Texas Railroad Commission v. Pullman Company Records and Briefs
Public Court Documents
January 1, 1939 - January 1, 1940
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Brief Collection, LDF Court Filings. Texas Railroad Commission v. Pullman Company Records and Briefs, 1939. 72dc637e-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c4cef7eb-913a-462b-9d13-5c3f38ed7da3/texas-railroad-commission-v-pullman-company-records-and-briefs. Accessed August 10, 2025.
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TRANSCRIPT OF RECORD
Supreme Court o f the United States
OCTOBER TERM, 1940
N o. 2 8 3
RAILROAD COMMISSION OF TEXAS, LON A. SMITH,
ERNEST 0. THOMPSON, ET AL., APPELLANTS,
vs.
THE PULLMAN COMPANY, GUY A. THOMPSON,
TRUSTEE, THE ST. LOUIS, BROWNSVILLE AND
MEXICO RAILW AY COMPANY, DEBTOR, ET AL.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR
THE WESTERN DISTRICT OF TEXAS
■’ C . ' ; i r ■ . A : ■■■ / .
FILED JULY 26, 1940.
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1940
No. 283
RAILROAD COMMISSION OF TEXAS, LON A. SMITH,
ERNEST 0. THOMPSON, ET AL., APPELLANTS,
vs.
THE PULLMAN COMPANY, GUY A. THOMPSON,
TRUSTEE, THE ST. LOUIS, BROWNSVILLE AND
MEXICO RAILW AY COMPANY, DEBTOR, ET AL.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR
THE WESTERN DISTRICT OF TEXAS
INDEX.
Record from D. C. U. S., Western District of Texas..............
Caption .........................................(omitted in printing)..
Amended complaint ..............................................................
Exhibit “A”—Passenger Circular No. 164.................
Exhibit “B”—Order of Commission, August 19, 1939
Exhibit “ C”—Order of Commission, September 6,
1939 ................................................................................
Exhibit “D”—Order of Commission, September 3,
1939 ................................................................................
Exhibit “ E”— Order of Commission, October 27, 1939.
Exhibit “F”—Order of Commission, November 4,
1939 ................................................................................
Exhibit “ G”— Statement listing Pullman car opera
tions in State of Texas...............................................
Temporary restraining order ...............................................
Original Print
1 1
1
2 1
41 33
43 34
44 35
45 36
45 36
46 37
68 55
71 56
J udd & D etweileb ( I nc .) , Prin ters , W ash in g to n , D. C., N ovembeb 14, 1940.
—860
IX INDEX
Record from D. C. U. S., Western District of Texas—Con
tinued Original Print
Bond for temporary restraining order (omitted in print
ing) ....................................................................................... 74
Order convening statutory three-judge court.................... 77 58
Writ to serve copy of order convening statutory three-
judge court and amended complaint ............................. 79 59
Defendants’ first amended motions to dismiss and to
strike certain portions of complaint............................... 81 60
Defendants’ original answer ............................................... 88 65
Order granting Warren J. West, Allen Harvey and
Fidelia H. McBey, pullman porters, leave to inter
vene as plaintiffs................................................................ 99 73
Complaint of intervener-plaintiffs Warren J. West, et
al., pullman porters .......................................................... 100 73
Application of M. B. Cunningham, et al., Pullman con
ductors, to intervene ........................................................ 103 76
Pleadings of intervenors M. B. Cunningham, et al., pull
man conductors .................................................................. 106 77
Statement of evidence .......................................................... 108 79
Caption .............................................................................. 108 79
Plaintiffs’ evidence ........................................................ 109 79
Testimony of Champ Carry:
Direct examination, by Mr. Graves.............. 109 79
Cross-examination, by Mr. Lewis.................. 121 88
Testimony of B. H. Vroman:
Direct examination, by Mr. Graves.............. 127 92
Cross-examination, by Mr. Morgan.............. 162 116
Redirect examination, by Mr. Graves.......... 176 126
Preliminary discussion ......................................... 179 127
Testimony of B. H. Vroman (recalled) :
Direct examination, by Mr. Graves.............. 185 131
Plaintiffs’ Exhibit No. 1— Copy of in
structions to conductors. Offer o f . . 191 135
Cross-examination, by Mr. Morgan.............. 193 137
Redirect examination, by Mr. Graves.......... 202 143
Recross-examination, by Mr. Morgan.......... 203 143
Testimony of L. M. Bradish:
Direct examination, by Mr. Graves.............. 203 144
Plaintiffs’ Exhibits Nos. 2 to 14, inclu
sive— Contracts. Offer o f .................. 207 146
Cross-examination, by Mr. Morgan.............. 209 148
Redirect examination, by Mr. Graves.......... 214 151
Testimony of T. C. Olney :
Direct examination, by Mr. Graves.............. 218 153
Cross-examination, by Mr. Morgan.............. 227 159
Testimony of Thomas J. Caldwell:
Direct examination, by Mr. Graves.............. 230 161
Cross-examination, by Mr. Lewis.................. 233 163
Testimony of Homer R. Mitchell:
Direct examination, by Mr. Graves___ . . . . 234 164
Cross-examination, by Mr. Lewis.................. 235 165
Record from D. 0. U. S., Western District of Texas—Con
tinued
Statement of evidence—Continued
Plaintiffs’ evidence—Continued Original Print
Testimony of Charles A. F isk:
Direct examination, by Mr. Graves.............. 238 166
Cross-examination, by Mr. Lewis.................. 239 167
Testimony of Stanley Marsh, J r.:
Direct examination, by Mr. Graves.............. 240 168
Cross-examination, by Mr. Lewis.................. 241 168
Redirect examination, by Mr. Graves.......... 243 170
Testimony of L. M. Shepardson :
Direct examination, by Mr. Graves.............. 244 170
Cross-examination, by Mr. Lewis.................. 245 171
Testimony of A. G. Boldridge :
Direct examination, by Mr. Graves.............. 246 172
Testimony of W. H. Irw in:
Direct examination, by Mr. Graves.............. 250 174
Cross-examination, by Mr. Morgan.............. 253 177
Redirect examination, by Mr. Graves.......... 255 178
Testimony of F. B. Valet:
Direct examination, by Mr. Graves.............. 256 17S
Cross-examination by Mr. Morgan.............. 259 180
Testimony of Allen Harvey :
Direct examination, by Mr. Graves............ 259 181
Cross-examination by Mr. Lewis................... 268 187
Redirect examination, by Mr. Graves.......... 271 188
Testimony of F. H. McBay:
Direct examination, by Mr. Graves.............. 273 190
Cross-examination, by Mr. Lewis.................. 279 194
Redirect examination, by Mr. Graves.......... 282 196
Testimony of W. J. W est:
Direct examination, by Mr. Graves................ 282 196
Cross-examination, by Mr. L ew is .................. 287 199
Redirect examination, by Mr. G raves.......... 289 200
Testimony of Rip C. Underwood:
Direct examination, by Mr. G raves.............. 289 201
Cross-examination, by Mr. Morgan.............. 291 202
Testimony of Leroy Brown :
Direct examination, by Mr. G raves.............. 292 202
Cross-examination, Mr. Lewis....................... 297 206
Redirect examination, by Mr. Graves.......... 299 207
Testimony of J. P. Sample:
Direct examination, by Mr. Graves.............. 300 208
Cross-examination, by Mr. Lewis.................. 304 211
Testimony of Eli Morgan:
Direct examination, by Mr. Graves.............. 304 211
Cross-examination, by Mr. Morgan................ 309 215
Testimony of H. H. Sinclair:
Direct examination, by Mr. Graves................ 310 215
Testimony of T, M. Palmer:
Direct examination, by Mr. G raves.............. 315 218
Cross-examination, by Mr. Culbertson.......... 318 221
INDEX 111
IV INDEX
Record from D. C. U. S., Western District, of Texas—Con
tinued
Statement of evidence—Continued
Plaintiffs’ evidence—Continued Original Print
Testimony of Charley Thurmond:
Direct examination, by Mr. Graves.............. 320 222
Cross-examination, by Mr. Morgan.............. 323 224
Testimony of Noah Lane :
Direct examination, by Mr. G raves.............. 325 225
Testimony of J. I. Poole :
Direct examination, by Mr. Graves.............. 330 228
Plaintiffs’ Exhibit No. 15—Rules. Offer
of ............................................................ 332 229
Cross-examination, by Mr. Morgan................ 337 233
Testimony of H. R. McKee :
Direct examination, by Mr. Graves............. 341 235
Cross-examination, by Mr. Morgan.............. 344 237
Redirect examination, by Mr. Graves.......... 346 238
Testimony of W. J. Rogers
Direct examination, by Mr. Anderson.......... 346 238
Cross-examination, by Mr. Morgan.............. 353 243
Redirect examination, by Mr. Anderson. . . . 356 244
Testimony of A. C. Jackson:
Direct examination, by Mr. Anderson.......... 357 245
Cross-examination, by Mr. Culbertson.......... 359 246
Testimony of J. M. Vonau, J r .:
Direct examination, by Mr. Graves.............. 362 248
Cross-examination, by Mr. Morgan.............. 370 254
Testimony of M. P. Strickland:
Direct examination, by Mr. Graves.............. 373 256
Cross-examination, by Mr. Lewis.................. 374 257
Redirect examination, by Mr. Graves.......... 376 258
Testimony of William C. Clegg:
Direct examination, by Mr. Graves............. 376 259
Cross-examination, by Mr. L ew is .................. 377 259
Testimony of C. A. Goeth:
Direct examination, by Mr. Graves.............. 378 260
Cross-examination, by Mr. Lewis.................. 379 261
Testimony of E. P. Burke :
Direct examination, by Mr. G raves.............. 381 262
Examination on Voir Dire by Mr. Lew is... 383 264
Direct examination resumed, by Mr. Graves. 384 264
Examination on Voir Dire by Mr. Lewis. . . 385 265
Plaintiffs’ Exhibit No. 16—Rate Book. Offer
of ............................................................................ 386 266
Defendants’ evidence .................................................... 387 266
Testimony of M. B. Cunningham:
Direct examination, by Mr. Morgan.............. 387 266
Cross-examination, by Mr. Graves................ 409 282
Redirect examination, by Mr. Morgan.......... 422 291
Recross-examination, by Mr. Graves............ 425 294
Record from D. 0. U. S., Western District of Texas—Con
tinued
Statement of evidence— Continued
Defendants’ evidence— Continued Original Print
Testimony of W. M. Hadley :
Direct examination, by Mr. M organ ............ 426 294
Cross-examination, by Mr. Graves.............. 450 311
Testimony o f W. L. Beamer:
Direct examination, by Mr. R otscb .............. 457 316
Cross-examination, by Mr. Graves................ 466 322
Testimony of C. E. Lowery:
Direct examination, by Mr. R otsch .............. 466 323
Cross-examination, by Mr. G raves................ 481 332
Testimony of Mrs. H. B. Shank:
Direct examination, by Mr. Morgan.............. 483 334
Cross-examination, by Mr. Graves................ 486 336
Testimony of Mrs. R. P. Lightfoot:
Direct examination, by Mr. Morgan.............. 487 336
Testimony of Miss Betty Johnson:
Direct examination, by Mr. Morgan.............. 490 338
Testimony o f Mrs. Pat Vardell:
Direct examination, by Mr. Morgan............ 493 341
Testimony of John Roberts:
Direct examination, by Mr. Morgan.............. 494 342
Cross-examination, by Mr. Graves................ 496 343
Testimony of, Miss Dorothy Dorman:
Direct examination, by Mr. Morgan.............. 496 343
Testimony of Miss Maria Matala:
Direct examination, by Mr. Morgan.............. 497 344
Testimony of Miss Margie Muse:
Direct examination, by Mr. M organ............ 498 345
Testimony of Annie C. H ill:
Direct examination, by Mr. M organ ............ 501 346
Cross-examination, by Mr. Graves................ 502 347
Testimony of Elliot Roberts :
Direct examination, by Mr. M organ............ 503 348
Testimony of Lambert R oot:
Direct examination, by Mr. Morgan.............. 505 349
Testimony of Bob Coquat:
Direct examination, by Mr. Morgan.............. 507 350
Cross-examination, by Mr. Graves................ 508 351
Stipulation re application for exception.................... 510 352
Colloquy ............................................................................ 5 1 1 3g3
Plaintiffs’ Exhibits Nos. 17 and 18: Two memo
randa. Offer o f .......................................................... 516 356
Plaintiffs’ Exhibit No. 17— Statement listing Pull
man car operations .................................................... 516-a 356
Plaintiffs’ Exhibit No. 18— Statement showing com
parison of rates .......................................................... 516_e 3gg
Reporters’ certificate..................(omitted in printing).. 517
Opinion of the Coyrt.............................................................. 543 3 g<j
INDEX V
VI INDEX
Record from D. 0. TJ. S., Western District of Texas—Con
tinued
Final judgment ......................................................................
Findings of fact and conclusions of law...........................
Petition for appeal ................................................................
Assignments of error ............................................................
Order allowing appeal ..........................................................
Citation on ap p ea l....................... (omitted in printing) ..
