Sipuel v Board of Regents of UOK Transcript of Record

    IN' THE

(Emtrt of tlie United States
October T erm, 1945

No. 704

IRENE MORGAN, 

vs.
Appellant,

COMMONWEALTH OF VIRGINIA.

^a){l . i  --------- ............................................................................................................ -LL'Ul^ a S *

BRIEF FOR APPELLANT
<f.g|r—••—~~r~~7T —   ------------------------------ — - - — - t—-  ... . . .  ...... -  . ■ ■ -= : -~ j= r r r = = r = » i!,A

W illiam H. H astie,
L eon A. R ansom,
T htjrgood M arshall,

Attorneys for Appellant.

Spottswood W . R obinson, 3rd,
Of Counsel.



I



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 Belied 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______________________ 1___________________ 8

II Regulations Concerning Racial Segregation in Inter­
state Commerce Fall Within the Area of Exclusive 
National Power as Judicially Defined___...________  14
A. State Statutes in This Field Are So Numerous

and Diverse That Their Imposition on Interstate 
Commerce Would Be an Intolerable Burden_____  17

B. The Racial Arrangement of Interstate Passen­
gers Within a Vehicle in Transit Across a State
Is Not a Matter of Substantial Local Concern.... 26

Conclusion _____________________   28
Appendix A __________________ .______________________  29



11

Table of Cases.

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. Term.) .. 12 
Buck v. Kuykendall, 267 IJ. 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__________ i____________________________  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 IJ. 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 __________________________ _________ i__________ 9
Louisville & N, R, Co, v, Eubank, 184 U. S. 27_________  11

PAGE



I l l

McCabe v. Atcheson, Topeka and Santa Fe Ry. Co., 235
U. S. 151_________________________________________  9

Minnesota Rate Cases, 230 U. S. 352----------------~--------- 11
Missouri v. Kansas Natural Gas Co., 265 U. S. 298._.......  11
Moreau v. Grandieli, 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— ------- 15,16
Plessy v. Ferguson, 163 U. S. 537-------------------------------  9
Rhodes v. Iowa, 170 IT. S. 412------------------------- __1.------  11
Smith v. State, 100 Tenn. 494, 46 S. W. 566__________ 12, 21
South Carolina Highway Dept. v. Barnwell Bros., Inc.,

303 IT. 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 IT. S.

399 _____________________________________________ 10, 11
South Pacific Co. v. Arizona, 325 IT. S. 761__________ 11,14
State ex rel. Abbott v. Hicks, 44 L. Ann. 770, 11 So. 74 . 12 
State v. Galveston H. & S. A. Ry. Co. (Tex. Civ. App.)

184 S. W. 227______ ________ -_________________ ____ 12
Theophanis v. Theophanis, 244 Ky. 689, 57 S. W. (2d)

957 _______________________________________-______  25
Tompkins v. Missouri, K. & T. Ry., 211 Fed. 391 (C. C.

A. 8th) ________ -______________ _______ _________ _ 12
Tucker v. Blease, 97 S. C. 303, 81 S. E. 668  — -------24
Veazie v. Moor, 14 How. 568__________________________  14
Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U. S. 557___ 11
Washington, B. & A. Ry. v. Waller, 53 App. D. C. 200,

289 Fed. 598_____________________________________  12
Western Union Tel. Co. v. Pendleton, 122 U. S. 347—- -  11

PAGE



IV

Table of Statutes.

