Illinois Central Railroad Company v. Illinois Commerce Commission Statement, Brief and Argument for Appellant

    No. 32949

IN' THE

Supreme (Erntrt of Illinois
S e p t e m b e r  T e r m , A. D. 1953.

ILLINOIS CENTRAL RAILROAD 
COMPANY,

Appellant,

Appeal from the Superior 
Court of Cook County, 
Illinois.

There heard on a p p e a l  
from the Illinois Com­
merce Commission.

vs. y

ILLINOIS COMMERCE COMMISSION,
Appellee.

Trial Court No.
52 S 10325.

Honorable
Janies J. McDermott,

Judge Presiding.

STATEMENT, BRIEF AND ARGUMENT FOR APPELLANT 
ILLINOIS CENTRAL RAILROAD COMPANY.

J o h n  W . F oster ,
135 East Eleventh Place, 
Chicago 5, Illinois,
WAbash 2-4811,

Attorney for Appellant.
J o se ph  H . W r ig h t ,
H erbert  J .  D e a n y ,

Of Counsel.

Oral Argument Respectfully Requested.

THE GUNTHORP-WARRBN PRINTING COMPANY* CHICAGO



INDEX.

PAGE
Statement of the Case:

A. Nature of the Action.....................................  1
B. Nature of the Pleadings..................................  2
C. Pertinent Facts.

1. Testimony for Com plainant.................. 2
2. Testimony for Respondent, Illinois Central 5

D. Decision of Issues and Judgment Below---- 11
Errors Relied Upon for Reversal............................... 12
Propositions at Law and Authorities Relied Upon:

Part One—The State Commission Lacked Juris­
diction to Hear and Determine the Issue Raised 
by the Complaint.
I. The Interstate Commerce Commission has

sole jurisdiction to hear and determine the
issue raised by the complaint.
A. Congress of the United States has acted

to place jurisdiction over the subject 
matter of the complaint in the Interstate 
Commerce Commission......... ...............  13

B. When the United States_ has exercised
its exclusive powers over interstate com­
merce so far as to take possession of 
the field, the States can no more supple­
ment its requirements than they can an­
nul them................................................... 13

C. Only the silence of Congress authorizes 
the exercise of the police power of the 
State of phases of interstate commerce 14

D. Intrastate and interstate aspects of ap­
pellant’s loading practice are so interre­
lated as to require a single uniform rule 14

E. Interstate carriers may adopt reason­
able rules and regulations for the gov­
ernment of their business free from any 
interference by the States....................  14



11

Part Two—The Order of the Commission Is De­
fective. Its Conclusion Is Not Supported by 
Proper Findings and Is, in Fact, Contrary to 
the Evidence.
I. The Court on review of an order of the Com­

mission, is authorized to inquire into and de­
termine the reasonableness and lawfulness 
of such order.
A. Reviewing court has jurisdiction to set 

aside any order or decision of the Com­
mission which:
1. Contravenes any constitutional lim­

itation or rule of law.
2. Has no substantial basis in the evi­

dence .................................................  15
B. The legal effect of evidence is a question

of law......................................................  15
C. The purpose of judicial review of the

Commission’s order is to keep the Com­
mission within its statutory jurisdiction 
so as not to violate any rights guar- 
aranteed by the constitution................  15

D. The court may re-examine the facts
found by the Commission in connection 
with the evidence to determine if the 
facts are substantially supported by the 
evidence .................................................  16

E. The court may set aside the order of the
Commission if the evidence in the rec­
ord shows the order to be without sub­
stantial foundation................................. 16

F. Reviewing courts will examine the facts 
upon which an order of the Commission 
is based to determine if there is sub­
stantial evidence to sustain the order
and not a mere scintilla of proof.........  16

II. The loading practice used on “ The City of 
New Orleans” does not constitute or result 
in segregation or discrimination................  16



ill

III. Even though it be found that appellant’s 
loading practice requires or results in sep­
aration of white and colored passengers, 
such loading practice is not unlawful.........  17

IV. Appellant cannot be charged with responsi­
bility for actions of employes which are con­
trary to specific instructions of appellant 
and which are without the scope of such em­
ployes ’ authority...........................................  17

Argument:
Part One—The State Commission Lacked Juris­

diction to Enter Its Order of May 14, 1952.
I. The Interstate Commerce Commission has 

sole jurisdiction to hear and determine the 
issue raised by the complaint........................ 18

Part Two—The Order of the Commission Is De­
fective. Its Conclusion Is Not Supported by 
Proper Findings and Is, in Fact, Contrary to 
the Evidence.
I. The Court, on review of an order of the Illi­

nois Commerce Commission, is authorized 
to inquire into and determine the reasonable­
ness and lawfulness of such order..............  26

II. The loading practice used on “ The City of 
New Orleans” does not constitute or result 
in segregation or discrimination................  28

III. Even though it be found that appellant’s
loading* practice requires or results in sep­
aration of white and colored passengers, 
such loading practice is not unlawful.........  84

IV. Appellant cannot be charged with respon­
sibility for actions of employes which are 
contrary to specific instructions of appellant 
and which are without the scope of such em­
ployes’ authority...........................................  39

Conclusion ..................................................................... 42



IV

T a ble  o p  C ases.

Adams Express Co. v. Croninger, 226 U. S. 491.... 14,
A. T. & S. F. By. Co. v. Commerce Commission, 335 

111. 624......... ............. ................................................
Bjornquist v. Boston & A. R. Co., C. C. A. 1st, 250 F. 

929 ............................................................................ 17,
Boston & Main R. R. v. Hooker, 233 U. S. 97.............14,
Businessmen’s Association v. Commerce Commission, 

337 111. 149.................................................................. 16,
Charleston & Western Carolina Ry. Co. v. Varnville,

237 U. S. 597..............................................................14,
Chicago Bus Co. v. Chicago Stage Co., 287 111. 320. .16, 
Chicago Rys. Co. v. Commerce Commission, 336 111. 51 
C. R. I. & P. Ry. Co. v. Commerce Commission, 346 

111. 412i.....................................................   16,
Chiles v. Chesapeake & Ohio Ry. Co., 218 U. S. 71 

............................................................. 13,14,16, 17, 19,
Choctaw, 0. & G. R. Co. v. State, 75 Ark. 279, 87 S. W. 

426 .............................................................................17,
Commerce Commission v. C. C. C. & St. L. Ry. Co.,

309 111. 165...................................................................
Commerce Commission v. Omphghent Township, 326

111. 65..........................................................................
Couneill v. Western & Atlantic E. R. Co., 1 I. C. C. 

339 .............................................................................17,
Crosby v. St. L.-S. F. Ry. Co., 112 I. C. C. 239.........17,
Erie R. R. v. New York, 233 U. S. 671..............................13,
Evans v. C. & O. Ry. Co., 92 I. C. C. 713................ 17,
Galena & Chicago Union R. R. Co. v. Yarwood, 15 111.

468 .............................................................................H
Hall v. DeCuir, 95 U. S. 485............................. 14,17,20,

23

16

40
21

27

21
27
16

27

35

31

16

16

37
37
21
37

34
34



V

Heard v. Georgia R. R, Company, 1 I. C. C. 428----17,37
Henderson v. Southern Railway Co., 284 I. C. C. 161. .17, 37
Henderson v. United States, 63 F. Supp. 906......... 13,19
Houston & Texas Ry. v. United States, 234 U. S. 342

............................................... 13, 14, 24
Illinois Central R. Co. v. Illinois Commerce Commis­

sion, 387 111. 256.................................................15,26,27
I. C. R. R. v. O’Keefe, 168 111. 115............................... 14
Interstate Commerce Commission v. L. & N. R. Co.,

227 U. S, 88............................................................... 15, 27
Louisville & N. R. Co. v. Marlin, 135 Term. 435, 186

S. W. 595................................................................. 17,40
Manufacturers’ R. Co. v. U. S., 246 U. S. 457......... 14,23
McCabe v. A. T. & S. F. Ry. Co., 235 U. S. 151......... 17, 36
Missouri, Kansas & Texas Ry. Co. v. Harris, 234 U. S.

412 ...........................................................................14>21
Missouri Pacific Ry. v. Porter, 273 U. S. 341......... 14,23
Mitchell v. United States, 313 IT. S. 80. .13,17,19, 23, 31, 35
Morgan v. Virginia, 328 U. S. 373........................... 14,25
Napier v. Atlantic Coast Line R. R., 272 U. S. 605. .14, 22 
Oregon-Washington R. & N. Co. v. Washington, 270

U. S. 87..................................................................... 14>22
Pennsylvania R. R. Co. v. Public Service Commission,

250 U. S. 566............................................................ 13,21
Simmons v. Atlantic Greyhound Corp., 1947 D. C.

W. D., 75 F. Supp. 166.................................. 16,17,31,37
Simpson & Shepard, 230 U. S. 352...............................14, 23
South Chicago Coal & Hock Co. v. Commerce Commis­

sion, 365 111. 218........................................................ 1J
Southern Ry. Co. v. Railroad Commission of Indi­

ana, 236 U. S. 439.................................................... 1'



VI

Todd v. L. & N., 274 111. 201......................................... 14
Town of Sidney v. Wabash Ry. Co., 333 111. 126... .16, 27
Wilkinson v. H art’s Drive-In, Ine., 338 111. App. 210 

..............................................................................17, 40, 43

S t a tu tes  C it e d .

Interstate Commerce Act, 49 U. S. C. § 1, et seq..........  13
Interstate Commerce Act, 49 U. S. C. § 3 (1 )... .19, 20, 23 
Kentucky Revised Statutes, Annotated, Sec. 276.440

(Baldwin’s) ..............................................................  24
Louisiana Revised Statutes, 1950, Sec. 528................  24
Mississippi Code, Annotated, Sec. 7784...................... 24
Public Utilities Act, Section 65 (Section 69, Chapter

l l l f ,  Illinois Revised Statutes, 1951)....................  27
Public Utilities Act, Section 68 (Section 72, Chapter 

l l l f ,  Illinois Revised Statutes, 1951).......................  26
Public Utilities Act, Section 69 (Section 73, Chapter

l l l f ,  Illinois Revised Statutes, 1951)......... ..............  1
Tennessee Code, Sections 5518, 5519 (Williams). . . .  24



IN  T H E

g>uprem£ (ttmtrt of llltnnta
S e p t e m b e r  T e e m , A, D. 1953.

ILLINOIS CENTRAL RAILROAD 
COMPANY,

Appellant,

Appeal from the Superior 
Court of Cook County, 
Illinois.

There heard on a p p e a l  
from the Illinois Com­
merce Commission.

ILLINOIS COMMERCE COMMISSION,
Appellee.