Appeal bond ................................. (omitted in printing)..
Order as to original papers and exhibits on appeal..........
Stipulation as to record on appeal.......................................
Clerk’s certificate......................... (omitted in printing)..
Statement of points to be relied upon and designation of
parts of record to be printed....................................................
Designation by appellees of additional parts of record for
printing .......................................................................................
Original Print
524 364
526 365
533 371
549 373
562 384
566
568
571 385
572 386
575
576 387
587 396
1
[fols. 1-2]
IN UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS, AUSTIN DIVISION
Civil Action Number 38
T h e P u l l m a n C o m p a n y , G u y A. T h o m p s o n , Trustee,
The St. Louis, Brownsville and Mexico Railway Company,
Debtor; Guy A. Thompson, Trustee, International-Great
Northern Railroad Company, Debtor; Guy A. Thompson,
Trustee, The Beaumont, Sour Lake & Western Railway
Company, Debtor; Guy A. Thompson, Trustee, San An
tonio, Uvalde & Gulf Railroad Company, Debtor; The
Texas and Pacific Railway Company, Texas and New
Orleans Railroad Company, The Atchison, Topeka and
Santa Fe Railway Company, Gulf, Colorado and Santa
Fe Railway Company, Panhandle and Santa Fe Railway
Company, Missouri-Kansas-Texas Railroad Company of
Texas, Frank 0. Lowden, James E. Gorman, and Joseph
B. Fleming, Trustees, The Chicago, Rock Island and Pa
cific Railway Company, Debtor; Berryman ILenwood,
Trustee, St. Louis Southwestern Railway Company of
Texas, Debtor; St. Louis, San Francisco and Texas Rail
way Company, The Kansas City Southern Railway Com
pany, Fort Worth and Denver City Railway Company,
Plaintiffs,
vs.
T h e R ailro ad C o m m is s io n of T e x a s , L o n A. S m i t h , as Chair
man and Individually; Ernest 0. Thompson and Jerry
Sadler, as Railroad Commissioners and Individually;
Gerald C. Mann, as Attorney General of Texas and Indi
vidually, Defendants
A m e n d e d ' C o m p l a in t — Filed November 28, 1939
To the Honorable Judges of said Court:
The Pullman Company, a corporation; Guy A. Thompson,
Trustee, The St. Louis, Brownsville and Mexico Railway
Company, Debtor; Guy A. Thompson, Trustee, Interna
tional-Great Northern Railroad Company, Debtor; Guy A.
Thompson, Trustee, The Beaumont, Sour Lake & Western
[fol. 3] Railway Company, Debtor; Guy A. Thompson,
1—283
2
Trustee, San Antonio, Uvalde & Gulf Railroad Company,
Debtor; The Texas and Pacific Railway Company; Texas
and New Orleans Railroad Company; The Atchison, Topeka
and Santa Fe Railway Company; Gulf, Colorado and Santa
Fe Railway Company; Panhandle and Santa Fe Railway
Company; Missouri-Kansas-Texas Railroad Company of
Texas; Frank 0. Lowden, James E. Gorman, and Joseph B.
Fleming, Trustees, The Chicago, Rock Island and Pacific
Railway Company, Debtor; Berryman Henwood, Trustee,
St. Louis Southwestern Railway Company of Texas, Debtor;
St. Louis, San Francisco and Texas Railway Company;
The Kansas City Southern Railway Company; and Fort
Worth and Denver City Railway Company; as plaintiffs,
file this, their Complaint against the Railroad Commission
of Texas; and Lon A. Smith, as Chairman, and Ernest 0.
Thompson and Jerry Sadler in their official capacities as
members of the Railroad Commission of Texas; and Gerald
C. Mann in his official capacity as Attorney General of the
State of Texas; and against each of said named persons
individually; and for cause of complaint respectfully aver:
1. The Pullman Company is a private corporation duly
organized and existing under and by virtue of the laws of
the State of Illinois, having its principal office and residence
in the City of Chicago, Cook County, Illinois; each of the
above named railroad and railway companies, except The
Texas and Pacific Railway Company, The Chicago, Rock
Island and Pacific Railway Company, The Kansas City
Southern Railway Company and The Atchison, Topeka and
Santa Fe Railway Company, is a corporation duly or
ganized and incorporated under the laws of the State of
Texas; The Texas and Pacific Railway Company is a cor
poration created by the Act of the Congress of the United
States approved March 3, 1871, and Acts supplemental
thereto approved, respectively, May 2, 1872, March 3, 1873,
June 22, 1874, and February 9, 1923, and has its principal
[fol. 4] office in the city of Dallas, in Dallas County, Texas;
The Kansas City Southern Railway Company is a corpora
tion duly organized and incorporated under the laws of
the State of Missouri and has its principal office and resi
dence in the City of Kansas City, in the State of Missouri;
and The Atchison, Topeka and Santa Fe Railway Com
pany is a corporation duly organized and incorporated
under the laws of the State of Kansas and has its principal
3
office and residence in the City of Topeka, in the State of
Kansas; The Chicago, Rock Island and Pacific Railway Com
pany is a corporation duly organized under the laws of the
State of Illinois, having its principal office and residence in
the City of Chicago, in Cook County, Illinois. The above
named Guy A. Thompson and Berryman Henwood are resi
dents of the City of St. Louis, in the State of Missouri.
The above named Frank 0. Lowden, James E. Gorman and
Joseph B. Fleming are residents of Cook County, in the
State of Illinois.
a. Under date of March 31, 1933, Missouri Pacific Rail
road Company, a railroad corporation, having its prin
cipal operating office at St. Louis, Missouri, filed its peti
tion for reorganization of a railroad under the provisions of
the Bankruptcy Act of 1898, as amended, and particularly
as amended by the Act of March 3, 1933, in the United
States District Court, Eastern Division, Eastern Judicial
District of Missouri. On the same date, such petition was
approved as properly filed and said Federal Court took jur
isdiction, possession, management and control of the rights,
properties, franchises and railroad of Missouri Pacific Rail
road Company, Debtor.
b. On the same date, International-Great Northern Rail
road Company, a railroad corporation, organized and ex
isting under the laws of the State of Texas, filed its petition
setting out that the Missouri Pacific Railroad Company
owned indirectly through an intervening medium a majority
[fol. 5] of the capital stock of the International-Great North
ern Railroad Company, Debtor, having power to vote for
the election of directors, and that said Missouri Pacific
Railroad Company, Debtor, had previously filed its peti
tion for reorganization; and, therefore, the International-
Great Northern Railroad Company desired to effect a plan
of reorganization in connection with, or as a part of, the
plan of reorganization of the Missouri Pacific Railroad
Company. On the same date, said Federal Court entered
its order approving said petition of said International-Great
Northern Railroad Company as properly filed, and took jur
isdiction, possession, management and control of the fran
chises, rights, property and railroad of International-Great
Northern Railroad Company, Debtor.
4
c. Thereafter, on May 2, 1933, The Beaumont, Sour Lake
& Western Railway Company, The St. Louis, Brownsville
and Mexico Railway Company, and San Antonio, Uvalde &
Gulf Railroad Company filed in said Federal court a peti
tion setting out that each of said Railway Companies was
a railroad corporation, duly organized and existing under
the laws of the State of Texas; that said Missouri Pacific
Railroad Company, Debtor, owned indirectly through an
intervening medium a majority of the capital stock having
power to vote for the election of directors; and that each
of said corporations desired to effect a plan of reorganiza
tion in connection with, or as a part of, the plan of reor
ganization of the Missouri Pacific Railroad Company.
d. Thereafter, under date of June 22, 1933, the Judge of
said Federal Court appointed L. W. Baldwin and Guy A.
Thompson as temporary Trustees of all and singular the
railroads, lands, properties, estates, rights and franchises
of the Missouri-Pacific Railroad Company, International-
Great Northern Railroad Company, The Beaumont, Sour
Lake & Western Railway Company, The St. Louis, Browns
ville and Mexico Railway Company, and San Antonio,
Uvalde & Gulf Railroad Company; and said Trustees made
[fol. 6] the bond required, and became the duly appointed
qualified and acting temporary Trustees thereof.
e. Thereafter, under date of July 25, 1933, the Judge of
said Federal Court made said appointment permanent.
Thereafter, under date of December 26, 1935, said L. W.
Baldwin resigned as one of said Trustees, and by order
dated December 26,1935, said Federal Court appointed Guy
A. Thompson as sole Trustee with all the rights and liabili
ties theretofore accorded the joint Trustees; and said order
further approved the bond of said Guy A. Thompson,
Trustee; therefore, said Guy A. Thompson is now the duly
appointed, qualified and acting Trustee, severally, of the
lines hereinabove mentioned.
f. The Texas and Pacific Railway Company and Missouri-
Kansas-Texas Railroad Company of Texas have their prin
cipal offices, respectively, and reside in the City of Dallas,
in Dallas County, Texas; Texas and New Orleans Railroad
Company is a resident of, and has its principal office in,
the City of Houston, in Harris County, Texas; the Gulf,
Colorado and Santa Fe Railway Company has its principal
5
office in the City of Galveston, Galveston County, Texas; the
Panhandle and Santa Fe Railway Company has its princi
pal office and residence in the City of Amarillo, in Potter
County, Texas; Fort Worth and Denver City Railway Com
pany is a resident of and has its principal office in the City
of Fort Worth, Tarrant County, Texas.
g. By an order of the District Court of the United States
for the Northern District of Illinois, Eastern Division, dated
November 22,1933, in a cause entitled “ In the Matter of The
Chicag'O, Rock Island and Pacific Railway Company,
Debtor, ’ ’ numbered 53209 on the docket of said Court, Frank
0. Lowden, James E. Gorman and Joseph B. Fleming were
temporarily appointed Trustees of The Chicago, Rock Island
and Pacific Railway Company. At the same time they were
temporarily appointed Trustees of The Chicago, Rock
[fol.7] Island and Gulf Railway Company. Both appoint
ments were made permanent by an order of the Court in said
cause entered on December 28, 1933. On September 1, 1933,
acting under authority of the Interstate Commerce Commis
sion as granted by its order of April 3, 1939, under Finance
Docket Number 11847, entitled “ Chicago, Rock Island &
Gulf Railway Company Trustees Lease, ’ ’ a contract of lease
was entered into by and between the said Trustees of The
Chicago, Rock Island and Pacific Railway Company and
the said Trustees of The Chicago, Rock Island and Gulf
Railway Company, whereby the possession and operation
of the railroad and properties of the latter company were
delivered over to the Trustees of The Chicago, Rock Island
and Pacific Railway Company. Pursuant to the terms and
provisions of said lease contract the said Trustees of The
Chicago, Rock Island and Pacific Railway Company on and
after September 1, 1939, have operated and are now operat
ing the lines of railroad and properties of the said The
Chicago, Rock Island and Gulf Railway Company. The said
Frank 0. Lowden, James E. Gorman and Joseph B. Fleming
are now the duly appointed, qualified and acting Trustees of
the said The Chicago, Rock Island and Pacific Railway Com
pany and, as such, under said lease, they are in possession of
and are operating the railroads, lands, properties, estates,
rights and franchises of the said The Chicago, Rock Island
and Gulf Railway Company.
h. The railroad and properties of the St. Louis South
western Railway Company of Texas are in possession of and
6
are operated by Berryman Henwood, Trustee, who is the
duly acting and qualified Trustee of said properties under
and by virtue of an appointment by the United States Dis
trict Court for the Eastern Judicial District of Missouri,
Eastern Division, in a case entitled In the Matter of St.
Louis Southwestern Railway Company, Debtor, Number
8497, pending on the docket of said court; said order having
[fol. 8] been entered by said court on the 3rd day of January,
1936.
2. Each of the plaintiffs, excepting The Pullman Com
pany, operates trains in or through portions of the State of
Texas including Pullman cars furnished by The Pullman
Company pursuant to contracts between The Pullman Com
pany and the respective plaintiffs. Such contracts contain
provisions that The Pullman Company shall furnish all
standard sleeping cars, properly equipped and acceptable
to the railroad company, in sufficient number to meet the
requirements of travel over the lines of the railroad. Some
of the contracts provide that the number of cars so furnished
shall be determined by the operating officers of the rail
road, and others provide that the number of cars shall be
mutually determined by the operating officers of the rail
road and The Pullman Company. All of said contracts
provide that The Pullman Company shall have the right to
collect from the occupants of its cars, for the use of seats,
berths and other accommodations therein, such fares as are
charged on lines of railroad competing with the lines of the
contracting railroad company, where similar accommoda
tions are furnished; and that The Pullman Company shall
provide suitable employees for collecting such fares and
furnishing the usual sleeping car service to the passengers
therein. Each of the contracts provides that such employees
shall, when on duty, be subject to the rules of the railroad
company governing its own employees; and also that in
order to maintain service acceptable to the railroad com
pany and to the traveling public, The Pullman Company
shall furnish agents or inspectors to supervise the sleeping
car service, including the conduct of employees, the cleanli
ness of cars, and such matters. Said contracts set forth
generally the obligations and liabilities of the respective
parties, and methods of sharing the gross earnings from the
sale of seats, berths and other accommodations on the sleep
ing cars so furnished, certain provisions taking into con-
7
[fol. 9] sideration the expenses of operation of The Pullman
Company in furnishing the cars and providing the sleeping
car service. Under said contracts, the railroad companies
do not have the right to direct, nor do such companies as
sume to direct, The Pullman Company as to what employees
or what number or classes of employees shall be assigned to
the cars operated over the respective lines of railroad.
