issou ri, K .  &  T . R y ., 211 Fed. 391 (C. C. 
A. 8th); A n d erson  v. L ouisville &  N . R . C o., 62 Fed. 46 (C. C. Ky.); 
B row n  v. M em p h is &  C. R . C o., 5 Fed. 499 (C. C. Term.).

14 State e x  rel. A b b o tt v. H ick s, 44 La. Ann. 770, 11 So. 74; H art 
v. State, 100 Md. 595, 60 Atl. 457; C arrey v. S pen cer, 36 N. Y. 
Supp. 886; State v. Galveston H . &  S . A .  R y . C o. (Tex. Civ. App.), 
184 S. W. 227; H u ff v. N orfolk -S ou th ern  R . C o., 171 N. C. 203, 88 
S. E. 344. Contra: Illinois Central R . C o. v. R edm on d, 119 Miss. 765, 
81 So. 115; Sm ith  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 Valley 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

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.” 16 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 V easie v. M o o r , 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 
Kelly v. Washington 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.: Sou th  Carolina H ig h w a y D ep t. v. Barnw ell B ros., Inc., 
303 U. S. 177; E rie  R . R . v. Public U tility C om m issioners, 254 U. S. 
394; M org a n ’s L . &  T . R . R . &  Steam ship Co. v. Louisiana, 118 
U. S. 455.

211 Buck v. K uykendall, 267 U. S. 307; Pennsylvania v. W e s t  V ir­
ginia, 262 U. S. 553; Chicago. B . &  Q . R . Co. v. Railroad C om m is­
sion of W iscon sin , 237 U. S. 220; B ow m a n  v. Chicago &  N . W .  R . 
Co., 125 U. S. 465; South C ovington  &  C. S t. R y . Co. v. Covington, 
235 U. S. 537; W abash S t. L . &  P . R y . C o. v. Illinois, 118 U. S. 557.

21302 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 e s t  V ir ­
ginia, 262 U. S. 553, particularly at 596-7. In D i Santo v. P en n syl­
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 14th 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

23 Crandall v. N evada, 6  Wall. 35; cf. concurring opinion in 
E dw ards 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 widespread 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-

24Cal. 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.



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

2 0

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. S ou th  C ovington  &  C. St. 
R y . C o. v. Com m onw ealth, 181 Ky. 449, 205 S. W. 603; Chiles v. 
Chesapeake &  O . R y . C o., 125 Ky. 299, 101 S. W. 386; O hio Valley 
R y . ’s R eceiver  v. Lander, 104 Ky. 431, 47 S. W. 344; Chesapeake &  
O . R y . C o. v. State, 21 Ky. L. 228, 51 S. W. 160.



2 1

passes into Tennessee, the interstate passenger is again 
segregated.30 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.31 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;32 
two except narrow gauge and branch lines;33 one excepts 
relief trains;34 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 Sm ith 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.

33 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 ;36 and Virginia and seven 
other states except freight trains and cabooses.37

Unlike the antithetical Civil Eights 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

3« 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,89 
or all persons of Negro or African descent,39 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-eighth44 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).

42 Fla. 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.46 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 L e e  v. N e w  Orleans G . N . R y ., 125 La. 236, 51 S. 182.

40 Compare Tucker v. Blease, 97 S. C. 303, 81 S. E. 668 with 
M orea u  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.



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. G en try v. M cM in n is , 
33 Ky. 382. However, in M ullins 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.” A delle  
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. L e e  v. N e w  Orleans 
G. N . R y ., 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. Trcadaway, 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. Crim. Code (Dart), 1932, Art. 1128-1130. The 
effect of the change is yet to be determined.

(Continued on page 26)



26

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
(Continued from page 25)

North Carolina: On the issue of what children of mixed blood, if 
any, should be permitted to attend white schools, it was held in H are  
v. B oard 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.40 
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 .49 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.
50 See notes 13 and 14 supra, p. 12.
51 Md. 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.



2 8

Conclusion

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,
L eon A. R ansom,
T hurgood M arshall,

Attorneys for Appellant.

S pottswood W . R obinson, 3rd, 
Of Counsel.