Trial Court No.
52 S 10325.

Honorable
James J. McDermott, 

Judge Presiding.

STATEMENT, BRIEF AND ARGUMENT FOR 
APPELLANT ILLINOIS CENTRAL 

RAILROAD COMPANY.

STATEMENT OF THE CASE.

A. Nature of the Action.
This is an appeal pursuant to Section 69 of the Illinois 

Public Utilities Act1 for review of an order of the Superior 
Court of Cook County dated March 16, 1953, which af­
firmed the decision and order of the Illinois Commerce 
Commission (hereinafter referred to as the State Com­
mission) entered March 14, 1952. The order of the State 
Commission found that the method used by the Illinois

1. Illinois Revised Statutes, 1951, Chapter 111%, Section 73.



2

Central Railroad Company (hereinafter referred to as 
Illinois Central or as appellant) in loading its interstate 
train “ The City of New Orleans” constituted segregation 
and directed it “ to cease and desist from assigning passen­
gers to specific ears in the State of Illinois in a manner 
which segregates passengers on the basis of race or color,” 
and further prohibited it “ from using a car-card system in 
assigning passengers to designated cars in the State of 
Illinois in a manner which segregates passengers on the 
basis of the race or color of such passengers.” (Abst. 79.)

B. Nature of the Pleadings.
The proceedings commenced with a complaint filed 

against the Illinois Central by Vera Johnson, a negress, 
alleging she was segregated and discriminated against on 
one of appellant’s trains (Abst. 2). Thereafter the com­
plaint was amended to charge the acts in question violated 
the Federal Constitution, the United Nations Charter and 
Chapter l l l f  111. Rev. Stats., sec. 38 (Abst. 6). Issue 
was joined on the amended complaint. At the first hearing 
the National Association for the Advancement of Colored 
People, Chicago Branch, filed a petition and was granted 
leave to intervene (Abst. 16). At the conclusion of com­
plainant’s direct evidence appellant made a motion to dis­
miss on the ground that the evidence showed the complaint 
was based on an interstate operation over which the Inter­
state Commerce Commission has exclusive jurisdiction 
(Abst. 15). This motion was taken with the case and later 
denied by the State Commission (Abst. 72, 79).

0. Pertinent Facts.
1. Testimony for Complainant:

Vera Johnson purchased a ticket for use July 1, 1950, on 
appellant’s train “ The City of New Orleans” between 
Chicago, Illinois, and Canton, Mississippi (Abst. 7-8). On



3

that date she went to the Twelfth Street Station of the 
Illinois Central in the City of Chicago to board the train 
and at the time she went through the gate she was handed 
a card designating Car 2 as the car to which she should go 
for boarding (Abst. 8). She testified that on the way to 
Car 2 she noticed empty coaches and tried to enter one 
of them but that she was told she could not board those 
cars as they were for whites (Abst. 8); that she proceeded 
to Car 2 and boarded the train at that point; that she was 
unable to obtain a seat in that car and after the train com­
menced to move she walked toward the rear of the train 
through approximately six or seven cars to look for a seat; 
that she found empty seats in a coach occupied entirely 
by white people and seated herself (Abst. 8); that a col­
ored porter then approached her and told her she could 
not sit in that car as it was reserved for whites, where­
upon he took her luggage and helped her back to Car 2 
(Abst. 9). She further testified that she did not obtain a 
seat on the train until the train arrived at Kankakee, 
Illinois, approximately thirty minutes after departure 
time (Abst. 9). She also testified that the physical features 
of all the cars on the train were the same as those in Car 2 
(Abst. 9).

Mrs. Gertrude Estelle, negress, testified that she also had 
a ticket and rode on “ The City of New Orleans” on July 1, 
1950, between Chicago, Illinois, and Durant, Mississippi; 
that when she went through the gate she was given a card 
designating Car 4 as the car she should use to board the 
City of New Orleans; that she obtained a seat but that there 
were seven or eight people standing in the aisle when the 
train left the station (Abst. 11). She further testified that 
after the train started she walked back through the train 
passing some coaches that were occupied exclusively by 
colored people and other coaches which were occupied ex­
clusively by white people (Abst. 11); that in the cars occu­
pied exclusively by colored people the cars were crowded



4

and people were sitting on suiteases in the aisles but, that 
in the cars occupied exclusively by white people everyone 
was seated although there were no empty seats (Abst. 11). 
She further testified that at the time she walked through 
the train no one attempted to stop or interfere with her 
and that when she returned to Car 4 she again obtained 
a seat (Abst. 12).

Reverend King S. Range, negro, testified that he also rode 
on “ The City of New Orleans” on July 1, 1950, and at the 
time he passed through the gates he was given a card 
designating Car 2 as the ear which he should board. He 
further testified that instead of going to Car 2 he went to 
Car 9 and when he attempted to enter the car the con­
ductor asked to see his car-card number (Abst. 13); that 
he told the conductor he had no number and proceeded 
to board Car 9 where he obtained a seat (Abst. 13). He 
further testified all of the other passengers in this car 
were white people and that after he had seated himself the 
porter told him to get out but that no attempt was made 
to put him out (Abst. 13); that after the train was in mo­
tion he walked through the coaches and observed that there 
were some vacant seats and very few people were stand­
ing in what he designated as the “ white coaches” ; that 
colored people were standing in every aisle and some were 
sitting on suitcases in what he termed the “ colored 
coaches” (Abst. 14). He further testified that he secured 
the names of Mrs. Estelle and Vera Johnson as witnesses 
(Abst. 14), and that his organization, the Baptist Min­
isters’ Conference, had prepared a resolution protesting 
against the practice in effect in loading “ The City of New 
Orleans” which had been presented to the appellant’s 
District Passenger Agent.

In rebuttal, complainant called Reverend J. L. Horace 
and Earl Strayhorn, negroes, as witnesses and recalled 
Reverend Range. Reverend Horace testified that he had



5

used “ The City of New Orleans” in April of 1951 on two 
occasions; both times he was given a car-card for Car 2; 
that when he boarded that ear all of the passengers were 
colored and he thereafter went to one of the rear cars and 
found a seat where he remained during the balance of his 
trip. He further testified that other colored passengers 
who were with him on those trips did the same thing 
(Abst. 61-62).

Earl Strayhorn testified that he had been employed as 
a redcap by the Illinois Central and that when he had 
worked in that position, negro passengers for “ The City 
of New Orleans” were assigned to the head-end cars and 
white passengers to the rear cars (Abst. 66).

Reverend Range testified that in June of 1951 he made a 
trip from Chicago to Champaign and was given a car-card 
for Car 4 on “ The City of New Orleans.” He testified 
that all of the people in that car were colored and that 
he and two others then went back several cars and found 
seats in a car where they were the only colored persons 
(Abst. 63-64).

It was stipulated that two other witnesses who had not 
appeared on behalf of the complainant would have tes­
tified, had they been present, that they had taken trips on 
“ The City of New Orleans” between Chicago and Cairo, 
Illinois, and that they were given car-cards for cars at the 
head of the train; that when they boarded those cars they 
found all of the passengers to be members of the Negro race 
and that they thereafter moved to the rear of the train 
and rode the rest of the way in cars occupied predom­
inantly by white people (Abst. 69).

2. Testimony for Respondent, Illinois Central:
The train known as “ The City of New Orleans” is the 

heaviest traveled passenger train in service on the Illinois 
Central System (Abst. 17). Because of its heavy patron­
age the Illinois Central has found it necessary to place in



6

effect a loading practice so that the train can be safely and 
expeditiously loaded (Abst. 17). Experience has shown 
that in the absence of an orderly loading practice the acci­
dent ratio increases and the scheduled departure of trains 
out of the station is delayed (Abst. 17-18). To effect a 
loading practice which would be agreeable to the greatest 
number of its passengers, appellant gave consideration to 
the following factors: (a) convenience of passengers by an 
equitable assignment of space so as to avoid the overload­
ing or underloading of any particular car, cars or sections 
of the train (Abst. 18); (b) assignment of “ long-haul” 
passengers, i. e. passengers going the greatest distance, to 
cars with leg rests and to cars where other “ long-haul” 
passengers are to be found so that they will experience a 
minimum of inconvenience occasioned by the loading and 
unloading of other passengers (Abst. 18-19); (c) con­
venience of passengers, i. e. the elimination of the neces­
sity of carrying bags through several cars to find a seat 
(Abst. 18); (d) safety factor, i. e. the loading of short- 
haul passengers in cars which stop adjacent to shorter 
platforms at smaller stations (Abst. 17-18); and (e) the 
desires of the greatest number of passengers making use 
of “ The City of New Orleans” (Abst. 17).

Passenger desires or preferences for loading were de­
termined from (1) observation of the tendency of groups 
(fraternal, civic, racial, etc.) to load together, (2) con­
versations with passengers, (3) written expressions of 
passenger preferences, and (4) reports of the train per­
sonnel and company officials regarding actual travel condi­
tions while the train is enroute (Abst. 19, 23, 25).

As a result of its studies and observations appellant has 
developed the following loading practice for use on “ The 
City of New Orleans” : As passengers pass through the 
gate in the Twelfth Street Station and show their trans­
portation they are handed cards which are printed “ Car



7

2 (or some other designated number), City of New Orleans” 
(Abst. 18; Complainant’s Exhibits 1 and 6, Abst. 85, 86). 
The numbers on these ear-cards correspond with the num­
bers shown on the sides of each of the coaches of the train 
(Abst. 18). The coaches used on “ The City of New 
Orleans” consist of 48, 52 and 56-seat capacity cars. Under 
normal conditions approximately 45 cards are passed out 
for 48-seat capacity ears, approximately 50 cards for 
56-seat capacity cars and approximately 49 cards for 
52-seat capacity cars (Abst. 18). This allows extra space in 
each car for children under the age of five who are not 
required to have a ticket (Abst. 18). To avoid congestion 
on the platform, loading is begun from each end of the 
train, i.e. cards are first passed out directing passengers 
to the first and last coaches of the train. When the cards 
for those two cars have been exhausted, cards are then 
given out for the second car from the head-end and the 
second car from the rear of the train. When the cards for 
those cars have been exhausted, the procedure is again 
repeated, moving to the third car from each end of the 
train, working in toward the center until the train is com­
pletely loaded (Abst. 18, 24).