3. The action arises under the Fourteenth Amendment to
the Constitution of the United States, Section 1, the due pro
cess clause and the equal protection clause; and under the
Constitution of the United States, Article I, Sec. 8, the com
merce clause; under Article I, Sec. 10, the contract clause;
and under the laws of the United States, including the Act
of August 27, 1935, c. 774, 49 stat. 911, and amendments
thereto and the laws amended thereby; United States Code,
Title 11, Sec. 205, et seq.; as hereinafter more fully appears.
The matter in controversy exceeds, exclusive of interest and
costs, the sum of $3,000.00 as to plaintiffs jointly, and as to
each plaintiff individually. This is a suit of a civil nature.
All defendants reside, officially, in Travis County, Texas;
and defendant Lon A. Smith is domiciled in said County.
4. Defendants Lon A. Smith, Ernest O. Thompson and
Jerry Sadler, purporting to act in their several official ca
pacities as members of the Railroad Commission of Texas,
signed, entered and promulgated an order as the order of
the Railroad Commission of Texas, dated the 8th day of
August, 1939, and effective September 1, 1939, requiring
that, after the effective date of said order, “ no sleeping car
shall be operated on any line of railroad in the State of
Texas when occupied by passengers holding the proper
transportation for the accommodation of such cars, unless
such cars are continuously in the charge of an employee or
an authorized agent of the firm or corporation owning or
[fol.10] operating the same having the rank and position of
Pullman conductor.” Said order, in the next succeeding
sentence, provides: “ The use of the terms 'firm’ or ‘ cor
poration’ as employed in the next preceding paragraph
hereinabove is meant to include all companies as defined by
Article 6479, Revised Civil Statutes of Texas.” A copy of
said order is attached to this Complaint and made a part
hereof and marked Exhibit “ A ” .
8
5. Said order (Exhibit “ A ” ) having been issued by the
Commission without notice or hearing, plaintiff The Pull
man Company, through its attorneys, promptly applied to
the Railroad Commission for a rehearing, for the purpose,
as then stated, of showing that the Commission has no au
thority to issue such an order; and said plaintiff requested
that, pending further action by the Commission, said order
be suspended. Pursuant to said request the Commission
issued an order, dated August 19, 1939, postponing the ef
fective date of the aforesaid Passenger Circular No. 164 to
September 15, 1939, and notifying the interested parties of
a hearing to be held on August 31, 1939, wherein the Com
mission proposed to “ take up and consider the matter of
operating sleeping cars on any line of railroad in the State
of Texas when occupied by passengers holding the proper
transportation for the accommodation of such cars, unless
such cars are continuously in the charge of an employee or
an authorized agent of the firm or corporation owning or
operating the same having the rank and position of Pull
man conductor.” A copy of said order of August 19, 1939,
is hereto attached, marked Exhibit “ B ” .
6. Pursuant to the aforesaid notice (Exhibit “ B ” ) the
plaintiffs, through counsel, appeared at said hearing on
August 31, 1939, and stated at the beginning of the hearing
that they objected to any such order on the ground that the
same is beyond any authority heretofore granted to the
Commission by the Legislature. All evidence offered in
[fol. 11] behalf of plaintiffs at said hearing was presented
subject to said objection.
7. Pursuant to the Commission’s direction the hearing
was conducted by an examiner, and the record of the hear
ing was subsequently transcribed. No final action was
taken by the Commission until on November 4, 1939. Mean
while, the Commission, of its own motion, by orders issued,
respectively, on September 6, 1939, October 3, 1939 (erro
neously dated September 3, 1939), and October 27, 1939,
postponed the effective date of said Passenger Circular
164, successively, to October 5, 1939, to November 1, 1939,
and to November 15, 1939, respectively. Copies of said
orders are hereto attached, marked Exhibits “ C,” “ D ,”
and “ E ,” respectively.
9
8. Thereafter, on or about the 4th day of November,
1939, the Railroad Commission of Texas issued its order
whereby, among other things, (as was done in Passenger
Circular No. 164) it is “ ordered, adjudged and decreed that
no sleeping car shall be operated on any line of railroad
in the State of Texas when occupied by passengers hold
ing the proper transportation for the accommodation of
such cars, unless such cars are continuously in the charge
of an employee or an authorized agent of the firm or corpo
ration owning or operating the same having the rank and
position of Pullman conductor. ’ ’
The order of November 4, 1939, is more extensive than
the original order (Exhibit “ A ” ), all of which is more fully
made to appear by the said order of November 4, 1939, a
copy of which is hereto attached, marked Exhibit “ F ” , and
hereby made a part of this Complaint with the same effect
as if textually incorporated herein at this place. The lat
ter order contains many erroneous findings that are con
trary to the facts, the detailed denial of which would un
duly extend this Complaint and unnecessarily encumber the
record.
9. Said order of November 4, 1939 (for brevity herein
after referred to as the challenged order) is predicated
[fol. 12] upon findings made by the Commission to the
effect that the operation of said Pullman ears without a
Pullman conductor in charge constitutes an abuse and dis
crimination in the matter of fares, charges, compensation
and rates, and that such operation is violative of Articles
4005, 4013 and 6474, Revised Statutes, 1925; and that the
charges made by the railroads and The Pullman Company
for transportation in such cars and for the privilege of
riding therein are unjust and unreasonable. As further
appears from said order, the action taken by the Commis
sion is predicated upon a purported consideration of not
only the “ safety, care, convenience, proper accommodation
and transportation of passengers on Pullman cars,” but
of the “ charges, fares and transportation of passengers on
sleeping cars and Pullman cars within the State of Texas,
and to prevent abuses, unjust discrimination and extortion
in rates.”
10. No notice was issued by the Commission that at the
hearing on the 31st day of August, 1939, the Commission
would consider the matter of the proper “ charges and fares
10
of passengers on sleeping cars and Pullman cars” or that
the Commission would consider the matter of preventing
“ unjust discrimination and extortion in rates.” Thus,
while the challenged order is expressly predicated upon the
authority assumed by the Commission to define and pro
hibit abuses and to define and correct “ unjust discrimina
tion and extortion in rates,” no notice was issued by the
Commission that the matter of defining or correcting “ un
just discrimination and extortion in rates” would he in
volved in said hearing, and no appearance was entered at
said hearing for any such purpose.
11. No hearing has been called or held by the Commis
sion for the purpose of determining whether a differential
in the rate should be recognized, or whether different rates
should be adopted for the transportation services that in
the challenged order are declared to be different in quality,
[fol. 13] The Commission has not called or conducted a
hearing for the purpose of determining, and has not deter
mined, what would be a reasonable rate of railroad fare for
passengers accommodated in a Pullman car not in charge
of a Pullman conductor, as distinguished from the rate
applicable to passengers accommodated in a Pullman car
that is attended by a Pullman conductor. And the Com
mission under existing conditions is powerless to issue or
enforce a tariff allowing such differential since, as else
where shown herein, such tariff would be in conflict with
interstate tariffs approved by the Interstate Commerce
Commission.
12. While the challenged order professes to have been
issued for the purpose of preventing and correcting “ un
just discrimination and extortion in rates,” the order is an
effort to compel the plaintiffs to render a certain service
in a particular way. It does not prescribe different rates
for services found to be different, but, instead, attempts to
require the railroad companies and The Pullman Company
to abolish the differences in services being rendered. In
this connection plaintiffs show that the Railroad Commis
sion has no authority to require that the services rendered
by the railroad companies and The Pullman Company shall
be equal or identical in character or value to the passen
gers. Its power, if any, to prescribe different rates for
services that are actually different in value to the pas
11
sengers does not involve the power to require that only
equal or identical services be rendered. The order does not
in fact correct or prevent any “ unjust discrimination and
extortion in rates.” The challenged order is predicated
upon the assumption, contrary to fact, that the service fur
nished by the railroad company to passengers in a Pull
man car not in charge of a Pullman conductor is substan
tially inferior to that furnished to passengers on another
train in a Pullman car attended by a Pullman conductor.
This constitutes no valid ground for the issuance or en
forcement of an order by the Railroad Commission prohibit-
[fol. 14] ing the operation of trains carrying a Pullman
car not in charge of a Pullman conductor. On the pre
tended ground that the order is designed to prevent “ unjust
discrimination and extortion in rates,” the Commission
has issued the challenged order in the guise of a rate
order. Furthermore, the operation of the trains carrying
a Pullman car not in charge of a Pullman conductor does
not work an unjust discrimination or extortion in rates as
between passengers, nor does it result in an undue or an
unreasonable preference or advantage as to passengers,
either in rates or in service. And such operation does not
discriminate against passengers in the Pullman cars as dis
tinguished from passengers in the chair cars.
13. The challenged order is in substance an order at
tempting to define and prohibit acts deemed by the Com
mission to constitute an abuse. No power or authority has
been conferred upon the Railroad Commission or the mem
bers thereof to promulgate the challenged order. The
power to make and enforce regulations governing railroads
and common carriers is limited to the powers expressly
defined in Articles 6445 and 6448, Revised Civil Statutes
of Texas of 1925. By no statute has the Commission been
empowered to determine how many or what employees shall
attend a sleeping car or that sleeping cars or Pullman cars
shall be in charge of a Pullman conductor or a person hav
ing the rank and position of Pullman conductor. The
“ abuses,” the correction of which is entrusted to the Com
mission by said statutes, are limited to such acts as have
been defined as abuses by valid statutes enacted by the
Legislature. The Railroad Commission has not been given
power by any statute to define abuses, to enact a law or to
issue and enforce an order or decree denouncing as abuses
12
such acts as may be deemed by the Commission to be abases.
No statute has defined as an abuse the operation of a train
carrying a sleeping car or cars occupied by passengers
holding the proper transportation for such accommodations
[fol. 15] “ unless such cars are continuously in the charge
of an employee or an authorized agent of the firm or corpo
ration owning and operating the same having the rank and
position of Pullman conductor” ; nor is such operation an
abuse in fact.
14. If the sleeping cars forming a part of the trains de
scribed in Exhibit “ G” were owned and supplied by the
railroads instead of by The Pullman Company, there would
be no reason for requiring, and the Railroad Commission
would have no authority to require, that the railroads oper
ating such trains should have two conductors instead of
one conductor on the trains. The duty of the operating
railroad company to the passengers on the sleeping cars in
such trains is not different from what it would be if such
cars were owned and supplied by the railroad company
instead of being owned and supplied by The Pullman Com
pany under contract between The Pullman Company and
the railroad company. In each instance the train is oper
ated by the railroad company, and each and all of the cars
making up the train are in charge of the train conductor.
If, in performing the service to which the passengers are
entitled, additional employees were needed to assist the
train conductor in operating the train, the Railroad Com
mission would have no authority to require that such as
sistance be furnished by The Pullman Company instead of
by the railroad company, or to require that the requisite
service be performed by an employee having the rank and
title of Pullman conductor. Under no circumstances has
the Commission the power to compel the railroad com
panies to have a given service or services performed by
an employee of The Pullman Company or by such an em
ployee having the rank and title of Pullman conductor.
15. The contracts between The Pullman Company and
the railroads referred to in the challenged order were not
made for the benefit of strangers to the contracts in the
sense that persons other than the parties to the contracts
[fol. 16] have any beneficial interests in them or rights
thereunder. And the Railroad Commission has no juris
diction over such contracts and no duties to perform in
13
respect of said contracts. The contracts have not been
breached and are not being breached in respect of the mat
ters referred to in the challenged order but are being fully
performed to the entire satisfaction of the parties thereto.
The rights of passengers on the railroad trains are not
dependent upon the making of such contracts; the absence
of such contracts would not diminish the rights of passen
gers on the railroad trains, and the existence of the con
tracts adds nothing to such rights. It is of no consequence
to the passengers whether the railroads supply the sleeping
car accommodations or whether by means of contracts they
cause such accommodations to be furnished by The Pull
man Company.
16. It is not true that The Pullman Company is depend
ent upon the Pullman conductor to supervise the-conduct
of employees and the cleanliness of ears, etc., while en
route. Nor is it true that The Pullman Company has not
furnished any other agent to supervise such conduct of
employees and cleanliness of the cars except Pullman con
ductors. On the contrary, The Pullman Company furnishes
traveling inspectors, district representatives and operating
agents who are constantly engaged in the supervision of
Pullman employees and service. In the matter of preserv
ing order and protecting the passengers from annoyance,
the train conductor has charge of the entire train. The
obligation of the railroad company to the passengers in this
respect is not different on the trains mentioned in Exhibit
“ G ” from what it is on the heavier trains carrying a Pull
man conductor. On the lighter trains such as described in
Exhibit “ G” carrying, as a rule, only one Pullman car, the
conductor has a better opportunity to give his personal
attention to all passengers on the train. The brakeman or
flagman on all such trains is required to ride in the Pullman
[fol. 17] car, the rear of the train, while the train is in
motion. Passenger traffic on such trains is not heavy
enough to require the services of additional employees.