29

APPENDIX A  

Michle— Virginia Code

4097z. Segregation 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. D rivers are Special P olicemen W ith  P owers 
oe Conservators op 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 Passengers; 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.)



L a w y e r s  P ress, I n c ., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300







IN  TH E

§u;tmiu' Court of tlir llntU'it #tatro
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 iiurgood 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 hut separate 
accommodations for the white and colored races, by pro­
viding tw7o 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 a'nd separate ticket 
windows for the white and colored races but 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 carry 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, he 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 coaches 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 he 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 he 
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 he 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 by race he 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 
cari’y 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. Eaces 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.



1 0

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. Designation— 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 Person 
in Charge of Such  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. Passenger 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.



1 2

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 with 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. N ot A pplicable to Certain M otor 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-eighth 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 cars.—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 white 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 
he 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 the 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.



1 6

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 18-2io 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.



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 white 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 prescribe.

18

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 Color; M arriage; 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 be 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 of 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,



2 0

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. If 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



2 1

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 
be 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



2 2

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 
ease 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 he 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 iState 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 be 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. I f an answer be received within 
ten days, showing the statement of such applicant to be 
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 from 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 be 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.



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 be 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 
his 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 hut 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 fine 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 be 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



SI

for eacli 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 he 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 o f the 
Malay race, or between negroes and members of the Malay 
race, or between persons of negro descent, to the 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 by 
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 substantia] 
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 be 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 
coacli 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 Maiyland 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 be deemed 
guilty of a misdemeanor, and upon indictment in any court 
having jurisdiction, and conviction thereof, shall be 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 be 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.



35

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-eighth or more of negro blood, or with a Mon­
golian or a person who shall have one-eightli 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, but 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 than 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-eiglitli 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 bv 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 Eobeson 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 Avhom 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 
has 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 be 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, Avliile 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 be 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 be 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

vicled 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 he 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 he 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 uniting room not set apart for the race to 
which he belongs, he shall he guilty of a misdemeanor, and 
upon conviction shall be fined not less than five nor more 
Ilian twenty-five dollars.

Should any passenger 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 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 pavyer 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 the 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 term “ 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 
with 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 he guilty of a misdemeanor and upon conviction 
thereof shall he 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 
he 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 
be feasible and reasonable in the circumstances, and the 
regulations established by the commission pui’suant 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) Bequired—pen­
alties.—All passenger motor vehicle carriers, operating in 
the State of South Carolina shall separate the white and 
colored 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 he 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-eiglith 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 he 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 he 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 be occupied by white passen­
gers, and a portion thereof or certain seats therein to he 
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,



54

on which shall be printed or painted, if set apart or desig­
nated for the white people, and it being a car so designated 
or set apart, ‘ ‘ This car for white people. ”  If 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.”  I f 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 be 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.



55

Section 5532 3079a6. Special cars for exclusive accom­
modation of either race.— Nothing- in this article 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 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, cli. 19, sec. 1; 1870, ch. 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 viiite 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

easian blood or their descendants to intermarry with Afri­
cans or the descendants of Africans. If any person shall 
violate any provision of this article, such marriage shall he 
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 words 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.



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 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.

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.]

Texas, 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 who 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, 44th 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 hut 
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.

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,



6 0

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 (Michie), 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 Americaii 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 tlie race for which it is set apart. (Id., ch. 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 he 
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 moi’e 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 cai’s 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, ch. 4, Section 42; 1906, 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



G4

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 eiglity-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 such 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 be 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, cli. 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,



6 6

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-



67

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.

*





I n  T h e

(tart of tbr llnttrb t̂atro
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

W illiam H . H astie 
L eon A . Ransom 
T hurgood M arshall „ 

Attorneys for Appellant

Spottswood W. R obinson, III 
Of Counsel

Printed by Law Reporter Ptg. Co., 518 5th St., Washington, D. C.



'

1

.

1



TABLE OF CONTENTS
PAGE

A uthority 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. Kuykendall, 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
Hirabayashi v. United States, 320 U. S. 81__________  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 _______________________
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________________________
Federal Fugitive Felon Act, 48 Stat. 782____________

9
7

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I n  T h e

(tart of %  $nttrfc
October T erm, 1945

No. 704

Irene M organ 
Appellant

vs.