In following the loading practice consideration is also 
given as nearly as is possible to the loading of passengers 
with people of their own race. The reason for this is that 
experience and observation has shown that the majority 
of passengers prefer to be loaded with others of their own 
race (Abst. 22, 23, 25, 51). As a result, Negro interstate 
passengers are generally given car-cards for the front of the 
train and Caucasian passengers are given car-cards for the 
rear of the train (Abst. 24, 34, 51). Illinois intrastate passen­
gers, regardless of race, are normally given car-cards for 
cars located in the center of the train because the downstate 
station platforms are considerably shorter than ‘ ‘ The City 
of New Orleans” (Abst. 17). This practice directs Illinois



8

intrastate passengers to cars which will be in position for 
the passengers to alight directly onto the shorter station 
platforms, thereby avoiding the danger incident to alight­
ing on the right-of-way and walking over tracks and uneven 
ground (Abst. 18).

The car-card system of loading “ The City of New 
Orleans” does not restrict passengers from changing their 
accommodations or from using other facilities on the train 
(Abst. 18). “ The City of New’ Orleans” is not a reserved 
seat train and no attempt is made to confine passengers to 
any section of the train. After passengers have boarded 
the train, they are free to move to any other car or to make 
use of any facility on the train (Abst. 19, 21, 33, 35, 42, 46, 
51, 52).

Specific instructions are issued by the management of 
the Illinois Central to all train personnel operating on 
“ The City of New Orleans”, as well as appellant’s other 
trains, that all passengers, regardless of race, color or 
creed, are to have free and equal use of any and all facili­
ties on all trains. These instructions are both oral and 
written (Abst. 23, 37, 47, 51). Negro and Caucasian pas­
sengers do make free use of all of the facilities on “ The 
City of New Orleans” and change their seats to other cars 
when they so desire (Abst. 33, 42, 43, 44, 45, 46, 56).

Due to Holiday travel the demands for passenger trans­
portation on “ The City of New Orleans” on July 1, 1950, 
the date on which the complaint is based, were unusually 
heavy. As a result the train was made up in two sections. 
The first section was for use by interstate passengers 
destined for Memphis, Tennessee, or points beyond and 
the second section was for use by intrastate passengers and 
others bound for points up to Memphis, Tennessee, as the 
second section of the train went only as far as Memphis 
(Abst. 20). Vera Johnson and each of the witnesses who 
testified in her behalf on direct -were interstate passengers



9

using the first section of the train (Abst. 7,10, 14). Before 
“ The City of New Orleans” was loaded, all passengers in 
the waiting room at Twelfth Street Station were instructed 
that passengers for Memphis and beyond were to load from 
one gate onto the first section, and that intrastate passen­
gers and interstate passengers for Kentucky and Tennes­
see, not including Memphis, were to load from another gate 
and use the second section (Abst. 20).

There were 1050 people on the first section of “ The City 
of New Orleans” on that date (Abst. 20). Of the 1050 pas­
sengers 310 were adult Caucasian passengers, 580 were 
adult Negro passengers, 42 were Caucasian children under 
the age of five and 118 were Negro children under the age 
of five (Abst. 19-20). There were fifteen coaches on the 
train. Nine of the coaches were filled predominantly with 
Negro passengers and six were filled predominantly with 
Caucasian passengers (Abst. 20; Respondent’s Exhibit No. 
2, Abst. 86). The total seating capacity of the train, in­
cluding the seats in washrooms and lounges, was 887. As 
a result 163 passengers were without regular seat accom­
modations. However, only 64 passengers were standing- 
because many of the children were held on the laps of 
adults (Abst. 20). This number was further reduced as 
passengers availed themselves of the facilities in the two 
dining cars. When the first section left the Twelfth Street 
Station the train was completely loaded and there were a 
few passengers standing in nearly every ear (Abst. 25). 
After the train left 63rd Street there were passengers of 
both races standing throughout the train (Abst. 32). There 
were many Negro passengers seated all the way through 
the train (Abst. 32, 46) and members of both races used 
the diner, diner-lounge and observation car facilities (Abst. 
15, 44, 45).

When the first section of the train was in the station it 
was spotted or placed so that the head-end car (mail-bag­



10

gage car) was opposite the south steam plug which is the 
normal practice as it permits the train to be connected to 
the steam plug while it is loading and prior to the time the 
engines are connected (Abst. 27-28). The loading vestibule 
of Car 2 was the second closest- loading vestibule to Miss 
Johnson after she descended the stairs leading from the 
waiting-room to the station platform. The only coaches 
she could have passed in going- to Car 2 were Cars 4, 3 and 
the diner-lounge cars occupied predominantly by colored 
passengers (Respondent’s Exhibit No. 1, Abst. 86). The 
facilities in all of the coaches throughout the train on this 
date, as every day, were the same. The equipment, ap­
purtenances and appearance of the coaches was also the 
same (Abst. 9, 21, 29; Respondent’s Exhibits Nos. 5, 10-16, 
26-38, Abst. 86-89).

The dining facilities on the train on that date were 
strategically placed so as to afford dining* accommodations 
to all passengers on the train. Beginning from the head- 
end of the train there were four coaches after which the 
diner-lounge was placed, then there were six coaches after 
which the diner was placed and following the diner there 
were five cars (Abst. 48, 49; Respondent’s Exhibit No. 2, 
Abst. 86). The dining facilities and the service obtainable 
on the diner and diner-lounge car are comparable (Abst. 
48; Respondent’s Exhibits Nos. 17-21 (Abst. 87).

There were no complaints of any kind made to anyone 
in authority on the train although the conductor and pas­
senger representative made frequent trips through the 
train (Abst. 35). The train personnel on “ The City of 
New Orleans” July 1,1950, understood appellant’s instruc­
tions that there should be no segregation of passengers 
'based upon race, color or creed (Abst. 32, 33, 42, 43, 44, 
45, 46).



11

D. Decision of Issues and Judgment Below.
On the foregoing* record the State Commission found 

that appellant’s car-card system subjects Negro passengers 
to prejudice, disadvantage and discrimination with respect 
to service solely because of their race and color and di­
rected the Illinois Central “ to cease and desist from as­
signing passengers to specific cars in the State of Illinois in 
a manner which segregates passengers on the basis of race 
or color” , and prohibited the Illinois Central “ from using 
a car-card system in assigning passengers to designated 
cars in the State of Illinois in a manner which segregates 
passengers on the basis of the race or color of such pas­
sengers.”

On appeal the Superior Court of Cook County by order 
dated March 16, 1953 affirmed the order of the State Com­
mission dated May 14, 1952. The Superior Court of Cook 
County set forth as reasons for its order:

“ (1) This Court has jurisdiction of the parties 
hereto and the subject-matter hereof.

(2) The order of the Commission in its Docket No. 
39271 is within its jurisdiction and the findings and 
conclusions of the Commission in said order are sup­
ported by the evidence in the record” (Abst. 90).



12

ERRORS RELIED UPON FOR REVERSAL

(1) The Superior Court of Cook County erred in find­
ing that the Commission had jurisdiction of the subject 
matter in Illinois Commerce Commission Docket No. 39271, 
or of the parties to said proceeding.

(2) The Superior Court of Cook County erred in con­
cluding the Commission’s findings and conclusions were 
supported by the evidence in the record.

(3) The Superior Court of Cook County erred in fail­
ing to find that the order of the Commission is arbitrary 
and contrary to the manifest weight of the evidence.

(4) The Superior Court of Cook County erred in fail­
ing to find that the order of the Commission is based on 
insufficient finding's of fact, and is wholly unsupported by 
competent or substantial evidence.

(5) The Superior Court of Cook County erred in fail­
ing to find that the findings of fact contained in the Com­
mission’s order are insufficient, are unsupported by com­
petent or substantial evidence, and are contrary to the 
manifest weight of the evidence.

(6) The Superior Court of Cook County erred in fail­
ing to find that appellant could not be charged with the 
responsibility for actions of employees which are contrary 
to specific instructions of appellant and which are without 
the scope of such employees’ authority.

(7) The Superior Court, of Cook County erred in fail­
ing to reverse the order of the Commission.



13

PROPOSITIONS AT LAW AND AUTHORITIES 
RELIED UPON.

P art On e .

THE STATE COMMISSION LACKED JURISDICTION TO ENTER 
ITS ORDER OF MAY 14, 1952.

I.

The Interstate Commerce Commission Has Sole Jurisdiction 
to Hear and Determine the Issue Raised by the Com­
plaint.

A. Congress of the United States has acted to place juris­
diction over the subject matter of the complaint in the 
Interstate Commerce Commission.

Interstate Commerce Act, 49 U. S. C. § 1, et sey.
Mitchell v. United States, 313 U. S. 80.
Henderson v. United States, 63 F. Snpp. 906.
Chiles v. Chesapeake and Ohio Ry. Co., 218 TJ. S. 

71.
Houston & Texas Ry. v. United States, 234 U. S. 

342.

B. When the United States has exercised its exclusive 
powers over interstate commerce so far as to take pos­
session of the field, the States can no more supplement 
its requirements than they can annul them.

Pennsylvania R. R. Co. v. Public Service Commis­
sion, 250 U. S. 566.

Erie R. R. v. New York, 233 U. S. 671.



14

Missouri Pacific Ry. v. Porter, 273 U. S. 341. 
Southern Ry. Co. v. Railroad Commission of In­

diana, 236 U. S. 439.
Napier v. Atlantic Coast Line R. R., 272 U. S. 605. 
Charleston £ Western Carolina Ry. Co. v. Varn- 

ville, 237 U. S. 597.
Missouri, Kansas £ Texas Ry. Co. v. Harris, 234 

U. S. 412.
Oregon-Washington R. £  N. Co. v. Washington, 

270 U. S. 87.
Boston £  Maine R. R. v. Hooker, 233 U. S. 97. 
Simpson v. Shepard, 230 U. S. 352.
Manufacturers’ R. Co. v. U. S., 246 U. S. 457.

C. Only the silence of Congress authorizes the exercise of 
the police power of the State on phases of interstate 
commerce.

Adams Express Co. v. Croninger, 226 U. S. 491.

D. Intrastate and interstate aspects of appellant’s loading 
practice are so interrelated as to require a single uni­
form rule.

Houston £ Texas Ry. v. United Slates, 234 U. S. 
342.

Morgan v. Virginia, 328 U. S. 373.

E. Interstate carriers may adopt reasonable rules and 
regulations for the government of their business free 
from any interference by the States.

Hall v. DeCuir, 95 U. S. 485.
Morgan v. Virginia, 328 U. S. 373.
Chiles v. Chesapeake £ Ohio Ry. Co., 218 U. S. 71. 
Todd v. L. £  N., 274 111. 201.
I. C. R. R. v. O’Keefe, 168 111. 115.
Galena Chicago Union R. R. Co. v. Yarwood, 15 

111. 468.



15

P art T w o .