PAGE
Alabama—-

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 J l _____________ ..._____ 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, Michie (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

K entucky-
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 ______________2_____ _ _ _______  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------------------1------..... 23
Texas—

Civil Statute (Vernon) 1936—
Sec. 2900 _____________________________________ 23
Sec. 6417 _______________________19, 20, 21, 22, 23, 26
Sec. 4477 ____________   26
Sec. 4607 ____v,______________ ________— .........  23

Penal Code (Vernon) 1936—
Sec. 493 ______________________________________ 23
Secs. 1659-1660 __________________________ 19,21,22
Sec. 1661.1 __________________________________  20

V ll
PAGE



PAGE
viii

United States Code, Title 48—
Sec. 344(a) _____________._____________________  1
Sec. 861(a) ____________________...._____________ 1

Constitution—
Art. I, Sec. 8_________________________________  3, 6
Amendment X IV  __________________________ .... 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____________________ 19

-__________ 4

L _~ ______  23
__________  26
18,19, 21, 22, 26
_____ __ 18,19
_________ 18, 20
__________4, 20
_____ _____ 4,18
_____________  4,18
__________ 5,18
______2, 3, 5,18
---------------- 25



IN THE

C o u r t  o f  tl|£ S t a t e s

October T erm, 1945

No. 704

I rene M organ,

vs.
Appellant,

Commonwealth oe 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 (E. 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 d o ; 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



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 
(E. 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 o f law and not the rule of the carrier”  (E. 67). (Italics 
ours.)

In this view of the case it is understandable that the 
appellee made no effort to justify the rules and regulations 
of the bus company on the basis of reasonableness or ne­
cessity other than the requirements of the statutes of Vir­
ginia. For all intents and purposes this case stands as if 
the rules and regulations adopted pursuant to the statute 
became a part of the statute itself.

Errors Relied Upon 

I
The Supreme Court of Appeals of Virginia erred in 

rendering judgment affirming the judgment of the Circuit 
Court of the County of Middlesex, Virginia, holding that 
the statute of the State of Virginia, known as Chapter 128, 
Acts of Assembly of 1930, pages 343-344, as applied to 
appellant, a passenger traveling on an interstate journey 
in a vehicle moving in interstate commerce, is not repug­
nant to the provisions of Clause 3 of Section 8 of Article I 
of the Constitution of the United States.



7

II

The Supreme Court of Appeals of Virginia erred in 
rendering judgment affirming the judgment of the Circuit 
Court of the County of Middlesex, Virginia, holding that 
the powers reserved to the States under the Tenth Amend­
ment of the Constitution of the United States include the 
power to enforce a state statute compelling the racial segre­
gation of passengers on public carriers against a person 
traveling on an interstate journey in a vehicle moving in 
interstate commerce.

Summary of Argument

For seventy years the decisions and pronouncements of 
this Court have consistently condemned state statutes at­
tempting to control or require the segregation of Negro 
passengers moving- in interstate commerce on public car­
riers as unconstitutional invasions of an area where na­
tional power under the commerce clause is exclusive. Un­
less the reasoning of those cases was or is unsound, they 
should be followed.

The nature of the subject matter, the direct impact of 
segregation statutes on the interstate movement of persons 
in commerce, and the burdensome and disruptive effect of 
numerous and conflicting local enactments in this field all 
indicate the correctness of the doctrine which places this 
aspect of interstate commerce beyond state control. The 
transitory status of the interstate passenger and the lack 
of any uniform or consistent coverage of Negro travelers 
in the segregation laws of the several states, including Vir­
ginia, show the unsubstantial character of the State’s claim 
of legitimate concern with this matter. Such capricious 
application of provincial notions beyond substantial local 
needs affords no valid basis for the regulation of interstate 
commerce which Virginia is attempting.



s

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

1 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 4 The state 
court had limited the operation of the law to, intrastate 
commerce, and the argument centered around constitutional 
provisions other than the commerce clause. The Court dis­
cussed Hall v. DeCuir, and pointed out that in the latter 
case the vice of the statute was that it affected interstate 
commerce, thus indicating that the decision in the Plessy 
case would have been different had the statute involved 
extended to interstate passengers.

In more recent cases concerning segregation in trans­
portation, Chesapeake & 0. Ry. Co. v. Kentucky * Chiles v. 
Chesapeake & Ohio Ry. Co.,5 6 and McCabe v. Atchison, 
Topeka and Santa Fe Ry. Co.,3 this Court discussed Hall 
v. DeCuir and reaffirmed and restated with approval the 
reasoning of that case.