Commonwealth of V irginia

A ppeal from the S upreme 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



2

arguing the Commonwealth has failed to recognize the 
essential difference between the considerations involved in 
determining whether a permissible regulation or classifi­
cation lias 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 14th 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 prob­
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.

3 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 
be 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 but 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.0 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 Avhich requires the carrier to

4 See Record page 60.
5 Bradley v. Public Utilities Commission of Ohio, 289 U. S. 92.
0 Buck v. Kuykendall, 267 U. S. 307; Bush Company v. Maloy, 267 

U. S. 317.
7 Hicklin 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,0 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.
” Hendrick v. Maryland, 235 U. S. 610; Kane v. New Jerseys, 242 U. S. 

160; Morf v. Bingaman, 298 U. S. 407.
“ 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 bui'den appellant had a direct interest, and the 
decided cases have uniformly recognized her standing to 
complain.13

The basic fallacy in the Commonwealth’s argument is the 
assumption that the statute burdens only the carrier. See-

u Crandall v. Nevada, 6 Wall. 35; see also Twining v. New Jersey, 211 
U. S. 78; Williams v. Fears, 179 U. S. 270.

12 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, c. 302, 48 Stat. 782, 18 
U. S. C. Sec. 408e.

13 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 
At], 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 ll

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 Iloll 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 
carrier 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. Ransom 
T hurgood M arshall 

Attorneys for Appellant

Spottswood W . R obinson, III  
Of Counsel

1818 Stat. 335.
19 See Hirabayashi v. United States, 320 U. S. 81, 100.
x Id.  at 110.





IN  T H E

(Emtrt of tip lluiti  ̂States
O c t o b e r  T e r m , 1945

No. 704

IRENE MORGAN, Appellant

v.
COMMONWEALTH OF VIRGINIA, Appellee

ON APPEAE FROM THE SUPREME COURT OF APPEALS OF VIRGINIA

MOTION FOR LEAVE TO FILE BRIEF AS A M IC U S  
C U R IA E  AND BRIEF IN SUPPORT THEREFOF

A merican Civil L iberties 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.





I N D E X

PAGE

M otion for 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

IT. The statute is unconstitutional under the due
process clause of the Fourteenth Amendment.... 7

III. The statute is unconstitutional under the ecjual
protection clause of the Fourteenth Amendment 12

Conclusion ....................................................................................  15

Cases Cited

Hebring v. Lee, 280 U. S. I l l  ........................................ 4
Morely v. Georgia, 279 U. S. 1 ................................ 10
So. Covington, etc., R. Companv v. Kentucky, 252 

U. S. 399 ....................................................................... 3
Washington ex rel. Seattle Title Trust Co. v. Roberge,

278 U. S. 116 ...............................................................  12
Yick W o 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  T H E

^uprrmr (ta rt of tljr llmtrJi Stairs
O c t o b e r  T e r m , 1945

No. 704

Irene M organ, Appellant,

v.

Commonwealth of V irginia, Appellee.

ON APPEAL FROM THE SUPREME COURT OF APPEALS 

OF VIRGINIA

Motion for Leave to File Brief as Amicus Curiae

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  T H E

Supreme (ta rt nf tljr 1  n\t?b State's
O c t o b e r  T e r m , 1945

No. 704

Irene M organ, Appellant, 

v.

Commonwealth of V irginia, Appellee.

---------- m i m -------------

ON APPEAL FROM THE SUPREME COURT OF APPEALS 

OF VIRGINIA

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
A M IC U S  C U R IA 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, See. 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 Amendment.

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. I f 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 tbe case 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 has 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 Burden on the Passenger.—Interstate com­
merce is also burdened by the statute under consideration



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 comes 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 he 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. 4097z). 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 bus 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 Avhite 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 Avithin the arbitrary judgment of the 
driver. No matter Iioav 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 di\riding 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-



10

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 di’iver 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



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 how 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.

In 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-



1 2

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 would 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



1 3

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 IT. 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



1 4

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 quality 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 be 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 L iberties 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.





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