Morgan v. Virginia Transcript of Record

    TRANSCRIPT OF RECORD

S u p re m e  C o u r t  o f  th e  U n it e d  States

OCTOBER TERM, 1945

N o. 7 0 4

IRENE MORGAN, APPELLANT, 

vs.

COMMONWEALTH OF VIRGINIA

APPEAL FROM THE SUPREME COURT OF APPEALS OP THE STATE
OP VIRGINIA

PILED DECEMBER 29, 1945,





SUPREME COURT OF THE UNITED STATES

IRENE MORGAN, APPELLANT, 
vs.

COMMONWEALTH OP VIRGINIA

APPEAL FROM THE SUPREME COURT OP APPEALS OF THE STATE

OCTOBER TERM, 1945

N o. 7 0 4

vs.

OP VIRGINIA

INDEX
Original Print

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

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

Record from Circuit Court of Middlesex County................... 23 24
Warrant and sheriff’s return.............................................  23 24
Journal entry of hearing on appeal.....................................  26 26
Judgment entry .................................................................  27 28
Order suspending execution of judgment........................  29 30
Bill of Exception No. 1—Evidence.................................... 30 30

R. P. Kelly ...................................................................  30 31
C. M. B ristow ................................................................ 36 37
R. B. Segar...................................................................  37 38
Irene Morgan ................................................................ 39 40
Estelle F ie lds ................................................................ 42 44
Richard Scott .............................................................. 44 45
Willie Robinson ..........................................................  45 43
William Garnett ..........................................................  45 47
Thomas Carter ............................................................ 46 47
Rachel Goldman ..........................................................  46 47
Ruby Catlett ................................................................ 46 48

Judd & D f.tweileb ( I nc.) ,  P rinters, W ashington , D. O., February 4, 1946.

—2737



11 INDEX

Record from Circuit Court of Middlesex County—Continued
Original

Bill of Exception No. 2—Motion to strike evidence.........
Bill of Exception No. 3—Motion to set aside judgment.. 
Bill of Exception No. 4—Motion in arrest of judgment..
Clerk’s certificate ................................................................
Judgment, case of resisting arrest, October 18, 1944 . . . .

Opinion, Gregory, J ............................................................................
Judgment ....................................................................................
Recital as to filing of petition for rehearing............................
Order denying petition for rehearing.......................................
Petition for appeal and assignments of error..........................

Order allowing appeal ........................................................
Bond on appeal....................................(omitted in printing) ..
Citation and service.......................... (omitted in printing) ..
Praecipe for transcript of record .............................................
Clerk’s certificate................................ (omitted in printing)..
Statement of points to be relied upon and designation of rec­

ord ............................................................................................
Designation by appellee of additional parts of record...........
Order noting probable jurisdiction...........................................

48
49
50
51
52 
55 
78 
78 
78 
80
53
84
85
86 
88

89
90 
92

/

Print
49
50
52
53
54 
56 
68 
69 
69 
69 
71

72

74
75
76



1

[fol. 1]
IN THE SUPREME COURT OF APPEALS OF VIRGINIA 

AT RICHMOND

Record No. 2974

I rene M organ 

versus
Commonwealth of V irginia 

Petition for Writ of Error

To the Honorable Judges of the Supreme Court of Appeals
of Virginia:
Your petitioner, Irene Morgan, respectfully represents 

that on the 16th day of July, 1944, a warrant was issued 
upon the oath of R. P. Kelly charging that, on the date 
aforesaid, she did “ Unlawfully refuse to move back on the 
Greyhound Bus in the section for colored people” ; that 
whereupon she was tried in the Circuit Court of Middlesex 
County without a jury, trial by jury having been waived, 
upon an amended warrant charging that, on the date afore­
said, she did “ Unlawfully refuse and fail to obey the direc­
tion of the driver or operator of the Greyhound Bus Lines 
to change her seat and to move to the rear of the bus and 
occupy a seat provided for her, in violation of section 5 of 
the Act, Michie Code of 1942, section 4097dd” ; that where­
upon the said Court found her guilty of said offense and 
sentenced her to pay a fine of Ten ($10.00) Dollars, and 
final judgment thereupon was entered on the 18th day of 
October, 1944.

A transcript of the record in this case and of the judg­
ment therein is herewith filed as a part of this petition.

[fol. 2] E rrors A ssigned

Your petitioner is advised and represents to your Honors 
that the said judgment is erroneous, and that she is ag­
grieved thereby in the following particulars, namely:

First. The action of the Court in overruling petitioner’s 
motion, first made at the conclusion of the presentation of 
the Commonwealth’s evidence-in-chief, to strike the evi-

1—704



2

dence of the Commonwealth and dismiss the case upon the 
ground that the evidence introduced by the Commonwealth 
was legally insufficient to sustain a conviction of the crime 
charged in the amended warrant, upon which she was being 
tried and that no judgment thereupon could lawfully be 
rendered against her, for the following reasons, to-wit: 
that the law upon which the prosecution was based could 
not constitutionally be applied to her as she was, as shown 
by the evidence, an interstate passenger traveling upon the 
vehicle of an interstate public carrier, and that its applica­
tion to such a passenger would be in violation of Article I, 
Section 8, of the Constitution of the United States; and that 
under settled rules of construction said law could not he 
construed to apply to a passenger in interstate commerce, 
and that it must be construed as limited in its operation to 
passengers in intrastate commerce; which motion was re­
newed and again overruled at the conclusion of the entire 
case after both the Commonwealth and your petitioner had 
rested.

Bill of Exception No. 2, Record, pp. 34-35.
Second. The action of the Court in overruling petitioner’s 

motion to set aside said Court’s decision and judgment of her 
guilt of the aforesaid offense, and to award her a new trial, 
which motion was predicated upon the same grounds and 
reasons aforesaid, and upon the additional ground and 
reason that said decision and judgment of her guilt was 
contrary to the evidence, and lacking in evidence sufficient 
to support the same.

Bill of Exception No. 3, Record, pp. 36-37.
Third. The action of the Court in overruling petitioner’s 

motion for a new trial, which motion was predicated upon 
the same grounds and reasons aforesaid, and upon the addi­
tional ground and reason that said Court’s decision and 
judgment of her guilt was contrary to the evidence, and 
lacking in evidence sufficient to support the same.
[fol. 3] Bill of Exception No. 4, Record, pp. 38-39.

Question's I nvolved in the A ppeal

These assignments of error present two questions:
First: Is the statute upon which petitioner was prose­

cuted, if construed as applicable to a passenger in interstate 
commerce, constitutional?



3

Second. Should the statute upon which petitioner was 
prosecuted be construed as limited in its operation to pas­
sengers in intrastate commerce, and, therefore, as inappli­
cable to petitioner?

Statement of the F acts

In the statement of the facts and the argument, petitioner 
will be referred to as the defendant, in accordance with the 
position occupied by her in the trial court.

On July 16, 1944, defendant, who is a Negro or colored 
person (R., jjp. 9, 21), was a passenger upon a bus of the 
Richmond Greyhound Lines, Inc. She boarded the bus at 
Hayes Store, in Gloucester County, Virginia, and was 
traveling to the City of Baltimore, Maryland (R., pp. 9, 21). 
R. P. Kelly, an employee of the Greyhound Lines for six 
years, was the driver in charge and control of the bus (R., 
pp. 9, 11, 21).

When the bus arrived in Saluda, Virginia, the driver per­
ceived defendant and another colored woman, the latter 
carrying an infant, seated in a seat forward of the long 
seat in the extreme rear of the bus (R., pp. 9, 10). Defend­
ant was requested by the driver to move from said seat, 
and, upon her refusal so to do, the driver procured a war­
rant charging the offense for which she was prosecuted in 
the court below.

As to the condition of the bus, the events occurring and 
the circumstances leading up to and surrounding defend- 
ant ’s refusal to leave her seat, the testimony introduced by 
the Commonwealth and the defendant, respectively, is in 
hopeless conflict. Defendant concedes the binding effect 
of the decision of the trial court in this regard, but submits 
that as it was shown without contradiction that she and the 
Greyhound Company were, respectively, interstate pas­
senger and carrier, she could not be prosecuted for violating 
the statute aforesaid upon the basis of either the Common­
wealth’s or her own evidence.

The evidence of the Commonwealth, consisting chiefly of 
the testimony of the bus driver, tended to show that at the 
[fol. 4] time defendant’s removal from the seat was sought, 
there were two vacancies on the long rear seat in the 
extreme rear of the bus, which seat is designed to accommo­
date five persons, and was then occupied by three colored 
passengers; that all other seats in the bus were occupied;



4

that defendant and her seatmate were requested to move 
back into these seats, the driver advising them that under 
the rules of the bus company, he was required to seat white 
passengers from the front of the bus backward and colored 
passengers from the rear of the bus forward; that defend­
ant refused to move, whereupon the driver procured a 
warrant charging her with a violation of the segregation 
law through her refusal to move.

On the other hand, defendant’s version, which was cor­
roborated by the testimony of four other witnesses, includ­
ing Estelle Fields, her seatmate, was that the seat in ques­
tion became vacant when the bus stopped in Saluda; that 
she then moved from the long rear seat which, from Hayes 
Store to Saluda, had been occupied by six or seven passen­
gers, including herself, into said seat, the latter being the 
only vacant seat in the bus; that about five minutes later a 
white couple boarded the bus, whereupon the driver ap­
proached defendant and her seatmate and told them that 
they must get up so that the white couple might sit down; 
that she, the defendant, informed the driver that she was 
willing to exchange the seat she occupied for another on 
the bus, but was unwilling to stand, in reply to which the 
driver stated that colored passengers would be seated only 
after all white passengers had obtained seats that when 
asked by defendant where she would sit if she relinquished 
the seat she occupied the driver said nothing; that at the 
time she was directed to move, there were no vacant seats 
either on the long rear seat or elsewhere in the bus.

A second charge was lodged against the defendant as a 
consequence of events which allegedly occurred when the 
Sheriff and Deputy Sheriff of Middlesex came on the bus to 
execute the warrant obtained by the bus driver. The claim 
of the Commonwealth in this connection was that defendant 
resisted said officers in the discharge of their duties. This 
claim was substantially denied by defense witnesses, but 
defendant was convicted of the second offense also. By 
consent of the Commonwealth, the defendant, and the 
Court, both charges were tried together (R., p. 3), but no 
appeal from the conviction on the resisting charge was 
taken.

It appeared without controversy that the sources of the 
difficulties aboard the bus, whatever they may have been, 
were the efforts to remove defendant from the seat which



5

she occupied. The bus driver admitted that neither he nor 
[fol. 5] anyone else on the bus had any difficulties whatso­
ever with defendant until he sought to move her from her 
seat (R., p. 16), and both the Sheriff and Deputy Sheriff 
testified that defendant was in all respects orderly and well- 
behaved and caused no trouble whatsoever until efforts were 
commenced to remove her from the seat (R., pp. 18, 20).

The driver also testified that under the rules of the bus 
company all colored passengers were required to be seated 
from the rear of the bus forward and that all white pas­
sengers from the front of the bus backward, and that the 
general custom and policy pursued by his company upon 
buses traveling in or through the State of Virginia was to 
assign seats to colored and white passengers in this manner 
(R., p. 16), and so far as the record discloses, the sole 
ground upon which defendant’s removal was sought and 
effected was that she is a Negro.

That defendant, at the time she allegedly committed the 
offense with which she was charged, and for which she was 
convicted, was a passenger traveling in interstate com­
merce upon the vehicle of an interstate public carrier, is 
conclusively established by the uncontroverted evidence for 
the Commonwealth as well as the defendant.

The Richmond Greyhound Lines, Incorporated, is regu­
larly engaged in the business of transporting passengers 
for hire and reward from points within the State of Vir­
ginia to various points throughout the United States, in­
cluding the City of Baltimore, Maryland, and was so en­
gaged on July i6, 1944, the date upon which the events for 
which defendant was prosecuted occurred (R., p. 12). Pas­
sengers traveling to points outside the State of Virginia 
are, and were, on this day, regularly taken aboard its buses 
in Gloucester County, Virginia, including Hayes Store, 
and transported therein to points outside the State of Vir­
ginia (R., p. 12).

On July 15, 1944, defendant had purchased from the 
regular agent of the Richmond Greyhound Lines, Incorpo­
rated, at its ticket office at Haves Store, Virginia, a through 
ticket for transportation from Hayes Store to Baltimore, 
Maryland (R., pp. 12,13, 21). The stub of this ticket, which 
was introduced into evidence (R., p. 13), sets forth Hayes 
Store as the point of departure and Baltimore as the point 
of destination (R., p. 13). Defendant, as the holder of said



6

ticket, thereby became entitled to transportation from 
Hayes Store, Virginia, to Baltimore, Maryland, in a Grey­
hound bus (R., p. 12), and was entitled to transportation 
between the points aforesaid on July 16, 1944, in the bus 
upon which occurred the incidents out of which the prose­
cution grew (R., p. 12).

Upon boarding the bus at Hayes Store, for transportation 
[fob 6] to Baltimore, defendant surrendered the ticket and 
R. P. Kelly, the driver, accepted the same (R., pp. 12, 21). 
Kelly was personally driving and operating the bus from 
the City of Norfolk, Virginia, to Baltimore (R., pp. 9, 11). 
This bus regularly made and was on that day making a 
continuous or through trip from Norfolk to Baltimore, 
traveling by way of and through the City of Washington’ 
District of Columbia (R., pp. 11, 12).

After the arrest of defendant and her removal from the 
bus, Kelly prepared a transfer or token, identified at the 
trial by both Kelly (R., pp. 13, 14) and defendant (R., pp. 
21, 22), in order that defendant might employ it for trans­
portation from Saluda, Virginia, to Baltimore, Maryland, 
or for_ a cash refund of the fare paid for that portion of 
her trip between the said two points (R., p. 14). Kelly 
punched this transfer at the appropriate places to show 
Saluda as the point of beginning and Baltimore as the point 
of ending of the incompleted portion of her trip (R., pp.

15).
Kelly testified that he would not have prepared or issued 

a transfer showing Saluda as the point of beginning and 
Baltimore a,s the point of ending, unless defendant had held 
a ticket entitling her to transportation on his bus to Balti­
more (R., p. 15); and that he knew that all of the colored 
passengers remaining on the bus in Saluda, after those 
destined there had been discharged, held tickets to and were 
traveling to Baltimore, Maryland (R., p. 15). Defendant 
testified that she had no intention of leaving the bus prior 
to its arrival in Baltimore (R., p. 21).

At the conclusion of the presentation of the Common­
wealth’s evidence-in-chief, defendant moved to strike the 
evidence of the Commonwealth and to dismiss the case, 
upon the ground that the evidence for the Commonwealth 
was legally insufficient to sustain a conviction of the offense 
with which she was charged, and that no judgment there­
upon could lawfully be rendered against her, for the reason 
that the statute upon which the prosecution was based



7

could not constitutionally be applied to her as she was, as 
shown by the evidence, an interstate passenger traveling 
upon the vehicle of an interstate public carrier, and that its 
application to such a passenger would be in violation of 
Article I, Section 8, of the Constitution of the United States, 
and also for the reason that under settled rules of construc­
tion said law could not be construed to apply to a passenger 
in interstate commerce, and that it must be construed as 
limited in its operation to passengers in intrastate com­
merce (B., pp. 4, 20, 21, 34). At the conclusion of the entire 
case, after both the Commonwealth and the defendant had 
[fol. 7] rested, this motion was renewed (B., pp. 4, 5, 32, 
33, 34, 35). After the Court had returned a finding that 
defendant was guiltj  ̂ of the offense charged (B., p. 5), de­
fendant moved to set aside said finding (B., pp. 5, 6, 36, 37), 
and also moved for a new trial (B., pp. 6, 38, 39) upon the 
same grounds and for the same reasons. Each of said 
motions the Court overruled, to which action of the Court 
defendant in each instance excepted. Final judgment was 
entered sentencing defendant to pay a fine of $10.00 (B., 
pp. 6, 7).

A rgument

I

The Statute Upon Which the Prosecution was Based, if 
Construed As Applicable to Defendant, a Passenger 

in Interstate Commerce, Is Unconstitutional 
and Void.

The Statutes Involved

In 1930, the General Assembly of Virginia enacted a 
statute described by its title as “ An Act to provide for the 
separation of white and colored passengers in passenger 
motor vehicle carriers within the State; to constitute the 
drivers of said motor vehicles special policemen, with the 
same powers given to conductors and motormen of electric 
railways by general law.”  (Acts of Assembly, 1930, Chap. 
128.)