2 133 U. S. 587.
3 163 U. S. 537.
4 179 U. S. 388.
5 218 U. S. 71.
6 235 U. S. 151.



1 0

In South Covington & C. St. Ry. Co. v. Kentucky? de­
fendant, a Kentucky corporation, had been authorized by 
its charter to operate a street railway in and around Coving­
ton, Kentucky, and to acquire and operate any other street 
railway in that vicinity which included the City of Cincin­
nati, Ohio. Defendant became the owner of all of the stock 
of another Kentucky corporation, herein designated as the 
“ C”  Company, authorized to construct and maintain an 
electric railroad between Covington and Erlanger, Ken­
tucky, and beyond. Both companies were operated under 
the same management and under the <(C”  Company’s name. 
A fare of five cents was charged for passage upon any point 
on the road of the “ C”  Company to any point on the system 
of the defendant, and transfers were given for all connect­
ing lines. Many persons taking passage on the line of the 
“ C ”  Company in Kentucky were transported without 
change of cars into Cincinnati over defendant’s line. Each 
terminus, as well as each of the stations, of the “ C”  Com­
pany, was in Kentucky. Defendant was indicted and con­
victed for failure to comply with the Kentucky statute re- 
quiiing sepaiate but equal accommodations for the races, 
in a car which operated out of Cincinnati but continued 
through and beyond Covington, with its Kentucky run over 
the “ C”  Company route. The defense was that the prin­
cipal business of defendant was interstate in character, and 
that the statute could not validly apply to it. However, 
the Court of Appeals of Kentucky held that the defendant’s 
operation over the line of the “ C”  Company was a distinct 
enterprise within Kentucky to which Kentucky law applied, 
pointing out at the same time that the statute had no appli­
cation to the transportation of interstate passengers,7 8 and 
on this basis affirmed the conviction. This Court made a

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



11

similar analysis of the situation and affirmed the judgment. 
In the majority opinion it was made plain that the Justices 
regarded the subject matter upon which the statute oper­
ated as intrastate rather than interstate commerce.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 11

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.13 
Most recently, in Southern Pacific Co. v. Arizona,12 decided 
June 18, 1945, this Court stated that “ the commerce clause 
has been held to invalidate local ‘ police power’ enact­
ments—regulating the segregation of colored passengers in 
interstate trains, Hall v. DeCuir

The decisions of other courts likewise reflect substantial 
agreement that state laws of the kind involved in the in-

9 252 U. S. at 403, 404.
10 252 U. S. at 407.
11 Missouri v. Kansas Natural Gas Co., 265 U. S. 298, 310; South 

Covington & C. St. Ry. Co. v. Covington, 235 U. S. 537, 548; Minne­
sota Rate Cases, 230 U. S. 352, 401; Hanley v. Kansas City Southern 
Ry. Co., 187 U. S. 617, 620; Louisville & N. R. Co. v. Eubank, 184 
U. S. 27, 40; Cleveland, C. C. & St. L. Ry. Co. v. Illinois, 177 U. S. 
514, 518; Rhodes v. Iowa, 170 U. S. 412, 424; Covington & C. Bridge 
Co. v. Kentucky, 154 U. S. 204, 215 ; Bowman v. Chicago & N. W . R. 
Co., 125 U. S. 465, 486; Western Union Tel. Co. v. Pendleton, 122 
U. S. 347, 357; Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U. S. 
557, 565.

12 325 U. S. 761.



12

stant case cannot constitutionally be applied to passengers 
traveling in interstate commerce. This conclusion lias been 
reached in all of the inferior federal courts which have 
considered the matter,13 and in a majority of the state 
courts as well.14 Analysis of these cases reveals consistency 
in recognition of the basic considerations underlying the 
decision in Hall v. DeCuir, that the national interest in the 
freedom of interstate commerce from diverse and conflicting 
requirements as to rearrangement of passengers must pre­
vail over local notions of racial policy.