THE ORDER OF THE COMMISSION IS DEFECTIVE. ITS CON­
CLUSION IS NOT SUPPORTED BY PROPER FINDINGS AND IS, 
IN FACT, CONTRARY TO THE EVIDENCE.

I.

The Court, on Review of an Order of the Commission, Is 
Authorized to Inquire Into and Determine the Reason­
ableness and Lawfulness of Such Order,

A. Reviewing court has jurisdiction to set aside any order 
or decision of the Commission which

1. Contravenes any constitutional limitation or rule of 
law;

2. Has no substantial basis in the evidence.
Illinois Central R. Co. v. Illinois Commerce Com­

mission, 387 111. 256.

B. The legal effect of evidence is a question of law.
Interstate Commerce Commission v, L. $  N. R. Co., 

227 IT. S. 88.

C. The purpose of judicial review of the Commission’s 
order is to keep the Commission within its statutory 
jurisdiction so as not to violate any rights guaranteed 
by the constitution.

Illinois Central R. Co. v. Illinois Commerce Com­
mission, 387 111. 256.

South Chicago Coal <£ Dock Co. v. Commerce Com­
mission, 365 111. 218.



16

D. The court may re-examine the facts found by the Com­
mission in connection with the evidence to determine 
if the facts are substantially supported by the evidence.

C. R. 1. & P. By. Co. v. Commerce Commission, 346 
111. 412.

Businessmen’s Association v. Commerce Commis­
sion, 337 111. 149.

Chicago Rys. Go. v. Commerce Commission, 336 111. 
51.

A. T. & 8. F. Ry. Co. v. Commerce Commission, 
335 111. 624.

E. The court may set aside the order of the Commission 
if the evidence in the record shows the order to be with­
out substantial foundation.

Town of Sidney v. Wabash Ry. Co., 333 111. 126. 
Commerce Commission v. C. G. C. & St. L. Ry. Co., 

309 111. 165.
Commerce Commission v. Omphghent Township, 

326 111. 65.

F. Reviewing courts will examine the facts upon which an 
order of the Commission is based to determine if there 
is substantial evidence to sustain the order and not a 
mere scintilla of proof.

Chicago Rus Co. v. Chicago Stage Co., 287 111. 320.

II.

The Loading Practice Used on “ The City of New Orleans” 
Does Not Constitute or Result in Segregation or Discrimi­
nation.

Chiles v. Chesapeake and Ohio Railway Company, 
218 U. S. 71.

Simmons v. Atlantic Greyhound Corp., 75 F. Supp. 
166.



17

Mitchell v. United States, 313 U. S. 80.
Choctaw, 0. & G. R. Co. v. State, 75 Ark. 279, 87 

S. W. 426.

III.
Even Though It Be Found That Appellant’s Loading Prac­

tice Requires or Results in Separation of White and 
Colored Passengers, Such Loading Practice Is Not Un­
lawful.

Hall v. Uecuir, 95 U. S. 485.
Chiles v. Chesapeake and Ohio Ry. Co., 218 U. S. 

71.
Mitchell v. United States, 313 U. S. 80.
McCabe v. A. T. & S. F. Ry. Co., 235 U. S. 151. 
Councill v. Western & Atlantic R. R. Co., 1 1. C. C. 

339.
Heard v. Georgia R. R. Company, 1 1. C. C. 428. 
Evans v. C. & 0. Ry. Co., 92 I. C. C. 713.
Crosby v. St. L.-S. F. Ry. Co., 112 I C. C. 239. 
Henderson v. Southern Railway Co., 284 I. C. C. 

161.
Simmons v. Atlcmtic Greyhound Corps, 75 F. Supp. 

166.

IV.

Appellant Cannot Be Charged With Responsibility for 
Actions of Employes Which Are Contrary to Specific 
Instructions of Appellant and Which Are Without the 
Scope of Such Employes’ Authority.

Wilkinson v. Hart’s Drive-In, Inc., 338 111. App. 
210.

Louisville & N. R. Co. v. Marlin, 135 Tenn. 435, 
186 S. W. 595.

Bjornquist v. Boston & A. R. Co., C. C. A. 1st, 250
F. 929.



18

ARGUMENT.

P art O w e.

THE STATE COMMISSION LACKED JURISDICTION TO ENTER 
ITS ORDER OF MAY 14, 1952.

I.

The Interstate Commerce Commission Has Sole Jurisdic­
tion to Hear and Determine the Issue Raised by the 
Complaint.
The facts clearly and conclusively show that the trans­

portation and the incidents of transportation complained of 
in this proceeding were wholly interstate in character. The 
train involved was “ The City of New Orleans”, one of 
appellant’s streamlined interstate trains operating between 
Chicago, Illinois, and New Orleans, Louisiana (Abst. 4-5). 
The complainant, and all of her witnesses who used “ The 
City of New Orleans” on the date in question, wTere inter­
state passengers traveling from Chicago, Illinois, to either 
Canton or Durant, Mississippi (Abst. 7, 10, 14). The train 
was made up in two sections, and the transportation and 
all acts incident to that transportation which were the 
subject matter of the complaint, concerned the movement of 
the first section of the train which was for the exclusive use 
of interstate passengers destined for Memphis, Tennessee, 
and points beyond (Abst. 20).

The power to regulate interstate commerce has been ex- 
pressfy granted to Congress by the Constitution of the 
United States and where Congress has acted to exercise 
that power the State cannot interfere through local regula­
tion. Congress has, in turn, placed the regulation of inter­



19

state commerce in the hands of the Interstate Commerce 
Commission and that Commission is expressly and exclu­
sively vested with such powers as are specifically delegated 
to it or which are reasonably necessary in order to effectu­
ate the delegated powers. The power to deal with com­
plaints alleging discrimination or undue preference is one 
of the powers expressly given to the Interstate Commis­
sion. Interstate Commerce Act, 49 U. S. C. §3(1). Ac­
cordingly, the complaint in the case at bar having to do 
with an alleged discrimination or disadvantage occasioned 
by an interstate loading practice of an interstate carrier 
as applied to interstate passengers, is one which falls within 
the category of complaints which the Interstate Commerce 
Commission is authorized to and does hear. Complainant 
must, therefore, seek her remedy before that body. This 
was recognized by the Federal Supreme Court in Mitchell 
v. United States, 313 U. S. 80. In that case the Court, in 
dealing with the specific question herein involved, said at 
page 93:

‘ ‘ The determination whether a discrimination by an 
interstate carrier is unjust and unlawful necessitates 
an inquiry into particular facts and the practice of the 
carrier in a particular relation, and this underlying 
inquiry is precisely that which the [Interstate] Com­
mission is authorized to make. As to the duty to seek 
a determination hy the [Interstate] Commission in such 
a case, we do not see that •a passenger would he in any 
letter situation than a shipper.” (Emphasis supplied.)

In Henderson v. United States, D. C. Md., 63 F. Supp. 
906, the Court said at page 915:

“ We do not question the authority of the [Inter­
state] Commission to approve the segregation of white 
and colored passengers hy the reservation of particular 
tables for colored passengers; * #

In Chiles v. Chesapeake and Ohio Railway Company, 218 
IT. S. 71, the Court, in quoting with approval from language



20

in. the case of Hall v. DeCuir, 95 U. S. 485, wherein, the 
Court said that a ship owner was at liberty to adopt such 
reasonable rules and regulations for the disposition of pas­
sengers upon his boat as seemed to him to be best for the 
interest of all concerned, said at page 76:

“ * * Congressional inaction left Season [the
ship owner], at liberty to adopt such reasonable rules 
and regulations for the disposition of passengers upon 
his boat while pursuing her voyage within Louisiana or 
without as seem to him most for the interest of all 
concerned.’ This language is pertinent to the case at 
bar, and demonstrates that the contention of the plain­
tiff in error is untenable. In other words, demon­
strates that the interstate commerce clause of the Con­
stitution does not constrain the action of carriers,, but 
on the contrary leaves them to adopt rules and regula­
tions for the government of their business, free from 
any interference except by Congress.” (Emphasis 
supplied.)

Appellee argued in the Court below that the jurisdiction 
of the State Commission was coexistent and supplemental 
to the jurisdiction of the Interstate Commission and as 
there was no conflict between Federal and State policy on 
discrimination, the State’s action could not conflict with 
Federal authority. As hereinafter shown, under Point III, 
Part Two, that argument misstates the facts as to lack of 
conflict between Federal and State policy. However, re­
gardless of this factual aspect, the argument is basically 
unsound for, Congress, having exercised its exclusive 
power over the question of discrimination in interstate 
commerce by enacting Section 3(1) of the Interstate Com­
merce Act, has taken possession of the field and the State 
of Illinois can no more supplement or complement that 
enactment than it can annul it.

This principle was recognized as particularly applicable 
to interstate commerce. The case of Penna. R. R. Co. v.



21

Pub. Service Comm., 250 U. S. 566, involved the right of 
the State of Pennsylvania to forbid the operation of any 
train in that state which carried a mail car at the rear of 
the train without said car being* equipped with a platform 
thirty inches in width. The standard for this type of car 
had been set by the Federal Government through the Safety 
Appliance Act and regulations issued by the Interstate 
Commerce Commission which included prescriptions for 
“ caboose cars without platforms” thereby recognizing the 
lawfulness of an end car such as the Pennsylvania statute 
forbade. In that case Mr. Justice Holmes, speaking for the 
Court, said at page 569:

“ * * * When the United States has exercised its ex­
clusive powers over interstate commerce so far as to 
take possession of the field, the states can no more 
supplement its requirements than they can annul them. 
* * * The subject in this instance is peculiarly one that 
calls for uniform law. * * * Pennsylvania cannot im­
pose the additional obligation.” (Emphasis supplied.)

The following cases dealing specifically with the exclu­
sive power of the Federal Government over interstate 
commerce adhere to the same principle: Boston & Maine 
R. R. v. Hooker, 233 U. S. 97; Southern Ry. Co. v. Railroad 
Commission of Indiana, 236 U. S. 439, 446; Charleston & 
Western Carolina Ry. Co. v. Varnville, 237 U. S. 597, 604; 
Missouri, Kansas <# Texas Ry. Co. v. Harris, 234 U. S. 412, 
420.

One of the leading cases annunciating this principle is 
Erie R. R. v. New York, 233 U. S. 671. In that case a state 
statute fixed the hours of labor of telegraphers at eight 
hours as against the nine hours of the Federal Act. It was 
argued that there was no conflict, that the State Act merely 
supplemented the Federal Act which said that telegraphers 
should not work more than nine hours. The State Supreme 
Court upheld a fine levied against the railroad on three



22

grounds: first, that the labor law of the state was a valid 
exercise of the state’s police power; second, that there was 
no conflict, the state act merely being* supplemental; third, 
that the Federal law was not yet in operation when the 
offense was committed. The Supreme Court in reversing 
the judgment of the State Court said, page 681:

“ When Congress acts in such a way as to manifest 
its purpose to exercise its constitutional authority, the 
regulatory power of the state ceases to exist.”