This statute, now appearing as Sections 4097z to 4097dd 
of Michie’s Code of Virginia, 1942, requires all passenger 
motor vehicle carriers to separate the white and colored 
passengers in their motor busses, and to set apart and



8

designate in each bus seats or portions thereof to be occu­
pied, respectively, by the races, and constitutes the failure 
and refusal to comply with said provisions a misdemeanor 
(Sec. 4097z); forbids the making of any difference or dis­
crimination in the quality or convenience of the accommo­
dations so provided (Sec. 4097aa); confers the right and 
obligation upon the driver, operator or other person in 
charge of such vehicle, to change the designation so as to 
increase or decrease the amount of space or seats set apart 
for either race at any time when the same may be necessary 
or proper for the comfort or convenience of passengers so 
to do; forbids the occupancy of contiguous seats on the 
same bench by white and colored passengers at the same 
time; authorizes the driver or other person in charge of the 
vehicle to require any passenger to change his or her seat 
[fol. 8] as it may be necessary or proper, and constitutes 
the failure or refusal of the driver, operator or other person 
in charge of the vehicle, to carry out these provisions a 
misdemeanor (Sec. 4097bb); constitutes each driver, oper­
ator, or other person in charge of the vehicle, while actively 
engaged in the operation of the vehicle, a special policeman, 
with all of the powers of a conservator of the peace in the 
enforcement of the provisions of this statute, the mainte­
nance of order upon the vehicle, and while in pursuit of 
persons for disorder upon said vehicle, for violating the 
provisions of the act, and until such persons as may be 
arrested by him shall have been placed in confinement or 
delivered over to the custody of some other conservator of 
the peace or police officer, and protects him against the 
consequences of error in judgment as to the passenger’s 
race, where he acts in good faith and the passenger has 
failed to disclose his or her race (Sec. 4097ce). Section 
4097dd, upon which the prosecution in this case was based, 
reads as follows:

“ All persons who fail while on any motor vehicle carrier, 
to take and occupy the seat or seats or other space assigned 
to them by the driver, operator or other person in charge of 
such vehicle, or by the person whose duty it is to take up 
tickets or collect fares from passengers therein, or who fail 
to obey the directions of any such driver, operator or other 
person in charge, as aforesaid, to change their seats from 
time to time as occasions require, pursuant to any lawful 
rule, regulation or custom in force by such lines as to assign­



9

ing separate seats or other space to white and colored 
persons, respectively, having been first advised of the fact 
of such regulation and requested to conform thereto, shall 
be deemed guilty of a misdemeanor, and upon conviction 
thereof shall be fined not less than five dollars nor more than 
twenty-five dollars for each offense. Furthermore, such 
persons may be ejected from such vehicle by any driver, 
operator or person in charge of said vehicle, or by any 
police officer or other conservator of the peace; and in case 
such persons ejected shall have paid their fares upon said 
vehicle, they shall not be entitled to the return of any part 
of same. For the refusal of any such passenger to abide by 
the request of the person in charge of said vehicle as afore­
said, and his consequent ejection from said vehicle, neither 
the driver, operator, person in charge, owner, manager nor 
bus company operating said vehicle shall be liable for 
damages in any court.”

[fol. 9] The Defendant’s Contention

Defendant is unconcerned with the applicability of the 
statute aforesaid to passengers whose journeys commence 
and end within the state. Nor does she base her contention 
of invalidity upon a claim of inequality or inferiority 
in the accommodations afforded members of her race. 
Her position is that since it appears without controversy 
that she was a passenger in interstate commerce upon an 
interstate carrier, the statute could not constitutionally 
apply, and therefore affords no basis for her prosecution.

Such Statutes Are Unconstitutional and Void When Appli­
cable to Interstate Passengers

That state laws of the kind upon which this prosecution 
was based cannot be permitted to operate upon interstate 
commerce is apparent from principles too well known and 
settled to require citation of authority.

In recognition of the necessity of uniformity through 
national control in the regulation of commerce among the 
states, the Constitution of the United States, in Article I, 
Section 8, confers the regulatory power upon Congress and 
invests it with power to determine what these regulations 
shall be. Whenever the subject matter of regulation is 
in its nature national, and admits of only one uniform



10

system or plan of regulation, the power of Congress is 
exclusive, and cannot be encroached upon by the states. 
There is no room for the operation of the police power of 
the state where the legislature passes beyond the exercise 
of its legitimate authority and undertakes to regulate in­
terstate commerce by imposing burdens upon it.

It has therefore been flatly declared by the highest Court 
in the land that legislation which seeks to direct the inter­
state carrier with respect to the policy which it is to pursue 
in transporting the races is unconstitutional and void.

Halil v. DeCuir, 95 II. S. 485, 24 L. Ed. 547 (1877).

In that case the defendant was the owner of a steam­
boat licensed under Federal law for the coasting trade 
plying between New Orleans, Louisiana, and Vicksburg, 
Mississippi, and touching at intermediate points within 
and without Louisiana. Plaintiff, a Negro, took passage 
from New Orleans to Hermitage, Louisiana. Upon being 
refused a place in a cabin set apart by defendant for ex­
clusive occupancy by white persons, plaintiff brought an 
action for damages under the Louisiana Act of 1869, which 
[fol. 10] prohibited “ discrimination”  because of race or 
color, and provided a right of action to recover damages. 
The defense was that the statute was inoperative as re­
gards the defendant because, as to him, it was an attempt 
to regulate commerce among the states. The trial court 
gave judgment for the plaintiff, which was affirmed by 
the Supreme Court of Louisiana. In the Supreme Court 
of the United States, the judgment was reversed. The 
Court pointed out that the state court had construed the 
statute and held that it applied to interstate commerce, 
and that it guaranteed a passenger in interstate commerce 
equal rights and privileges in all parts of the conveyance, 
without discrimination on account of race or color, and 
that this construction was binding upon the Supreme Court 
and therefore excluded from the case all questions concern­
ing its application to intrastate passengers. The Court, 
by Chief Justice Waite, said:

“ But we think it may safely be said that state legislation 
which seeks to impose a direct burden upon interstate com­
merce, or to interfere directly with its freedom, does en­
croach upon the exclusive power of Congress. The statute 
now under consideration in our opinion occupies that posi-



11

ti°n- * While it purports only to control the car­
rier when engaged within the state, it must necessarily 
influence his conduct to some extent in the management 
of his business throughout his entire voyage. His dispo­
sition of passengers taken up and put down within the 
State, or taken up to be carried without, cannot but affect 
in a greater or less degree those taken up without and 
brought within, and sometimes those taken up and put down 
without. A  passenger in the cabin set up for the use of 
whites without the state must, when the boat comes within, 
share the accommodations of that cabin with such colored 
persons as may come on board afterwards if the law is 
enforced. It was to meet just such a case that the com­
mercial clause in the Constitution was adopted. * * *
Each state could provide for its own passengers and regu­
late the transportation of its own freight, regardless of 
the interests of others— * * * On one side of the river
or its tributaries he might be required to observe one set 
of rules, and on the other another. Commerce cannot flour­
ish in the midst of such embarrassment. No carrier of 
passengers can conduct his business with satisfaction to 
himself, or comfort, to those employing him, if on one side 
of a State line his passengers, both white and colored, 
must be permitted to occupy the same cabin, and on the 
other be kept separate. Uniformity in the regulations by 
[fol. 11] which he is to be governed from one end to the 
other of his route is a necessity in his business.”

Pointing' out that the exclusive legislative power, as re­
spects interstate commerce, rests in Congress, the Court 
further said:

“ This power of regulation may be exercised without 
legislation as well as with it. By refraining from action, 
Congress, in effect, adopts as its own regulations those 
which the common law or the civil law, where that prevails, 
has provided for the government of such business.”

It was further held that Congressional inaction left the 
carrier free to adopt reasonable rules and regulations, and 
the statute in question sought to take away from him that 
power. It was therefore concluded that

“ If the public good require such legislation it must come 
from Congress and not from the States.”



12

Mr. Justice Clifford, in a concurring opinion, pointed out 
that

“ Unless the system or plan of regulation is uniform, it 
is impossible of fulfillment. Mississippi may require the 
steamer carrying passengers to provide two cabins and 
tables for passengers, and may make it a penal offense for 
white and colored persons to be mixed in the same cabin or 
at the same table. If Louisiana may pass a law forbidding- 
such steamer from, having two cabins and two tables—one 
for white and the other for colored persons—it must be 
admitted that Mississippi may pass a law requiring all 
passenger steamers entering her ports to have separate 
cabins and tables, and make it penal for white and colored 
persons to be accommodated in the same cabin or to be 
furnished with meals at the same table. Should state legis­
lation in that regard conflict, then the steamer must cease 
to navigate between ports of the states having such con­
flicting legislation, or must be exposed to penalties at every 
trip. ’ ’

The same reasons which operated to destroy the consti­
tutionality of the statute there involved operate equally 
to render unconstitutional legislation which seeks to compel 
a separation of interstate passengers upon a racial basis. 
Consequently, notwithstanding decisions in two states to 
the contrary, which have elsewhere been disapproved,
[fol. 12] Illinois Central Railroad Company v. Redmond, 
119 Miss. 765, 81 S. 115 (1919);

Southern Railway Co. v. Norton, 112 Miss. 302, 73 S. 1 
(1916);

Alabama dc Vicksburg Ry. Co. v. Morris, 103 Miss. 511, 
60 S. 11 (1912) ;

Smith v. State, 100 Tenn. 494, 49 S. W. 566 (1900);
the conclusion has been uniformly reached in the federal 
courts, and in the majority of state courts, that statutes 
requiring separate accommodations for white and Negro 
passengers are unconstitutional when applied to interstate 
passengers.

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

Thompkins v. Missouri, K. & T. Ry. Co. (C. C. A. 8th) 
211 F. 391 (1914) ;



13

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

Anderson v. Louisville <& N. R. Co. (C. C. Ky.), 62 F. 46 
(1894);

Brown v. Memphis & C. R. Co. (C. C. Tenn.), 5 F. 499 
(1880);

State v. Galveston H. & 8. A. Ry. Co. (Tex. Civ. App.), 
184 S. W. 227 (1916);

Huff v. Norfolk & 8. R. Co., 171 N. C. 203, 88 S. E. 344 
(1916);

State v. Jenkins, 124 Md. 376, 92 A. 773 (1914);
Hart v. State, 100 Md. 596, 60 A. 457 (1905);
Carrey v. Spencer (N. Y. Sup. Ct.), 36 N. Y. S. 886 (1895) ;
State ex rel. Abbott v. Hicks, 44 La. Ann. 770, 11 S. 74 

(1892).
Such also has been the position of the Supreme Court of 
the United States where the same opinion has, in decisions 
subsequent to Hall v. DeCuir, been intimated or assumed.

McCabe v. Atchison, T. <& S. F. Ry. Co., 235 U. S. 151, 35
S. Ct. 69, 59 L. Ed. 169 (1914);

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

Chesapeake <& 0. Ry. Co. v. Kentucky, 179 U. S. 388, 21 S. 
Ct. 101, 45 L. Ed. 244 (1900);

Plessy v. Ferguson, 163 U. S. 537,16 S. Ct. 1138, 41 L. Ed. 
256 (1896);

[fol. 13] Louisville, N. O. & T. Ry. Co. v. Mississippi, 133 
U. S. 587, 10 S. Ct. 348, 33 L. Ed. 784 (1890).

In McCabe v. Atchison, Topeka & S. F. Ry. Co., supra, the 
Eighth Circuit Court of Appeals was faced with the 1907 
Oklahoma statute which required separate coaches and 
waiting rooms for white and colored passengers, and pro­
vided penalties for its violation by either the passengers or 
the carrier. Before the act went into effect, five Negro citi­
zens of Oklahoma brought a suit in equity against five rail­
road companies to enjoin them from making racial distinc­
tions upon the ground, inter alia, that the statute was re­
pugnant to the commerce clause of the Federal Constitu­
tion. In holding that the act would be unconstitutional if 
applicable to interstate passengers, the Court said:

“ It may be conceded that, if it applies to interstate trans­
portation, it is a regulation of interstate commerce within



14

the meaning of the Constitution. We think this follows 
from the doctrine laid down by the Supreme Court in Hall 
v. DeCuir, 95 U. S. 485, 24 L. Ed. 547. * * * For like 
reasons, the Oklahoma law, if as properly construed, it 
embraces or relates to interstate commerce, at all, would 
also be a regulation of that commerce. It compels carriers 
when operating in that state to exclude colored persons 
from cars or compartments set apart for white persons. 
The only difference between the Louisiana and the Okla­
homa law is that the one compels carriers to receive into 
and the other to exclude colored persons from cars or com­
partments carrying white persons. They act alike directly 
upon the carrier’s business as its passenger crosses the 
state line. Hence, if one is a regulation of interstate com­
merce, the other must be. The contention, therefore, that 
the provisions of the Oklahoma statute do not amount to a 
regulation of interstate commerce, if they concern that com­
merce at all, is untenable.”

Likewise, in State ex rel. Abbott v. Hicks, supra, the de­
fendant, a Pullman official, was prosecuted for violation of 
the 1890 Louisiana act requiring separate coaches for the 
races. There was a plea to the jurisdiction and a motion to 
quash the information on the ground that the passenger 
involved was an interstate passenger. The lower court sus­
tained a demurrer to the plea and motion, and the defendant 
took the case to the Supreme Court of Louisiana on certio­
rari, where the judgment was reversed. This court, con­
struing the decision in Louisville, New Orleans & Texas 
Ry. Co. v. Mississippi, supra, held:
[fol. 14] “ The terms of the decision left no doubt that the 
Court (Supreme Court of the United States) regarded the 
statute as unconstitutional if it applied to interstate pas­
sengers, and only upheld it because construed by the Su­
preme Court of Mississippi as applicable only to domestic 
passengers. * * * These decisions leave no room for
question that the jurisprudence of the United States Su­
preme Court holds such statutes as the one here presented 
to be only valid in so far as they apply to domestic trans­
portation of passengers or goods, and that, as applicable to 
interstate passengers or carriage, they are regulations of 
interstate commerce, prohibited to the states by the con­
stitution of the United States.”

Again, in Huff v. Norfolk & Southern R. Co., supra, plain­
tiff, a white deputy sheriff who was carrying a Negro



15

prisoner from Norfolk, Virginia, to Newbern, North Caro­
lina, was compelled by defendant to ride in a coach on de­
fendant’s train maintained for the exclusive occupancy of 
Negro passengers, in compliance with the statute of North 
Carolina requiring separate accom-odations for the races. 
He then brought this action for damages. In holding that 
the statute could not be applied to this case, the court said:

“ While there is learned and forcible decision to the con­
trary (Smith v. State, 100 Tenn. 494, 46 S. W. 566), it seems 
to be the trend of opinion and the decided intimation of the 
Supreme Court of the United States, on the subject that 
state legislation of this character may not extend to a case 
of interstate traffic.”

And, in Hart v. State, supra, the appellant, a Negro, held 
a ticket from New York to Washington entitling him to 
transportation over a line extending from Pennsylvania 
through Delaware and into Maryland. Upon his refusal to 
take the seat assigned to him, he was indicted under the 1904 
Maryland statute requiring separate coaches for white and 
colored passengers. A plea in abatement was filed, where­
upon the trial court sustained a demurrer to the plea and 
appellant was thereupon convicted. Upon appeal, however, 
the conviction was reversed. It was argued by the Attorney 
General for the state that the statute was constitutional as 
a police measure, although it affected interstate passengers, 
to which contention the court replied that

“ Although the state has power to adopt reasonable police 
regulations to secure the safety and comfort of passengers 
[fol. 15] on interstate trains while within its borders, it is 
well settled, as we have seen, that it can do nothing which 
will directly burden or impede the interstate traffic of the 
carrier, or impair the usefulness of its facilities for such 
traffic. When the subject is national in its character and 
admits and requires uniformity of regulation affecting alike 
all the states, the power is in its nature exclusive, and the 
state cannot act. The failure of Congress to act as to mat­
ters of national character is, as a rule, equivalent to a dec­
laration that they shall be free from regulation or restric­
tion by any statutory enactment, and it is well settled that 
interstate commerce is national in its character. Applying 
these general rules to the particular facts in this case, and 
bearing in mind the application of the expressions used in



16

Hall v. DeCmr to eases involving questions more or less 
analogous to that before us, we are forced to the conclusion 
that this statute cannot be sustained to the extent of making 
interstate passengers amenable to its provisions. When a 
passenger enters a car in New York under a contract with 
a carrier to be carried through to the District of Columbia, 
if when he reaches the Maryland line, he must leave that 
car, and go into another, regardless of the weather, the 
hour of the day or the night, or the condition of his health, 
it certainly would, in many instances, be a great incon­
venience and possible hardship. It might be that he was 
the only person of his color on the train, and no other 
would get on in the State of Maryland, but he, if the law is 
valid against him, must, as soon as he reaches the. state 
line, leave the car he started in, and go into another, which 
must be furnished for him, or subject himself to a criminal 
punishment. ’ ’

and that, therefore, the statute could not be sustained under 
the police power. The court added that it was convinced 
that if the Supreme Court of the United States were called 
to pass upon the precise question, it would hold such statute 
invalid as applicable to interstate passengers.

In Anderson v. Louisville £  N. R. Co., supra, plaintiff and 
his wife were forced, by the defendant, to occupy seats in 
the Negro coach upon two separate trips. Upon the first, 
they were traveling as first class passengers from Evans­
ville, Indiana, to Madisonville, Kentucky, and were re­
quired to move into said coach when the train reached Ken­
tucky. On the second trip, the trip was wholly within 
Kentucky. Suit was then brought against defendant 
wherein the court considered the constitutionality of the 
1892 Kentucky statute calling for separate but equal facili- 
[fol. 16] ties for the races. It was held that the statute was 
invalid as its language was broad enough to extend its ap­
plication to interstate as well as intrastate passengers and 
therefore constituted it a regulation of interstate commerce. 
Defendant’s demurrer was accordingly overruled.

In Carrey v. Spencer, supra, plaintiff, a Negro, bought a 
ticket for passage from New York to Knoxville, Tennessee. 
At or near the Tennessee line he was moved into the coach 
provided for Negro passengers pursuant to the provisions 
of the Tennessee separate coach law. This suit was for 
damages, being brought in a New York Court because de­



17

fendant company was in the hands of a receiver and the 
court of receivership had granted plaintiff leave to sue in 
New York. It was held that plaintiff was entitled to judg­
ment, on the ground that the Tennessee statute, as applied 
to an interstate passenger, was unconstitutional.

In Thompkins v. Missouri, K. £  T. By. Co., supra, plain­
tiff, a Negro, sued for damages arising from his ejection 
from a Pullman car in Oklahoma, and for his arrest, con­
viction and fine for disturbing the peace. He was a pas­
senger from Kansas City, Missouri to McAlester, Okla­
homa. The Oklahoma statute was in question, one of de­
fendant’s positions being that it acted in conformity there­
with. It was held that, as plaintiff was an interstate pas­
senger, the statute was irrelevant.