The rationale of this entire line of decisions is so clearly 
spelled out in Hart v. State, that quotation from that opinion 
seems appropriate:

“ Although the state has power to adopt reason­
able police regulations to secure the safety and com­
fort of passengers on interstate trains while within 
its borders, it is well settled, as we have seen, that 
it can do nothing which will directly burden or im­
pede the interstate traffic of the carrier, or impair 
the usefulness of its facilities for such traffic. When 
the subject is national in its character and admits 
and requires uniformity of regulation affecting alike 
all the states, the power is in its nature exclusive, 
and the state cannot act. The failure of Congress 
to act as to matters of national character is, as a rule, 
equivalent to a declaration that they shall be free 
from regulation or restriction by any statutory en­
actment, and it is well settled that interstate com­

13 Washington, B. & A . Ry. v. Waller, S3 App. D. C. 200, 289 
Fed. 598; Tompkins v. Missouri, K . & T. Ry., 211 Fed. 391 (C. C. 
A. 8 th ); Anderson v. Louisville & N. R. Co., 62 Fed. 46 (C. C. Ky.) • 
Brown v. Memphis & C. R. Co., 5 Fed. 499 (C. C. Term.).

14 State g* rel. Abbott v. Hicks, 44 La. Ann. 770, 11 So. 74; Hart 
v. State, 100 Md. S9S, 60 Atl. 457; Carrey v. Spencer, 36 N. Y. 
Supp. 886; State v. Galveston H. & S. A . Ry. Co. (Tex. Civ. App.)' 
184 S. W . 227; Huff v. Norfolk-Southern R. Co., 171 N. C. 203, 88 
S. E. 344. Contra: Illinois Central R, Co. v. Redmond, 119 Miss. 765 
81 So. 115; Smith v. State, 100 Tenn. 494, 46 S. W . 566.



13

merce is national in its character. Applying these 
general rules to the particular facts in this case, and 
bearing in mind the application of the expressions 
used in Hall v. DeCuir to cases involving questions 
more or less analogous to that before us, we are 
forced to the conclusion that this statute cannot be 
sustained to the extent of making interstate passen­
gers amenable to its provisions. When a passenger 
enters a car in New York under a contract with a 
carrier to be carried through to the District of Co­
lumbia, if when he reaches the Maryland line, he 
must leave that car, and go into another, regardless 
of the weather, the hour of the day or the night, or 
the condition of his health, it certainly would, in 
many instances, be a great inconvenience and pos­
sible hardship. It might be that he was the only 
person of his color on the train, and no other would 
get on in the State of Maryland, but he, if the law 
is valid against him, must, as soon as he reaches the 
state line, leave the car he started in, and go into 
another, which must be furnished for him, or sub­
ject himself to a criminal punishment. Or take, for 
illustration, the Cumberland 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 16 17

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.” 18 This is 
sound doctrine consistent with judicial exposition and 
analysis of the commerce power as developed over more 
than a century.

From Gibbons v. Ogden17 in 1824 to Southern Pacific 
Co. v. Arizona18 in 1945, this Court has made it clear that

15 100 Md. at 612-613, 60 Atl. at 462-3.
16 See Veazie v. Moor, 14 How 568, 574.
17 9 Wheat. 1.
18 325 U. S. 761.



15

an obvious and basic purpose of the commerce clause is to 
prevent the interruption or disruption of the actual move­
ment of persons and property across state lines by local 
obstacles and impediments. Except where the local imposi­
tion is a reasonable corrective of a clear and substantial 
hazard to the local community created by the interstate 
movement itself,19 this Court has consistently disapproved 
such local interference.20 The language of the court in 
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 .: South Carolina Highway Dept. v. Barnwell Bros., Inc., 
303 U. S. 177; Erie R. R. v. Public Utility Commissioners, 254 U. S. 
394; Morgan’s L. & T. R. R. & Steamship Co. v. Louisiana, 118 
U. S. 455.