17. The fact, if it be a fact, that on one occasion or more
than one occasion a Pullman porter has become intoxicated
while on duty constitutes no ground for the issuance of the
challenged order. Such rare occurrences are not confined
to Pullman porters. They are not confined to the negro
race. It is not a, fact, and the Commission has not found,
that the service rendered either by the railroad companies
14
or by The Pullman Company on the lines described in
Exhibit “ G” has been unsatisfactory to the passengers
on account of drunkenness of the Pullman porters. The
Commission has not found, and it is not a fact, that the
Pullman porters on such runs are incompetent or that Pull
man porters on such runs are inherently or as a class offen
sive, untrustworthy or unsatisfactory.
18. The Railroad Commission in issuing the challenged
order has discriminated against certain employees of The
Pullman Company because they belong to the negro race.
The effect of the order is to prohibit and prevent the per
formance of certain services by employees of the negro
race, and to prohibit and prevent the earning by such em
ployees of the additional compensation now earned by them
for the performance of such services; and to require the-
such services be performed by Pullman employees who are
members of the white race. In this connection the plaintiffs
show that the fact that the Pullman car and the furnishings
and property of The Pullman Company in the car are
placed in the custody of the porter in the lines described
in Exhibit “ 6 ” does not mean that the Pullman porter
is placed in charge of or undertakes to control or manage
the passengers accommodated in the Pullman car. The
railroad conductor is at all times in charge of every car
in the train.
[fol. 18] 19. On all the lines described in Exhibit “ G”
interstate passengers are transported in the Pullman cars.
On some of them, notably those described as Pullman Line
No. 3175, operating between Shreveport, Louisiana, and
Kansas City, Missouri, the only passengers transported in
the Pullman cars in the State of Texas are interstate
passengers. The challenged order recites that “ it is not
the intention of the Commission to place any burden on
interstate commerce. If any part of this order or the appli
cation and the enforcement thereof when applied to any one
or more railroads or any operation thereof be held to be
an undue burden on interstate commerce, then such hold
ing shall not affect this order as applied to other opera
tions by railroads not amounting to an undue burden on
interstate commerce.” The order, however, does apply to
interstate commerce and not only constitutes a burden on
interstate commerce, but in its application to interstate
transportation it is in conflict with applicable passenger
15
tariffs in force with the approval of the Interstate Com
merce Commission. Under and pursuant to such inter
state tariffs, the plaintiff railroad companies are entitled
to transport passengers in the Pullman cars without being
required to conform to the burdens of the challenged order.
And The Pullman Company is likewise entitled, pursuant
to published sleeping car tariffs approved by the Inter
state Commerce Commission, to accommodate such passen
gers on the lines described in Exhibit “ G” , without being
required to conform to the challenged order. The effect
of the order if enforced, is to deny to the plaintiff railroad
companies the right to transport, and to deny to The Pull
man Company the right to accommodate, the interstate
passengers on said lines pursuant to the interstate tariffs
approved by the Interstate Commerce Commission. The!
intrastate transportation and interstate transportation of
passengers on such lines are so related that the govern-
[fol. 19] ment of the one involves the control of the other.
Consequently, the final and dominant rule is that prescribed
by the Interstate Commerce Commission pursuant to Acts
of Congress. Hence, the challenged order, being in conflict
with the superior regulations promulgated by the Inter
state Commerce Commission, is void.
20. The passengers accommodated in the Pullman cars
on the lines described in Exhibit “ G” receive from the
railroad employees, including the conductor and the brake-
man or flagman, service and attention that such employees
cannot ordinarily render on the heavier trains. Conse-
quently, a portion of the service rendered to passengers on
the heavier trains is rendered by a Pullman conductor.
Traffic conditions being different, the railroad companies
and The Pullman Company have the right, in the manage
ment of their properties, to adjust the duties of employ
ment between the several employees in a way that is appro
priate to the varying traffic conditions. The challenged
order, unless enjoined, will operate as an arbitrary and un
reasonable interference with such right and will require
the employment of additional Pullman employees, whose
employment is not warranted by the transportation de
mands.
21. As defendants construe and will attempt to apply
the challenged order, it purports to prohibit the operation
in the State of Texas of a Pullman or sleeping car or cars
16
as a part of a railroad passenger train unless such cars
while occupied by passengers are continuously in charge
of a Pullman conductor, notwithstanding the fact that all
Pullman cars, as an integral part of the train, are at all
times in charge of the train conductor, who is the ranking
officer on the train; and the railroad passengers in the
Pullman car are entitled to the same services on the part
of the train conductor that are performed in respect of
other passengers on the train, and in addition the extra
or special services rendered to passengers by The Pullman
Company in the Pullman car. At the present time a num-
[fol. 20] her of the regularly scheduled railroad passen
ger trains in the State of Texas on which Pullman sleeping
cars are operated have no Pullman conductor on board
during all or a portion of the route. Such method of
operation is not of recent origin in the State of Texas or
in the other States of the United States. On the contrary,
it has obtained under appropriate conditions in various
portions of the country since the beginning of Pullman car
operations, and has been generally followed throughout the
company’s history of approximately 72 years. And, as is
hereinafter more particularly shown, such method of oper
ating trains has obtained on some of the lines now in opera
tion in the State of Texas for a period of approximately
14 years, and on other lines previously in operation in
Texas for periods prior thereto. Attached hereto and
marked Exhibit “ G” , and hereby made a part of this
Complaint, is a statement listing and describing the Pull
man car operations on passenger trains now regularly
operated in the State of Texas, and in effect on August 8,
1939, the date of the Commission’s order, each train with
a Pullman car that between designated points is not in
charge of a Pullman conductor. Said Exhibit “ G” shows
as to each such operation: in column 1, the number by
which The Pullman Company designates the line; in column
2, the terminals, that is to say, the points between which
Pullman cars are operated as part of the train on the
designated railroad or railroads; and in the 3rd, 4th, 5th,
6th and 7th columns the points in the State of Texas be
tween which Pullman cars are operated without a Pullman
conductor, the time of departure from, and time of arrival
at, and distance in miles between such Texas points. The
time schedules shown in Exhibit “ G, ” subject to change
by the railroad company, are the schedules presently in
17
effect, and are fairly typical of the schedules that have been
in effect on such railroads during the existence of such
operations.
[fol. 21] 22. As shown by Exhibit “ G” of this Complaint,
among the trains that would be affected by the challenged
order of the Commission are:
Pullman Line 3723— St. Louis-Brownsville. Trains Nos.
15 and 16 of The St. Louis, Brownsville and Mexico Rail
way Company (presently operated by Guy A. Thompson,
Trustee) operate between Houston, Texas, and Brownsville,
Texas. This operation has two Pullman cars with a Pull
man conductor between Houston and Harlingen, situated
about 25 miles from Brownsville. At Harlingen one of the
Pullman cars, with the Pullman conductor, on the south
bound train is transferred to a branch line and goes to
Mission, a distance of about 40 miles from Harlingen. The
other Pullman car continues from Harlingen to Browns
ville, without the conductor, a distance of 25 miles. Ac
cording to the present schedule the southbound train arrives
at Harlingen at 7 a. m., leaving shortly thereafter, and
arriving at Brownsville at 7 :55 a. m. The northbound
train, originating at Brownsville, according to the present
schedule, carries one Pullman car from Brownsville to
Harlingen, leaving Brownsville at 9 p. m. and arriving at
Harlingen at 10 p. m., at which point the train picks up the
Pullman car originating at Mission with the Pullman con
ductor, and the train from Harlingen to Houston carries
a Pullman conductor. Compliance with the challenged
order would require either two Pullman conductors on "the
train at the same time north of Harlingen or would require
the stationing of a Pullman conductor at either Browns
ville or Harlingen for the purpose of traveling on the
trains between those points, a total distance of 50 miles
per day, covering a period of approximately two hours per
day.
Pullman Line 3128—Fort Worth-Houston. The Texas
and New Orleans Railroad Company operates a train be
tween Houston, the southern terminal, and Dallas and Fort
Worth, the two northern terminals. The northbound train
[fol. 22] originating at Houston carries a Pullman car
destined to Dallas and a Pullman car destined to Fort
2—283
18
Worth. At Ennis the northbound train divides, one por
tion of the train carrying one Pullman car going to Fort
Worth and the other portion going to Dallas. The Pullman
conductor accompanies the Dallas train between Ennis and
Dallas, and between Ennis and Fort Worth the train does
not carry a Pullman conductor. This operation has been
in effect continuously since 1925. Compliance with the
challenged order would require the unnecessary employ
ment of an additional Pullman conductor to accompany the
train between Fort Worth and Ennis, a distance of 56 miles.
Pullman Line 3258—Houston-Wichita Palls. The Mis-
souri-Kansas-Texas Railway Company of Texas operates
a daily train on which a Pullman car is operated in each
direction between Houston and Wichita Falls, Texas, carry
ing a Pullman conductor between Houston and Fort Worth;
and operating one Pullman car between Fort Worth and
Wichita Falls without a Pullman conductor. The present
schedule between Fort Worth and Wichita Falls is from
8 :30 a. m. to 1 :30 p. m .; and from Wichita Falls to Fort
Worth from 4:40 p. m. to 10 p. m. On the Pullman car be
tween Fort Worth and Wichita Falls the line averages 2.3
passengers northbound and 3.4 passengers southbound
daily.
Pullman Line 3309—Galveston-St. Louis. The Interna
tional-Great Northern Railroad Company, in connection
with other railroads, operates a train daily in each direc
tion between Galveston, Texas, and St. Louis, Missouri.
Between Houston and St. Louis the train carries more than
one Pullman car and is accompanied by a Pullman con
ductor. Since March 15, 1925, the train has carried one
Pullman car between Galveston and Houston, a distance of
50 miles, without a Pullman conductor. The present north
bound schedule from Galveston to Houston is 10:30 a. m.
to noon, and the southbound schedule, Houston to Galveston,
is 1 :10 p. m. to 2 :40 p. m.
[fol. 23] Pullman Line 3748—Dallas-Corpus Christi. The
San Antonio, Uvalde and Gulf Railroad Company operates
a daily train in each direction between San Antonio and
Corpus Christi, Texas. The operation involved carries
Pullman cars between Dallas and San Antonio with a Pull
man conductor; and a single Pullman car between San
Antonio and Corpus Christi with no Pullman conductor.
According to the present schedule the train leaves San
Antonio at 8 :30 a. m., arriving at Corpus Christi at 12:45
19
p. m .; and returning- leaves Corpus Christi at 5 :30 p. m.
and arriving at San Antonio at 9 :45 p. m., a distance of 150
miles. In the Pullman car between those points the train
averages daily 3 passengers northbound and 4 passengers
southbound.
Pullman Line 3501—St. Louis-El Paso. On the train
operated by the Texas and Pacific Railway Company in
conjunction with the Missouri Pacific Railway Company
between St. Louis and El Paso the operation is without a
Pullman conductor from Texarkana to Marshall, a distance
of 67 miles, covering a period of time of approximately one
hour and thirty minutes. This method of operation has
been in effect for more than twelve years.
On Pullman Line 3424 on the train operated by the St.
Louis, San Francisco and Texas Railway Company in con
junction with the St. Louis, San Francisco Railway Com
pany, between Galveston and Tulsa, the train is without a
Pullman conductor between Denison and Tulsa, in each
direction; which means that such operation within the
State of Texas is between Denison and Platter, a distance
of only 11 miles.
Pullman Line 3273 on the train operated by the Missouri-
Kansas-Texas Railway Company of Texas in conjunction
with the Missouri-Kansas-Texas Railway Company, be
tween San Antonio, Texas, and Kansas City, Missouri, car
ries a Pullman car without a Pullman conductor between
Denison and Kansas City, both directions. The opera
tion in the State of Texas without a Pullman con-
[fol. 24] ductor is between Denison and Colbert, a distance
of only 7 miles, a daylight operation in both directions, cov
ering a period of less than 30 minutes.
Pullman Line 3175 on a train of the Kansas City Southern
Railway Company operates between Shreveport, Louisiana,
and Kansas City, Missouri, without a Pullman conductor,
and has so operated for a period of approximately 7 years.
The train traverses a corner of the State of Texas between
Bloomburg and Texarkana, a distance of only 21 miles, in
approximately 30 minutes.
Pullman Line 3015. The Atchison, Topeka and Santa Fe
Railway Company operates an interstate train between El
Paso, Texas, and Albuquerque, New Mexico, including a
Pullman car with no Pullman conductor. The operation in
the State of Texas is between El Paso and La Tuna, a dis
tance of only 18 miles, requiring approximately 30 minutes.