In Brown v. Memphis £  C. R. Co., supra, plaintiff, a 
Negro, sued for her exclusion from the ladies’ car on one 
of defendant’s trains upon her refusal to take a seat in the 
smoking car. There was at the time a statute of Tennessee 
providing that all common law remedies for the exclusion 
of any person from public means of transportation were 
thereby abrogated, that no carrier should be bound to carry 
any person whom he should for any reason choose not to 
carry, that no right of action should exist in favor of any 
person so refused admission, and that the right of carriers 
as to the exclusion of persons from their means of transpor­
tation should be as perfect as that of any private person. 
Following Hall v. DeCuir, it was held that so far as this 
statute purported to apply to interstate passengers, it was 
unconstitutional, being a regulation of interstate commerce.

So long as uniform regulation remain a sine qua non of 
the growth of the interstate carrier, the orderly conduct of 
its business, and the protection of the national interest 
therein, the recognition of a power in the states to deter­
mine whether interstate traffic while within their boundaries 
[fol. 17] shall be subject to a legislative policy of segrega­
tion or non-segregation of the races is conducive only to a 
result which the commerce clause was intended to forbid. 
While such legislation purports merely to control the car­
rier while within the territorial limits of the state, it neces­
sarily influences its conduct in the management of its busi­
ness throughout its entire route, since all passengers, inter­
state as well as intrastate, are affected by the carrier’s dis-

2—704



18

position of its passengers pursuant thereto. Since each 
state could legislate in its own interest without regard for 
the consequences, and the various enactments could differ 
in provision, a compliance with all would produce the kind 
of confusion and embarrassment in the midst of which com­
merce could not flourish. When it is perceived that the 
recognition of the validity of a state law requiring the 
segregation of the races would in turn necessitate the same 
recognition of a non-segregation statute, there is no limit 
to the carrier’s burden.

Such injurious consequences are already at hand. An ex­
amination of the law of the six jurisdictions contiguous to 
Virginia demonstrates the diversity of policy in our imme­
diate section of the nation. Two such jurisdictions (West 
Virginia and the District of Columbia) do not attempt to 
segregate the races in either interstate or intrastate com­
merce. Three others (Maryland, North Carolina and Ken­
tucky) have, as appears from the second part of this argu­
ment, construed their laws as limited in operation to intra­
state traffic. Only one (Tennessee) has held its law appli­
cable to the interstate passenger. Not a single state on the 
Atlantic seaboard from Maine to Florida has decided that 
its state policy in this regard can control anv other than its 
domestic commerce. Situated as it is in the path of a chan­
nel of interstate transportation, Virginia should not provide 
a stumbling block.

II
The Statute Upon Which This Prosecution Was Based 

Should Be Construed As Limited in Its Operation to 
Passengers in Intrastate Commerce, and Therefore As 
Inapplicable to Defendant

If limited in operation to intrastate passengers, the stat­
ute upon which this prosecution was based is valid, insofar 
as the commerce clause of the Federal Constitution is con­
cerned. Defendant ’s position in this connection is that as 
a matter of statutory construction rather than constitu- 
[fol. 18] tional limitation, this statute did not apply to 
her. Well established canons compel this conclusion.

The Applicable Rules of Construction
Where the validity of a statute is assailed and there are 

two possible interpretations, by one of which the statute



19

would be unconstitutional and by the other it would be 
valid, the Court should adopt the construction which will 
uphold it and bring it into harmony with the Constitution, 
if its language will permit.

Miller v. Commonwealth, 172 Va. 639, 2 S. E. 2d 343 
(1939);

Hannabass v. Ryan, 164 Ya. 519, 180' S. E. 416 (1935);
Commonwealth v. Carter, 126 Va. 469, 102 S. E. 58 

(1920);
Commonwealth v. Armour & Co., 118 Ya. 242, 87 S. E. 

610 (1916).

The duty of the court to so construe a statute as to save 
its constitutionality when it is reasonably susceptible of two 
constructions includes the duty of adopting a construction 
that will not subject it to a succession of doubts as to its 
constitutionality. It is well settled that a statute must be 
construed, if fairly possible, so as to avoid not only the 
conclusion that it is unconstitutional, but also serious doubt 
upon that score.

National Labor Relations Board v. Jones & Laughlin 
Steel Corp., 301 U. S. 1, 57 8. C't. 615, 81 L. Ed. 893, 108 
A. L .R . 1352 (1937);

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

South Utah Mines & Smelters v. Beaver County, 262 
U. 8. 325, 43 8. Ct. 577, 67 L. Ed. 1004 (1923);

Ann Arbor R. Co. v. United States, 281 U. S. 658, 50 S Ct 
444, 74 L. Ed. 1098 (1930);

Re Keenan, 310 Mass. 166, 37 N. E. 2d 516, 137 A. L. R 
766 (1941).

In order to uphold the statute, the courts may restrict its 
application to the legitimate field of legislation, unless the 
act indicates a different intention on the part of its framers. 
A  statute should not be given a broad construction if  its 
validity can be saved by a narrower one.

South Utah Mines and Smelters v. Beaver County, supra; 
[fol. 19] Schuylkill Trust Co. v. Pennsylvania, 302 U. S. 
508, 58 8. Ct. 295, 82 L. Ed. 392 (1938);

United States v. Walters, 263 U. S. 15, 44 S. Ct. 10 68 
L. Ed. 137 (1923);



20

Schoberg v. United States (C. C. A., 6th), 264 F. 1 
(1920);

Mints v. Baldwin (D. C., N. Y.), 2 F. Supp. 700 (1933).

The Construction of Carrier Racial Segregation Laws
In the vast majority of cases wherein there has arisen a 

question as to the validity of a state carrier racial segrega­
tion law upon the ground that it amounted to an unconstitu­
tional interference with interstate commerce, the law has 
been construed as limited in its operation to passengers in 
intrastate commerce.

McCabe v. Atchison, T. £  S. F. Ry. Co., 235 U. 8. 151, 35 
8. Ct. 69, 59 L. Ed. 169 (1914);

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

Chesapeake £  O. Ry. Co. v. Kentucky, 179 U. 8. 388, 21 
S. Ct. 101, 45 L. Ed. 244 (1900);

Louisville, N. O. £  T. Ry. Co. v. Mississippi, 133 IT. S. 
587, 10 S. Ct. 348, 33 L. Ed. 784 (1890);

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

South Covington £  C. Ry. Co. v. Commonwealth, 181 Ky. 
449, 205 S. W. 603 (1918);

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

State v. Galveston, H. £  S. A. Ry. Co. (Tex. Civ. App.), 
184 8. W. 227 (1916);

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

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

386 (1907);
Southern Kansas Ry. Co. v. State, 44 Tex. Civ. App. 218, 

99 S. W. 166 (1906);
Hart v. State, 100 Md. 596, 60 A. 457 (1905) ;
Ohio Valley R y.’s Receiver v. Lander, 104 Kv. 431, 47 

S. W. 344 (1898);
Louisville, N. O. £  T. Ry. Co. v. State, 66 Miss. 662, 6 S. 

203 (1889);
State, ex rel., Abbott v. Hicks, 44 La. Ann. 770, 11 8. 74 

(1892).



21

[fol. 20] Thus, in McCabe v. Atchison, T. & S. F. Ry. Co., 
supra, a case involving the 1907 Oklahoma law which re­
quired separate coaches for the races, and providing penal­
ties for its violation, five Negroes, citizens of Oklahoma, 
brought suit in equity before the law went into effect against 
five railroad companies to restrain its enforcement upon 
the ground, inter alia, that it was repugnant to the com­
merce clause. Of course, the highest court of Oklahoma 
had not construed the act. There was a demurrer to the 
bill which the trial court sustained. Upon appeal to the 
Circuit Court of Appeals for the Eighth Circuit, the judg­
ment below' was affirmed upon the ground that the act, in 
the absence of a different construction by the state court, 
must be construed as applying to intrastate transportation 
exclusively, and therefore as not contravening the com­
merce clause. The Circuit Court of Appeals said on this 
score:

“ The question, then, is whether that statute, when prop­
erly construed, applies to interstate transportation, or 
whether it is limited in its application to that transporta­
tion which has its origin and ending within the confines 
of the state. No provision is found in the act indicating 
in any express terms that it was intended to apply to inter­
state commerce. All its provisions concerning the subject 
of legislation are general. Thus Section 1 provides that 
‘ every railway company * * * doing business in this
state, * * * shall provide separate coaches,’ etc. Sec­
tions 2 and 6 make it unlawful ‘ for any person’ to occupy 
any waiting room or ride in any coach not designated for 
the race to which he belongs. While, therefore, the lan­
guage of the act, literally construed, is comprehensive 
enough to include railroads doing interstate business, and 
include passengers wdnle making interstate trips, it neither 
in express terms nor by any implication other than that 
involved in the general language employed, manifests any 
intention to invade the exclusive domain of congressional 
legislation on the subject of interstate commerce. Local 
transportation, or that which is wholly within the state 
only, being within the competency of the state legislature, 
would naturally be presumed to have been alone contem­
plated in the law enacted by it. The constitutional inhibi­
tion against a state legislating concerning interstate com­



22

merce, and the uniform decisions of courts of high and 
controlling authority, emphasizing and enforcing that in­
hibition, without doubt, were actually as well as construc­
tively known to the members of the legislature of Okla­
homa. It is unreasonable to suppose they intended to leg­
islate upon a subject known by them to be beyond their 
[fol. 21] power, and upon which an attempt to legislate 
might imperil the validity of provisions well within their 
power. Any other view would imply insubordination and 
recklessness, which cannot be imputed to a sovereign state.”

Upon appeal to the Supreme Court of the United States, 
the same conclusion was reached and the rule of interpreta­
tion applied by the Circuit Court of Appeals confirmed.

Likewise, in Chesapeake & 0. Ry. Co. v. Kentucky, supra, 
there was a review of the conviction of the railroad com­
pany, an interstate carrier, under the 1892 statute which 
provided that all railroads in the state must furnish sepa­
rate but equal accommodations for the races. Defendant, 
in the trial court, had contended that the statute was uncon­
stitutional as a regulation of interstate commerce. Its 
demurrer predicated upon this ground was overruled. The 
Court of Appeals of Kentucky construed the act as apply­
ing only to intrastate passengers, and affirmed the convic­
tion, which the Supreme Court of the United States likewise 
affirmed. Said the latter Court, through Mr. Justice 
Brown:

“ Of course this law is operative only within the state. 
* * * The real question is whether a proper construction of 
the act confines its operation to passengers whose journeys 
commence and end within the boundaries of the state or 
whether a reasonable interpretation of the act requires 
colored passengers to be assigned to separate coaches when 
traveling from and to points in other states. * * *

“ This ruling (of the Court of Appeals of Kentucky) ef­
fectually disposes of the argument that the act must be con­
strued to regulate the travel or transportation on the rail­
roads of all white and colored passengers, while they are in 
the state without reference to where their journey com­
mences and ends, and of the further contention that the 
policy would not have been adopted if the act had been con­



23

fined to that portion of the journey which commenced and 
ended within the state lines.

“ Indeed, we are by no means satisfied that the Court of 
Appeals did not give the correct construction to this statute 
in limiting its operation to domestic commerce. It is 
scarcely courteous to impute to a legislature the enactment 
of a law which it knew to be unconstitutional, and if it were 
well settled that a separate coach law was unconstitutional, 
as applied to interstate commerce, the law applying on its 
face to all passengers should be limited to such as the legisla­
ture was competent to deal with. The Court of Appeals has 
found this to be the intention of the General Assembly in 
[fob 22] this case, or as least, that if such were not its in­
tention, the law may be supported as applying alone to 
domestic commerce. In thus holding the act to be severable, 
it is laying down a principle of construction from which 
there is no appeal.”

There is ample room for this Court to avoid all constitu­
tional difficulties with respect to the statute in question. It 
is not in terms applicable to interstate passengers. It has 
never been construed in tins respect by this Court. It is not 
necessary to impute a frustrated motive to the legislature 
when settled principles require the limitation of its opera­
tion in order to remove all doubt as to its validity.

Conclusion

Your petitioner submits that for the reasons set forth in 
this her petition, which is hereby adopted as her opening 
brief, the judgment of the trial court is erroneous, and 
should be set aside, and prays that a writ of error may be 
granted to said judgment, and a supersedeas thereto 
awarded, and that the same may be reviewed and reversed.

Counsel for the petitioner hereby request that they be per­
mitted to argue orally the matters contained in this petition 
upon the application for a writ of error and supersedeas, 
and certify that a copy hereof has been forwarded by regis­
tered mail to the Honorable Lewis Jones, Commonwealth’s 
Attorney for Middlesex County, Virginia, who was Com­
monwealth’s Attorney when this case was tried and who 
prosecuted the same on behalf of the Commonwealth. Said 
copy was mailed on the 5th day of February, 1945. The



24

original hereof is filed in the office of the Clerk of this court, 
in Richmond, Virginia.

Irene Morgan, Petitioner, By Spottswood W. Robin­
son, III, Of Counsel.

Hill, Martin & Robinson, Consolidated Bank Building, 
Richmond 19, Virginia, Counsel for Petitioner.

[fol. 23] Certificate
I, Martin A. Martin, an attorney practicing in the Su­

preme Court of Appeals of Virginia, do certify that in my 
opinion the judgment complained of in the foregoing peti­
tion is erroneous and should be reviewed.

Martin A. Martin, Consoliadted Bank Building, 
Richmond 19, Virginia.

Received February 5, 1945.
M. B. Watts, Clerk.

March 6, 1945. Writ of error and supersedeas awarded 
by the Court. Bond $100.

M. B. W.

I n Cibcuit Coubt op M iddlesex County

W abbant—Filed July 22,1944

State op V ibginia,
County of Middlesex, to-wit:

To any Sheriff or Police Officer:
Whereas R. P. Kelly has this day made complaint and 

information on oath before me, G. C. Bourne, Justice of the 
Peace of the said County, that Irene Morgan in said county 
did on the 16th day of July, 1944: Unlawfully Refuse to 
move back on the Greyhound Bus in the section for colored 
people,

These are, therefore, to command you, in the name of the 
Commonwealth, to apprehend and bring before the Trial 
Justice of the said County, the body (bodies) of the above 
accused, to answer the said complaint and to be further 
dealt with according to law. And you are also directed to



25

[fol. 24] summon -------------- color --------- Address ——  as
witnesses.

Given under my hand and seal, this 16th day of July, 1944.
G. C. Bourne, J. P. (Seal.)

R everse S ide op Said W arrant:

Docket No. A 1450, Court No. 330 Pile 40

Commonwealth

v.
I rene M organ (c ), Hayes Store, Ya.

Warrant of Arrest
Executed this, the 16 day of July, 1944, by arresting 

Irene Morgan.
R. B. Segar, Sheriff.

Upon the examination of the within charge, I find the 
accused

July 18, 1944.
Upon a plea of not guilty to the within charge, and upon 

examination of witnesses, I find the accused guilty as 
charged and fix Ms punishment at a fine of $10.00 and — 
days in jail and costs. Appeal noted. Bail set at $500.00. 
Let to Bail.

Catesby G. Jones, Trial Justice.

Pine
Costs

$10.00
5.25

Total ..................... $15.25
Piled July 22, 1944.

C. W. Eastman, Clerk.

State of V irginia,
County of Middlesex, to-wit:

I, G. C. Bourne a justice of the peace in and for the 
[fol. 25] County aforesaid, State of Virginia, do certify 
that Mrs. Irene Morgan and Mrs. Ethel Amos, Sr., as her 
surety, have this day each acknowledged themselves in­



26

debted to the Commonwealth of Virginia in the sum of 
Five Hundred Dollars ($500.00), to be made and levied of 
their respective goods and chattels, lands, and tenements 
to the use of the Commonwealth to be rendered, yet upon 
this condition: That the said Irene Morgan, shall appear 
before the Trial Justice Court of Middlesex County, on the 
18th day of July, 1944, at 10 A. M., at Saluda, Virginia, 
and at any time or times to which the proceedings may be 
continued or further heard, and before any court thereafter 
having or holding any proceedings in connection with the 
charge in this warrant, to answer for the offense with which 
he is charged, and shall not depart thence without the 
leave of said Court, the said obligation to remain in full 
force and effect until the charge is finally disposed of or 
until it is declared void by order of a competent court: and
upon the further condition that the sa id -------------- shall
keep the peace and be of good behavior for a period of 
— days from the date hereof.

Given under my hand, this 16th day of July, 1944.
G. C. Bourne, J. P.

Costs—T. J. Court
Warrant .............................  $1.00
Trial .....................................  2.00
Arrest .................................. 1-00

I n Circuit Court op M iddlesex County 

[Title omitted]

Appeal from Trial Justice: Misdemeanor: Violation of 
Section 4097dd of 1942 Code

[Title omitted]

[fol. 26] Appeal from Trial Justice: Misdemeanor: Resist­
ing Arrest

J ournal E ntry of H earing— September 25, 1944
This day came the Attorney for the Commonwealth and 

the accused came to the bar with her counsel, and by con­
sent of both parties these two cases are to be heard on the 
evidence heard in both cases together and by consent of all



27

parties trial by jury was waived in both cases, and the 
defendant agreed to submit her case to the Judge of this 
Court for trial and disposition according to law, and mo­
tion was made by the Attorney for the Commonwealth to 
amend the warrant as follows: State of Virginia, County 
of Middlesex, to-wit: To Any Sheriff or Police Officer : 
Whereas E. P. Kelly, operator of the Greyhound Bus has 
this day made complaint and information on oath before 
me, G. C. Bourne, Justice of the Peace of the said County, 
that Irene Morgan in the said County did on the 16 day of 
July, 1944, Unlawfully refuse and fail to obey the direction 
of the driver or operator of the Greyhound Bus Lines to 
change her seat and to move to the rear of the bus and 
occupy a seat provided for her, in violation of Section 5 
of the Act, Michie Code of 1942, section 4097dd, which 
motion was granted by the Court and to which ruling the 
defendant excepted.