Further, on page 683, the Court said:
“ It is not that there may be divisions in the field of 

regulation but an exclusive occupation of it when Con­
gress manifests a purpose to enter it. * * * The Hours 
of Service Act * * * is the judgment of Congress of the 
extent of the restriction necessary. It admits of no 
supplement; it is the prescribed measure of what is 
necessary and sufficient for the public safety.” (Em­
phasis supplied.)

The argument made in the Erie case that the state retains 
power to supplement federal regulations has been consid­
ered by the United States Supreme Court in many other 
types of cases where the federal legislation has exclu­
sively occupied the field under consideration. One of such 
cases, Napier v. A. C. L. R. R., 272 U. S. 605, passed on the 
validity of state statutes requiring greater safeguards than 
those provided under the Boiler Inspection Act. In that 
case Justice Brandeis, on page 613, said:

“ We hold that state legislation is precluded because 
the Boiler Inspection Act, as we construe it, was in­
tended to occupy the field. The broad scope of the 
authority conferred upon the Commission leads to that 
conclusion. Because the standard set by the Commis­
sion must prevail, regulations of the state are pre­
cluded, however commendable or however different 
their purpose.” (Emphasis supplied.)

See also: Oregon-Washington R. & N. Co. v. Washing­



23

ton, 270 U. S. 87; Missouri Pacific By. Co. v. Porter, 273 
U. S. 341.

Prior to the amendment of the Interstate Commerce Act 
on June 29, 1906 (the Carmack Amendment, U. S. Code 
Chapter 49, § 20, par. 11) the rights of the parties to a 
contract of shipment were governed by state laws and poli­
cies. However, by adoption of the Carmack Amendment, 
Congress took possession of the field and accordingly the 
application of divergent state laws and policies came to an 
end. The same is true in the instant case. By the enact­
ment of Section 3(1) of the Interstate Commerce Act the 
divergent state laws and policies as to discrimination on 
interstate carriers came to an end and sole jurisdiction was 
vested in the Interstate Commission. In Adams Express 
Co. v. Croninger, 226 U. S. 491, the Court in dealing with 
the Carmack Amendment said, at page 506:

“ Only the silence of Congress authorized the exer­
cise of the police power of the State upon the subject 
of such contracts. But when Congress acted in such a 
way as to manifest a purpose to exercise its conceded 
authority, the regulating power of the State ceased to 
exist.”

In the Mitchell case, supra, the Supreme Court said that 
a passenger has the same obligation under the Interstate 
Commerce Act of seeking’ a determination of an alleged dis­
crimination from the Interstate Commission as has a ship­
per. The duty of a shipper to seek, in the first instance, a 
determination of a question of discrimination or undue 
preference from the Interstate Commission is so well estab­
lished as to be axiomatic, Simpson v. Shepard (Minn. 
1913), 230 U. S. 352; Manufacturers’ R. Co. v. U. S. (Mo. 
1918), 246 U. S. 457.

It is equally well established that Congress in the exer­
cise of its paramount and complete control over interstate 
commerce necessarily embraces the right to control all



24

incidents of transportation having such close and substan­
tial relation to interstate traffic that the control is essential 
or appropriate to the security of the traffic or to the effi­
ciency of the interstate service. Houston £ Texas By. v. 
United States, 234 U. S. 342, 350-351. After setting forth 
the foregoing principle, the Court in the Houston £  Texas 
case said, at pages 351-352:

“ The fact that carriers are instruments of intrastate 
commerce, as well as of interstate commerce, does not 
derogate from the complete and paramount authority 
of Congress over the latter or preclude the Federal 
power from being exerted to prevent the intrastate 
operations of such carriers from being made a means 
of injury to that which has been confided to Federal 
care. Wherever the interstate and intrastate trans­
actions of carriers are so related that the government 
of the one involves the control of the other, it is Con­
gress, and not the State, that is entitled to prescribe 
the final and dominant rule, for otherwise Congress 
would be denied the exercise of its constitutional au­
thority and the State, and not the Nation, would be 
supreme within the national field.” (Emphasis sup­
plied.)

This language is particularly applicable to the case at 
bar for if the State of Illinois can prescribe what loading 
practice should or should not be followed by an interstate 
carrier in loading interstate passengers on interstate trains, 
then so, too, can the States of Kentucky, Tennessee, Mis­
sissippi and Louisiana through which appellant operates 
its train, “ The City of New Orleans” . Under the laws of 
each of these states appellant is required to provide sepa­
rate hut equal accommodations for the Negro and Cau­
casian races.2

The chaotic condition that would result from divergent
2. Section 276.440, Baldwin’s Kentucky Revised Statutes, Annotated. 

Sections 5518, 5519, Williams Tennessee Code.
Section 7784, Mississippi Code, Annotated.
Section 528, Louisiana Revised Statutes, 1950.



25

loading practices prescribed by various states clearly indi­
cates that the interstate and intrastate characteristics of 
loading are so inter-related that the paramount Federal 
power must be exerted to prevent any intrastate aspect of 
loading from injuring the interstate service performed. 
This is clearly shown in Morgan v. Virginia, 328 U. S. 373. 
In that case Justice Reed, speaking for the Court, said, 
page 386:

“ As there is no federal act dealing with the separa­
tion of races in interstate transportation, we must 
decide the validity of this Virginia statute on the 
challenge that it interferes with commerce, as a matter 
of balance between the exercise of the local police 
power and the need for national uniformity in the 
regulations for interstate travel. It seems clear to us 
that seating arrangements for the different races in 
interstate motor travel require a single, uniform rule 
to promote and protect national travel. Consequently, 
we hold the Virginia statute in controversy invalid.” 
(Emphasis supplied.)

In a special concurring decision Justice Frankfurter said 
at pages 388-389:

“ The imposition upon national systems of transpor­
tation of a crazy-quilt of State laws would operate to 
burden commerce unreasonably, whether such contra­
dictory and confusing State laws concern racial com­
mingling or racial segregation. * * * The States cannot 
impose diversity of treatment when such diverse treat­
ment would result in unreasonable burdens on com­
merce.” (Emphasis supplied.)



26

P art T wo.

THE OEDEE OF THE COMMISSION IS DEFECTIVE. ITS CON­
CLUSION IS NOT SUPPOETED BY PEOPEE FINDINGS AND IS, 
IN  FACT, CONTEAEY TO THE EVIDENCE.

I.

The Court, on Review of an Order of the Illinois Commerce 
Commission, Is Authorized to Inquire Into and Determine 
the Reasonableness and Lawfulness of Such Order.
This part of the brief is confined to the proposition that 

even if the State Commission had jurisdiction of the sub­
ject matter of the complaint, its order is invalid. The 
general rules touching upon the power and authority of this 
court in considering appeals from orders of the Commission 
are well established.

Section 68 of the Public Utilities Act provides that any 
person or corporation may appeal from an order or rule 
of the Commission to the proper circuit or superior court 
“ for the purpose of having the reasonableness or lawful­
ness of the rule, regulation, order or decision inquired into 
and determined.”

This court has laid down general principles applicable to 
a review of orders of the Commission in many decisions: 
The purpose of a judicial review of orders of the Commis­
sion is to keep the Commission within its jurisdiction so as 
not to violate any rights guaranteed by the Constitution. 
Illinois Central R. R. v. Illinois Commerce Commission, 
387 111. 256; South Chicago Coal & Dock Co. v. Commerce 
Commission, 365 111. 218. If the reviewing court finds that 
the order or decision of the Commission contravenes any 
constitutional limits or rule of law, or is beyond the con­
stitutional and statutory authority of the Commission, or



27

has no substantial basis in the evidence, it has jurisdiction 
and should set aside such order or decision of the Commis­
sion. Illinois Central R. R. v. Illinois Commerce Commis­
sion, 387 111. 256. The legal effect of evidence is a question of 
law. Interstate Commerce Commission v. L. & N. R, Co., 
227 IT. 8. 88. An unreasonable and unlawful order of the 
Commission will be set aside by the courts. Illinois Central 
R. R. Co. v. Commerce Commission, supra. An unreason­
able order is unlawful. Chicago Bus Co. v. Chicago Stage 
Co., 287 111. 320.

Section 65 of the Public Utilities Act3 requires the Com­
mission to make and enter findings of fact concerning the 
subject matter inquired into and enter its order based 
thereon. The Commission must make findings of fact upon 
the principal issues of the case and such findings must be 
sufficiently specific to enable the court to intelligently review 
the Commission’s decision and ascertain if the facts upon 
which the order was based afford a reasonable basis for the 
order. C. R. I. & P. Ry. Co. v. Commerce Commission, 346 
111. 412. The court may re-examine the facts found by the 
Commission in connection with the evidence to determine 
if the facts are substantially supported by the evidence. 
C. R. I. & P. Ry. Co. v. Commerce Commission-, supra; 
Business Men’s Association v. Commerce Commission, 337 
111. 149. The court should set aside the order of the Com­
mission if the evidence in the record shows the order to be 
without substantial foundation. Town of Sidney v. Wabash 
Ry. Co., 333 111. 126. This means that substantial evidence 
is required to sustain the Commission’s order, and not a 
mere scintilla of proof. Chicago Bus Co. v. Chicago Stage 
Co., supra.

3. Section 69, Chapter 111%, Illinois Revised Statutes, 1951.



28

II.

The Loading Practice Used on “ The City of New Orleans”
Does Not Constitute or Result in Segregation or Discrimi­
nation.

The word “ segregate” is defined in Webster’s New In­
ternational Dictionary, Second Edition, as “ To separate or 
cut off from others or from the general mass or main body; 
to set apart; to isolate, to seclude.”

That appellant’s loading practice does not constitute or 
result in segregation or discrimination is clearly shown 
by the testimony of the complainant’s own witnesses. There 
is no isolation or seclusion as a result of appellant’s loading 
practice.

Gertrude Estelle, witness for the complainant, testified 
that she was not compelled to stay in any particular section 
of the train but, on the contrary, was free to and did move 
throughout the train, making such use of other facilities as 
she desired (Abst. 11, 12).

Reverend Range testified that he did not go to the car 
suggested by the car-card given him, but instead went 
directly to one of the cars at the rear of the train, boarded 
it and remained there throughout his journey with the ex­
ception of visits to other parts of the train and to other 
facilities on the train (Abst. 13-15).