20
Pullman Line 3531—Marshall-Little Rock. The Texas
and Pacific Railway Company operates in Texas an inter
state train which runs from Fort Worth to Memphis, carry
ing a Pullman car without a conductor from Marshall,
Texas, to Little Rock, Arkansas. The car is so operated in
Texas from Marshall to Texarkana, a distance of 67 miles.
23. As examples of type of trains described in Exhibit
“ G” : The St. Louis, Brownsville and Mexico Railway
Company, Trains 15 and 16 (Pullman Line 3723 as de
scribed in Exhibit “ G” ), each consists of 3 passenger cars,
including the Pullman car. International-Great Northern
Railroad Company, Trains 21 and 22 (Pullman Line 3309),
carrying a Pullman car without a conductor between Gal
veston and Houston, each consists of two passenger cars, in
cluding the Pullman. Trains known as Beaumont, Sour
Lake & Western Railway, Trains 3 and 4 (Pullman Line
3010), each consists of 4 passenger cars, including the Pull
man. Trains 205 and 206 of the San Antonio, Uvalde &
[fol. 25] Gulf Railroad (Pullman Line 3748), each consists
of 3 passenger cars, including the Pullman. In each of the
trains mentioned, there is in addition to the passenger cars,
either a baggage car or a combination baggage, express
and mail car. All of the other trains described in Exhibit
“ G” are what is known as light passenger traffic trains on
that part of the route where, as shown, the Pullman car is
without a Pullman conductor. During such operation none
of said trains carries more than 3 passenger cars, including
a Pullman car. Each of the trains described in Exhibit “ G ”
is at all times in charge of the train conductor, assisted by a
flagman or brakeman and usually by a train porter.
24. In addition to the regularly scheduled Pullman opera
tions described in Exhibit “ G” , the plaintiff railroad com
panies at irregular intervals carry as a part of their trains,
as demand for such service arises, what are known as char
tered sleeping cars, and on other occasions what are known
as private cars. Such cars are owned, and with their neces
sary attendants are supplied, by The Pullman Company.
Chartered cars are as rule similar in their appointments to
the standard Pullman cars operated on regularly scheduled
runs. The private cars, of which The Pullman Company
owns a number, are available for charter by individuals, or
groups at scheduled tariff rates which are on file with the
Interstate Commerce Commission. Sleeping cars are also
21
available for charter by individuals or groups. Persons
using such private cars as well as the chartered sleeping
cars are passengers who hold railroad transportation and
are entitled to accommodations therein. Under published
tariffs, eighteen railroad fares are required to cover the
transportation of these cars, which revenue accrues entirely
to the railroads over which the cars are operated. Collec
tion of the Pullman tariff rate covering the use of these
cars, the amount being dependent upon the period the cars
are to be used, is made in advance by the representative of
[fol. 26] the The Pullman Company arranging the move
ment. It has been the practice of The Pullman Company
to provide conductors for private cars, since there are no
duties for a conductor to perform and there has been no
demand for a Pullman conductor in operations of that kind.
The regular crew of a private Pullman car consists of a
cook and two attendants, but frequently at the request of the
person or persons engaging the car only a cook and one at
tendant are furnished. Private cars are usually placed at
or near the head end of the train to insure privacy to the oc
cupants of such cars. Thus, while cars of this type may be
handled in a train on which a Pullman conductor is operated,
he has no jurisdiction over them. Such cars are operated in
accordance with itineraries provided in advance by the par
ties engaging them. Frequently itineraries provide for lay
overs for extended periods. Persons engaging such cars
would object to the presence of a conductor since he would
not only be in the way, but would have to be provided with
accommodations and with meals at the expense of the per
sons engaging such cars.
25. The need for a Pullman conductor on a given train is
determined by operating conditions affecting that train,
including the volume of traffic, the length of the train, with
the consequent demands upon the time and services of the
railroad and Pullman employes. In determining whether
a given train shall be attended by a Pullman conductor,
The Pullman Company necessarily relies upon its knowl-
eclge gained from long experience and study of operating
conditions. In general, the operation of Pullman cars with
out Pullman conductors applies to comparatively short dis
tances, frequently to only a small portion of the entire
length of the run of the car. The nature of the duties of the
poiter is such that his services are necessary on the car.
22
The operations on which Pullman conductors are not now
being used in Texas embrace runs of the kind above de
scribed and those in which traffic is light and where the
[fol. 27] revenue and other factors do not warrant the addi
tional expense that would be incurred in providing Pullman
conductors. The earnings per Pullman car on many of such
lines is substantially below the expense point. If The Pull
man Company is required to provide a Pullman conductor
for such train that carries a Pullman car, the operating
expense will be increased thereby to such an extent that the
company will be compelled to arrange for the discontinu
ance of Pullman car service on such trains, as mentioned
in paragraph 33 hereof, or else operate said cars at an
additional substantial loss, in that the expense of operating
such cars will greatly exceed the revenues derived there
from. The Pullman Company and the plaintiff railroad
companies are interested in maintaining sleeping car serv
ice on as many trains as possible for the accommodation
of the traveling public. Further, the discontinuance of Pull
man service unavoidably throws out of employment con
ductors, porters, mechanics, electricians, cleaners, and
others.
26. The principal duties of a Pullman conductor are to
collect Pullman fares, assign accommodations to passengers,
make up diagrams, and give supervision of service on the
cars. On a train carrying several Pullman cars, the services
of a conductor are deemed necessary, but in operations
where the volume of traffic is light, one Pullman employee
on the car is able to do all that is required to maintain the
service. The furnishing of Pullman service to railroad
passengers in Pullman sleeping cars embraces the greater
comfort and convenience of the special facilities of the
sleeping car as distinguished from a railroad day coach.
It embraces reserved and specially assigned accommoda
tions, including the berth or room at night, comfortable
seats and ample space in the daytime, clean and comfort
able dressing rooms and toilet facilities, plenty of clean
linen, having the berths prepared for occupancy at the
beginning of the night and put away in the morning. Per
sons occupying accommodations in Pullman cars are rail-
[fol. 28] road passengers and are entitled to the same atten
tion from the train conductor as are coach passengers. The
train conductor is the ranking authority on the train, and
23
in respect of the operation of the train, and the supervision,
care and safety of all passengers, he is in charge of the
entire train, including the Pullman cars; and all railroad
and Pullman employees are subject to his orders. The
rules governing the duties of Pullman employees require
them to refer many matters of operation to the authority
and discretion of the train conductor.
27. The Pullman Company exercises great care in the
employment of its porters, in supervising their work, in
maintaining, and in requiring from them, a high standard
of service. They are selected for their intelligence, depend
ability and good character, and are required to render effi
cient and courteous service to passengers. The com
pany through its superintendents, district superintendents,
agents, inspectors and other supervisors, constantly super
vises the work of porters. Such representatives frequently
travel in the cars for the purpose of supervising the serv
ice enroute, and a record is carefully kept of the quality
of service of all employees. The successful operation of
The Pullman Company’s business necessarily depends upon
the company’s maintaining a high quality of service to
passengers. This quality of service is not diminished when
Pullman conductor operation is not provided on cars where
traffic conditions do not warrant or justify the operation
of Pullman conductors. On trains where there is no Pull
man conductor operation, the service rendered to passen
gers by The Pullman Company and by the railroad com
pany is of the same character and quality as that accorded
where Pullman conductors are operated. When a Pullman
passenger boards the train and surrenders his Pullman
ticket or pays his fare and is assigned his Pullman car
accommodations, identically the same service is rendered,
irrespective of whether The Pullman Company is repre
sented by a Pullman conductor or by a Pullman porter.
The Company assigns, and has made a practice of assign!
[fol. 29] ing, to runs where Pullman conductor operation
is unnecessary, experienced porters having records of many
years of efficient and faithful service, and fully qualified
to perform all of the duties assigned to them, including the
duties that would be performed by a Pullman conductor if
present. The average period of service with The Pullman
Company of the porters assigned to the runs in Texas
described in Exhibit “ G” is 19 years. Some of them have
24
been in the service of the company for a period of 33
years, and none of them has been in the service for less
than 12 years. No complaint has been made for discourtesy
to passengers or for failure of duty on the part of said
porters on said runs during the time such method of oper
ation has been in effect in the State of Texas.
28. The Pullman Company’s method of conducting its
operations and of serving its patrons in the state of Texas
is similar to that employed generally by the company under
similar conditions in other parts of the United States, and
the facts do not warrant the conclusion that the quality of
service rendered to its traveling patrons on the lines in
Texas described in Exhibit “ G,” is inferior to that rendered
on the lines that are accompanied by Pullman conductors.
29. While the Pullman porter attending a Pullman car
without a Pullman conductor receives extra compensation,
the additional amount is only a small portion of the con
ductor’s salary that would be imposed upon the company
as an additional expense by the challenged order. The
average annual salary of a Pullman conductor is approxi
mately $2400.00. Compliance with the Railroad Commis
sion’s order would require the employment of 19 Pullman
conductors at an annual expense to The P'ullman Company
of approximately $45,000.00. This would be offset in part
by elimination of the higher rate allowed the porters on
the lines described in Exhibit “ G.” The net amount of
added expense after allowing such offset item would be
approximately $33,000.00 per annum. Plaintiff railroad
[fol. 30] companies are interested with The Pullman Com
pany in maintaining the service as it is now maintained
and in saving unnecessary expense. If the service provided
by The Pullman Company in the lines described in Exhibit
“ G” is withdrawn, such withdrawal will substantially di
minish the railroad passenger traffic and revenues on each
of said lines.
30. The injury that would be suffered by the plaintiffs by
having to conform with the requirements of an order like
that contained in Exhibit “ F ” is not fully measured by
the direct effect of the order on the Texas operations de
scribed in Exhibit “ G.” Passenger traffic conditions are
constantly changing, and the necessity for changing sched
ules and for establishing or withdrawing trains arises from
25
time to time in consequence of changed conditions. Plain
tiff railroads have in the past operated trains, in addition
to those described in Exhibit ‘ ‘ G, ’ ’ carrying Pullman cars
without Pullman conductors, and if and when traffic condi
tions so require or make it desirable in the future they
will, unless prevented by the commission’s order, do so
again. The right to institute and maintain such service and
to call on The Pullman Company for its cooperation in that
respect, and the right of The Pullman Company to respond,
are valuable rights of which plaintiffs will be unconstitu
tionally deprived by the enforcement of said order. The
property rights that will be destroyed by the enforcement
of said order are of the value to each of the plaintiffs of
a sum exceeding $3000, and of said value to plaintiffs
jointly.
31. The Pullman Company’s operations are national in
scope, and there are no conditions peculiar to the State of
Texas that would make it necessary or proper to conform
to such a policy in the State of Texas and not in other States.
The company exercises the same high degree of care in
selecting Pullman porters operating in the State of Texas
that is used in selecting porters operating elsewhere. The
standards for service in the State of Texas are equal to those
[fol. 31] applied in other sections of the country. The Pull
man porters in Texas and throughout the south are equal
in qualifications to the Pullman porters operating in other
portions of the country. No complaints have arisen in
Texas from the operation of cars without Pullman conduc
tors or from the conduct or services of Pullman porters on
duty in such circumstances. The Pullman Company’s ex
perience shows that the services rendered to the public by
the porters that have been selected for such operations in
the State of Texas will compare favorably with the service
maintained by the company in other sections of the country.
32. The operation of Pullman cars as integral parts of
railroad trains is necessary to the conduct of the business
of railroad passenger transportation. The railroads require
sleeping car and other Pullman car accommodations for
their passengers in order to meet the demands of the trav
eling public. The railroad companies do not own such
equipment and for many years have contracted with The
Pullman Company to supply such cars when needed by the
26
railroads to meet the requirements of travel over their re
spective lines. The Pullman Company to meet such demand
has invested many millions of dollars in such equipment,
and it cannot profitably make nse of such investment except
by furnishing the cars to the railroads for such operation
in the way in which transportation has been conducted, in
cooperation between the railroads and The Pullman Com
pany, for many years. Thus the railroads are dependent
upon The Pullman Company for the furnishing of the serv
ice that is now supplied by The Pullman Company; and The
Pullman Company is dependent upon the railroads for the
transportation service supplied by the railroads. The rail
road companies are injuriously affected by any such order
as Exhibit “ F ,” affecting injuriously The Pullman Com
pany and interfering with its operations; and The Pullman
Company is injured by any such order whether directed
and enforced against the railroads or directed in terms
against the railroads and The Phllman Company.
[fol. 32] 33. The Pullman Company is not a common car
rier and is not engaged in business in the State of Texas
as a common carrier. The Railroad Commission of Texas
has no jurisdiction over and no duties to perform in respect
of The Pullman Company, and prior to the issuance of its
said order of August 8, 1939, has not attempted to regulate
said company in the conduct of its business, and has not
asserted jurisdiction or authority over The Pullman Com
pany or the conduct of its business in any matter whatso
ever except on one occasion, in about 1907, and such attempt
was enjoined by a court decree. Whether the defendants
undertake to enforce the challenged order by threatening to
prosecute penalty suits against the railroad companies or
whether such action he taken also against The Pullman
Company, The Pullman Company will at all events suffer
irreparable injury since, in the absence of an injunction, the
railroad companies will not haul the Pullman cars in their
trains in violation of said order, and, in consequence, The
Pullman Company will be compelled either to comply with
the order or to curtail its service by withdrawing and dis
continuing Pullman cars on those trains that do not carry
Pullman conductors; and such curtailment would be depend
ent upon arrangements therefor between The Pullman Com
pany and the railroads to whom Pullman cars, and employ
ees for the provision of sleeping car service therein, are
27
furnished under contracts between said companies, plain
tiffs herein.