After the evidence for the Commonwealth was in, the 
defendant moved to strike out- all the evidence of the Com­
monwealth and to dismiss the case wherein she was charged 
of a violation of Section 4097dd of the Code, upon the 
grounds that the defendant, Irene Morgan, was shown by 
the evidence for the Commonwealth to be a passenger in 
the interstate commerce upon an interstate public carrier, 
towit, the Greyhound Bus, that she was a through passenger 
from Hayes Store, Gloucester County, Virginia, to Balti­
more, Maryland, that Section 4097dd of the Code of Vir­
ginia could not constitutionally apply to interstate passen­
gers and that its application to such passengers would vio­
late Article I, Section 8 of the Constitution of the United 
States, and that said Section 4097dd should, under settled 
rules of construction, be construed as inapplicable in opera­
tion to passengers in intrastate commerce; and also moved 
to strike out all the evidence of the Commonwealth and to 
dismiss the case wherein she was charged with resisting an 
officer of the law in the discharge of his duty, upon the same 
grounds previously advanced in support of her motion to 
strike all the evidence of the Commonwealth and to dis­
miss the case wherein she was charged with a violation of 
Section 4097dd of the Code, and upon the additional 
[fol. 27] grounds that the arrest of her person sought to 
be made in this case was illegal, and that her conduct was 
therefore within her privilege to resist an unlawful arrest.



28

These Motions the Court overruled, to which action of the 
Court the defendant excepted.

After all the evidence for the Commonwealth and the 
defendant respectively, was in, and both the Commonwealth 
and the defendant had rested, defendant renewed her mo­
tion to strike out all the evidence for the Commonwealth 
in each of the cases aforesaid, upon the same grounds re­
spectively, previously advanced in support of the motion 
to strike made at the conclusion of the Commonwealth’s 
case-in-chief, and upon the additional ground that the 
conviction of the defendant in either case would constitute 
a violation of her rights under the Fourteenth Amendment 
to the Constitution of the United States. These motions 
the Court overruled, to which action of the Court the de­
fendant excepted.

And the Judge of this Court reserves his decision in each 
case until October 18th, 1944.

I x  Circuit Court op M iddlesex County 

[Title omitted]

J udgment—October 18, 1944

This day came the Attorney for the Commonwealth and 
the accused, Irene Morgan came to the bar with her counsels, 
Spottswood Robinson, III, and Linwood Smith, and the 
Court having maturely considered of its judgment in this 
case doth find the defendant Guilty: Thereupon the defend­
ant moved the Court to set aside its findings of facts and 
grant the defendant a new trial upon the grounds that the 
said findings of fact were contrary to the law and the evi­
dence and assigned in support of said motion the following 
reasons:

(1) That the law upon which the prosecution was based 
could not be constitutionally applied to the defendant, an 
interstate passenger, and that its application to a passen­
ger in interstate commerce was a violation of Article I, 
Section 8, of the Constitution of the United States;
[fol. 28] (2) That under settled rules of construction
said law could not be construed to apply to a passenger in



interstate commerce, and that it must be construed as lim­
ited in its application to intrastate passengers:

(3) That the conviction of the defendant would, under 
the circumstances of this case, constitute a violation of her 
rights under the Fourteenth Amendment of the Constitution 
of the United States; and that (4) said findings of facts 
were contrary to the evidence, and lacking in evidence suffi­
cient to support them. This motion the Court overruled, 
to which action of the Court the defendant excepted.

Defendant moved the Court to grant her a new trial, 
upon the ground that her conviction was erroneous under 
the law and contrary to the evidence, and assigned as rea­
sons in support of this motion the same reasons previously 
advanced in support of the motion to set aside the findings 
of fact and to grant the defendant a new trial. This motion 
the Court overruled, to which action of the Court the de­
fendant excepted.

Defendant moved the Court to arrest the judgment in 
this case upon the ground of errors of law and fact appar­
ent upon the face of the record in the case, and assigned 
as reasons in support of this motion the same reasons 
previously advanced in support of the motion to set aside 
the findings of fact and to grant the defendant a new trial.

This motion the Court overruled, to which action of the 
Court the defendant excepted.

The Court having found the said Irene Morgan guilty 
as charged in said warrant doth sentence the said Irene 
Morgan to pay a fine to the use of the Commonwealth of 
Ten Dollars and the costs in this behalf expended.

Whereupon, the defendant indicated to the Court her 
intention of applying to the Supreme Court of Appeals of 
Virginia for a writ of error to the judgment of the Court 
in this case, and moved the Court to grant a suspension 
of the execution of the judgment entered in this case. There­
upon, the Court granted said motion, and granted a sus­
pension of the execution of the judgment for a period of 
sixty days from date within which period counsel for the 
defendant might present to the Court bills of exception 
in said case, and granted to defendant leave to apply to 
the Court for additional time within which to present to, 
and have acted upon by, the Supreme Court of Appeals of 
Virginia, a petition for writ of error to the judgment in 
this case.

29



30

[fol. 29] I n Circuit Court of M iddlesex County 

[Title omitted]
Order Suspending E xecution of J udgment— Filed Decem­

ber 7, 1944
This day came the defendent by her counsel and moved 

the Judge rendering the judgment in this case to further 
suspend the execution of the judgment and sentence here­
tofore rendered and imposed in this case on the 18th day 
of October, 1944, in order to permit the defendant to present 
a petition for a writ of error to said judgment to the Su­
preme Court of Appeals of Virginia, and to have the same 
acted upon by said Court.

Whereupon, it appearing that the defendant has applied 
to said Judge, who is the Judge of this Court, for the 
signing and sealing of her several Bills of Exception, the 
same having been this day signed, sealed, enrolled and 
saved to her, and made a part of the record in this case, 
within sixty days of the final judgment in this case, and 
that the defendant desires and intends to present to the 
Supreme Court of Appeals of Virginia a petition for a writ 
of error to the judgment herein. It is hereby adjudged 
and ordered that execution of the said judgment and sen­
tence be and the same is hereby suspended until the 17th 
day of February, 1945, and thereafter until such petition 
is acted upon by the Supreme Court of Appeals of Vir­
ginia if such petition is actually filed on or before the 17th 
day of February, 1945. _ _ _ _ _

I n  the Circuit Court of M iddlesex County 

Case 330
Commonwealth1 of V irginia 

v.
I rene M organ

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

[fol. 30] B ill of E xception N o . 1— Filed December 7, 1944
Be it remembered that on the trial of this case the fol­

lowing evidence on behalf of the Commonwealth and of the



defendant, respectively, as hereinafter denoted, is all of 
the evidence that was introduced:

Witnesseth for the Commonwealth.

E. P. Kelly.

Direct examination:
E. P. Kelly testified that he lives in Norfolk, Virginia; 

that he is an employee of the Greyhound Lines, and has 
been employed by said company for the last six years; 
that on the 16th day of July, 1944, he was engaged in his 
duties and was driving, and was in charge and control of, 
a Greyhound bus from Norfolk, Virginia, to Baltimore, 
Maryland; that Irene Morgan, the defendant, was a pas­
senger on, his bus on July 16, 1944; that the defendant is 
a colored person; that she boarded the bus at Hayes Store, 
in Gloucester County, Virginia; that when she boarded the 
bus at Hayes Store the bus was crowded; that all seats 
were occupied and both white and colored passengers were 
standing in the aisle; that after the arrival of the bus in 
Saluda, at about 11 A. M. on that day, and the discharge 
of the white and colored passengers destined there, there 
were six white passengers standing, but no colored pas­
sengers standing; that at this time he perceived the defend­
ant and another colored woman, the latter carrying an 
infant, seated in the second seat forward of the long seat 
in the extreme rear of the bus, the seat in which they were 
so seated being, in a view toward the rear of the bus, on 
the left side of the aisle; that at this time he also saw two 
vacant seats on the long rear seat, which long rear seat 
was partly occupied by colored passengers; that he re­
quested the defendant and her seatmate to move back into 
the two vacant seats on the long rear seat; that the defend- 
ant ’s seatmate started to change her seat, but the defend­
ant pulled her back down into the seat; that the defendant 
refused to change her seat as requested; that he, the wit­
ness, thereupon explained to her the bus rules and regula­
tions as to seating colored and white passengers on busses, 
and informed her that he was required to seat white pas- 
[fol. 31] sengers from the front of the bus backward and 
colored passengers from the rear of the bus forward.

At this point the witness produced a booklet in evidence 
which he identified as the Manual of Eules for Bus Opera­

31



32

tors of the Greyhound Lines, and testified that said Manual 
contained, on pages 34 and 35 thereof, a rule of said com­
pany. Thereupon, the Commonwealth introduced into evi­
dence the booklet containing the rule aforesaid, the same 
being marked as Exhibit “ A ” , which rule read as follows:

E xhibit  “ A ”

“ T-22 Rights Reserved: This company reserves the 
right to refuse transportation to any and all persons for 
the following reasons:

“ (c) This company reserves full control and discretion 
as to the seating of passengers and the right to change 
such seating at any time during the trip except on divisions 
or runs where specific seat reservations are made, in which 
case, passengers shall retain the seats assigned them unless 
same be contrary to any laws or governmental regulations. ’ ’

The witness further testified that to his request that the 
defendant so move her seat, the defendant replied that she 
knew the rules and regulations of the bus company and that 
the front one-half of the bus was for white passengers and 
the rear one-half of the bus was for colored passengers; 
that after the defendant refused to change her seat, he left 
the bus and secured from the Justice of the Peace at Saluda 
a warrant charging her with violating the Virginia segre­
gation law: that Sheriff R. B. Segar boarded the bus with 
the warrant and asked the defendant to change her seat 
and attempted to read the warrant to her, but she knocked 
the warrant out of the Sheriff’s hand; that the woman 
seated besides the defendant moved, but the defendant 
refused to move, whereupon the sheriff and his deputy, 
C. M. Bristow, took her off the bus.

The witness further testified that when the bus arrived 
in Saluda, after discharging passengers there, there were 
three colored passengers seated on the long rear seat and 
two vacant seats thereon; that all other seats on the bus 
were occupied; that six white passengers, but no colored 
passengers were standing.

[fol. 32] Cross-examination:
On cross examination R. P. Kelly testified that he had 

been employed by the Greyhound Lines for six years; that 
he was the driver of and in charge of the bus upon which



33

the incidents testified occurred; that he was personally 
driving and operating the said bus from the City of Nor­
folk, Virginia, to the City of Baltimore, Maryland; that 
the said bus made and was making a continuous or through 
trip from Norfolk to Baltimore, traveling by way of and 
through the City of Washington, District of Columbia.

He testified further that the Greyhound Lines is regularly 
engaged in the business of transporting passengers for hire 
from points within the State of Virginia to various points 
throughout the United States, including the City of Balti­
more, Maryland, and was so engaged on the 16th day of 
July, 1944; that passengers traveling to points outside 
the State of Virginia are and were, on the date aforesaid, 
regularly taken aboard its busses in Gloucester County, 
Virginia, including Hayes Store, and transported therein 
to points outside the State of Virginia.

At this point the witness was shown a ticket stub and 
identification check, and requested to identify the same, 
whereupon the witness testified that the same was the stub 
of a ticket issued by the Greyhound Lines on July 15, 1944, 
at its ticket office at Hayes Store, in Gloucester County, 
Virginia; that the ticket which had been attached to said 
stub entitled the holder thereof to transportation in a Grey­
hound bus from Hayes Store, in Gloucester County, Vir­
ginia, to the City of Baltimore, Maryland; that the holder 
of said ticket was entitled to transportation from Hayes 
Store, in Gloucester County, Virginia, to the City of Balti­
more, Maryland, on the 16th day of July, 1944, in the bus 
which he drove and operated ; that he could not identify 
the stub as the stub of the ticket which had been surrendered 
to him by the defendant when she boarded the bus and 
which he had accepted, but that said stub could be the stub 
of the ticket of the defendant. Thereupon, the defendant 
introduced into evidence the stub aforesaid, the same being- 
marked as Exhibit “ B ” , which stub contained the follow­
ing words, figures and marks on the front side thereof:

3—704



34

[fol. 33] E xhibit “ B ”

A 65748 K

Issued by
Richmond Greyhound Lines, Inc.

Richmond, Va.

In selling this ticket for transportation over the lines of 
another carrier, the issuing carrier acts as agent only and 
assumes no responsibility beyond its own line.

Baggage may be checked in accordance with tariff regu­
lations and limitations. Unchecked baggage, parcels, or 
other effects are carried at passenger’s risk.
Void L. H. RISTOW,
A fter.....................  General Traffic Manager.

Identification Check 

Not good for passage or refund
Last Coupon

Reads to Baltimore, Md.
This check should be retained by the passenger until desti­

nation is reached subject to inspection by the driver at any 
time, and is to be surrendered to the driver when the pas­
senger’s journey is completed.

Printed in U. S. A.

Exhibit “ B ” , the stub aforesaid, contained the follow­
ing words, figures and marks on the reverse side thereof:

Greyhound July 15,1944, Hayes Store, Va.

The witness was then shown a green paper, and requested 
to identify the same whereupon the witness testified that 
the same was a transfer or token of the Greyhound Lines: 
that he recognized the same from the holes punched there­
in; that after the defendant was arrested and moved from 
the bus in Saluda, he, the witness, prepared the same in 
order that the defendant might employ it for transporta­
tion from Saluda, Virginia, to Baltimore, Maryland, or for 
[fol. 34] a cash refund of the fare paid for that portion



35

of her trip between the said two points; that he punched 
holes in it at the appropriate places to show Saluda, Vir­
ginia, as the point of beginning, and Baltimore, Maryland, 
as the point of ending, of the uncompleted portion of her 
trip; that he issued the same without the previous knowl­
edge or request of the defendant.

Thereupon, the defendant introduced into evidence the 
transfer aforesaid, the same being marked as Exhibit 
“ C ” , which transfer contained no words or figures oil the 
reverse side thereof, but contained the following words, 
figures and marks on the front side thereof, and also con­
tained three punch marks, one at each of the three places 
indicated by the figure ‘ ‘ X  ” :

E xhibit “  C

Richmond Greyhound Lines, Inc.

Form Tr. - 2 NO. 27768

Foreign ( ) R. G. (X )

Valid for Transportation 
from or to Stations Punched

Alexandria, Va. ( ) Richmond, Va. ( ) 
( )Brays Fork, Va. ( ) Suffolk, Va.

Ft. Belvoir, Va. ( ) T. B. Jet. Md. ( ) 
( )Ft. Eustis, Va. ( ) Tappahan’k, Va.

Fredericksburg, Va. ( ) Triangle, Va. ( )
La Plata, Md. ( ) Waldorf, Md. ( ) 

( ) 
( )

Lee Hall, Va. ( ) Warsaw, Va.
Newport News, Va. ( ) Washington, D. C.
Norfolk, Va. ( ) Williamsburg, Va. ( )
Petersburg, Va. ( ) Balto, Md* (X)
Portsmouth, Va. ( ) Saluda, Va. (X )

Subject to Tariff Limitations of 
Ticket for which Transfer is Issued

The witness further testified that he would not have 
prepared or issued a transfer showing Saluda, Virginia, 
[fol. 35] as the point of beginning and Baltimore, Mary­
land, as the point of ending, unless the defendant had held 
a ticket entitling her to transportation on his bus to Balti­



36

more, Maryland; that defendant held a ticket entitling her 
to transportation to Baltimore, Maryland; that he knew 
that all of the colored passengers remaining on the bus in 
Saluda, after those destined to Saluda had been discharged 
from the bus in Saluda, held tickets to and were traveling 
to Baltimore, Maryland, and that defendant held a ticket 
to and was traveling to Baltimore, Maryland.

The witness testified further that the bus arrived in Sa­
luda at about 11 A. M .; that after its arrival there, and 
after the passengers destined to Saluda had left the bus, 
there were three colored passengers seated on the long 
seat in the extreme rear of the bus; that there were two 
vacant seats on the said rear seat; that said long rear seat 
is designed to accommodate a maximum of five passengers; 
that the defendant and the other colored woman sitting 
beside her occupied the seat second forward of the long 
rear seat on the left side of the aisle; that all other seats 
in the bus, except the two vacant on the long rear seat, were 
occupied; that all colored passengers were seated; and 
that six white passengers were standing.

He testified further that he told the defendant and her 
seatmate to move from the seat they then occupied into 
the long rear seat; that he told them that under the rules 
of the bus company they would have to sit in the long rear 
seat, and attempted to explain to her the rules and regula­
tions of the bus company; whereupon the defendant said 
that she knew as much about the bus rules as he did; that 
he also told them that he was required to seat colored pas­
sengers from the rear of the bus forward, and white pas­
sengers from the front of the bus backward; that under 
the rules, of the bus company all colored passengers were 
required to be seated from the rear of the bus forward, and 
that all white passengers were required to be seated from 
the front of the bus backward, and that the general custom 
and policy pursued by his company upon busses traveling 
in or through the State of Virginia was to assign separate 
seats to white and colored passengers in the manner stated. 
He testified further that he never made an effort to move 
any other passenger or passengers on the bus except the 
defendant and her seatmate; that he never did anything 
more than request that they move to the two vacant seats 
[fol. 36] on the long rear seat, and that his direction in 
this regard was made solely to the defendant and her seat- 
mate; that neither he nor anyone else on the bus had any



37

difficulties whatsoever with the defendant until he sought 
to procure her removal from the seat that she occupied.

At this point Estelle Fields was presented before the 
witness, and the witness was requested to look at her and 
identify her. The witness than stated that lie could not 
identify this person, and that he did not remember whether 
she was the person who was seated beside the defendant 
or not.

The witness denied that he was seeking the removal of 
the defendant and her seatmate in order to obtain seats 
for a white couple which boarded the bus in Saluda; he 
denied that he at any time stated that colored passengers 
would be seated only after all white passengers were seated; 
he testified that after the defendant refused to change her 
seat, he left the bus and swore out the warrant for her 
arrest upon the charge of refusing to move her seat.