Reverend Horace stated that he left the ears to which he 
had been directed for loading on each of the trips he made 
on “ The City of New Orleans” and obtained seats in other 
cars of his choice where he remained throughout the balance 
of his journey (Abst. 62).

It was also stipulated that other witnesses who were 
unable to be present would have testified that they moved 
from cars in the front part of the train to other cars toward



29

the rear of the train where they obtained seats of their 
choice and remained throughout the balance of their jour­
neys (Abst. 69).

That appellant’s loading practice does not constitute or 
result in segregation or discrimination is-also clearly shown 
by the evidence introduced on behalf of appellant.

C. J. Fitzpatrick, then General Manager of the Illinois 
Central, testified that it was the practice and policy of the 
Illinois Central to treat all members of the public present­
ing themselves for transportation equally and that staff 
meetings were held from time to time at which the officers 
were instructed “ that everyone is to be treated alike” 
(Abst. 51).

E. L. Holmes, appellant’s Assistant General Passenger 
Agent, testified “ The Illinois Central, through my office, 
has issued positive instructions to all personnel operating- 
on ‘The City of New Orleans’ and other trains that all 
passengers, regardless of race, nationality or other designa­
tion, are to have free and equal use of any and all facilities 
on the train” (Abst. 21).

P. E. Bickenbach, General Superintendent of Dining 
Service, testified “ the employees in charge of the [dining 
and observation] cars have been instructed to seat and 
serve all people entering the cars, whether the person be 
white or colored” (Abst. 47, 49). He also stated that he, 
and others under his supervision, made frequent trips to 
make sure the personnel complied with those instructions 
(Abst. 47).

Appellant further showed that not only were the instruc­
tions and regulations issued to the train personnel, but also 
that they were clearly understood by the train personnel.

W. J. Kenworthy, the Conductor on “ The City of New 
Orleans”, stated “ I am instructed by the management of



30

the Illinois Central Railroad to seat passengers wherever 
seats are available. I am not instructed to enforce any 
policy of segregation whatsoever” (Abst. 42).

W. R. Kaufman, Passenger Representative on ‘ ‘ The City 
of New Orleans”, who rides the train for the purpose of 
assisting passengers, stated “ Colored passengers, under 
company rules, are permitted to use all facilities on the 
train. There is no attempt by me or anyone under my 
supervision to restrain colored people from going through 
coaches to obtain seats in other coaches where available” 
(Abst. 32-33).

R. G. Ritter, Dining Car Steward on “ The City of New 
Orleans”, stated that there were no instructions for segre­
gating the races (Abst. 44).

W. H. Anthony, Porter on “ The City of New Orleans” , 
himself a negro, stated “ If a passenger in either of my 
cars desires to go to another car, it is his privilege and I 
tell him he may do so if he wishes, irrespective of his race” 
(Abst. 46).

That free and equal use are in fact made of all facilities 
on the train was also clearly in evidence before the Com­
mission. As heretofore stated, complainant’s own evidence 
showed this was so. In addition, the Conductor, Ken­
worthy, testified “ I have observed Negro passengers as 
well as white passengers using all facilities of the train” 
(Abst. 42). A. P. Lillie, the Flagman, whose duties keep 
him at the rear of the train, stated, ‘1 There would be noth­
ing unusual about Negro passengers being in the last two 
cars” (Abst. 43). Kaufman testified that colored pas­
sengers as well as white use all facilities on the train and 
that he had on many occasions seated negro passengers in 
other cars on the train when he had obtained requests for 
such seat changes (Abst. 33). Ritter, Dining Car Steward, 
testified that he served members of both the negro and 
white races, often at the same tables (Abst. 44). E. J.



31

Bell, waiter in charge of the diner lounge, also a negro, 
testified that members of both races used the facilities in 
the diner-lounge car (Abst. 45), and Anthony, the porter, 
testified it was customary to have members of both races 
in the cars over which he had charge (Abst. 46).

Before there can be any actionable separation or segre­
gation there must be a failure on the part of the carrier 
to permit free and equal use of facilities by designated 
passengers, or groups of passengers. Simmons v. Atlantic 
Greyhound Gory., 75 F. Supp. 166; Mitchell v. United States, 
313 U. S. 80; and Choctaw, 0. & G. R. Co. v. State, 75 Ark. 
279, 87 S. W. 426. This was not the fact in the case at bar. 
The only purpose or effect of the loading practice on “ The 
City of New Orleans” is to safely and expeditiously load 
passengers in a manner which gives consideration, where 
possible, to passenger preference, i. e., whereby passengers 
are loaded with others with whom they would desire to be 
seated as shown by past tendencies of passengers to group 
together for loading and from preference expressions of the 
passengers. These preferences are actual and existent as 
shown by testimony as to observations by appellant’s wit­
nesses (Abst. 19, 23) and by testimony on behalf of the 
complainant (Abst. 11). Gertrude Estelle, complainant’s 
witness, stated she had used other Illinois Central trains for 
travel for a long period of time and that it was her obser­
vation that white people and colored people on the other 
trains always seem to be grouped together with members 
of their own race (Abst, 12) irrespective of the fact that 
there was no loading practice on the other trains (Abst. 
17). All passengers are free, under company rules, to use 
any and all facilities on the train (Abst. 19, 50).

What substantial basis then did the State Commission 
have for its order of May 14, 1952? We submit it had none.

The statements in the Commission’s order preceding the



32

formal findings of fact as well as the formal findings of 
fact themselves show that the State Commission misinter­
preted substantial portions of the evidence, arbitrarily and 
capriciously disregarded other substantial uncontroverted 
evidence in the record, and drew erroneous conclusions from 
other parts of the evidence. One of many illustrations that 
shows this point is the constant reference throughout the 
order to “ cars reserved for negro passengers” . The clear, 
conclusive and uncontradicted fact is that there are; no cars, 
coaches or seats reserved on “ The City of New Orleans” 
for negros or any other class of passenger (Abst. 23, 37, 
47, 51).

Another indication of the Commission’s misinterpretation 
or disregard of the facts is its statement, that ‘ ‘ The record 
clearly shows, however, that in practice the car-card sys­
tem operates to segregate negro passengers boarding the 
train at Central Station in Chicago in cars toward the head 
of the train solely because of their race and without regard 
to their destination. Negro passengers are segregated in 
such cars whether they are traveling to points within Illi­
nois or to points beyond the State boundary” (Abst. 75). 
The record shows just the opposite. Negro patrons using 
this train are not segregated in any certain cars and are 
free to and do use any and all ears and facilities on the 
train as was shown by evidence of complainant’s own wit­
nesses (Abst. 12, 13, 62, 69).

The State Commission also refers to “ alleged” instruc­
tions of the railroad management that all passengers be 
treated alike regardless of race, creed or color. These in­
structions are not only “ alleged instructions” , they are 
actual and existing instructions which are fully understood 
by the train personnel as indicated by the testimony of the 
conductor, flagman, dining car steward, waiter in charge 
of the lounge car, and the porter who testified at the hearing 
(Abst. 32, 33, 42, 43, 44, 45, 46).



33

The written instructions were produced at the hearing 
at the request of complainant’s attorney and complainant 
and the hearing officer had an opportunity to examine them 
(Abst. 37).

Finding 8 that “ The car-card system sometimes requires 
negro passengers to sit in overcrowded cars when there are 
vacant seats available in other cars which would be avail­
able to them if they were white” , is wholly without substan­
tial support in the record. The only testimony in this re­
spect was the uncorroborated statement by Miss Johnson 
that she found a seat in the rear of the train after it had left 
63rd Street and was told she could not sit there.

The credibility of this statement is subject to serious 
conjecture, particularly in view of the statements of her 
own witnesses. Witness Gertrude Estelle said that when 
she went to the rear of the train to look around she did not 
observe any empty seats (Abst. 11). On cross-examination 
Reverend Range admitted that when he walked through 
the train people were standing in the rear cars (Abst. 14- 
15). These contradictory statements by the complainant 
and her own witnesses, coupled with the fact that on the 
date in question there were 1,050 persons on the train, or 
163 more persons than there were seats, and the positive evi­
dence on behalf of appellant that every available seat was 
occupied, cast a cloud on the accuracy of Miss Johnson’s 
statement.

The only logical conclusions that can be drawn from the 
evidence in this respect are that if, in fact, Miss Johnson 
found empty seats and was denied permission to seat her­
self, it was because the seat she chose had already been 
taken and the occupant was temporarily away, i. e., availing 
himself of the dining or restroom facilities, or that one of 
appellant’s employees disregarded the specific instructions 
of appellant to the effect that there is to be no segregation



34

based upon race, color or creed on any of appellant’s trains. 
If the first of these conclusions is correct, Miss Johnson 
was properly denied permission to sit in the seat as it had 
already been taken by another passenger who was entitled 
to retain that space throughout his journey. Galena Chi, 
Union R. R. Co. v. Yarwood, 15 111. 468, 472. If the second 
conclusion is correct, appellant cannot be held responsible 
for the actions of its employees which are contrary to the 
instructions given the employee and which are without the 
scope of the employee’s authority, as will hereinafter be 
more fully discussed under Point IV.

III.

Even Though It Be Found That Appellant’s Loading Prac­
tice Requires or Results in Separation of White and 
Colored Passengers, Such Loading Practice Is Not Un­
lawful.
As hereinabove pointed out, there is no segregation in 

effect on “ The City of New Orleans” in view of the com­
plete freedom of all passengers to make use of any and all 
facilities of the train, and in view of the fact that the pas­
sengers do make use of all facilities on the train. However, 
admitting for the purpose of argument, that the loading 
practice results in a separation of white and colored persons 
on appellant’s train, “ The City of New Orleans” , such sep­
aration is not illegal unless the loading practice is unrea­
sonable in that there is a failure to afford substantial 
equality in the accommodations offered. One of the leading 
eases on this subject is Hall v. DeCuir, 95 U. S. 485. In 
that case the Court had before it the validity of a statute of 
the State of Louisiana which forbade any discrimination be­
tween, or separation of, passengers on public carriers on 
account of race or color. Contrary to this statute, the de­



35

fendant, a public carrier engaged in interstate traffic by 
steamboat, required white and colored persons to occupy 
separate accommodations. A colored passenger sued under 
the State statute and recovered damages against the carrier 
in the lower court. The Supreme Court reversed that judg­
ment on the ground that the State statute was a regulation 
of interstate commerce and as such was unconstitutional. 
The effect of the decision was to decide that inaction on the 
part of Congress was equivalent to a declaration that a car­
rier could by regulations separate colored and white inter­
state passengers. The principle laid down in this case has 
never been set aside.