20 Buck v. Kuykendall', 267 U. S. 307; Pennsylvania v. West Vir­
ginia, 262 U. S. 553; Chicago B. & Q. R. Co. v. Railroad Commis­
sion of Wisconsin, 237 U. S. 220; Bowman v. Chicago & N. W . R. 
Co., 125 U. S. 465; South Covington & C. St. Ry. Co. v. Covington, 
235 U. S. 537; Wabash St. L. & P. Ry. Co. v. Illinois, 118 U. S. 557.

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 p or such approach and analysis see Pennsylvania v. West Vir­
ginia, 262 U. S. 5S3, particularly at 596-7. In Di Santo v. Pennsyl­
vania, 273 U. S. 34, it is believed that the divergence of majority and 
dissenting opinions is essentially whether the at least prima facie case 
of invalidity arising from the direct impact of the regulation on inter­
state commerce may be rebutted by a showing that there is grave 
local need for such regulation.



17

matter of special concern to the national sovereign. The 
privileges and immunities clause of the 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. Nevada, 6 Wall. 35; cf. concurring opinion in 
Edwards v. California, 314 U. S. 160, 177.



18

and has been since 1900 to separate the white and 
Negro races on public carriers. As to railroads, see 
Acts of 1906, pages 236 and 237, carried in Michie’s 
Code of 1942 as secs. 3962-3968; as to steamboats, 
see Acts of 1900, page 340, carried in Michie’s Code 
1942 as secs. 4022-4025; as to electric or street cars, 
see Acts of 1902-03-04, page 990, carried in Michie’s 
Code 1942 as secs. 3978-3983, and as to motor vehicles 
see Acts of 1930, pages 343 and 344, carried in 
Michie’s Code of 1942 as secs. 4097z, 4097aa, 4097bb, 
4097cc, and 4097dd.”  (R. 60).

It is believed that this Court will take judicial notice of 
the fact that the State of Virginia extending from the 
Atlantic Ocean to the western mountain barrier of the 
Atlantic coastal plain is so located geographically as to 
require the entire body of north and south travel along the 
populous eastern seaboard to pass through that State. It 
is also to be noticed that all persons traveling south and 
southwest from the National Capital or traveling to the 
Capital from those directions must pass through Virginia. 
Thus a very substantial proportion of interstate passenger 
travel in America is necessarily affected by the attempted 
exercise of local policy which is here challenged.

Moreover, the variety and contrariety of policies and 
enactments of the several states with reference to segrega­
tion or non-segregation, as well as the variety and uncer­
tainty of local rules determining the race of an individual 
make it clear that the burden imposed upon and the con­
fusion introduced into interstate travel by the enforcement 
of multitudinous and uncertain regulations in the course of 
a single journey are tremendous.

Legislation affecting these questions is widespread and 
diverse in language and construction and the subject of



19

frequent change. Eighteen states have adopted so-called 
“ Civil Bights 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 26 * street cars,28 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.



2 0

riers 27 and steamboats.28 If all these laws can validly be 
applied to interstate commerce, the very prophesy in Hall 
v. DeCuir becomes a realty.

Furthermore, there is no uniformity even as respects 
the applicability of the several existing segregation laws to 
interstate transportation. Before the Virginia decision in 
the instant case, only two states, Tennessee and Missis- 
sippi, had held that their laws could affect interstate trav­
elers; elsewhere they had been construed, in appropriate 
cases, as limited in their operation to passengers in intra­
state commerce. Assuming a trip from the District of 
Columbia to Louisiana through Virginia, Kentucky, Ten­
nessee, Alabama, and Mississippi, within the District of 
Columbia all passengers have the free run of the vehicle. 
But when Virginia is entered, passengers must move to 
comply with the statute under consideration. As soon, how­
ever, as Kentucky is reached, the interstate passenger 
regains his power of choice as to seats.29 When the vehicle