C. M. Bristow.

Direct examination:
C. M. Bristow testified that he is deputy sheriff of Middle­

sex County; that he accompanied Sheriff R. B. Segar to 
the Greyhound bus on July 16, 1944, at about 11 o ’clock 
A. M., to execute the warrant sworn out against defendant 
by the bus driver; that when they boarded the bus no 
colored passengers were standing; that white passengers 
were standing; that he saw the defendant and another 
colored woman seated in the second seat forward from the 
long rear seat; that there were two vacant seats on the 
long rear seat; that when Sheriff R. B. Segar was reading 
the warrant of arrest to the defendant, she snatched the 
warrant out of his hand and threw it behind her seat; that 
the sheriff requested the defendant and her seatmate to 
move from the seat they occupied; that the defendant’s 
seatmate got up and took one of the vacant seats on the 
long rear seat; that the defendant refused to move from 
the seat; that when they tried to arrest the defendant and 
take her off the bus, the defendant struck at the witness, 
but did not hit him, and kicked Sheriff Mr. Segar three 
times on his leg; that the defendant stated that she would 
neither move her seat nor get off the bus; that he and the 
[fol. 37] sheriff took the defendant from the bus and put 
her in the jail at Saluda; that R. P. Kelly, the driver and



38

operator of the bus, had obtained the issuance of the war­
rant, and had pointed the defendant out to the sheriff 
and him.

Cross-examination:
On cross examination C. M. Bristow testified that he is 

the deputy sheriff of Middlesex County, Virginia; that he 
has considerable experience in arresting persons charged 
with crime; that he had assisted Sheriff Segar on nearly 
every arrest made during* the time he has been deputy 
sheriff; that the defendant was seated on the second seat 
forward of the long rear seat in the rear of the bus; that 
there were two vacant seat spaces on the long rear seat; 
that the long rear seat was partly occupied by colored 
passengers; that several white passengers were standing 
in the aisle; that the defendant was in all respects orderly 
and well-behaved and caused no trouble whatsoever until 
efforts were commenced to remove her from the seat she 
occupied.

At this point Estelle Fields was presented before the 
witness, and the witness was requested to look at her and 
identify her. The witness then stated that he could not 
identify this person, and that — did not remember whether 
she was the person who was seated beside the defendant 
or not.

R. B. Segah.

Direct examination.
R. B. Segar testified that he is the Sheriff of Middlesex 

County, Virginia, and has been sheriff of the County for 
forty years; that on July 16, 1944, at about 11 o ’clock 
A. M., when the Greyhound bus operated by R. P. Kelly 
stopped in Saluda, Virginia, Kelly swore out and obtained 
a warrant for the arrest of the defendant for refusing to 
change her seat as required by Virginia law; that he, ac­
companied by C. M. Bristow, his deputy, went on the bus 
to execute the warrant; that when he attempted to read 
the warrant to the defendant, she snatched it from his 
hand and threw it behind her seat; that he requested the 
defendant and her seatmate to move; that the defendant 
refused to so move, and kicked him twice on his leg; that 
the colored woman seated beside the defendant got up out



39

[fol. 38] of the seat when he requested her to, move; that 
the defendant stated that she would not move her seat, 
and that she would not get off the bus; that he and C. M. 
Bristow took the defendant from the bus and put her in 
jail in Saluda; that his (the witness’ ) back was to the 
rear of the bus, and that he could not see whether there 
were any vacant seats in the rear of the bus or not; that 
when he so boarded the bus his badge as Sheriff of Middle­
sex County, was pinned on his shirt, and that he wore 
no coat.

Cross-examination:
On cross, examination Sheriff R. B. Segar testified that 

he had had considerable experience in arresting persons 
charged with crime; that he did not know whether there 
were any vacant seats on the long rear seat or not, but 
that he entered the bus to execute the warrant of arrest; 
that he did not look any further to the rear of the bus 
than the seat which the defendant and her seatmate oc­
cupied; and was not in a position to say if there were 
any vacant seats on the bus; that he thought that the 
defendant and her seatmate sat in the third seat forward 
of the long rear seat, rather than in the second seat for­
ward of the long rear seat; that the defendant was sitting 
quietly in the seat when he boarded the bus and approached 
her, and that so far as he knew she was well-behaved and 
caused no trouble whatsoever until he attempted to read 
the warrant of arrest to her and move her out of her 
seat; that the warrant was procured and sworn out by 
the bus driver.

At this point Estelle Fields was presented before the 
witness, and the witness was requested to look at her and 
identify her. The witness then stated that he could not 
identify this person, and that he did not think she was 
the person who was seated beside the defendant or not.

Upon this testimony the Commonwealth rested its case.
Thereupon the defendant moved the Court to strike out 

all the evidence of the Commonwealth, and to dismiss the 
case wherein she was charged with a violation of Section 
4097dd of the Code of Virginia, as fully set forth in Bill 
of Exception No. 2, to which reference is hereby made, to 
which reference is hereby made, and upon the grounds



40

and for the reasons therein set forth. This motion the 
Court overruled, to which action of the Court the defend- 
[fol. 39] ant excepted, and thereupon offered the following 
evidence in her behalf.

Evidence for the Defendant.

Irene Morgan.

Direct examination:
Irene Morgan testified that she is the defendant in this 

case; that she is a Negro or colored person; that she 
resides both in Gloucester County, Virginia, and in Balti­
more, Maryland; that on the 15th day of July, 1944, she 
purchased from the regular agent of the Greyhound Lines 
a through ticket for transportation from Hayes Store, in 
Gloucester County, Virginia, to the City of Baltimore, 
Maryland; that on the 16th day of July, 1944, she boarded 
a Greyhound bus, which was operated and driven by R. 
P. Kelly, at Hayes Store, and surrendered her ticket to 
Mm, for transportation to Baltimore; that her ticket was 
accepted by the bus driver; that she had no intention of 
leaving the bus prior to its arrival in Baltimore.
_ At this point the defendant was presented with the 

ticket stub and identification check, marked as Exhibit 
“  B ” , and set forth hereinbefore in this Bill of Exception, 
whereupon she testified that the same was the stub of the 
ticket which she had purchased on July 15, 1944, and which 
she had surrendered to the operator of the bus. The de­
fendant was then presented with the green paper pre­
viously identified by the witness R. P. Kelly as the trans­
fer or token which he issued, marked as Exhibit “ C ” , and 
set forth hereinbefore in this Bill of Exception, whereupon 
the defendant testified that said paper was issued to her 
and given to her by the said R. P. Kelly after she, the 
defendant, had been removed from the bus in Saluda.

The defendant further testified that at the time she 
boarded the bus at Hayes Store, there were four or five 
colored persons already seated on the long seat in the 
extreme rear of the bus, that the seats on each side of the 
aisle immediately forward of the long rear seat were oc­
cupied, by colored persons; that the seats second forward 
of the long rear seat were occupied by two colored persons



41

seated on the right side of the aisle (in a view from front to 
rear of the bus) and by two white passengers seated on 
the left side of the aisle; that the seat- third forward of 
the long rear seat were occupied by two colored persons 
on the right side of the aisle and by a white woman and 
[fol. 40] a white child on the left side of the aisle; that 
she, the defendant took a seat on the long rear seat, and 
that a colored man, who also boarded the bus at Hayes 
Store, also took a seat on the long rear seat, thus making 
a total of six or seven passengers occupying the long rear 
seat; that numerous persons, both white and colored, were 
standing in the aisle.

The defendant testified further that between Hayes Store 
and Saluda, the two colored passengers occupying the 
seat second forward from the long rear seat on the right 
side of the aisle got off the bus, whereupon two white 
passengers occupied said seat; that the bus arrived in 
Saluda about 11 o ’clock A. M.; that at the time the bus 
arrived there, colored persons occupied the long rear seat, 
there being about six or seven in all occupying that seat, 
the seats immediately forward of the long rear seat on 
each side of the aisle and. the seat third forward of the 
long rear seat on the* right side of the aisle, while white 
passengers occupied all of the remaining seats in the bus, 
including the seats on each side of the aisle second forward 
from the long rear seat, and the seat third forward of the 
long rear seat on the left side of the aisle; that upon 
arrival in Saluda, the white woman and the white child 
who previously occupied the seat third forward on the left 
side of the aisle left the bus; that she, the defendant, 
thereupon moved into said seat, occupying the half of 
said seat next to the window; that a colored woman, who 
was, as the defendant later learned, Estelle Fields, and 
who was carrying an infant in her arms, boarded the bus 
and took the vacant seat beside the defendant.

At this point Estelle Fields was presented before the 
defendant, and the defendant was requested to look at her 
and identify her. The defendant then stated that the said 
Estelle Fields was the person who carried the infant and 
who took the seat beside the defendant.

The defendant further testified that there were still 
a_ large number of persons of each race standing in the 
aisle; that after she and Estelle Fields had sat in the 
said seat for about five minutes, a white woman accom­



42

panied by a white man boarded the bus, which was still 
standing in Saluda, that thereupon the bus driver ap­
proached the defendant and Estelle Fields, and told them 
that they must get up so that the white couple might sit 
down; that she, the defendant thereupon informed the driv- 
[fol. 41] er that she was willing to change her seat to an­
other seat in the' bus, but that she was unwilling to stand 
for the remainder of her trip; that she also told the bus 
driver that it was her understanding of the laws of Vir­
ginia that colored persons were entitled to occupy the 
seats from the center of the bus to the rear, and that white 
passengers were entitled to occupy the seats from the 
center of the bus to the front; that in reply the bus driver 
announced that colored persons would be seated only after 
all white persons had obtained seats; that when asked by 
the defendant where she, the defendant, would sit if she 
relinquished the seat in which she was sitting, the bus 
driver said nothing; that at the time she was told to move, 
there were no vacant seats in the bus; that at no time did 
the bus driver offer her another seat, or attempt to move 
another passenger or passengers in order that seat space 
for her might be procured, or ask any person or persons 
on said bus except the defendant and Estelle Fields, to 
move from or relinquish their seats; that the bus driver 
never said anything to her concerning the requirements 
of the laws of Virginia, but she did say to the bus driver 
that she knew as much about the rules of the bus company 
as he did; that at no time did she, the defendant, pull 
Estelle Fields back into the seat or in any way interfere 
with her movements or otherwise attempt to prevent her 
from leaving the seat.

The defendant testified further that the bus driver then 
left the bus, and returned later with the sheriff and the 
deputy sheriff; that she did not know who the persons 
accompanying the bus driver were; that she never saw 
any badge or other indication of official authority upon 
either ; that the sheriff approached her with a sheet of 
paper in his hand, the purport of which she did not know; 
that the sheriff merely stated: “ I have a warrant” ; that 
she, the defendant, thereupon inquired: “ A. warrant for 
whom?”  and asked for what the warrant was issued; that 
the sheriff said nothing and immediately put the paper into 
his pocket; that she did not, as stated by witnesses for the 
Commonwealth snatch the paper from his hand, or throw



43

it behind the seat, or in any way touch the paper or interfere 
with the sheriff’s possession thereof; that after placing 
the paper in his pocket, the sheriff asked, her whether she 
would move out of the seat; that she thereupon, told him 
that she was willing to exchange her seat for another seat 
on the bus, but that she was not willing to stand; that 
without more she was seized by the arms by the sheriff 
and his deputy and forcibly taken from the bus; that she 
[fol. 42] did hold on the seat in an effort to maintain her 
position therein, but at no time did she kick the sheriff 
or strike at the deputy sheriff or attempt in any manner to 
inflict bodily harm or injury upon either; that injury was 
inflicted to her arms and shoulders from the rude manner 
in which she was removed from the bus; but that aside 
from this there was no further violence and no further 
words between the parties; that she was placed in the 
jail in Saluda and kept there from about 11:30 A. M. 
until about 5:00 or 6:00 P. M. on July 16th, 1944, when 
she was released on bail fixed in the sum of $500.00.

Cross-examination:
On cross examination the defendant testified that there 

were no vacant seats on the long rear seat, or elsewhere 
in the bus when the bus driver and sheriff respectively, 
asked her to move; that there were a large number of 
persons, both white and colored, standing in the aisle at 
that time; that she told the bus driver, and also the sheriff, 
when they, respectively, told her to relinquish her seat, 
that she would move to any other seat in the bus, but 
would not stand; that she told the bus driver that she 
thought that under the laws of Virginia the space in the 
bus from the center to the rear thereof was for occupancy 
by colored passengers, and that from the center to the 
front thereof was for occupancy by white passengers; that 
the bus driver did not at any time said anything to her 
concerning the requirements of the laws of Virginia, that 
rather the bus driver stated that colored passengers would 
not be seated until all white passengers had been seated; 
that she, the defendant, did not pull Estelle Fields back 
into the seat as testified to by the bus driver; that she did 
not snatch, or try to snatch, the warrant from the sheriff, 
or throw the same behind the seat; that she did not kick 
the sheriff; that she did not strike at the deputy sheriff.



44

Estelle Fields.

Direct examination:
Estelle Fields testified that she is a native of Middlesex 

County, Virginia, but that she now resides in Philadelphia, 
Pennsylvania; that on the 16th day of July, 1944, she 
boarded a Greyhound bus in Saluda, Virginia, en route to 
ffol. 43] Philadelphia at about 11:00 o ’clock A. M .; that 
this was the same bus upon which the defendant, Irene 
Morgan, was riding; that she did not know Irene Morgan 
at that time; that on this day and at this time she was 
carrying an infant in her arms; that when she boarded 
the bus there was only one seat vacant therein; that that 
seat was the seat beside the defendant and was the half 
of the seat next to the aisle on the left-hand side of the 
aisle looking to the rear of the bus; that there were no 
vacant seats on the long rear seat, or elsewhere in the 
bus; that a large number of persons of both races were 
standing in the aisle; that she sat into the seat beside the 
defendant, and held the infant in her lap; that the bus 
driver then came back towards them; that there were no 
available seats in the bus at this time; that the bus driver 
stated that no colored passengers would be seated until 
all white passengers had been seated; that the seat im­
mediately behind the seat occupied by the defendant and 
the witness were occupied by two white passengers, but 
that notwithstanding this fact the driver made no effort 
to shift the defendant and her to another seat in the bus; 
that neither she nor the defendant moved pursuant to the 
demand of the bus driver; that she, the witness made no 
effort to move; that the defendant at no time pulled her 
back into the seat, or' attempted to keep her from moving 
therefrom; that the driver left the bus and returned later 
with the sheriff and his deputy; that the deputy sheriff 
came up and told them to move from the seat; that she, 
the witness, then got out of the seat, but had to stand 
in the aisle, as there was no other vacant seat in the bus; 
that she did not hear the sheriff say that he had a warrant; 
that she never saw a warrant; that the sheriff never read 
a warrant to the defendant; that so far as she, the witness, 
knew, the defendant did not snatch a warrant from the 
sheriff; that she, the witness did not see the defendant 
kick the sheriff, or strike at the deputy or use violence 
against either; that the sheriff demanded that the defend­



45

ant relinquish her seat; that the defendant stated that she 
was willing to exchange the seat she then occupied for any 
other seat in the bus, but that she, the defendant, was 
unwilling to stand; that after the defendant refused to 
move from the seat, the sheriff and the deputy sheriff 
seized the defendant and pulled her from the seat and 
took her off the bus; that the defendant tried to keep her 
seat, and held on to the seat when they tried to remove 
her, but that she, the defendant, did not strike at the offi­
cers, or either of them, or subject either to violence; that 
[fob 44] she, the witness, continued the trip standing; that 
a passenger offered to hold the baby and did hold the baby 
until she, the witness, was able some time later to obtain 
a seat.

Cross-examination:
On cross examination Estelle Fields testified that there 

never were any vacant seats on the long rear seat; that 
the only vacant seat she saw anywhere in the bus when 
the bus was standing in Saluda was the seat beside the 
defendant, which she, the witness took; that she got out 
of the seat when the sheriff asked her to move, but that 
she was not able to find a seat and so had to stand; that 
she did not move when the bus driver came back because 
she was not sure whether the bus driver was speaking to 
her; that she did not see the defendant kick the sheriff, 
or strike at his deputy, or either; that she did not see the 
defendant snatch the warrant from the sheriff; that she 
did not see a warrant; that the defendant tried to keep 
her seat when the sheriff and deputy took her out of the 
seat, but that the defendant did not strike at either.

Richard Scott.

Direct examination:
Richard Scott testified that on the 16th day of July, 

1944, he boarded a Greyhound bus in Norfolk, Virginia, 
and traveled thereon to Saluda, Virginia; that this was 
the same bus on which the defendant rode; that the de­
fendant boarded the bus at Hayes Store, Virginia; that 
when the bus arrived in Saluda, the defendant sat in the 
third seat forward of the long rear seat on the left side 
of the aisle; that when she so sat there this seat was the



46

only vacant seat on the bus; that at this time there was no 
vacant seat on the long rear seat; that he, the witness, 
and Willie Robinson were sitting on the long* rear seat 
when the bus arrived at Saluda; that there were six or 
seven persons seated on the long rear seat between Hayes 
Store and Saluda; that he, the witness, and Willie Robin­
son left the bus at Saluda; that when they got up out of 
their places on the long rear seat, other passengers in the 
bus, who were then standing, immediately sat in the seats 
thereon which they vacated; that when they left the bus 
there were numerous persons both white and’colored, stand­
ing in the aisle; that he did not see the bus driver try to 
[fol. 45] move the defendant; that he did not see the sheriff 
or the deputy sheriff, that he left the bus before any further 
events occurred.

Cross examination:
On cross examination Richard Scott testified that he and 

Willie Robinson left the bus when the same stopped in 
Saluda, and that consequently he saw none of the incidents 
occurring between the bus driver and the defendant, or the 
sheriff of deputy sheriff and the defendant.

Willie Robinson.