34. Notwithstanding the want of power and authority to
promulgate or to enforce the order here complained of, the
Railroad Commission and its members, or a majority of
them, and the Attorney General at their instance, will en
deavor to enforce the same against the plaintiffs. If the
plaintiffs fail, refuse or neglect to comply with said order,
said defendants, unless enjoined by court decree, will en
deavor to subject said plaintiffs to the penalties prescribed
by Articles 6476 and 6477 of said Revised Statutes, author-
[fol. 33] izing the collection of a penalty of not more than
$5,000.00 for failing, neglecting or refusing to obey any
lawful requirement, order, judgment or decree made by the
Railroad Commission. For relief against being subjected
to such suits and excessive penalties plaintiffs have no ade
quate remedy at law.
35. As the basis for said order the Railroad Commission
has assumed the right and power to interpret the contracts
between the railroad companies and The Pullman Company
and has affirmed in that connection that said contracts im
pose on The Pullman Company the duty of furnishing sleep
ing cars on each train supervised by a Pullman employee
having the rank and title of Pullman conductor. The Com
mission, in the same connection, has in effect declared that
the obligation of said contracts referred to has been
breached and that said breach constitutes an abuse and
an undue and unreasonable disadvantage, prejudice and
discrimination, and has in effect set up the said contracts
as so interpreted by the Commission as furnishing a stand
ard to determine what constitutes an abuse or an unreason
able and undue disadvantage, prejudice and discrimination.
In this connection plaintiffs show:
(a) That the Legislature has not devolved upon the Com
mission the power to interpret said contracts and to attempt
to enforce said contracts under any given interpretation.
(b) The Legislature has not declared that a violation or
breach of said contracts constitutes an abuse or an unrea
sonable and undue disadvantage, prejudice and discrimina
tion that may be corrected by proper orders of the Rail
road Commission. The Commission is without power or
authority to adopt the said contracts as interpreted by it
28
as furnishing a proper basis for and measure of its regu
latory powers in attempting to prevent abuses or unreason
able, extortionate or undue disadvantage, prejudice, and
discrimination in rates.
[fol. 34] (c) That said contracts do not require that sleep
ing cars be in charge of and supervised by Pullman employ
ees having the rank and title of Pullman conductors, and
the interpretation placed upon the contracts by the Commis
sion is wholly unwarranted.
(d) That the action of the Commission in attempting to
enforce said contracts in the way attempted by said orders
and under the unwarranted interpretation referred to con
stitutes, in effect, an impairment of the obligation of said
contracts, in violation of that provision of the Constitution
of the United States denying to any State the power to pass
any law “ impairing the obligation of contracts.” (Sec. 10,
Art. I.)
36. By reason of the facts hereinabove stated, the Com
mission’s order herein challenged is invalid and unenforce
able in this:
a. The order is not within the authority delegated to the
Railroad Commission by any statute or law of the State
of Texas.
b. If the statutes relied upon by the Railroad Commission
as the source of authority for promulgating the order have
been properly construed by the Commission, and if said
statutes do attempt or purport to confer such authority,
the statutes themselves are void and unenforceable in that
they supply no standard, guide or criterion limiting the
Commission’s powers; and such statutes, as so construed,
constitute an attempt to delegate to the Commission purely
legislative power, which by Article II, Section 1, and by
Article III, Section 1, of the Constitution of the State of
Texas, has been granted exclusively to the Legislature.
c. In so far as the order is grounded in the Commission’s
authority to regulate transportation rates or to prohibit
unjust discrimination or extortion in rates, it is void for
the reason that it was issued without notice of hearing for
such purpose. In no circumstances has the Commission
[fol. 35] statutory power to issue such an order except after
ten days’ notice and hearing. The enforcement of such an
29
order, issued without notice and hearing, would deprive
plaintiffs of their property and rights without due process
of law, in violation of the Fourteenth Amendment to the
United States Constitution.
d. The order is unjust, unreasonable, arbitrary, capri
cious and unsupported by any basis in fact, and bears no
reasonable relation to the accomplishment of any purpose
within the regulatory powers of the Railroad Commission
or within the legitimate police power of the State. For that
reason, plaintiffs are entitled to have it set aside pursuant
to Articles 6453 and 6454, Revised Civil Statutes of 1925;
moreover, for the same reason it is violative of the due proc
ess clause of the Fourteenth Amendment to the Constitu
tion of the United States in that it will deprive the plaintiffs
of their property without due process of law.
e. The order is beyond the authority delegated to the
Railroad Commission by any law of the State, and, being
penal in nature, in connection with the oppressive penalty
statutes mentioned above in this Complaint, is violative of
the due process clause, Section 1 of the Fourteenth Amend
ment to the Constitution of the United States.
f. Said order as applied to the plaintiffs, and particularly
in the operation of interstate trains, and in transporting
and rendering service to interstate passengers, constitutes
an unreasonable, oppressive, arbitrary and unnecessary
burden upon and interference with interstate commerce, in
violation of the commerce clause (Art. I, Sec. 8) of the
Constitution of the United States; and is in conflict with
the laws of the United States, and with valid orders of the
Interstate Commerce Commission governing transportation
of passengers in interstate commerce.
[fol. 36] g. Said order is invalid and unenforceable
against the Trustee plaintiffs hereinabove named in that
it constitutes an unlawful interference with the performance
of their duties as officers of the United States Courts in
the management, operation and control of the railroad
properties in the custody of said courts, respectively; and
is violative of the decrees of said courts in respect of the
operation of said properties.
h. Said order works an unreasonable discrimination
against the plaintiffs and their employees, and particularly
30
the employees of The Pullman Company, and thereby de
nies to the plaintiffs, particularly The Pullman Company
and its employees, the equal protection of the laws, and de
prives the plaintiffs and their employees of the liberty of
contract, without due process of law, and against the equal
protection of the laws; and thereby said order violates the
due process and the equal protection clauses of the Four
teenth Amendment to the Constitution of the United States.
i. Said order, by requiring that the said The Pullman
Company and the plaintiff railroad companies and Trustees
have an employee on the cars referred to in said order hav
ing the rank and title of conductor, unreasonably, and with
out any necessity grounded in fact, arbitrarily and caprici
ously interferes with the right of The Pullman Company
and the plaintiff railroad companies and Trustees to man
age their respective businesses and to give to their em
ployees such rank and title as to said companies may seem
proper or desirable. Such unreasonable and unnecessary
interference with such right deprives the said plaintiffs
of their property and of the right to manage and use their
property, without due process of law, and denies to them
the equal protection of the laws, in violation of the Four
teenth Amendment to the Constitution of the United States.
[fol. 37] j. The order is arbitrary, unreasonable, uncon
stitutional and void for each and all of the reasons else
where stated in this Complaint.
37. Premises considered, plaintiffs pray:
(1) That process be issued and served upon the defend
ants herein, in accordance with applicable statutes and
rules of court. That service be had upon the defendant Rail
road Commission of Texas by serving C. F. Petet, its Sec
retary, who resides in the City of Austin, in Travis County,
Texas.
(2) That, pending the hearing and action on plaintiff’s
prayer herein for preliminary or temporary injunction,
this Court, after hearing, upon notice of not more than five
days, enter its temporary restraining order, restraining and
prohibiting the defendants Railroad Commission of Texas,
and the members of said Commission, and the Attorney Gen
eral of Texas, and their agents, employees, and representa
31
tives, from attempting* to enforce against the plaintiffs, or
any of them, the above described orders of the Railroad
Commission as set forth in Exhibits “ A ” and “ F ,” and
from instituting or prosecuting any penalty suit or action of
any kind against any of the plaintiffs herein for the violation
of said orders.
(3) That upon a hearing after due notice, a preliminary
injunction issue out of and under the seal of this Court, en
joining the defendants Railroad Commission of Texas and
the members thereof, their representatives, agents, servants
and employees, and the Attorney General of the State of
Texas and his representatives, agents and employees from
attempting to enforce against the plaintiffs, or any of them,
the aforesaid orders of said Commission as set forth in
Exhibits “ A ” and “ F ” of this Complaint, and from insti
tuting or prosecuting any suit or suits against the plaintiffs,
or any of them, for penalties, or otherwise, for the violation
of said orders, or any part thereof. Plaintiffs pray that a
[fol. 38] specially constituted district court be assembled
pursuant to Section 266 of the Judicial Code, as amended
(Sec. 380, U. S. Code), for the purpose of hearing and de
termining plaintiffs’ motion herein for temporary or pre
liminary injunction; and for the purpose of conducting a
final trial herein.
(4) That upon final trial and final hearing of this suit
the preliminary injunction as prayed for herein be made
permanent, and that a decree be entered herein setting
aside, vacating and annulling the aforesaid orders of the
Railroad Commission as set forth in Exhibits “ A ” and
“ F and that the defendants Railroad Commission of
Texas and the members thereof and their representatives,
agents, and employees, and the Attorney General of Texas
and his representatives, agents and employees, be perma
nently enjoined from enforcing said orders against plain
tiffs, or any of them, and from taking any steps whatsoever
looking to enforcement of same, and from seeking in any
way to penalize plaintiffs or any of them for violating or not
obeying said Commission orders, or any part thereof.
(5) Plaintiffs pray for judgment against the defendants
for costs of suit and for such other and further relief as the
32
evidence shall justify and as to this Court shall seem equi
table in the premises.
E. S. Shapard, Attorney for plaintiff The Texas and
Pacific Railway Company; Andrews, Kelley, Kurth
& Campbell, Attorneys for plaintiffs Guy A.
Thompson, Trustee, The St. Louis, Brownsville
and Mexico Railway Company, Debtor; Guy A.
Thompson, Trustee, International-Great Northern
Railroad Company,. Debtor; Guy A. Thompson,
Trustee, The Beaumont, Sour Lake & Western
Railway Company, Debtor; Guy A. Thompson,
Trustee, San Antonio, Uvalde & Gulf Railroad
[fol. 39] Company, Debtor; Baker, Botts, Andrews
& Wharton, John P. Bullington, Attorneys for
plaintiff Texas and New Orleans Railroad Com
pany ; Terry, Cavin & Mills, Attorneys for plaintiffs
The Atchison, Topeka and Santa Fe Railway Com
pany, Gulf, Colorado and Santa Fe Railway Com
pany, and Panhandle and Santa Fe Railway Com
pany ; Charles C. Huff, Attorney for plaintiff Mis-
souri-Kansas-Texas Railroad Company of Texas;
Walker, Smith & Shannon, Attorneys for plaintiffs
Frank 0. Lowden, James E. Gorman, and Joseph
B. Fleming, Trustees, The Chicago, Rock Island
and Pacific Railway Company, Debtor; A. H.
Kiskaddon, Locke, Locke, Stroud & Randolph, At
torneys for plaintiff Berryman Henwood, Trustee,
St. Louis Southwestern Railway Company of
Texas, Debtor; Allen & Gambill, Attorneys for
plaintiff St. Louis, San Francisco and Texas Rail
way Company; F. H. Moore, Attorney for plaintiff
The Kansas City Southern Railway Company;
Thompson & Barwise, Fred L. Wallace, Attorneys
for plaintiff Fort Worth and Denver City Railway
Company; (S.) Claude Pollard (Address: Austin,
Texas), Attorney for all plaintiffs excepting The
[fol. 40] Pullman Company; Lowell M. Greenlaw,
Herbert S. Anderson, Charles L. Black, John W.
Stayton, Ireland Graves, (S.) Ireland Graves (Ad
dress: Austin, Texas), Attorneys for plaintiff The
Pullman Company.
Duly swornto by I). A. Crawford. Jurat omitted in print
ing.
33
[fol. 41] Exhibits to Amended Complaint
E x h ib it “ A ”
Passenger Circular No. 164
By the Railroad Commission of the State of Texas Relating
to the Safety, Care, Comfort, Convenience, Proper Ac
commodation and Transportation of Passengers on Pull
man Cars within the State of Texas.
Pursuant to the authority vested in the Railroad Com
mission of Texas by the Statutes as interpreted by our
courts, and particularly in the case of Missouri, Kansas &
Texas Ry. Co. of Texas vs. State, 275 SWR 673 (681)
wherein the court said:
“ The Railroad Commission of Texas is a constitutional
board or tribunal created for the specific purpose of super
vising and controlling the operations of railroads within
this state. The duty of its members is to become acquainted
with and to know the transportation problems and condi
tions generally as to each railroad. Railroad regulation in
every aspect is within its jurisdiction. Sovereignty granted
it power to hear and determine all subject-matter of rail
road regulation. Its powers are far-reaching and im
portant,” * * *
And by virtue of the interpretation by the courts of our
state as to the degree of care required of carriers as to
passengers, wherein the courts have used such statements
as:
“ A very high decree of care and watchfulness.” La.