27 Ala. Code, 1940, Tit. 48, Sec. 268; Ark. Stat., 1937 (Pope), 
Sec. 6921-6927, Laws 1943, p. 379; Fla. Stat., 1941, Sec. 352.03- 
352.08; Ga. Code, 1933, Sec. 68-61£; La. Gen. Stat. (Dart), 1939, 
Sec. 5307-5309 ; Miss. Code, 1942, Sec. 7785; N. C. Gen. Stat. 1943’ 
Sec. 62-109; 47 Okla. Stat. Ann., 201-210; S. C. Code, 1942, Sec. 
8530 (1 ) ; Tex. Rev. Civ. Stat. (Vernon) 1936, Art. 6417; Tex. Pen. 
Code (Vernon) 1936, Art. 1661.1; Va. Code, 1942, Sec. 4097z- 
4097dd.

28 Md. Code (Flack), 1939, Art. 27, Sec. 517-520; N. C. Gen. 
Stat., 1943, Sec. 60-94 to 60-97; S. C. Code, 1942, Sec. 8396; Va 
Code, 1942, Sec. 4022-4026.

29 The Kentucky statutes have consistently been construed as 
limited in operation to intrastate passengers. South Covington & C. St. 
Ry. Co. v. Commonwealth, 181 Ky. 449, 205 S. W . 603; Chiles v. 
Chesapeake & O. Ry. Co., 125 Ky. 299, 101 S. W . 386; Ohio Valley 
Ry.’s Receiver v. Lander, 104 Ky. 431, 47 S. W . 344; Chesapeake & 
O. Ry. Co. v. State, 21 Ky. L. 228, 51 S. W . 160.



2 1

passes into Tennessee, the interstate passenger is again 
segregated.30 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 32 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 ;33 
two except narrow gauge and branch lines;33 one excepts 
relief trains;34 35 one excepts excursion trains;85 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 Svrith v. State, 100 Tenn. 494, 46 S. W . S66.

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 ;* 37 38 and Virginia and seven 
other states except freight trains and cabooses.37

Unlike the antithetical Civil Rights Acts, segregation 
laws require, as a condition to their operation, a division 
of peoples upon a basis of race and, as a necessary con­
comitant thereof, a means whereby the division may be ac­
complished. Dissimilarity in definition of the persons to be 
affected by the law produces in turn a geographical dis­
similarity in the operation of the several laws to the extent 
that carrier and passenger alike are seriously burdened, 
confused and embarrassed. An examination of the law 
of the states where legislative or judicial efforts in this di­
rection have been made reveals that there is much diversity 
and conflict in the rules governing the proportion of “ Negro 
blood”  necessary to classify a person as a “ Negro”  or 
“ colored person” .38

The terms “ colored person”  and “ Negro”  have been 
variously defined as including all persons in whom there is

38 13 Okla. Stat. Ann. 189.

37 Ark. Stat., 1937 (Pope), Sec. 1201; Ky. Stat. Ann. (Carroll, 
1930) Sec. 801; Md. Code (Flack), 1939, Art. 27, Sec. 516; 13 Okla. 
Stat. Ann. 187; S. C. Code (1932) Sec. 8399 (applies to freights 
with one passenger coach attached for local travel) ; Tenn. Code 
(Michie), 1938, Sec. 5518 (if passenger coach is carried, the races 
must be separated) ; Tex. Rev. Civ. Stat. (Vernon, 1936) Art. 6417, 
Tex. Pen. Code (Vernon, 1936) Art. 1660; Va. Code Ann. (Michie^ 
1930) Sec. 3968. In North Carolina the Utilities Commission may 
allow certain lines that run mixed trains to disregard the statute 
because of the small number of Negro passengers. N. C. Gen Stat 
1943, Sec. 60-95.

38 Some states have defined the terms by a general statute. Others 
have defined them only with respect to particular subjects. In some 
states, the definition varies according to the subject under considera­
tion, so that a person may be classified as a colored person or Negro 
for one purpose and as a white person for another. In states where 
no statutory definition has been attempted, the courts are faced with 
the difficulty of deciding the query as best they can.