Direct examination:
Willie Robinson testified that on the 16th day of July, 

1944, he got on a Greyhound bus in Norfolk, Virginia; that 
he traveled on said bus to Saluda, Virginia; that this was 
the same bus on which the defendant rode; that the defend­
ant got on the bus at Hayes Store, Virginia; that he and 
Richard Scott were seated on the long rear seat; that there 
were about six or seven persons seated on the long rear seat 
when the bus arrived in Saluda; that upon arrival in 
Saluda, the defendant moved into the third seat forward 
of the long rear seat on the left side of the aisle; that 
when she so moved the seat into which she moved was 
the only vacant seat in the bus; that he and Richard 
Scott left the bus in Saluda; that when they got up 
from the long rear seat standing passengers immediately 
sat in the seats thereon which they so vacated; that when 
they left the bus there were a number of persons of each 
race standing in the aisle; that he saw none of the events



47

occurring with respect to efforts to move the defendant from 
the seat, he having left the bus before they took place.

William Garnett.

Direct examination:
William Garnett testified that on the 16th day of July, 

1944, he took his sister, who was traveling to Pennsylvania, 
to the bus at Saluda; that he went aboard the bus with his 
sister’s bags and placed the bags in the bus for her; that the 
bus which he so entered was standing in the bus depot in 
Saluda at about 11 o ’clock A. M. on this day, that the bus 
was crowded, with both white and colored passengers 
standing in the aisle; that he looked about the bus in an 
[fob 46] effort to find his sister a seat, but that all seats in 
the bus were occupied; that he left the bus; that when he so 
left the bus his sister was still standing.

Thomas Carter.

Direct examination:
Thomas Carter testified that on the 16th day of July, 1944, 

he was in Saluda, Virginia, at the Greyhound bus depot at 
about 11 o ’clock A. M .; that the bus depot is across the street 
from the ja il; that about this time he saw the sheriff and the 
deputy sheriff bringing the defendant from the bus to the 
jail; that the defendant was then peaceably accompanying 
the sheriff and deputy, and was offering no resistance to 
either, but that she was then being handled roughly and 
rudely by the sheriff and the deputy.

Rachel Goldman.

Direct examination:
Rachel Goldman testified that she resides in Gloucester 

County, Virginia; that she knew the defendant, Irene Mor­
gan ; that she had known the defendant practically all of her 
life ; that she, the witness, had resided in Gloucester County, 
Virginia, and also in Baltimore, Maryland; that she knew 
the defendant both in Gloucester and in Baltimore; that 
during the time she had known the defendant she, the wit­
ness, had heard the defendant’s character and reputation 
for peace and good order, and for truth and veracity,



48

discussed by the members of each community and knew what 
her community reputation is in each respect; that her com­
munity reputation for peace and good order is good both in 
G-loucester County and in Baltimore; that the defendant’s 
community reputation in each place for truth and veracity 
is good; that during the time she had known the defendant 
she had never heard anything said which detrimentally 
affected her community reputation in either respect.

Ruby Catlett.

Direct examination:
Ruby Catlett testified that she resides in Gloucester 

County, Virginia; that she knew the defendant, Irene Mor­
gan; that she had known the defendant for a long time; that 
she, the witness, had resided both in Gloucester County and 
[fol. 47] Baltimore, Maryland; that she knew the defend­
ant both in Baltimore and in Gloucester County; that during 
the time she had so known the defendant, she, the witness, 
had heard the defendant’s character and reputation for 
peace and good order, and for truth and veracity discussed 
by members of each community and knew what her com­
munity reputation is in each respect; that her community 
reputation in each place for peace and good order is 
good; that her community reputation in each place for 
truth and veracity is good; that during the time she had so 
known the defendant she had never heard anything said 
which detrimentally affected her character in either respect.

Upon this testimony the defendant rested her case.
The Commonwealth thereupon rested its ease.
The defendant then renewed her motion that the Court 

strike out all of the evidence of the Commonwealth, and 
dismiss the case wherein she was charged with a violation 
of Section of 4097dd of the Code of Virginia, as fully set 
forth in Bill of Exception No. 2, to which reference is hereby 
made, and upon the grounds and for the reasons therein set 
forth. This motion the Court overruled, to which action of 
the Court the defendant excepted.

Each and every witness testifying in fhe ease, as afore­
said, was first sworn according to law.

And the defendant tendered this her Bill of Exception 
No. 1 on the 27th day of November, 1944, and prayed that 
the same be signed, sealed and enrolled as a part of the



49

record in this case, which is accordingly done this 7th day 
of December, 1944.

J. Douglas Mitchell, Judge of the Circuit Court of 
Middlesex County. (Seal.)

[File endorsement omitted.]

I n  the Circuit Court oe M iddlesex County

Commonwealth oe V irginia

y .

I rene M organ

[fol. 48] B ill oe E xception N o. 2—Filed December 7, 1944
Be it remembered that on the trial of this case when the 

Commonwealth had completed its presentation of its evi- 
dence-in-chief and had rested, the defendant moved to strike 
all of the evidence of the Commonwealth and to dismiss the 
case upon the grounds that the evidence introduced by the 
Commonwealth was legally insufficient to sustain a convic­
tion of the crime charged in the amended warrant, upon 
which she was being tried, and that no judgment there­
upon could lawfully be rendered against her, for the follow­
ing reasons, towit: that the law upon which the prosecution 
was based could not constitutionally be applied to the de­
fendant who was, as shown by the evidence of the Common­
wealth, an interstate passenger, traveling upon the vehicle 
of an interstate public carrier, and that its application to 
such a passenger would be in violation of Article I, Section 
8, of the Constitution of the United States; and that under 
settled rules of construction said law could not be construed 
to apply to a passenger in interstate commerce, and that it 
must be construed as limited in its operation to passengers 
in intrastate commerce.

The Court overruled said motion, to which action of the 
Court the defendant thereupon excepted.

At the conclusion of the case when both the Common­
wealth and the defendant had rested, the defendant renewed 
her motion to strike all evidence of the Commonwealth, and 
to dismiss the case, upon the ground that the evidence intro­
duced by the Commonwealth was legally insufficient to sus-

4—704



50

tain a conviction of the crime charged in the amended war­
rant, upon which she was being tried, and that no judgment 
thereupon could lawfully be rendered against her, for the 
following reasons, to-wit: that the law upon which the prose­
cution was based could not constitutionally be applied to the 
defendant who was, as shown by the evidence both for the 
Commonwealth and the defendant, an interstate passenger, 
traveling upon the vehicle of an interstate public carrier, 
and that its application to such a passenger would be in 
violation of Article I, Section 8, of the Constitution of the 
United States; that under settled rules of construction said 
law could not be construed to apply to a passenger in inter­
state commerce, and that it must be construed as limited in 
its operation to passengers in intrastate commerce; and 
that the conviction of the defendant would, under the cir­
cumstances of this case, constitute a violation of her rights 
under the Fourteenth Amendment of the Constitution of 
[fol. 49] the United States. The Court overruled said 
motion, to which action of the Court the defendant there­
upon excepted, and tendered this her Bill of Exception No. 
*2 on the 27th day of November, 1944, and prayed that the 
same be signed, sealed and enrolled as a part of the record 
in this case, which is accordingly done this 7th day of De­
cember, 1944.

J. Douglas Mitchell, Judge of the Circuit Court of 
Middlesex County. (Seal.)

[File endorsement omitted.]

In  the Circuit Court of M iddlesex County 

Commonwealth of V irginia

v.
I rene Morgan

B ill of E xception No. 3—Filed December 7, 1944
Be it remembered that on the trial of this case the Com­

monwealth and the defendant, to sustain their several 
issues, introduced several witnesses who testified as fully 
set forth in the statement of testimony certified by the 
Honorable J. Douglas Mitchell, Judge of the Circuit Court 
of Middlesex County, Virginia, who presided at the trial



51

(said certificate and statement of testimony being con­
tained and set forth at length in defendant’s Bill of Excep­
tion No. 1, and asked to be read as if here inserted), and 
which evidence was presented to the Court, trial by jury 
having been waived, and after hearing the same and at 
the conclusion thereof, the Court decided that the defend­
ant was guilty of the charge set forth in the amended war­
rant upon which she was tried, to-wit: “ That the defend­
ant did unlawfully refuse and fail to obey the direction 
of the driver or operator of the Greyhound Bus Lines to 
change her seat and move to the rear of the bus and occupy 
a seat provided for her, in violation of section 5 of the Act, 
Michie Code of 1942, section 4097dd.”

Whereupon the defendant moved the Court that said 
judgment be set aside and a new trial be awarded the de­
fendant, and that the Court arrest judgment therein and not 
pronounce the same, on the grounds that no judgment 
could lawfully be rendered against her in this case, for 
[fol. 50] the following reasons, to-wit: that the law upon 
which the prosecution was based could not constitutionally 
be applied to the defendant, an interstate passenger, travel­
ing upon the vehicle of an interstate public carrier, and that 
its application to such a passenger was in violation of Ar­
ticle I, Section 8, of the Constitution of the United States; 
that under settled rules of construction said law could 
not be construed to apply to a passenger in interstate com­
merce, and that it must and should be construed as limited 
in its operation to passengers in intrastate commerce; that 
the conviction of the defendant would, under the circum­
stances of this case, constitute a violation of her rights 
under the Fourteenth Amendment of the Constitution of 
the United States; and that said finding and verdict were 
contrary to the evidence, and lacking in evidence sufficient 
to support the same.

The Court overruled said motion, to which ruling and 
action of the Court the defendant thereupon excepted, and 
tendered this her Bill of Exception No. 3 on the 27th day 
of November, 1944, and prayed that the same be signed, 
sealed and enrolled as a part of the record in this case, 
which is accordingly done this 7th day of December, 1944.

J. Douglas Mitchell, Judge of the Circuit Court of 
Middlesex County. (Seal.)

[File endorsement omitted.]



52

I n the Circuit Court of M iddlesex County

Commonwealth of V irginia 

v.
I rene M organ

B ill of E xception N o. 4— Filed December 7, 1944

Be it remembered that on the trial of this case the Com­
monwealth and the defendant, to sustain their several 
issues, introduced several witnesses who testified as fully 
set forth in the statement of testimony certified by the 
Honorable J. Douglas Mitchell, Judge of the Circuit Court 
of Middlesex County, Virginia, who presided at the trial 
(said certificate and statement of testimony being contained 
and set forth at length in the defendant’s Bill of Excep- 
[fol. 51] tion No. 1, and asked to be read as if here in­
serted), and which evidence was presented to the Court, 
trial by jury having been waived, and after hearing the 
same and at the conclusion thereof, the Court decided that 
the defendant was guilty of the charge set forth in the 
amended warrant upon which she was tried, to-wfit: that 
the defendant did “ Unlawfully refuse and fail to obey 
the direction of the driver or operator of the Greyhound 
Bus Lines to change her seat and move to the rear of the 
bus and occupy a seat provided for her, in violation of 
section 5 of the Act, Miehie Code of 1942, section 4097dd.”

Whereupon, and after the Court had overruled the de­
fendant’s motion to set aside said judgment, as set forth 
in detail in defendant’s Bill of Exception No. 3, and asked 
to be read as if here inserted, the defendant moved the 
Court to award her a new trial, and that the Court arrest 
judgment therein and not pronounce the same, upon the 
same grounds and for the same reasons assigned in sup­
port of her prior motion to set aside the said judgment, 
as set forth at length in defendant’s Bill of Exception No. 
3, to which reference is hereby made for the grounds and 
reasons assigned in support of this her motion for a new 
trial, and asked to be read as if here inserted.

The Court overruled said motion, to which ruling and 
action of the Court the defendant thereupon excepted, 
and tendered this her Bill of Exception No. 4 on the 27th 
day of November, 1944, and prayed, that the same be



53

signed, sealed and enrolled as a part of the record in this 
case, which is accordingly done this 7th day of Decem­
ber, 1944.

J. Douglas Mitchell, Judge of the Circuit Court of 
Middlesex County. (Seal.)

[File endorsement omitted.]

Clerk ’s Certificate
V irginia :

I n the Clerk ’s Office of the Circuit Court of the County 
of M iddlesex, J anuary 10, 1945

I, C. W. Eastman, Clerk of the Circuit Court of the 
County of Middlesex, Virginia, do hereby certify that the 
foregoing is a true, accurate and complete transcript of 
the record in the case of Commonwealth of Virginia, Plain- 
[fol. 52] tiff, versus Irene Morgan, Defendant, as appears 
on file and of record in my office aforesaid and which I, as 
Clerk of said Court, have been requested by counsel for 
said defendant to copy for the purpose of its presentation, 
along with a petition for a writ of error to the judgment 
in said case, to the Supreme Court of Appeals of Vir­
ginia.

And I further certify that it affirmatively appears from 
the papers filed in said case the Honorable Lewis Jones, 
Commonwealth’s Attorney for the County of Middlesex, 
Virginia, who was counsel of record for said plaintiff, had 
due written notice of the intention of said defendant to 
apply for the foregoing transcript of record and of the 
time and place at which such application would be made, 
and, further, that such counsel had due written notice of 
the time and place at which the foregoing bills of excep­
tion would be presented to the Honorable J. Douglas 
Mitchell, Judge of the Circuit Court of the County of 
Middlesex, Virginia, to be signed, sealed, and enrolled as 
and made a part of the record in this case.

Given under my hand and seal of said Court this 10th 
day of January, 1945.

C. W. Eastman, Clerk of the Circuit Court of Mid­
dlesex County, Virginia. (Seal.)



54

V irginia :

I n the Circuit Court of M iddlesex County 

Case 331. File 40 

Commonwealth

v.
I rene M organ 

Resisting Arrest

J udgment—October 18, 1944
This day came the Attorney for the Commonwealth and 

the accused, Irene Morgan came to the bar with her coun­
sel, Spottswood Robinson III, and Linwood Smith, and 
the Court having maturely considered of its judgment in 
this case doth find the defendant Guilty; thereupon the 
defendant moved the Court to set aside its findings of fact 
and grant the defendant a new trial, upon the ground that 
said findings of fact were contrary to the law and the evi­
dence, and assigned as reasons in support of said motion 
the same reasons previously advanced in support of the 
motion to set aside the findings of fact and to grant the 
[fol. 53] defendant a new trial in the case wherein she was 
adjudged guilty of a violation of Section 4097dd of the 
code, and the additional reason that the arrest of her per­
son sought to be made in this case was illegal, and that 
her conduct was therefore within her privilege to resist 
an unlawful arrest. This motion the Court overruled, to 
which action of the Court the defendant excepted. De­
fendant moved the Court to grant her a new trial, upon 
the ground that her conviction was erroneous under the 
law and contrary to the evidence, and assigned as reasons 
in support of this motion the same reasons previously 
advanced in support of her motion to set aside the findings 
of fact and to grant the defendant a new trial in the case 
wherein she was adjudged guilty of Violating Section 4097dd, 
and the additional reason previously advanced in support 
of her motion to set aside the findings of fact and to grant 
her a new trial in this case. This motion the Court over­
ruled, to which action of the Court the defendant excepted.

The Court doth sentence the said Irene Morgan to pay a



55

fine to the use of the Commonwealth of One Hundred Hollars, 
and the costs in this behalf expended, the said fine and costs 
to be paid within thirty (30) days from the rising of this 
Court. It is further ordered that the said Irene Morgan 
enter into a bond before the Clerk of this Court on or 
before October 19th, 1944, with sufficient security in the sum 
of Five Hundred Hollars for her appearance on the 1st 
day of November Term, to-wit: November 27th, 1944, 
and the said Irene Morgan was recognized in the sum of 
Fifty Hollars for her appearance in this Court on the 
19th day of October, 1944.

Befendant moved the Court to arrest the judgment 
in this case upon the grounds of errors of law and fact 
apparent upon the face of the record in the case, and 
assigned as reasons in support of this motion the same 
reason previously advanced in sup-ort of her motion to 
set aside the findings of fact and to grant the defendant a 
new trial in the case wherein she was adjudged guilty of 
violating Section 4097dd, and the additional reason previ­
ously assigned in support of her motion to set aside the 
findings of fact and to grant her a new trial in this case. 
This motion was overruled, to which action of the Court 
the defendant excepted.

V irginia :

I n the Circuit Court of M iddlesex County

The foregoing order entered on the 18th day of October, 
[fol. 54] 1944, in the Criminal Case Numbered 331 on the 
Hocket of this Court, in the Style of

I rene M organ

'V.

Commonwealth

Appeal from Trial Justice: Misdemeanor. Resisting
Arrest

is attached hereto with the consent of all parties to show 
the disposition of this case, as it was tried with the consent 
of all parties along with and upon the same evidence heard



56

in the Criminal Case Numbered 330 on the Docket of this 
Court in the Style of

I rene M organ

v.
Commonwealth

Appeal from Trial Justice: Misdemeanor. Violation of 
Section 4097dd of 1942 Code

on which the defendant has indicated her desire and inten­
tion to present to the Supreme Court of Appeals of Vir­
ginia a petition for a writ of error to the judgment 
herein. The case Numbered 331 Resisting Arrest being 
off the Criminal Docket of the Court as the tine and costs 
have been paid.

January 10th, 1945.
Teste:

C. W. Eastman, Clerk of the Circuit Court of the 
County of Middlesex.

A Copy—Teste:
M. B. Watts, C. C.

[fol. 55] I n  Supreme Court op A ppeals op V irginia 

Record No. 2974

Present: All the Justices.

I rene M organ 

v.
Commonwealth of V irginia

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

Opinion by J ustice H erbert B. Gregory—June 6, 1945
The plaintiff in error was found guilty of a violation of 

section 4097dd of the Virginia Code (Michie), Acts 1930, 
p. 344, and fined $10 and costs. She attacks the judgment 
of the lower court upon the ground that the statute does



57

not apply to her because she was an interstate passenger 
on an interstate bus and, if it does, it is unconstitutional.