Ry. & Nav. Co. vs. Smith, 285 SW. 1104; T. & P. Ry Co vs
Story, 83 SW. 852.
[fol. 42] “ A high degree of care.” M. K. & T. vs. Brown
135 SW. 1076.
‘ ‘ A highest degree of care. ’ ’ Galveston H. & S. A Rv Co
vs. Bibb, 172 SW. 178. "
The Commission is of the opinion that it is necessary in
the public interest of citizens of this state who ride in Pull
man cars and pay an extra fare therefor in addition to the
3—283
34
regular charge for riding in the coaches as provided for
passenger service, that those citizens riding in Pullman cars
are entitled to the protection, safety and convenience of
having a Pullman conductor in charge of said car while said
citizens are riding as passengers thereon.
It Is, Therefore, Ordered, Adjudged and Decreed that
from and after the effective date of this order no sleeping
car shall be operated on any line of railroad in the State of
Texas when occupied by passengers holding the proper
transportation for the accommodation of such cars, unless
such cars are continuously in the charge of an employee or
an authorized agent of the firm or corporation owning or
operating the same having the rank and position of Pullman
conductor.
The use of the terms “ firm” or “ corporation” as em
ployed in the next preceding paragraph hereinabove is
meant to include all companies as defined by Article 6479
Revised Civil Statutes of Texas.
It Is Further Ordered that this order shall be and become
effective on September 1, 1939.
Done and ordered by the Railroad Commission of the
State of Texas in Austin on this 8th day of August, 1939.
Railroad Commission of Texas, Lon A. Smith,
Chairman, Ernest 0. Thompson, Commissioner,
Jerry Sadler, Commissioner.
Attest: C. F. Petet, Secretary.
[fol.43] E x h ib it “ B ”
Docket No. 3669-R
By the Railroad Commission of the State of Texas Relating
to the Safety, Care, Comfort, Convenience, Proper Ac
commodation and Transportation of Passengers on Pull
man Cars Within the State of Texas
Austin, Texas, August 19, 1939.
It is Ordered by the Railroad Commission of Texas that
notice be, and the same is hereby given to the Pullman Com
pany as well as to all other interested parties, that the Com
mission will on August 31, 1939, in its Hearing Room at the
35
Capitol Building in Austin, take up and consider the mat
ter of operating Sleeping cars on any line of railroad in the
State of Texas when occupied by passengers holding the
proper transportation for the accommodation of such cars,
unless such cars are continuously in charge of an employee
or an authorized agent of the firm or corporation owning or
operating the same having the rank and position of Pullman
conductor.
The Commission will, at said hearing, hear all facts and
statements that may be presented pertaining to the matter
above set forth and will, in pursuance of said hearing and
of the facts there presented and the conditions then shown
to exist, enter such order or orders in the premises and
within the scope of the proposition involved as, in its opin
ion may be just, proper and equitable to all interests con
cerned.
It is further ordered that the effective date of Passenger
Circular No. 164, issued by the Railroad Commission of
Texas on August 8,1939, be and it is hereby extended to Sep
tember 15, 1939.
[fol. 44] Railroad Commission of Texas, by Lon A.
Smith, Chairman, Ernest 0. Thompson, Jerry Sad
ler, Commissioners.
Attest: C. P. Petet, Secretary. (Seal.)
E x h ib it “ C ”
Docket No. 3669-R
By the Railroad Commission of the State of Texas Relat
ing to the Safety, Care, Comfort, Convenience, Proper
Accommodation and Transportation of Passengers on
Pullman Cars Within the State of Texas
Austin, Texas, September 6, 1939.
It appearing that the transcript of the record of the hear
ing that was held by C. F. Petet, as examiner, on August 31,
and September 1, 1939, pursuant to the Commission’s order
of August 19, 1939, has not been completed; and it further
appearing that after the transcript shall have been com
pleted and delivered to the members of the Commission,
additional time will be needed to consider the transcript,
36
it is further ordered by the Railroad Commission of Texas
that the effective date of Passenger Circular 164 issued by
the Commission on August 8, 1939, is further postponed to
October 5th, 1939.
Railroad Commission of Texas, by Lon A. Smith,
Chairman; Ernest 0. Thompson, Commissioner;
Jerry Sadler, Commissioner.
Attest: C. P. Petet, Secretary. (Seal.)
[fol. 45] E x h ib it “ D ”
Docket No. 3669-R
By the Railroad Commission of the State of Texas Relating
to the Safety, Care, Comfort, Convenience, Proper Ac
commodation and Transportation of Passengers on Pull
man Cars Within the State of Texas
Austin, Texas, September 3, 1939.
In order to provide more time for examination of the
record in the above numbered and entitled cause, it is or
dered by the Railroad Commission of Texas, on its own mo
tion, that the effective date of Passenger Circular No. 164,
issued August 8, 1939, postponed to September 15th, and
subsequently postponed to October 5, 1939, be and the same
is hereby further postponed to November 1, 1939.
Railroad Commission of Texas, by Lon A. Smith,
Chairman; Ernest 0. Thompson, Commissioner;
Jerry Sadler, Commissioner.
Attest: C. F. Petet, Secretary. (Seal.)
E x h ib it “ E ”
Docket No. 3669-R
By the Railroad Commission of the State of Texas Relating
to the Safety, Care, Comfort, Convenience, Proper Ac
commodation and Transportation of Passengers on Pull
man Cars Within the State of Texas
Austin, Texas, October 27, 1939.
In order to provide more time for examination of the
[fol. 46] record in the above numbered and entitled cause,
37
it is Ordered by the Railroad Commission of Texas, on its
own motion, that the effective date of Passenger Circular
No. 164, issued August 8, 1939, postponed to September 15,
October 5, and November 1, 1939, respectively, be and the
same is hereby further postponed to November 15, 1939.
Railroad Commission of Texas, by Lon A. Smith,
Chairman; Ernest 0. Thompson, Commissioner;
Jerry Sadler, Commissioner.
Attest: C. F. Petet, Secretary. (Seal.)
E x h ib it “ F ”
Railroad Commission of Texas
Docket No. 3669-R
In Re Order by the Railroad Commission of Texas Relating
to the Safety, Care, Comfort, Convenience, Proper Ac
commodation, Charges, Fares and Transportation of
Passengers on Sleeping Cars and Pullman Cars Within
the State of Texas, and to Prevent Abuses, Unjust Dis
crimination and Extortion in Rates
Austin, Texas, November 4, 1939.
Order amending passenger circular No. 164, issued by
the Railroad Commission of Texas on the 8th day of Au
gust, 1939. After proper notice to all interested parties as
[fol. 47] to the time and place of said hearing, then all par
ties at interest appeared by their respective attorneys and
evidence was offered by all parties and after a full, final and
complete hearing thereon, the order of August 8th was
amended as hereinafter provided relating to the safety,
care, comfort, convenience, proper accommodations,
charges, fares and transportation of passengers on sleeping
cars and Pullman cars within the State of Texas, and to
prevent abuses, unjust discrimination and extortion in
rates.
Ordered
On the 31st day of August, 1939, came on to be heard
the above entitled and numbered cause, whereupon the
38
Commission proceeded to examine the notice of the hear
ing and found:
(1) That an order had been issued by this Commission
on the 8th day of August, 1939, on its own motion, which
provided in part as follows:
“ No sleeping car shall be operated on any line of rail
road in the State of Texas when occupied by passengers
holding the proper transportation for the accommodation
of such cars, unless such cars are continuously in the charge
of an employee or an authorized agent of the firm or corpo
ration owning or operating the same having the rank and
position of Pullman conductor.”
and that the effective date of said order was fixed as of
September 1, 1939.
(2) That upon request of the Pullman Company, through
its attorney, a notice was issued in the manner and form
provided by law, notifying all parties at interest that a full
and complete hearing would be held in Austin, Texas, in
the Hearing Room of the Railroad Commission on the 31st
day of August, 1939, at which time all parties interested
would be permitted to offer such evidence and present such
facts as they may deem material to the issues involved.
(3) That the effective date of passenger circular No. 164
was extended until the 15th day of September, 1939, and
[fol. 48] upon request of counsel for the parties at interest,
the effective date of said order has been postponed from
time to time, the last extension thereof being until the
15th day of November, 1939.
(4) The Commission further finds that on the 31st day
of August, 1939, at 10 o ’clock A. M. in the Hearing Room
of the Commission in Austin, Texas, the following appear
ances were made:
Mr. Ireland Graves, of the law firm of Black, Graves &
Stayton, of Austin, Texas,
Mr. L. M. Greenlaw, general counsel of the Pullman
Company, Chicago, Illinois,
Mr. H. S. Anderson, assistant general solicitor of the
Pullman Company, of Chicago, Illinois,
All on behalf of the Pullman Company,
39
Mr. Claude Pollard, Austin, Texas, representing all
Texas railroads.
Culbertson & Morgan, attorneys, Fort Worth, Texas,
appearing for the Order of Sleeping Car Conductors.
The Commission thus finds that all of the parties inter
ested in the subject matter have been duly notified for
the time and in the manner provided by law and that all of
said parties entered an appearance in this cause and, with
all parties having announced ready, the Commission pro
ceeded to hear the oral testimony of seventeen witnesses,
some of whom were offered by the railroad companies, the
Pullman companies and the other parties at interest, as
well as documentary evidence, and after a full, final and
complete hearing of evidence, which lasted for two days,
and after argument of counsel, the Commission being fully
advised in the premises Finds:
[fol. 49] (1) The Pullman Company has made agreements
with the railroads of Texas by the terms of which it is
obligated to furnish standard sleeping and parlor cars,
properly equipped and acceptable to the railroad company,
sufficient to meet the requirements of travel over the lines
of railroads operated by said companies in Texas and under
such contract it has the exclusive right to operate pullman
cars and sleepers over the railways in Texas, except that
the railroads should have the right to operate their own
parlor cars, either exclusively or in addition to the parlor
cars furnished by the Pullman Company.
(2) The contracts between the Pullman Company and
the railroads provide that the Pullman Company shall have
the right to collect from the occupants of its cars for the
use of seats, berths and rooms therein such fares as shall
be charged on competing lines of railroads.
(3) While the various contracts differ as to the compen
sation the railroads are to receive from the Pullman Com
pany for this exclusive right to furnish such cars and
services, they all provide in substance that all receipts
from operations above a given sum per car per annum shall
be divided between the railway company and the Pullman
Company in various and graduated proportions. The rail
road companies are thus directly interested in the charges
made by the Pullman Company for the use of its seats and
services to the extent of sharing in the profits over and
40
above a given amount per car per annum and this in
directly amounts to a tariff charge or additional compensa
tion to the railroads for the privilege of riding in cars
and obtaining services rendered by the Pullman Company
under such contracts. All of this is in addition to the
extra fare required to be paid by a passenger before he
can have the privilege of purchasing a seat in and the
accommodations provided by the pullman cars.
[fol. 50] (4) The contracts between the Pullman Com
pany and the railroads require that the Pullman Company
shall provide suitable employees for collecting fares and
providing the usual sleeping and parlor car service and
such employees shall be subject to the rules of the rail
road company governing its own employees and be sub
ject to removal or transfer on complaint of the railroad
companies because of unsatisfactory service, but in no case
should they be deemed or taken to be the servants or em
ployees of the railroad company.
(5) In addition to the employees to be furnished who
would be subject to the rules of the railroad company, the
contracts further provide that the Pullman Company, in
order to maintain service acceptable to the railroad com
panies and the traveling public, should furnish agents or
inspectors to supervise the conduct of employees, cleanli
ness of cars, etc., while enroute. It has been the custom
for the Pullman Company to furnish Pullman conductors
to supervise the conduct of employees and the cleanliness
of the cars, etc., while enroute, and they have not furnished
any other agent to supervise such conduct of employees and
cleanliness of the cars except Pullman conductors. In re
cent months, the Pullman Company has failed and refused
to furnish any agent or agents to supervise the conduct of
its employees or the cleanliness of the cars while enroute
but instead in a great many instances, they have left only
a colored Pullman porter in charge of such cars, without
any kind of inspection or supervision of the employees and
cleanliness of cars while enroute. The same charge is made
for the seat and other accommodations in the Pullman cars
where there is no such supervision provided and only a
colored porter in charge as is made for the same accom
modations in cars in which supervision is provided by
Pullman conductors. Among other runs on which such
colored Pullman porter is the only person in charge of such
41
cars is the Missouri-Kansas-Texas Railroad Company of
Texas from San Antonio to Waco, over which there is a
[fol. 51] heavy traffic and on which many students of the
University of Texas and other colleges and universities
ride, both boys and girls, and which carries football teams
and other athletic teams from such colleges and universities.
These groups are sometimes difficult to control and it would
be impossible for a colored porter to keep proper order and
decorum and provide the usual, customary and necessary
safety, comfort, convenience and accommodation for the
passengers on the sleeping cars and other pullman cars.