In Chiles v. Chesapeake and Ohio Railway Company, 
218 U. S. 71, the Court, in discussing colored passengers’ 
rights as interstate passengers, stated the language in the 
DeCuir Case made it clear the Interstate Commerce Clause 
of the Constitution does not constrain the action of carriers 
to make rules, but, on the contrary, leaves them to adopt 
rules and regulations for the government of their business 
free from any interference except by Congress. The Court 
went on to say, page 76:

“ Such rules and regulations of course, must be 
reasonable, but whether they be such cannot depend 
upon a passenger being state or interstate. This also 
is manifest from the cited case. There, as we have 
seen, an interstate colored passenger was excluded 
from the privileges of the cabin set apart for white 
persons by a regulation of the carrier and where the 
colored passenger’s right to be was attempted to be 
provided by a state statute. ’ ’

In Mitchell v. United States, 313 U. S. 80, the Supreme 
Court again recognized that substantial equality in accom­
modations offered is all that is required to support 
the reasonableness of a carrier rule or regulation re­
quiring a separation of the races. The Court said, page 96 : 

“ * * * When a drawing room is available, the carrier



36

practice of allowing colored passengers to use one at 
Pullman seat rates avoids inequality as between the 
accommodations specifically assigned to the pas­
senger.’ ’

In McCabe v. A. T. & S. F. Ry. Co., 235 jU. S. 151, the 
Court held that there must be “ substantial equality of 
treatment of persons traveling under like conditions” .

In order to dispel any inference that there was, or could 
be, discrimination as to the treatment afforded negro pas­
sengers or as to the equipment used by negro passengers, 
appellant introduced in evidence 32 photographs of the 
equipment operated as “ The City of New Orleans” (Re­
spondent’s Exhibits 3-5, 10-38, Abst. 86-89). These photo­
graphs show all of the equipment in the train. The coaches 
used are the same throughout with the exception that some 
accommodate 48 passengers, others 52 and still others 56 
passengers. Exhibits Nos. 14 and 26 are photographs of 
the interiors of Cars 2610 (Car No. 10) and 2611 (Car No. 
2) which were, respectively, the second car from the rear 
of the train and the car Miss Johnson rode in on July 1, 
1950 (Abst. 40, Respondent’s Exhibit 2, Abst. 86). At 
the time these photographs were taken the condition of the 
coaches was, in all substantial respects, the same as on 
July 1, 1950 (Abst. 40). An examination of these exhibits 
shows that it is practically impossible to differentiate be­
tween the coaches without some identifying number. The 
seats, head rests, and the condition of the cars generally 
are, for all practical purposes, identical. The other equip­
ment, such as the diner-lounge, diner and observation car, 
is for use by, and is used by, all classes of passengers on 
the train. In addition, train personnel are all specifically 
instructed that there is to be no discrimination or differen­
tiation in the treatment afforded passengers because of 
their race, color or creed.

The Interstate Commission has specifically approved



37

carrier regulations requiring the separation of white and 
colored passengers. The first reported case before the 
Commission on this question was Councill v. Western £  
Atlantic R. R. Co., 1 I. C. C. 339, where at page 346 it 
was said:

“ Public sentiment, wherever the colored population 
is large, sanctions and requires this separation  ̂of 
races, and this was recognized by counsel representing 
both complainant and defendant at the hearing. We 
cannot, therefore, say that there is any undue prejudice 
or unjust preference in recognizing and acting  ̂upon 
this general sentiment, provided it is done on fair and 
equal terms. This separation may be carried out on 
railroad trains without disadvantage to either race 
and with increased comfort to both.”

To the same effect are the later decisions in Heard v. 
Georgia Railroad Company, 1 1. C. C. 428; Evans v. C. & 0. 
By. Co., 92 I. C. C. 713; Crosby v. St. L.-S. F. Ry. Co., 112 
I. C. 0. 239; and Henderson v. Southern Ry. Co., 284 
I. C. C. 161.

The Interstate Commission thereby recognizes that where 
a rule or practice of an interstate carrier conforms with 
the established usages, customs and traditions of the 
people, such ride or practice is reasonable in the absence 
of undue discrimination.

This principle was also recognized in the case of Sim­
mons v. Atlantic Greyhound Corp., 1947 D. C. W. D. Va., 
75 F. Supp. 166. In that case the plaintiff, a member of the 
negro race, was requested to change his seat from a section 
of a Greyhound bus set apart for white persons to a sec­
tion of the bus set apart for colored persons. This he de­
clined to do and left the bus, thereafter bringing suit for 
damages for an alleged violation of his rights. In holding



38

that no right of plaintiff had been violated the Court said, 
page 169:

“ The Supreme Court has consistently held that 
there is no infraction of the Fourteenth Amendment 
by a requirement for separate accommodations for 
white and colored persons on public carriers so long 
as the accommodations are equal,”

And at page 173:
“ The plaintiff appears to understand the decision 

in the Morgan case as being a judicial determination 
that any attempted separation of white and colored 
persons on a public carrier is illegal as applied to an 
interstate passenger, no matter by what authority or 
under what circumstances the attempt is made. I  do 
not so construe it. I do not understand that the court 
in that case, or in the DeCuir case asserted or assumed 
the power to impose regulations governing interstate 
traffic, but only that it denied the right of a state to 
interfere with such commerce. The distinction becomes 
important when, as in the instant case, we are dealing, 
not with a state statute but with the effect of a custom 
or rule adopted by the carrier in connection with the 
operation of its business. The difference in legal effect 
between a state statute attempting to regulate inter­
state commerce and a custom or regulation adopted by 
a carrier in the operation of its business is made clear 
not only in the language (heretofore quoted) of the 
DeCuir case but in other pertinent expressions of the 
Supreme Court—noticeably in the case of Chiles v. 
Chesapeake & Ohio Railway Company, 218 U. S. 71, 
30 S. Ct. 667, 54 L. Ed. 936, 20 Ann. Cas. 980.”

and later at page 176:
“ No matter how much we may deplore it, the fact- 

remains that racial prejudices and antagonisms do 
exist and that they are the source of many unhappy 
episodes of violence between members of the white 
and colored races. If it is the purpose of the defendant



39

here to lessen the occasions for such conflicts by adop­
tion of a rule for the separate seating of white and 
colored passengers, this court cannot say that such ̂ a 
rule is purely arbitrary and without reasonable basis.

“ It must be repeated and steadily borne in mind 
that the power to regulate interstate commerce is 
vested in Congress. This power Congress has, within 
certain limits, delegated to the Interstate Commerce 
Commission. To what limits the powers of this latter 
body extend need not be inquired into. The fact re­
mains that neither Congress nor any agency created 
by it has sought to impose any regulation dealing with 
the separation of passengers in interstate commerce. 
The fact that such separation has long been enforced 
in a number of states by custom and by the rules of 
common carriers operating in such states is a matter 
of public knowledge of which the members of Con­
gress are fully aware.”

IV.

Appellant Cannot Be Charged With Responsibility for 
Actions of Employees Which Are Contrary to Specific 
Instructions of Appellant and Which Are Without the 
Scope of Such Employees’ Authority.
To charge appellant with the responsibility for the al­

leged actions of one of its employees the State Commission 
should have first found that such employee was expressly 
authorized, commanded or directed by appellant to do the 
act complained of, or that such employee was impliedly 
authorized to do such act. It is well established that the 
test of liability on the part of the employer is whether the 
employee’s injurious conduct was authorized by the master, 
or whether the wrongful act was one which was within the



40

scope of the wrongdoer’s employment. Bjornqmst v. Bos­
ton dc A. B. Co., C. C. A. 1st, 250 F. 929.

In the ease at bar, appellant’s evidence shows, without 
contradiction, that the Illinois Central has definite and 
positive instructions, both written and oral, which are 
issued to all train personnel, operating on “ The City of 
New Orleans,” as well as its other trains, that all passen­
gers, regardless of race, color or creed, are to have free 
and equal use of any and all facilities on its trains (Abst. 
23, 37, 47, 51). The evidence further shows that these in­
structions are clearly understood by appellant’s train 
personnel (Abst. 33, 42, 43, 44, 45, 46, 56). Accordingly, if 
in fact one of appellant’s employees denied Miss Johnson 
a seat in one of the coaches on “ The City of New Orleans,” 
because of her race, such employee was acting directly con­
trary to the rules and standards prescribed by appellant. 
Had this employee been identified either by number, name 
or by car number, disciplinary action could have, and would 
have, been taken. No identification, however, was made.

Appellant cannot be charged with the responsibility for 
the actions of such an employee when that employee is not 
authorized or instructed to discriminate against or segre­
gate a passenger or when the employee undertakes to con­
duct the transportation service in a manner different and 
directly contrary to the standard prescribed by the Illinois 
Central. Wilkinson v. Hart’s Drive-In, Inc., 338 111. App. 
2104; Lornsville-'S N. R. Co. v. Marlin, 135 Tenn. 435, 186 
S. W. 595.
. In the Wilkinson case, plaintiff brought suit against the 

H art’s Drive-In, Inc., for damages suffered because one of 
the servants of the defendant corporation refused to serve 
her in its eating place because she was a negro. The evi­

4. As this case is not published in full, the decision is attached to this 
brief as Appendix A.



41

dence showed that the plaintiff and a friend entered de­
fendant ’s building, seated themselves at a table and awaited 
service, A waiter came to plaintiff and informed her that 
she could not be served in the dining room as she was a 
negro, but that he would be glad to serve her outside. The 
evidence further showed that the waiter was not instructed 
or authorized to discriminate against anyone in serving the 
public but that he had continued in defendant’s employ 
after the suit by plaintiff had been instituted. The Appel­
late Court, in affirming the judgment of the lower court, 
said:

“ The evidence is undisputed that appellant had 
given none of his employees any authority to discrimi­
nate against any race in the conduct of his business. 
Finney (the waiter) did something that he was not 
employed to do and contrary to his employer’s instruc­
tions. * * * Finney had no right or authority to under­
take to conduct defendant’s business in any manner 
different from the standard prescribed by Mr. Fross, 
the owner. ’ ’

The Court went on to say that the fact defendant continued 
Finney in its employ after it knew of Finney’s wrongdo­
ing was not tantamount to ratification of his acts.

The case at bar is even more convincing as the alleged 
actions of the employee are clectrly shown to be directly 
contrary to appellant’s specific instructions. The instant 
case is also stronger factually because there is no question 
as to subsequent ratification of the employee’s actions.



42

Conclusion.

It is respectfully submitted that the order of the Superior 
Court of Cook County dated March 16, 1953, affirming the 
order of the Illinois Commerce Commission dated May 14, 
1952, should be reversed. The law and the evidence lead to 
no other conclusion.