The facts, briefly, are as follows: On July 16, 1944, the 
plaintiff in error, who will be hereinafter referred to as 
the defendant, was a passenger upon a bus of the Richmond 
Greyhound Lines, Inc. She was a member of the Negro 
race, and had purchased a ticket at Hayes Store, in Glou­
cester county, Virginia, to Baltimore, Maryland. The bus 
on which she was riding was operated from Norfolk, Vir­
ginia, to Baltimore, Maryland. Upon arriving at Saluda, 
Middlesex county, Virginia, she wras sitting in the second 
seat toward the front from the long seat in the extreme rear 
of the bus. There were two vacant spaces upon the long rear 
[fol. 56] seat, and six white passengers were standing. The 
bus driver requested the defendant and her seatmate, another 
woman of the Negro race, to change their seats and occupy 
the two vacant spaces on the rear seat. The seatmate at­
tempted to make the exchange but as she sought to arise she 
was pulled back by the defendant. The defendant refused 
to change her seat as requested. The bus driver explained 
to her the rules and regulations of the company as to seat­
ing colored and white passengers on buses, and informed 
her that he was required to seat white passengers from the 
front of the bus toward the rear and colored passengers 
from the rear of the bus forward.

Exhibit “ A ”  sets forth the regulation of the company. 
It is in this language:

“ T-22 Rights Reserved: This company reserves the 
right to refuse transportation to any and all persons 
for the following reasons:

“ (c) This company reserves full control and discretion 
as to the seating of passengers and the right to change such 
seating at any time during the trip except on divisions or 
runs where specific seat reservations are made, in which 
case, passengers shall retain the seats assigned them unless 
[fol. 57] same be contrary to any laws or governmental reg­
ulations. ’ ’

Upon the refusal of the defendant to change her seat the 
driver of the bus caused a warrant to be sworn out for her. 
The sheriff and a deputy boarded the bus with the warrant 
and requested the defendant to change her seat. The sheriff 
attempted to read the warrant to her but she snatched it



58

out of his hand and threw it behind the seat. The woman 
seated beside the defendant moved but the defendant again 
refused to move, whereupon, the sheriff and his deputy 
arrested her and took her off the bus. When they at­
tempted to remove her from the bus the defendant struck 
at the deputy but did not hit him. She kicked the sheriff 
three times on his leg, and reiterated that she would neither 
change her seat nor get off the bus. The officers placed her 
in jail.

In addition to being tried for a violation of sec. 4097dd, 
she was also tried at the same time for resisting arrest and 
found guilty upon that charge and adjudged to pay a fine 
of $100 and costs. She has not sought a writ of error to 
this judgment. The writ of error here is to the judgment of 
the court finding the defendant guilty of a violation of sec­
tion 4097dd.

There are two questions presented by the assignments of 
[fol. 58] error. First, is the statute upon which the de­
fendant was prosecuted, if construed as applicable to a 
passenger in interstate commerce, constitutional? Second, 
should the statute upon which the defendant was prosecuted 
be construed as limited in its operation to passengers in 
intrastate commerce, and therefore as inapplicable to the 
defendant?

The decisive questions present only questions of law. It 
is conceded by counsel for the defendant that the facts as 
found by the court below are binding upon the defendant.

Section 4097dd reads as follows:
“ Violation by passengers; misdemeanor; ejection.—All 

persons who fail while on any motor vehicle carrier, to 
take and occupy the seat or seats or other space assigned to 
them by the driver, operator or other person in charge of 
such vehicle, or by the person whose duty it is to take up 
tickets or collect fares from passengers therein, or who 
fail to obey the directions of any such driver, operator or 
other person in charge, as aforesaid, to change their seats 
from time to time as occasions require, pursuant to any 
lawful rule, regulation or custom in force by such lines as 
to assigning separate seats or other space to white and 
[fol. 59] colored persons, respectively, having been first ad­
vised of the fact of such regulation, and requested to con­
form thereto, shall be deemed guilty of a misdemeanor, and 
upon conviction thereof shall be fined not less than five



59

dollars nor more than twenty-five dollars for each offense. 
Furthermore, such persons may be ejected from such 
vehicle by any driver, operator or person in charge of said 
vehicle, or by any police officer or other conservator of the 
peace; and in case such persons ejected shall have paid their 
fares upon said vehicle, they shall not be entitled to the 
return of any part of same. For the refusal of any such 
passenger to abide by the request of the person in charge 
of said vehicle as aforesaid, neither the driver, operator, 
person in charge, owner, manager nor bus company operat­
ing said vehicle shall be liable for damages in any court.”

In 1930 the General Assembly of Virginia enacted the 
statute known as Chapter 128, found in the 1930 Acts at 
pages 343 and 344. The title of the Act is “ An Act to 
provide for the separation of white and colored passengers 
in passenger motor vehicle carriers within the State; 
to constitute the drivers of said motor vehicles special 
policemen, with the same powers given to conductors and 
motormen of electric railways by general law.”  The pres- 
[fol. 60] ent Code sec. 4097dd is the latter portion of the 
Act.

The Act provides that all passenger motor vehicles 
operating under Chapter 161-A of the Code shall segregate 
passengers according to color, and that any carrier failing 
to comply shall be fined.

The Act also provides that those so operating motor 
vehicles shall make no difference or distinction in the quality 
or convenience of the accommodations provided for the two 
races.

The Act further provides that the driver or operator or 
other person in charge of any motor vehicle above-mentioned 
shall have the right, and he is directed, to require at any 
time when it may be necessary or proper for the comfort or 
convenience of passengers so to do, to change the designa­
tion so as to increase or decrease the amount of space 
or seats set apart for either race, and that any driver or 
operator of a bus who shall fail or refuse to carry out the 
provisions of this section shall be guilty of a misdemeanor.

The Act further provides that the operator of such 
vehicle shall be a special policeman and have all the 
powers of a conservator of the peace in the enforcement 
[fol. 61] of the provisions of the Act.



60

Then follows the latter portion of the Act now known as 
sec. 4097dd of the present Code (Michie), which has already 
been quoted.

It is conceded that on the bus upon which the defendant 
was riding there were provided equal facilities for both 
races, and that there was no difference or discrimination in 
the quality or convenience of the accommodations provided 
for the two races.

The Attorney General has made a motion to dismiss the 
writ of error, but the ultimate view of the court will render 
it unnecessary to pass upon that motion.

The public policy of the Commonwealth of Virginia, as 
expressed in the various legislative Acts, is and has been 
since 1900 to separate the white and Negro races on public 
carriers. As to railroads, see Acts of 1906, pages 236 and 
237, carried in Michie’s Code of 1942 as secs. 3962-3968; 
as to steamboats, see Acts of 1900, page 340, carried in 
Michie’s Code 1942 as secs. 4022-4025; as to electric or 
street cars, see Acts of 19'02-03-04, page 990, carried in 
Michie’s Code 1942 as secs. 3978-3983, and as to motor 
vehicles see Acts of 1930, pages 343 and 344, carried in 
[fol. 62] Michie’s Code of 1942 as secs. 4097z, 4097aa, 
4097bb, 4097cc, and 4097dd.

So far as we are advised no case contesting the validity 
of any of these segregation Acts as applied to interstate 
passengers has been previously before this court, or any 
attempt made to repeal them.

Article 1, sec. 8, clause 3, of the Constitution of the United 
States provides that Congress shall have the power 4'to reg­
ulate commerce with foreign nations, and among the several 
states, and with the Indian Tribes.”  And Article 10 of the 
amendments to the Constitution of the United States pro­
vides: “ The powers not delegated to the United States by 
the Constitution, nor prohibited by it to the states, are 
reserved to the states respectively, or to the people.”

Under the tenth amendment there is reserved to the 
States the right to exercise the police power. The State 
may enact legislation under the authority of the police 
power, even though such legislation may incidentally af­
fect interstate commerce.

The Virginia segregation statutes have been enacted 
under the police power of the State reserved to it in the 
tenth amendment to the U. S. Constitution.



61

[fol. 63] Unless it is shown that the statute here chal­
lenged directly or unreasonably interferes with interstate 
commerce it is a valid enactment. There is no evidence in 
this case that the rule of the carrier or the statute under 
which it was promulgated does so. The burden of proof 
on this issue rested upon the defendant and she has failed 
to carrv it. Bourjois, Inc. v. Chapman, 301 IT. S. 183, 57 
S. Ct. 691, 81 L. ed. 1027.

It must be borne in mind that here the carrier is not 
contending that interstate commerce is unreasonably bur­
dened by the statute. It does not contend that the statute 
places any added expense upon it or that it is inconvenienced 
or that it is against peace and good order to separate the 
races as it does under its rule. In fact the carrier was not 
even a party to this litigation.

The general rule is that if the enactment which requires 
the segregation of races according to color directly or 
unreasonably interferes with commerce it is not constitu­
tional. Hall v. DeCuir, 95 U. S. 485, 24 L. ed. 547; McCabe 
v. Atchison T. <& S. F. R. Co., 235 U. S. 151, 59 L. ed. 169, 
35 S. Ct. Rep. 69. But unless the regulation unreasonably 
burdens commerce it is valid.

In South Covington and C. St. R. Co. v. Kentucky, 252 
[fol. 64] U. S. 399, 64 L. ed. 631, 40 Sup. Ct. Rep. 378, it 
was held that a Kentucky street railway may be required 
by statute of that State to furnish separate cars or separate 
compartments in the same car for white and negro passen­
gers, although its principal business is the carriage of pas­
sengers in interstate commerce between Cincinnati, Ohio, 
and Kentucky cities across the Ohio river. It was held 
that such a requirement affects interstate commerce only 
incidentally and does not subject it to unreasonable de­
mands.

It was also held in Smith v. State, 100 Tenn. 494, 41 
L. R. A. 432, 46 8. W. 566; Alabama and B. R. Co. v. Morris, 
103 Miss. 511, 60 So. 11, Ann. Cas. 1915B, 613, and So. R. 
Co. v. Norton, 112 Miss. 302, 73 So. 1, that State statutes 
providing for separate but equal accommodations for white 
and colored races on railroads are valid police regulations 
and that they apply both to intrastate and interstate travel. 
In these cases comment is made that the Supreme Court has 
not directly passed upon the validity of such statutes and 
that the ultimate settlement of the question rests with that



62

court. It is also suggested in the Morris case that until 
that court decides against the validity of such statutes, 
the court wil be impelled to adhere to the belief that the 
[fol. 65] law is not only beyond criticism from a constitu­
tional standpoint but is also a reasonable and wise exer­
cise of the police power of the State.

There are cases from several States which support the 
contention that a segregation statute is unconstitutional 
as respects interstate passengers. See Hart V. State, 100 
Md. 595, 60 Atl. 457; Carrey v. Spencer, 72 N. Y. S. R. 
108, 36 N. Y. Supp. 886; Washington B. & A. Elec. R. Co. 
v. Waller, 53 App. D. C. 200, 289 Fed. 598, 30 A. L. R. 50. 
See also annotation in 30 A. L. R. at p. 55, where a number 
of cases are collected.

The defendant places strong reliance upon the case of 
Hall v. DeCuir, 95 U. S. 485, 24 L. ed. 547. That case arose 
in 1877 under a Louisiana statute enacted in 1869 which re­
quired that no regulation of any carrier should make any 
discrimination on account of the race or color of the pas­
senger. The plaintiff was a member of the Negro race and 
she sought accommodations on an intrastate journey in 
Louisiana on a steamboat operated by one Benson, which 
plied on the Mississippi river between New Orleans, Louisi­
ana, and Vicksburg, Mississippi. She was refused ac­
commodations in the cabin set apart for white persons, 
and sued Benson for damages as provided in the statute, 
[fol. 66] He maintained that he was engaged in interstate 
commerce and that the Louisiana statute could have no 
application to him, and that he could promulgate any rules 
he desired. The Supreme Court of Louisiana held the 
statute applicable and that it was not a regulation of inter­
state commerce. The case was appealed to the Supreme 
Court of the United States and there reversed, the Court 
holding that the statute was an unreasonable burden upon 
interstate commerce and therefore in violation of the 
Constitution.

The court found as a fact that the Louisiana Act was 
a direct interference with interstate commerce, while in the 
case at bar the challenged Act has not been shown nor 
found to be an interference with interstate commerce.

In the Hall case it is apparent that the Louisiana Act 
was not enacted in pursuance of the police power of the 
State, while the Virginia Act was enacted under the police 
power.



63

It is also noted that the Louisiana statute prohibited 
the segregation of the races and that the rule of the 
carrier required such, segregation, while in Virginia 
our statute not only requires separation of the races on 
public carriers but the carrier in this instance has a rule 
[fol. 67] promulgated under the statute providing for the 
seating of passengers in the bus, and reserving to itself 
the right to change such seating at any time during the 
trip.

The Louisiana statute and the rule of the carrier were 
in direct conflict. To enforce the rule of the carrier would 
have been to violate the terms of the statute, while to en­
force the terms of the statute would have been to violate 
the rule of the carrier. No such situation exists in Vir­
ginia. In the case at bar the rule of the carrier, instead 
of being at variance with the provisions of the statute, 
is entirely consistent with it—the rule having been made 
under the terms of the statute.

There is a conflict in the many cases dealing with State 
statutes which require the separation of the white and 
colored races by public carriers. No case from the Supreme 
Court of the United States has directly considered the 
issue raised in the case at bar. It is needless for us to 
refer to all of the cases or to attempt to discuss and dis­
tinguish them. Each case must largely depend upon its 
own facts, and if a statute results in imposing a direct or 
unreasonable burden upon interstate commerce it should 
be declared unconstitutional. On the other hand, if it 
creates no such burden, it is not obnoxious to the Con­
stitution.
[fol. 68] In 11 Am. Jur., Commerce, sec. 8, the rule con­
trolling the division and classification of powers is stated 
thus:

“ The constitutional provision which confers upon Con­
gress the power ‘ to regulate commerce with foreign na­
tions, and among the several States, and with the Indian 
tribes’ grants all of the authority which the United States 
has over commerce. The respective powers of Congress 
and the States under this provision are divided into three 
fields: (1) That in which the authority of Congress is 
exclusive; (2) that in which the power of the State is 
exclusive; and (3) that in which the State may act in the 
absence of legislation by Congress. The line of division



64

between Congressional and State power over commerce is 
a question for judicial decision, depending upon the words 
of the Federal Constitution. # * * ”

In Covington $  Cincinnati Bridge Co. v. Commonwealth 
of Kentucky, 154 U. S. 204, 14 S. Ct. 1087, 38 L. ed. 962, 
it was held that the adjudications of the Supreme Court of 
the United States with respect to the power of the States 
over the general subject of commerce are divisible into 
three classes: “ First, those in which the power of the 
State is exclusive; second, those in which the States may 
act in the absence of legislation by Congress; third, those 
[fol. 69] in which the action of Congress is exclusive and 
the States cannot interfere at all.”

In the case at bar the defendant contends that Congress 
possesses the exclusive power in matters relating to inter­
state commerce, and that the States cannot act at all, while 
the Attorney General contends that the case at bar falls 
within the second class set out in the Covington case, and 
that the State may act in the absence of legislation by 
Congress.

It appears that certain members of Congress have at­
tempted to induce Congress to invade the so-called segrega­
tion field, but so far without success. On three occasions it 
has expressly refused to legislate on the subject. On Janu­
ary 5, 1938, Representative Mitchell introduced the follow­
ing bill in Congress to amend U. S. C. title 49, sec. 3(1). 
(See H. R. 8821, Congressional Record, Vol. 83, part 1, 
p. 74):

“ It shall be unlawful to segregate any persons traveling 
as interstate passengers on any carrier subject to the pro­
visions of this Act, or in railroad stations, waiting rooms, 
rest rooms, lunch rooms, restaurants, dining cars, or in 
any other accommodations provided for passengers travel­
ing interstate, on account of such passengers’ race, color, 
or religion; and any such discrimination or attempted dis- 
[fols. 70-71] crimination shall subject the offending carrier, 
its officers, agents, servants, and employees, to the penalties 
hereinafter provided for violation of this Act. ’ ’

This bill was referred to the Committee on Interstate and 
Foreign Commerce but was never reported out.

On January 3, 1939, the bill was re-introduced as II. R. 
182, (Congressional Record, Yol. 84, part 1, p. 27), and



65

again referred to the same committee. This committee 
was studying and developing the Interstate Commerce 
Act, and the Transportation Act of 1940, (See Pocket Sup­
plement to U. S. C. A., Yol. 49, title Transportation), was 
finally enacted, but the bill was not reported out nor were its 
provisions incorporated in any other measure.

On January 3, 1941, the bill was re-introduced as H. R. 
112 (Congressional Recoi'd, Yol. 87, part 1, p. 13), and for 
the third time it was not reported out of committee.

There is now pending in the Committee on Interstate and 
Foreign Commerce a bill known as H. R. 1925, which it is 
again sought to abolish segregation on public carriers. 
What the fate of this latest attempt will be, is, o f course, 
not known.

This continued refusal of the Congress to legislate in 
[fol. 72] the segregation field demonstrates its desire that 
the matter be left where it is now; that is, that the several 
States, under their police power, be permitted to continue 
to legislate in this field, subject only to the limitation 
that they shall not directly or unreasonably burden inter­
state commerce.

The Supreme Court has held that a State may tax inter­
state commerce even though it increases the cost of doing 
business. Even interstate business must pay its way. The 
bare fact that one is carrying on interstate commerce does 
not relieve him from many forms of State taxation which 
add to the cost of his business.

In McGoldrick v. Berwind-White Coal Mining Co., 309 
U. S. 33, 60 S. Ct. 388, 84 L. ed. 565, Mr. Justice Stone, 
speaking for the court, said: “ Section 8 of the Constitution 
declares that Congress shall have power * * * to
regulate commerce with foreign nations and among the 
several States. * * * In imposing taxes for State
purposes a State is not exercising any power which the 
Constitution has conferred upon Congress. It is only when 
the tax operates to regulate commerce between the States 
or with foreign nations to an extent which infringes the 
authority conferred upon Congress that the tax can be 
ffol. 73] said to exceed constitutional limitations.”  Citing 
cases.