23

ascertainable any quantum of “ Negro blood’ ’ whatever,39 
or all persons of Negro or African descent,40 or only those 
persons who are of “ Negro blood”  to the third generation 
inclusive,41 or the fourth generation inclusive,42 or who have 
one-fourth43 or one-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 la w ); 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. X X III, Sec. 11; Art. X III, 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 la w ); Art. 4607 (inter-marriage 
law ).

41 Md. Code (Flack), 1939, Art. 27, Sec. 445 (intermarriage); 
N. C. Const., Art. X IV , Sec. 8 (marriage) ; N. C. Gen. Stat., 1943, 
Sec. 51-3 and 14-181 (marriage law) ; Tenn. Const., Art. X I, Sec. 
14 (miscegenation) ; Tenn. Code (Michie), 1938, Sec. 8409 (mis­
cegenation) ; Tex. Pen. Code (Vernon), 1936, Sec. 493 (miscege­
nation).

42 Fla. Const., Art. X V I, 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. I l l , 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.48 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 
cairier 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.

4" Arkansas, Oklahoma, Texas. See ante, footnotes 39 40. See 
also Lee v. New Orleans G. N. Ry., 125 La. 236, 51 S. 182.

48 Compare Tucker v. Blease, 97 S. C. 303, 81 S. E. 668 with 
Moreau v. Grandich, 114 Miss. 560, 75 S. 434.

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 bv 
Acts, 1927, p. 219. y

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.

1 exas: The separate school law, separate coach law, and inter­
marriage law all define the terms as including any descendant from 
Negro ancestry (footnote 39), but the penal statute punishing mis­
cegenation defines the term “ Negro” as including only those persons 
who are of Negro blood to the third generation inclusive.

Kentucky: See footnote 48.
Florida : See footnote 48.



25

Furthermore, the definitions are subject to change at 
any time and have frequently been changed in the past.48

48Alabama: Prior to 1927, the marriage law forbade marriages 
of whites with persons of Negro blood to the third generation in­
clusive. Ala. Code, 1923, Sec. S001. This rule was changed in 1927 
(footnote 47, supra) in order to conform the statute to the consti­
tutional provision.

Florida: Two statutes define the word “ Negro” in such manner 
as to embrace only those who have one-eighth or more Negro blood 
(footnote 44), but the constitution (footnote 42) prohibits inter­
racial marriages to the “ fourth generation inclusive.”

Georgia: Until 1927, a person was classified as colored only if 
he had one-eighth or more Negro blood. Ga. Code (Michie), 1926, 
Sec. 2177. In that year the definition was changed to include any 
person having any ascertainable portion of Negro blood (see foot­
note 39).

Kentucky: This State has no statutory definition. It was early 
held that the old Virginia law providing that all persons having one- 
fourth or more Negro blood were to be classified as colored persons 
has been carried over into Kentucky at the time that State was 
carved out of territory belonging to Virginia. Gentry v. McMinnis, 
33 Ky. 382. However, in Mullins v. Belcher, 142 Ky. 673, 143 S. W. 
1151, it was held that a child having one-sixteenth Negro blood 
could not attend a white school, the court holding that any child 
having an appreciable amount of Negro blood is colored. Never­
theless, it has been decided that a person who looks white, has straight 
hair, is of a copper complexion, and has other characteristics of a 
white person is not a mulatto within the statute prohibiting the mar­
riage of whites and Negroes or mulattos. Theophanis v. Tlieophanis, 
244 Ky. 689, 57 S. W . (2d) 957.

Louisiana: It was first held in this state that all persons, includ­
ing Indians, who were not of the white race were “ colored.” Adelle 
v. Beaugard, 1 Mart. 183. In 1910, it was held that anyone having 
an appreciable portion of Negro blood was a member of the colored 
race within the meaning of the segregation law. Lee v. New Orleans 
G. N. Ry., 125 La. 236, 51 S. 182, supra footnote 45. In the same year, 
however, it was decided that an octoroon was not a member of the 
Negro or black race within the meaning of the concubinage law (La. 
Act, 1908, No. 87). State v. Treadaway, 126 La. 300, 52 S. 500. 
Shortly after the latter decision, the present concubinage statute was 
enacted substituting the word “ colored” for “ Negro.” La. Acts, 
1910, No. 206, La. Crirn. Code (Dart), 1932, Art. 1128-1130. The 
effect of the change is yet to be determined.