The Illinois Commerce Commission had no jurisdiction 
to enter its order of May 14, 1952.

The order of the Illinois Commerce Commission was not 
supported by adequate evidence, the findings made were 
not adequate and were not supported by the evidence.

Respectfully submitted,
J o h n  W . F oster ,

Attorney for Appellant, 
Illinois Central Railroad 

Company,
135 East Eleventh Place, 
Chicago 5, Illinois 
WAbash 2-4811.

J . H. W r ig h t ,
H. J . D ea n y ,

Of Counsel.



43

APPENDIX A.

No. 10361.

I n  t h e , A ppe l l a t e  C o u rt  of I l l in o is  

Second District.
May Term, A. D. 1949.

M abib  W il k in s o n ,
Plaintiff (A pp ellant),

vs.

' Appeal from
Circuit Court of 

Kane County.
>

H a r t ’s D rive- I n , I n c ., a 
corporation,

Defendant (Appellee).„

Honorable
Charles A. O’Connor, 

Judge Presiding.

B r isto w , J .—Marie Wilkinson, plaintiff (appellant), 
brings this appeal from the Circuit Court, of Kane County 
where she failed to prevail in her suit against the H art’s 
Drive-In, Inc., defendant (appellee) wherein she sought 
to recover damages because one of the servants of defend­
ant corporation refused to serve her in their eating place 
because she was a Negro. Defendant’s conduct allegedly 
was in violation of paragraphs 125 and 126, Chapter 38, 
of Illinois Revised Statutes 1947, which is the Civil Rights 
statute and reads as follows:

“ 1. All persons within the jurisdiction of said State 
of Illinois shall be entitled to the full and equal enjoy­
ment of the accommodations, advantages, facilities and 
privileges of inns, restaurants, eating houses, hotels, 
soda fountains, soft drink parlors, taverns, roadhouses, 
barber shops, department stores, clothing stores, hat 
stores, shoe stores, hath rooms, restrooms, theaters,



44

skating rinks, concerts, cafes, bicycle rinks, elevators, 
ice cream parlors or rooms, railroads, omnibuses, 
busses, stages, aeroplanes, streetcars, boats, funeral 
hearses and public conveyances on land, water or air, 
and all other places of public accommodations and 
amusement, subject only to the conditions and limita­
tions established by laws and applicable alike to all 
citizens; nor shall there be any discrimination on ac­
count of race or color in the price to be charged and 
paid for lots or graves in any cemetery or place for 
burying the dead.

“ 2. That any person who shall violate any of the 
provisions of the foregoing section by denying to any, 
citizen, except for reasons applicable alike to all citi­
zens of every race and color, and regardless of color 
or race, the full enjoyment of any of the accommoda­
tions, advantages, facilities or privileges in said section 
enumerated, or by aiding or inciting such denial, shall 
for every such offense, forfeit and pay a sum not less 
than twenty-five ($25) dollars nor more than five hun­
dred ($500) dollars to the person aggrieved thereby, 
to be recovered in any court of competent jurisdiction, 
in the county where said offense was committed; and 
shall also, for every such offense be deemed guilty of a 
misdemeanor, and upon conviction thereof, shall be 
fined not to exceed five hundred dollars ($500), or shall 
be imprisoned not more than one year, or both,”

Mrs. Marie Wilkinson and her friend, Mrs. Bernice 
Christmas, on May 13, 1948, visited the H art’s Drive-In, 
Inc., a public restaurant, which is located on the outskirts 
of Aurora. As was customary when they entered the build­
ing they gave their orders and pay for the food they de­
sired. After this, Mrs. Wilkinson and Mrs. Christmas 
became seated at a table and awaited the service of their 
food. There were other patrons in the dining room, all of 
whom appeared to be white.

Norbert Finney who was employed by defendant as a 
waiter or sandwich maker came to the plaintiff and engaged



45

in the following conversation: “ I am sorry, but we cannot 
serve you here; I would be glad to serve you outside.” 
And when asked why, said: “ You are colored, are you 
not?” And upon receiving an affirmative reply said: “ We 
cannot serve you in the dining room but we would be glad 
to serve you outside.”

Finney was made a party defendant to the instant suit 
but he did not see fit to answer or appear and testify at the 
trial. The trial court found defendant Finney guilty and 
assessed plaintiff damages in the sum of $25.00 and found 
appellant not guilty. Finney did not participate in this 
appeal.

On the trial Fred Fross testified that he and his family 
are the principal stockholders in the defendant corpora­
tion ; that his cashier, Violet, was in charge of the business 
during his absence; that he had heard nothing about the 
episode that gave rise to this litigation until suit was 
instituted against him; that Finney was simply a waiter 
and a sandwich maker and that he nor any other of his 
employees were instructed or authorized to discriminate 
against anyone in serving the public; that Finney continued 
in his employ after the present suit was instituted.

The plaintiff testified that after she was told by Finney 
that she could not be served inside, that she obtained a 
return of her money from the cashier but that the cashier 
was not told at that time why she was leaving the premises. 
Plaintiff further testified that there were no signs appear­
ing anywhere which indicated any discrimination against 
anyone on the part of the management.

It is contended by appellee and the trial court appar­
ently concurred in this view that the wrongdoing of Finney 
was beyond the scope of his employment and that therefore 
appellee as principal should not be called upon to respond 
in damages.

If an agent commits a wrong in excess of Ms authority,



46

the principal is not liable even though the wrong was com­
mitted for the benefit of the principal. In the case of 
Nelson v. St'ids Chicago Factory Branch, Inc., 341 111. 387, 
the Supreme Court said:

“ The rule is well established that the owner of an 
automobile is not liable for damages caused by its 
negligent operation by an employee whose possession 
of the vehicle is without the owner’s permission. The 
relation of master and servant must exist to make the 
owner liable, and the servant must be acting at the time 
within the scope of his employment. * * *

“ From the undisputed evidence, Smith was not only 
without authority to take the automobile, but was abso­
lutely prohibited to do so without obtaining special 
permission. The master has the right to conduct his 
business in his own way according to his own rules. 
His employees have no right to undertake to conduct 
his business for him in disregard of his rules, even 
though they believe it is to his interest for them to do 
so. Smith was at no time within the scope of his 
employment from the time he took the car. He was a 
wrongdoer throughout his possession of the car.”

The evidence is undisputed that appellant had given none 
of his employees any authority to discriminate against any 
race in the conduct of his business. Finney did something 
that he was not employed to do and contrary to his em­
ployer’s instructions. Violet, the cashier, was in charge of 
the business at the time of the incident under consideration. 
It was not she who told plaintiff she was not wanted. If it 
had been the policy of the defendant corporation to refuse 
service to colored persons she would not have taken her 
order and money. Finney had no right or authority to 
undertake to conduct defendant’s business in any manner 
different from the standard prescribed by Mr. Fross, the 
owner.

Another case that is deserving of attention in this con­
nection is that of Chesley v. Woods Motor Vehicle Com­
pany, 147 111. App. 588, wherein the plaintiff, a traveling



47

salesman, bad been in tbe habit of leaving his sample eases 
with tbe porter at tbe garage where be stored bis ear. The 
cases disappeared and plaintiff sought damages from the 
garage owner. The court, in considering the question as 
to whether the porter was acting within the scope of his 
employment, said:

“ The record discloses no evidence amounting to the 
dignity of proof that the porter, at the times when he 
received plaintiff’s sample case, wa^ acting within the 
scope of his employment; nor does it appear that de­
fendant, or any of its office force, had any knowledge 
relating to the custody of the sample case or of its 
existence, until after its loss and the complaint subse­
quently made in consequence of such loss. Thus de­
fendant was in the dark in relation to plaintiff’s sample 
case and its loss until it had not only moved its place 
of business, but had dispensed with the services of the 
porter to whom plaintiff entrusted it. For aught that 
appears to the contrary, the porter has it yet. With 
the porter plaintiff left his sample case; to him he 
must look for its return. The evidence does not even 
cast upon defendant the duty of a voluntary bailee or 
any other legal responsibility in relation to the sample 
case of plaintiff. Nor does plaintiff contend that any 
liability is fastened upon defendant from any direct 
evidence, but argues that liability arises by implication 
from the facts in evidence, and that by applying to 
such evidence ‘all such presumptions and inferences 
arising from it,’ the porter is proven to be the agent 
of defendant to receive the sample case of plaintiff. 
We are not able to follow either such logic or reasoning 
to the extent of holding that any inference or presump­
tion of agency is justified upon any legal theory known 
to us from proof of that or like character. * * *

“ Plaintiff was bound to inform himself of the scope 
of the agency of the porter when he left his sample case 
with him, if he desired to fasten upon defendant re­
sponsibility for its safe-keeping. Jackson v. Commer­
cial Bank, 199 111. 151; Kuecke v. Neiv Home Sew. M. 
Co., 123 111. App. 660.

“ The burden of establishing agency rested upon



48

plaintiff. Wiley v. First Nat’l Bk., 47 Vt. 546. This 
plaintiff did not prove.”

Appellant also makes the contention that since Finney 
continued in the employ of defendant after he knew of his 
wrongdoing that such conduct is tantamount to ratification 
of his acts. No authority is cited which remotely sustains 
such a proposition. On the contrary in the case of Buckley 
v. Edgeivater Beach Hotel Company, 247 111. App. 239, the 
court said:

“ It is insisted, however, that the defendant hotel 
company acquiesced in the assault, by reason of its 
retention of McAlvany as a servant of the company 
for a period of time after the occurrence in question. 
I t is true that a principal, while not present, may ratify 
the acts of his servant so as to become personally 
liable. In our opinion there must be some such affirma­
tive act as would indicate an expressed intention to 
concur in the acts of the servant. We do not believe 
that the mere retention of a servant alone would be 
sufficient. As a matter of fact, if the servant had been 
discharged immediately after the cause of action ac­
crued to the plaintiff it would, be argued, and with 
force, that it was a recognition by the defendant of the 
illegality of the act of its servant, and would amount 
to a practical admission of liability on the part of the 
corporation.

“ While it is alleged in the declaration that the de­
fendant company had ratified and acquiesced in the 
alleged wrongful conduct of the defendant Conway, 
there is no proof in the record to sustain this averment. 
The evidence shows that Conway continued in the 
employ of defendant after the occurrence complained 
of by the plaintiff, but this fact in and of itself was not 
sufficient to charge the defendant with knowledge of or 
acquiescence in whatever wrongful acts, if any, may 
have been committed by him. ’ ’

In view of the foregoing, we are of the opinion that the 
trial court’s determination that appellee should be found 
not guilty was correct.

J u d g m e n t  A f f ir m e d .