Lee v. Commonwealth of Virginia Reply Brief of Plaintiff in Error

    REPLY BRIEF OF PLAINTIFF IN ERROR

—  IN THE —

Supreme Court of A ppeals 
of V irginia

R ecord N o. 3558

NORVELL LEE 

vs.

COMMONWEALTH OF VIRGINIA

H il l , M a r t in  & R o b in so n , 
R obert L. C arter ,

Attorneys for Plaintiff in Error.



—  IN THE —-

Supreme Court of A ppeals 
of V irginia

R ecord N o. 3558

N O RVELL LEE

vs.

CO M M ON W EALTH  OF VIRG IN IA

REPLY BRIEF OF PLAINTIFF IN ERROR

PR E LIM IN A R Y  STATEM EN T

The Commonwealth in its brief has raised certain 
arguments which the plaintiff in error feels required to 
answer. Hence our reply brief. In our main brief we 
have set forth our basic argument which is that under 
the authority of Morgan v. Virginia, 328 U. S. 373, the 
conviction of the plaintiff in error must be set aside.

This is the Morgan case all over again. Here a state 
statute penalizes an interstate passenger for refusing to 
accommodate his movements on an interstate carrier in



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accordance with local customs and notions regarding the 
seating arrangments of white and Negro passengers. 
As the conviction in Morgan v. Virginia, supra, fell so 
must this conviction fall.

I
T h e  S ta tu te  V iolates  T h e  C o m m erce  C lause  O f 

T h e  F ederal C o n stitu tio n

A.

It has now been conclusively settled that a state statute 
requiring the separation of the races in interstate com­
merce is an invasion of Congressional authority in that 
field and cannot stand. Morgan v. Virginia, supra, 
Southern Pacific Railway Company v. Arizona, 325 
U. S. 761. This is true whether the carrier involved 
is a bus, a train or any other type of instrumentality of 
commerce. Matthews v. Southern Ry. System, 157 Fed. 
(2d) 609 (App. D. C. 1946); see also: Bob-Lo Excur­
sion Company v. Michigan, 333 U. S. 26.

The Commonwealth stresses the fact that although 
appellant had a ticket entitling him to transportation 
upon the carrier involved from Covington, Virginia, to 
Washington, D. C , i. e., in interstate commerce, yet 
since the particular coach in which he was riding, 
traveled only to Clifton Forge, Virginia, then he was 
not an interstate passenger and his case should not be 
decided according to the principles laid down in Morgan 
v. Virginiasupra  and previous cases.

We believe, that the Commonwealth would concede, 
and it is obvious that this Court would recognize the 
fact that if the appellant at the time he boarded this



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train, had checked his baggage on this train from 
Covington, Virginia, to Washington, D. C , or had 
crated his dog and checked it to the same destination, 
the baggage and dog would have been traveling in inter­
state commerce, and would have traveled to their destina­
tion without interruption. We therefore cannot under­
stand or appreciate the position of the Commonwealth 
in attempting to grant to persons, albeit Negro citizens 
of the United States, less constitutional rights or 
privileges than would be given or conceded to their 
baggage or their dogs.

The position o f the plaintiff in error in this case is 
amply reinforced by the decision of the United States 
Court o f appeals for the District of Columbia, in Wash­
ington B. & A. Railroad Co. v. Waller, 55 App. D, C. 
200, 289 Fed. 589 (1923). There the appellant, a Negro 
passenger, was traveling from Annapolis, Maryland, 
through Baltimore to Washington, D. C. “ And in order 
to go to Washington it would be necessary for appellee 
to take another of appellant’s trains at some point be­
tween Annapolis and Baltimore.” The Court held that 
a regulation of the carrier requiring segregation of the 
races upon such vehicle, although the particular vehicle 
upon which the appellee was riding traveled only from  
one point in Maryland to another point in Maryland, 
was no defense to an action for damages, stating:

“ A  regulation of the character claimed, which 
would deprive the plaintiff as an interstate pas­
senger of his right to sit in the front end of the 
car, and would justify his eviction if he declined 
to move when requested must be regarded as 
possessing the quality of a law binding, at least,



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upon all who have knowledge thereof or to whom 
such knowledge might be imputed.”

“ The Court below, therefore, rightfully con­
cluded that no jurisdiction for the ejection had 
been offered or shown, and that there was noth­
ing for the jury to consider, except the actual 
damage, nothing else being claimed.”

This then is an attempt by the State to regulate the 
movements of interstate passengers in accordance with 
their race and color. It was held in the Morgan case 
that no state could do this. That prohibition must be 
honored here.

B.

The Commonwealth attempts to rely on Bob-Lo E x­
cursion Company v. Michigan, 333 U. S. 26, as au­
thority for its decision that the conviction of plaintiff 
in error should stand. Under our analysis of the Bob 
Lo case it is authority merely for the proposition that 
in an individual case, although the commerce involved is 
of an interstate or foreign nature, its highly localized 
character may be such as to warrant regulation where 
such regulation is in keeping with national policy.