( Continued on page 26)



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 Hare 
v. Board of Education, 113 N. C. 10, 18 S. E. 55, that the definition 
employed in the marriage law would be determinative. This was 
changed in 1903 by a statute providing that no child with Negro blood 
m 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
e t  form. See footnote 39. Virginia also has a race registration act. 
Va. Code, 1942 (Michie) Sec. 5099a.



27

laws concerning breaches of the peace is inadequate to con­
trol the behavior of travelers. Indeed the very tendency of 
enforced rearrangement of passengers as they travel from 
state to state is to create disorder and dissension.

In this connection it is particularly noteworthy that in 
Virginia itself and throughout the southern states where 
segregation statutes are in force so many situations are ex­
cepted from their operation as to make clear that there is 
no pressing need for them.

The Virginia statute requiring segregation in railroad 
coaches expressly exempts sleeping cars and chair cars.49 50 
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 .so 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.



28

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 Conrt 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 Marshall,

Attorneys for Appellant.

Spottswood W. R obinson, 3rd,
Of Counsel.



29

APPENDIX A

Michie— Virginia Code

4097z. Segregation of W hite and Colored P assengers.—

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. D river May 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 
op Conservators of the P eace.—

Each driver, operator or person in charge of any vehicle, 
in the employment of any company operating the same, 
while actively engaged in the operation of said vehicle, shall 
be a special policeman and have all of the powers of con­
servators of the peace in the enforcement of the provisions 
of this act, and in the discharge of,his duty as special police­
man, in the enforcement of order upon said vehicles; and 
such driver, operator or person in charge of said vehicle 
shall likewise have the powers of conservators of the peace 
and of special policemen while in pursuit of persons for dis­
order upon said vehicles, for violating the provisions of 
this act, and until such persons as may be arrested by him 
shall have been placed in confinement or delivered over to 
the custody of some other conservator of the peace or police 
officer; and, acting in good faith, he shall be for the pur­
poses of this chapter, the judge of the race of each pas­
senger whenever such passenger has failed to disclose his 
or her race. (1930, p. 344.)



31

4097dd. V iolation by P assengers; M isdemeanor;
E jection.—

All persons who fail while on any motor vehicle carrier, 
to take and occupy the seat or seats or other space assigned 
to them by the driver, operator or other person in charge 
of such vehicle, or by the person whose duty it is to take up 
tickets or collect fares from passengers therein, or who fail 
to obey the directions of any such driver, operator or other 
person in charge, as aforesaid, to change their seats from 
time to time as occasions require, pursuant to any lawful 
rule, regulation or custom in force by such lines as to as­
signing separate seats or other space to white and colored 
persons, respectively, having been first advised of the fact 
of such regulation and requested to conform thereto, shall 
be deemed guilty of a misdemeanor, and upon conviction 
thereof shall be fined not less than five dollars nor more 
than twenty-five dollars for each offense. Furthermore, 
such persons may be ejected from such vehicle by any 
driver, operator or person in charge of said vehicle, or 
by any police officer or other conservator of the peace; and 
in case such persons ejected shall have paid their fares upon 
said vehicle, they shall not be entitled to the return of any 
part of same. For the refusal of any such passenger to 
abide by the request of the person in charge of said vehicle 
as aforesaid, and his consequent ejection from said vehicle, 
neither the driver, operator, person in charge, owner, man­
ager nor bus company operating said vehicle shall be liable 
for damages in any court. (1930, p. 344.)



"€lSls“212 [5038]

L awyers P ress, I nc., 165 William St., N. Y. C .; ’Phone: BEekman 3-2300