And again the Justice said: “ In few of these cases 
could it be said with assurance that the local tax does not, 
in some measure, affect the commerce or increase the cost

5—704



66

of doing it. But in them as in other instances of con­
stitutional interpretation so as to insure the harmonious 
operation of powers reserved to the States with those con­
ferred upon the national government, courts are called upon 
to reconcile competing constitutional demands, that com­
merce between the States shall not be unduly impeded 
by State action and that the power to lay taxes for the 
support of State government shall not be unduly cur­
tailed. ’ ’

Thus a State may tax interstate commerce and increase 
the cost of doing that business. Commerce is bound to 
be affected and burdened. However, under the case just 
referred to, as long as the State tax does not infringe 
the authority conferred upon Congress to regulate com­
merce among the several States, it is not invalid.

If State taxation statutes are constitutional even though 
they add to the cost of doing an interstate business, it would 
certainly seem logical that a segregation statute which 
[fol. 74] is not shown to affect interstate commerce in any 
way, except perhaps to improve it, would also be valid. 
I f  the defendant here and her seatmate had complied with 
the rule of the carrier and had occupied the rear vacant 
seats assigned them, then two of the six white passengers 
could have been seated. Thus complying with the rule of 
the carrier and the statute not only would not have directly 
or unreasonably impaired interstate commerce but it would 
have aided it.

It is conceded that in so far as the commerce clause is 
concerned the Virginia Act is valid, if restricted in its ap­
plication to intrastate passengers. It is said that the Act is 
severable, and we are asked to so hold, and to invalidate it 
as to interstate passengers.

The language of the statute embraces all motor vehicles 
and all passengers, both interstate and intrastate. If the 
statute were held to be valid as to intrastate passengers 
and invalid as to interstate passengers, a condition would 
exist that would adversely disturb the peace and welfare. 
Then an interstate white passenger could occupy the rear 
seat with an intrastate Negro passenger, and an interstate 
Negro passenger could occupy a front seat with an intra- 
[fol. 75] state white passenger. This would tend to con­
fusion and disorder, and in effect, to allow the interstate 
Negro and white passengers to have the run of the entire 
bus, while confining the intrastate white and colored pas­



67

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

The point raised for the first time in the defendant’s 
reply brief that the Act is not constitutional because it 
delegates legislative power to a private corporation brings 
into the case a question not raised in the pleadings in the 
court below or in the assignments of error or in the petition 
for a writ of error. It was not an issue in the case, and 
the attempt to inject it into the case for the first time by 
asserting it in the reply brief is violative of rule 22 of this 
court.

However, we do not think there would be any merit in the 
point if it had been properly raised. The statute, when read 
in its entirety, clearly demonstrates that no power is dele­
gated to the carrier to legislate and determine what conduct 
shall be considered a crime. The statute simply describes 
conditions which must first be found to exist before it be- 
[fol. 76] comes applicable. There is no uncertainty about 
the conditions that must exist before the offense is complete. 
The statute itself condemns the defendant’s conduct as a 
violation of law and not the rule of the carrier. An interest­
ing and exhaustive annotation on “ Permissible Limits of 
Delegation of Legislative Power”  is found in 79 L. ed. of 
the U. S. Supreme Court Reports, beginning at page 474, 
following the case of Panama Refining Go. v. Ryan, 293 U. S. 
388. At page 496 (79 L. ed.) the specific point is discussed 
and the pertinent cases cited. They are: Whaley v. State, 
168 Ala. 152, 52 So. 941, 30 L. R. A. (N. S.) 499; Samuels on 
v. State, 116 Tenn. 470, 95 S. W. 1012, 115 Am. St. Rep. 805, 
and Re O’Neill, 41 Wash. 174, 83 P. 104, 3 L. R. A. (N. S.) 
558, 6 Ann. Cas. 869.

In Virginia the statute demands equality of treatment 
of the white and Negro races by the carriers as well as 
equality in the facilities provided by the carriers for them. 
A statute which would permit inequalities in these respects 
would be invalid. Here the segregation statutes are en­
forced against the members of the white as well as against 
those of the Negro race. They must be enforced equally 
and without discrimination against both races. Davis v. 
Commonwealth, 182 Va. 760, 30 S. E. 2d 700.

We are of the opinion the statute does not result in a 
[fol. 77] discrimination against either the white or the 
Negro race, and that it does no violence to the fourteenth

6—704



68

amendment to the U. S. Constitution (see Plessy v. Fergu­
son, 163 U. S. 537, 41 L. ed. 256).

The silence of Congress on this subject places it in the 
“ second”  category outlined in Covington & Cincinnati 
Bridge Co. v. Kentucky, su-pra, where the State is allowed 
to act in the absence of legislation in this field by Congress. 
If Congress desires to nullify State segregation statutes 
as applicable to interstate passengers it has the power to 
do so under the commerce clause. However, until Congress 
pre-empts this legislative field by proper enactment the 
States continue to have the right to segregate the white and 
colored races on public carriers. That Congress probably 
will not enter this field is evidenced by the fact that since 
January 5, 1938, for more than seven years it has refused 
to act, though at each session since then it has had the sub­
ject before it and has been urged to abolish segregation.

Our conclusion is that the statute challenged is a reason­
able police regulation and applies to both intrastate and 
interstate passengers. It is not obnoxious to the commerce 
clause of the Constitution.

The judgment is affirmed.
Affirmed.

[fol. 78] In Supreme, Court oe A ppeals of V irginia 

Record No. 2974

I rene M organ, Plaintiff in error, 
against

Commonwealth of V irginia, Defendant in error

Upon a writ of error and supersedeas to a judgment 
rendered by the Circuit Court of Middlesex county on the 
18th day of October, 1944.

J uogment—June 6,1945

This day came again the parties, by counsel, and the court 
having maturely considered the transcript of the record of 
the judgment aforesaid and arguments of counsel, is of 
opinion, for reasons stated in writing and filed with the 
record, that there is no error in the judgment complained 
of. It is therefore considered that the same be affirmed, and



69

that the plaintiff in error pay to the Commonwealth thirty 
dollars damages, and also her costs by her expended about 
her defense herein.

Which is ordered to be certified to the said circuit court.

In  Supreme Court op A ppeals op V irginia 

[Title omitted]

R ecital as to F iling op P etition for, R ehearing—July 2,
1945

The petition of plaintiff in error in this cause for a re­
hearing of the judgment of this court rendered on the 6th 
day of June, 1945, was this day received and the filing 
thereof is here noted of record.

I n Supreme Court of A ppeals op V irginia

Order D enying P etition for R ehearing— September 4,
1945

On mature consideration of the petition of the plaintiff 
[fol. 79] in error to set aside the judgment entered herein 
on the 6th day of June, 1945, and grant a rehearing thereof, 
the prayer of the said petition is denied.

[fol. 80] I n the Supreme Court of A ppeals of V irginia

P etition for A ppeal and A ssignment of E rrors

To the Honorable Preston W. Campbell, Chief Justice of 
the Supreme Court of Appeals of Virginia:
Now comes Irene Morgan, appellant in the above-entitled 

cause, by her attorneys, and respectfully shows that:
On the 6th day of June, 1945, in the above-entitled cause, 

the Supreme Court of Appeals of Virginia, the highest 
Court of said State in which a decision in said cause could be 
had, rendered a judgment against appellant and in favor of 
appellee, affirming a judgment of the Circuit Court of the



70

County of Middlesex, Virginia, designated as Case No. 330, 
in which judgment said Circuit Court convicted appellant of 
a violation of the statute of the State of Virginia known and 
designated as Chapter 128, Acts of Assembly of 1930, pages 
343-344, and sentenced her to pay a fine of Ten ($10.00) 
Dollars.

On the 2nd day of July, 1945, appellant filed with the 
Supreme Court of Appeals of Virginia her Petition for 
Rehearing, which Petition was denied by said Court on the 
4th day of September, 1945, whereupon the judgment of 
said Court became final. In the record and proceedings and 
in the rendition of said judgment, and in permitting the 
same to become final, manifest error occurred greatlv to 
appellant’s damage, whereby appellant is aggrieved and 
does hereby appeal from said judgment to the Supreme 
[fol. 81] Court of the United States.

In the record and proceedings and in the rendition of said 
judgment there was drawn in question by appellant herein 
the validity of the above-cited statute of the State of Vir­
ginia under which she was convicted, on the ground that said 
statute was in contravention of, and repugnant to, the pro­
visions of Clause 3 of Section 8 of Article I of the Constitu­
tion of the United States, which confers upon the Congress 
the exclusive right to regulate commerce among the several 
States. The decision and judgment of the Supreme Court 
of Appeals of Virginia were in favor of the validity of said 
statute and against the rights, privileges and exemptions 
specifically set up and claimed by appellant herein under 
said clause of the Constitution of the United States, all of 
which is fully apparent in the record and proceedings of the 
cause and in the rendition of said decision and judgment.

A ssignment op E rrors

Appellant assigns the following errors in the record and 
proceedings of said cause :

I

The Supreme Court of Appeals of Virginia erred in 
rendering judgment affirming the judgment of the Circuit 
Court of the County of Middlesex, Virginia, holding that 
the statute of the State of Virginia, known as Chapter 
128, Acts of Assembly of 1930, pages 343-344, as ap­
plied to appellant, a passenger traveling on an interstate



71

journey in a vehicle moving in interstate commerce, is not 
repugnant to the provisions of Clause 3 of Section 8 of 
Article I of the Constitution of the United States.

II
The Supreme Court of Appeals of Virginia erred in 

rendering judgment affirming the judgment of the Circuit 
[fol. 82] Court of the County of Middlesex, Vir ginia, hold­
ing that the powers reserved to the States under the tenth 
Amendment of the Constitution of the United States include 
the power to enforce a State statute compelling the racial 
segregation of passengers on public carriers against a 
person traveling on an interstate journey in a vehicle mov­
ing in interstate commerce.

P rayer fob R eversal

For which errors appellant prays that the said decision 
and judgment of the Supreme Court of Appeals of Virginia 
in the above-entitled cause be reviewed by the Supreme 
Court of the United States, that the appeal herein operate 
as a supersedeas and suspension of'the judgment of the 
Circuit Court of Middlesex County, Virginia, that the said 
decision and judgment of the Supreme Court of Appeals of 
Virginia be reversed, and that a judgment be rendered in 
favor of appellant.

Irene Morgan, Appellant, By William H. Hastie, 
Thurgood Marshall, Spottswood W. Robinson, III, 
Counsel for Appellant.

Spottswood W. Robinson, III, Consolidated Bank Build­
ing, Richmond, 19, Virginia.

[fols. 83-84] lx  th e  S upreme Court oe th e  U nited S tates 

[Title omitted]

Order A llow ing  A ppeal—November 19, 1945
Irene Morgan, the appellant in the above-entitled cause, 

having prayed for the allowance of an appeal in this cause 
to the Supreme Court of the United States from the judg­
ment rendered and entered in the above-entitled cause by 
the Supreme Court of Appeals of Virginia, and having, on



72

the 19th day of November, 1945, duly presented and filed 
her Petition for Appeal and Assignment of Errors and 
Prayer for Reversal therein contained, and a Statement as 
to Jurisdiction, pursuant to the statutes and rules of the 
Supreme Court of the United States in such cases made and 
provided, and the same having been considered:

It is ordered that an appeal be and hereby is allowed to 
the Supreme Court of the United States from the Supreme 
Court of Appeals of Virginia as prayed in said petition, and 
that the Clerk of the Supreme Court of Appeals of Virginia 
shall prepare and certify a transcript of the record and 
proceedings in the above-entitled cause and transmit the 
same to the Supreme Court of the United States within 
forty (40) days from the date hereof.

It is further ordered that bond for costs on appeal be and 
the same hereby is fixed in the sum of 200 Dollars, and that 
upon approval of bond in said amount the appeal herein 
shall operate as a supersedeas and suspension of the judg­
ment of the Circuit Court of the County of Middlesex, 
Virginia, entered in the above-entitled cause.

Dated this 19th day of November, 1945.
Harlan F. Stone, Chief Justice of the United States.

[fol. 84a] Bond on appeal for $200.00 approved. Omitted 
in printing.

[fol. 85] Citation in usual form showing service on M. 
Ray Doubles. Omitted in printing.

[fol. 86] I n  t h e  S upreme C ourt oe A ppeals oe V irginia 

[Title omitted]

P raecipe for T ranscript oe R ecord 

T o the Clerk of said Court:
You are hereby requested to make a transcript of the 

record to be filed in the Supreme Court of the United States 
pursuant to an appeal in the above-styled cause, and to



73

include in said transcript of record tlie following papers 
and exhibits, to-wit:

1. All the original record in the Supreme Court of Ap­
peals of Virginia, on writ of error to the Circuit Court of 
the County of Middlesex, Virginia.

2. The opinion of the Supreme Court of Appeals of Vir­
ginia, rendered June 6, 1945.

3. The judgment of the Supreme Court of Appeals of 
Virginia, entered June 6, 1945, affirming the judgment of 
the Circuit Court of the County of Middlesex, Virginia.

4. The certificate of the Clerk of the Supreme Court of 
Appeals of Virginia noting the filing of the petition for 
rehearing.

5. The judgment of the Supreme Court of Appeals of 
Virginia, rendered September 4, 1945, denying the petition 
for rehearing.

6. The petition for appeal to the Supreme Court of the 
United States, including the assignment of errors and the 
prayer for reversal.

7. The statement of Irene Morgan, Appellant, in. support 
of the jurisdiction of the Supreme Court of the United 
[fol. 87] States to review the above-styled cause on appeal.

8. The order of the Supreme Court of the United States 
allowing appeal and fixing the amount of bond.

9. The notice directing attention of appellee to the pro­
visions of Rule 12, paragraph 3, of the rules of the Supreme 
Court of the United States, with acknowledgement of 
service of said notice and acknowledgement of service of 
copies of the petition for appeal and assignment of errors, 
order allowing the appeal, and statement in support of 
jurisdiction.

10. The citation on appeal to the Commonwealth of Vir­
ginia, and the certificate of service thereof upon the Com­
monwealth of Virginia.

11. The bond for costs on appeal and approval thereof.
12. This praecipe, with acknowledgement of service 

thereof.
13. Certificate of the Clerk of the Supreme Court of Ap­

peals of Virginia to the correctness of the record as to this 
praecipe.

The said transcript is to be prepared as required by law 
and the rules of the Supreme Court of Appeals of Virginia 
and the rules of the Supreme Court of the United States,



74

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

Irene Morgan, Appellant, by William H. Hastie, 
Spottswood W. Robinson, I'll, of Counsel for Ap­
pellant.

Due and legal service of the above praecipe is hereby 
acknowledged and accepted, and all other and further serv­
ice is hereby waived.

This 6th, day of December, 1945.
Abram P. Staples, Atty. Gen. of Virginia, by M. 

Ray Doubles, Asst. Atty. Gen. of Virginia.

tfol. 88] Clerk’s certificate to foregoing transcript omit­
ted in printing. (Seal.)

[fol. 89] In  the Supreme Court oe the U nited States

Statement op P oints on w hich  A ppellant I ntends to
R ely and D esignation oe P arts of R ecord— F iled Jan­
uary 5, 1946

Pursuant to Rule 13, page 9 of the Revised Rules of this 
Court, appellant states that she intends to rely upon all 
the points in her Assignment of Errors.

Appellant deems the entire record as filed in the above 
entitled cause, necessary for consideration of the points 
relied upon, except for the following parts of the record 
which are not essential and may be omitted from the record 
to be printed by the Clerk of the Supreme Court of the 
United States.

1. Those portions of the Petition for Writ of Error en­
titled “ Statement of the Facts”  and “ Argument”  begin­
ning at page 3 and ending in the middle of page 22 of the 
record as filed and printed in the Supreme Court of Appeals 
of Virginia.

2. The “ Record of Case 331. File 40,”  beginning hear 
the bottom of page 52 and ending in the middle of page 54



75

of tlie record as filed and printed in the Supreme Court of 
Appeals of Virginia.

William H. Hastie, Spottswood W. Robinson, III, 
Attorney for Appellant.

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

[fol. 89a] [File endorsement omitted.]

[fol. 90] In th e  S upreme C ourt op th e  U nited S tates

D esignation op A ppellee op A dditional P arts of R ecord to 
B e P rinted—Filed January 4,1946

The appellee, Commonwealth of Virginia, designates the 
following additional parts of the record as filed which it 
thinks are necessary for the consideration of appellant’s 
assignments of error, to-wit:

Record from Supreme Court of Appeals of Virginia.
All parts of the said Record omitted in the appellant’s 

designation, viz.:
1. Those portions of the Petition for Writ of Error 

entitled “ Statement of the Facts”  and “ Argument”  be­
ginning at page 3 and ending in the middle of page 22 of the 
Record as filed and printed in the Supreme Court of Ap­
peals of Virginia.

[fol. .91] 2. The “ Record of Case 331. File 40” , be ginning
near the bottom of page 52 and ending in the middle of page 
54 of the Record as filed and printed in the Supreme Court 
of Appeals of Virginia.

Commonwealth of Virginia, by Abram P. Staples, 
Attorney General of Virginia and Counsel for Ap­
pellee.

Service of the foregoing statement of designation of 
additional parts of the Record the appellee thinks necessarv 
for the consideration of the assignments of error relied on 
by the appellant is hereby accepted, and the receipt of a



copy thereof is hereby acknowledged for and on behalf of 
the appellant this 29th day of December, 1945.

Spottswood W. Robinson, III, Attorney for Appel­
lant.

[fol. 91a] [Pile endorsement omitted.]

[ fo l. 92] S upreme C ourt of th e  U nited  S tates

Order N oting P robable J urisdiction—January 28, 1946
The statement of jurisdiction in this case having been 

submitted and considered by the Court, probable jurisdic­
tion is noted.

Mr. Justice Jackson and Mr. Justice Rutledge took no 
part in the consideration of this question.

Endorsed on Cover: File No. 50,407. Virginia, Supreme 
Court of Appeals. Term No. 704. Irene Morgan, Appel­
lant, vs. Commonwealth of Virginia. Filed December 29, 
1945. Term No. 704 0. T. 1945.

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