Said the United States Supreme Court at page 39 in 
distinguishing the instant case from Hall v. DeCuir, 95 
U. S. 485 and Morgan v. Virginia, supra.

“W e need only say that no one of those de­
cisions is comparable in its facts, whether in the 
degree of localization of the commerce involved; 
in the attenuating effects, if any, upon the com­
merce with foreign nations and among the several



states likely to be produced by applying the state 
regulation; or in any actual probability of con­
flicting regulations by different sovereignties. 
None involved so completely and locally insulated 
a segment of foreign or interstate commerce. In 
none was the business affected merely an adjunct 
of a single locality or community as is the busi­
ness here so largely.”

If this explanation is abandoned, then the Bob-Lo case 
can stand only for the proposition that state statutes 
requiring equality of treatment of Negro and white pas­
sengers in interstate commerce are constitutional and 
will be sustained because they are in accord with national 
policy, whereas state statutes requiring the segregation 
of the races in interstate commerce must fall because 
they are contrary to the national policy.

This appears to be one of the underlying basis of the 
decision. Said the Court at page 37:

“ The regulation in this application contains 
nothing out of harmony, much less inconsistent, 
with our federal policy in the regulation of com­
merce between the two countries, nor, so far as 
we are advised, with Canadian law and policy. 
Appellant urges, however, that Canada might 
adopt regulations in conflict with Michigan’s civil 
rights act, thus placing it in an inescapable 
dilemma if that act may be applied to its opera­
tions. Conceding the possibility, we think the state 
is right in viewing it as so remote that it is hardly 
more than conceivable. The same thing, we 
think, is true of the possibility that Congress



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might take conflicting action.”

The Court also in footnote 16 cites statutory and case 
authority for its belief that the Canadian and United 
States policy was one against racial discrimination and 
hence in accord with the Michigan civil rights statute.

“ The Province of Ontario enacted in 1944 its 
Racial Discrimination Act, Session Laws 1944, 
c 51.

“ Federal legislation has indicated a national 
policy against racial discrimination in the require­
ment, not urged here to be specifically applicable 
in this case, of the Interstate Commerce Act that 
acrriers subject to its provisions provide equal 
facilities for all passengers, 49 USCA Sec. 3 (1),  
10A FCA title 49, Sec. 3 (1) ,  extended to 
carriers by water and air, 46 USCA Sec. 815, 
10 FCA title 46, Sec. 815; 49 USCA Secs. 484, 
905, 10A  FCA title 49, Secs. 484, 905. Cf. 
Mitchell v. United States, 313 US 80, 85 L. ed. 
1201, 61 S. Ct. 873. Federal legislation also 
compels a collective bargaining agent to represent 
all employees in the bargaining unit without dis­
crimination because of race. 45 USCA Secs 
151 et. seq., 10A FCA title 45, Secs. 151 et. seq.; 
Steele v. Louisville & N. R. Co., 323 US 192, 89 
L. ed. 173, 65 S. Ct. 226; Tun-stall v. Brother­
hood of Locomotive, F. E. 323 US 210, 89, L. ed. 
187, 65 S. Ct. 235. The direction of national 
policy is clearly in accord with Michigan policy. 
Cf. also Hirabayashi v. United States, 320 US 
81, 87 L. ed. 1774. 63 S. Ct. 1375; Korematsu



[ 7 ]

v. United States, 323 US 214, 89 L. ed. 194, 65 
S. Ct. 193; Ex parte Endo, 323 US 283, 89 L. ed. 
243, 65 S. Ct. 208.”

II
T h e  E vidence  Is I n s u f f ic ie n t

Even assuming that the statute here in question to be 
constitutional, it is absolutely clear that the conductor 
had no authority to delegate to any other person what­
ever power was granted to him under the statute. Youny 
v. Commonwealth, 155 Va. 1152, 1156 S. E. 565; Bus- 
sard v. Commonwealth, 134 Va. 641, 114 S. E., 664; 
Lewis v. Commonwealth, 184 Va. 69.

Thus the conductor’s attempt to give whatever au­
thority he had to his co-workers was without effect, and 
the plaintiff in error was under no compulsion to obey 
their orders under the terms o f the statute. Therefore, 
the conviction of plaintiff in error must be set aside, 
since the employees of the company who ordered him 
to move had no authority whatsoever to do so.

CONCLUSION

W H EREFORE, plaintiff in error respectfully sub­
mits that this cause should be reversed and dismissed 
for the reasons set forth, in our main brief and here.

Respectfully submitted.

H il l , M a r t in  & R o bin so n , 
R obert L. C arter ,

Attorneys for Plaintiff in Error.