(6) Under the contracts, the Pullman Company is to re
ceive its pay based upon the average receipts per car per
annum of all of the pullman cars operated over all of the
lines of the respective railroads and not for any given
line or lines or isolated or localized parts thereof, so that
the cost of any particular operation is spread over the whole
of the lines of the respective carriers, and in some in
stances the Pullman Company is guaranteed a minimum
return of a fixed sum per car per annum.
(7) The railroads of Texas are charging the maximum
sum allowed by the. Statutes of this state for passengers
who desire to ride in sleeping cars or pullman cars, namely
3̂ per mile. This charge is made and collected by the
railroad companies. In addition thereto, sleeping car com
panies or the Pullman Company collects an extra fare for
the privilege of riding in pullman cars. Lower rates are
charged by the railroads for the privilege of riding in the
day coaches or chair cars. The schedule of rates or fares
as collected by the railroad companies is common between
two points regardless of the railroad that may haul the
traffic, The same rates are charged by the railroad company
and the same additional toll is exacted by the Pullman Com
pany when a pullman conductor is in charge of the pullman
cars as when a negro porter is in charge of the pullman
cars.
[fol. 52] (8) The Commission finds from the evidence that
there are seventeen separate and distinct operations on the
various railroads in Texas without pullman conductors in
charge of pullman cars. The Commission further finds that
all other runs other than the seventeen operations disclosed
by the evidence, do have a pullman conductor in charge of
42
the pullman cars; that the failure to have Pullman con
ductors on the seventeen operations is a discrimination
against the passengers who ride on those particular runs
in that all other operations of Pullman cars do have Pull
man conductors; that in every instance the same rates and
fares are exacted by the railroad companies and the Pull
man Company and in one instance the services of a Pull
man conductor are offered and in the other instances enum
erated, namely, the seventeen operations, such services are
not rendered.
(9) In this connection, the Commission further finds that
old people, women, and children who ride as passengers
and pay the additional fare for the privilege of riding in
Pullman cars are entitled to the services and protection of
a Pullman conductor, and the failure on the part of the
railroad companies and that of the Pullman companies to
thus provide such service and protection to such passen
gers is an abuse, a disadvantage and an undue and unjust
discrimination against all passengers who ride on any one
or more of said seventeen operations where Pullman con
ductors are not used.
(10) The Commission finds that the contracts as made
between the Pullman Company and that of the railroad
companies as hereinabove referred to in these findings were
made for the use and benefit not only of the railroads and
the Pullman Company as to their own financial problems,
but likewise for the use and benefit of third persons, namely,
passengers who are willing to pay the fare charged by the
railroad company and that of the Pullman Company for the
privilege of using such service; that from the evidence of
[fol. 53] the witnesses brought before the Commission who
were paying passengers on Pullman cars, the Commission
finds that the passengers in Texas who use the Pullman
cars pay the extra fare because they are paying for, among
other things, the services of a Pullman conductor.
(11) That to allow the railroad companies to exact the
extra rate to ride in Pullman cars and then to allow the
Pullman Company to exact an additional fare over and
above said extra rate per mile, which charges and rates
are higher than that charged by the railroad companies for
the privilege of riding as a passenger in other parts of the
train, and then for the railroad company not to provide
43
the services and protection to the passengers in a Pullman
car of a Pullman conductor, is an abuse, and undue and un
reasonable prejudice and discrimination.
(12) The Commission further finds from the evidence
offered by the railroad companies and from the evidence
offered by the Pullman Company that the only objection
to passenger circular No. 164 was an economic one and
nothing more.
(13) Pullman conductors are especially trained by the
Pullman Company to render a special type service to pas
sengers riding in the Pullman cars. Each conductor is
furnished with a book of instructions setting forth in detail
the requirements of a conductor, together with special bul
letins which are issued from time to time as to the safety,
protection, care and convenience of the passengers. Special
schools of instructions are conducted for the benefit of
Pullman conductors quarterly to keep the conductors ad
vised from time to time of additional safety devices and of
all physical improvements on the cars, and such new and
additional services as may be possible to be rendered to
the passengers by the conductors from time to time; that
such books of instructions and bulletins are furnished to
only Pullman conductors and the schools of instructions
are attended only by Pullman conductors; that the same
[fol. 54] are not attended by Train Conductors or Pullman
porters and that the Pullman conductor must have such
training and such special qualifications before he is quali
fied to serve as a Pullman conductor; that the duties of a
Pullman conductor are many, and the Commission finds
that some of their duties are as follows:
(a) See that the Pullman cars are properly cooled or
properly heated for the reception of passengers prior to
the time that the cars may be opened to receive passengers.
(b) To require all porters to be in proper uniform.
(c) To regulate the temperature, both of the air-condi
tioning device and the heat equipment, and the Commis
sion finds in connection with the air-conditioning that such
equipment is relatively new, having been in use'only a few
years on the railroads in Texas; that the proper regulation
thereof is a matter of grave concern to the health, comfort
and convenience of the passengers on Pullman cars; that
44
the Pullman conductor is specifically charged with the re
sponsibility of regulating the same and that he receives
special instructions in the operation of the same.
(d) The Pullman conductor is required to give special
attention and care to old people, children, sick persons
and college girls, as well as other types which require per
sonal service and who are committed to his special care
and attention; that often-times old women who are blind
and unable to care for themselves are placed on the train
under the care of the Pullman conductor and it is necessary
for him to attend to their every need and want, to require
their meals to be served at their seat and see that they reach
their proper destination, provide them with wheel chairs
and such other service as may be necessary. Likewise,
children of tender years unable to care for themselves are
committed to the care of the Pullman conductor and that
it is his duty to properly attend children while enroute and
to deliver them safely to their relatives, friends or proper
[fol. 55] authorities at the end of their trip; that frequently
the Pullman conductor is required to administer first aid
treatment for passengers who become ill and when neces
sary it is his duty to make the necessary arrangements to
summon a physician to attend such passengers. Special
duties are required of the Pullman conductor in the event
of a wreck. He must attempt to remove all passengers
from the car to a place of safety and to minister to their
injuries, if any, summon medical attention and perform
every service that he can for their safety, convenience and
comfort.
(e) It is his duty to furnish information about schedules
of connecting lines and all other means of transportation
such as boats, airplanes and buses.
(f) Crippled or deformed persons, mentally or phys
ically, are committed to his special care and attention and
it is his duty to personally attend to their needs.
(g) It is the duty of the Pullman conductor to maintain
proper decorum in the cars and to supervise all of the Pull
man cars on the train. He must handle all disorderly con
duct and prevent excessive drinking, boisterous talking
and undesired attentions between passengers.
45
(h) When switching is being done and the Pullman cars
are separated from their chair cars, it is the duty of the
conductor to see that the tail gates are properly erected
and to prevent passengers from falling and becoming in
jured, and possibly fatally injured.
(i) It is his duty to see that all passengers are assigned
to the proper berths; that the cars are kept clean at all
times; and it is his duty to supervise the pullman porters
and see that they carry out the duties required of them.
(j) Pullman conductor collects tariff rates for a seat in
the Pullman car in the day time and for a berth at night.
He does not permit any passenger to ride in the Pullman
car unless such passenger has a pass or has paid the rail-
[fol. 56] road transportation required to ride in Pullman
cars, and in addition thereto the tariff required to ride in
Pullman cars.
(k) The Pullman conductor and the Pullman porter are
furnished keys to the Pullman cars but such keys are not
furnished to the train conductor.
(14) The extra fare per mile charged by the railroads
to passengers who ride in the sleeper car is to enable the
passenger to enjoy the services, safety, convenience and
comfort of the Pullman sleeping cars as contracted to be
furnished to the traveling public in the various contracts
between the railroads in Texas and the Pullman Company.
One of the features contributing to such services, safety,
convenience and comfort is the supervision of the work of
the employees and the cleanliness of the cars while enroute,
which is usually done by a Pullman conductor. The leav
ing of such sleeping cars and the operation and cleanliness
thereof to negro porters with no agent or inspector to super
vise the same while the cars are enroute is in violation of
the contracts made for the benefit of the traveling public
and the passengers who desire to pay the added fare to
obtain the benefits of such contracts and such added safety
service, comfort and convenience; and is to the undue and
unreasonable disadvantage and prejudice, of such pas
sengers. Such additional fare so charged by the railroads
for the privilege of claiming the benefits of such contracts
and the added safety, comfort and convenience of having
the same supervised while the cars are enroute by a Pull
46
man conductor or other agent or inspector of the Pullman
Company, are unfair, unjust and undue and unreasonable
discrimination and prejudice and to the unreasonable dis
advantage of the passengers who pay the same and do not
obtain the service, safety, convenience and comfort of a
Pullman conductor in supervising the work of the employees
and the cleanliness of the cars enroute in accordance with
such contracts. The traveling public by reason of the con-
[fol. 57] tracts and the supervisory services of Pullman
conductors in such cars purchase such accommodations and
pay the extra fare and cost thereof to receive such benefits
thereof and have the right to expect and receive the same.
(15) The Commission finds the duties of a Pullman porter
are:
(a) To load and unload all baggage.
(b) To keep the car clean, to shine shoes and to do any
other janitor work which may be required.
(c) To provide passengers with tables when requested.
(16) The Commission further finds from the evidence
that the porters on Pullman cars are negro men.
(17) The Commission further finds that if negro porters
are placed in charge of the Pullman cars when the service
of a conductor is dispensed with that there is imminent
danger of insults to the lady passengers on the Pullman
cars and that such condition exists in the seventeen opera
tions by the Pullman Company where they do not use con
ductors, as hereinabove referred to, and that the same
constitutes an abuse and an undue and unjust disadvantage
and discrimination; that from the evidence of the lady pas
sengers who testified before this Commission, the woman
hood of Texas entertains a fear of serious bodily injury or
personal attack from a negro man and that to subject them
as passengers in Pullman cars to the service where there is
only a negro porter in charge would be to such passengers,
as well as all other passengers, an undue and unjust dis
crimination, prejudice and abuse.
(18) The Commission further finds that the disorderly
conduct among passengers which sometimes occurs on Pull
man cars in Texas can not properly be met or handled by a
Pullman porter; that every Texan, both man and woman,
47
resents any interference or instructions from a negro man
or from a negro porter, and the Commission finds that a
[fol. 58] negro porter would not attempt to and could not
discipline a passenger on a car nor would he attempt to pre
vent any misconduct in such car and if the same should be
indulged in to the humiliation of the other passengers on
such car, that the same could not be prevented nor quieted
by a Pullman porter, while the same could be properly
handled and quieted by a Pullman conductor and therefore
the same would be an abuse and an undue and unjust preju
dice, discrimination and disadvantage.
(19) The Commission further finds that the custom is
developing in the State of Texas by the railroads and the
Pullman companies to place negro porters in charge of the
Pullman cars, and to dispense with the service of the Pull
man conductors; that during the year 1939, the Forms as
prepared and issued by the Pullman Company where there
is a negro porter in charge, have been changed from 4 4 Con
ductor in Charge” to the present form “ Porter in Charge”
and that such forms are in the nature of a receipt given to
passengers to buy a seat or a berth on the Pullman cars;
that the practice of taking off of the trains the Pullman
conductors and substituting in their place the Pullman
porters, and requiring such porters to perform their own
duties, and in addition thereto, the duties of the conductor,
is unfair, unjust and a discrimination, prejudice and dis
advantage to the passengers riding on the Pullman cars in
Texas.
(20) That such changes from “ conductor in charge” to
that of “ porter in charge” have been made during the year
1938 on the runs by the Missouri-Kansas-Texas Railroad
Company of Texas from Fort Worth to San Antonio and
from San Antonio to Waco, which trains serve the cities of
Fort Worth to San Antonio and all intermediate points
where there is located universities and colleges such as
The University of Texas, Baylor University, St. Mary’s,
Texas Christian University and Texas Wesleyan College
and others, and where students and their families travel to
and from such institutions, and in this connection the Com-
[fol. 59] mission further finds from the testimony offered
by the Pullman Company that definite instructions are
given to the negro porters to advise all passengers that he
is in charge of the car and that they are so trained and in-
48
structecl when they use porters in charge for such porters
to advise the traveling public and tell them that he is in
charge of such cars, and that in such instances the porter is
expected to perform not only the janitor service of a porter
but also he is required by the Pullman Company and the
railroad to perform all services of a Pullman conductor.
(21) The Commission further finds that in most instances
the chair cars, as provided by the railroad companies offer
to its passengers the same degree of safety and conveni
ence, including air-conditioning, as that offered by the Pull
man Company and that in addition thereto the chair cars
as provided by the railroad company always offer the serv
ice of a train conductor and brakeman, and in many in
stances that of a train porter; that the Pullman cars in
nearly every instance are attached to the main train and
are placed on the rear of the train to which Pullman cars
the train conductor does not have a key; that the Pullman
cars are thus isolated from the other parts of the train;
that the passengers on the chair cars are not permitted to
go into the Pullman cars and that the protection, care, atten
tion and service thus rendered to the passengers on the
chair car is superior to and exceeds the protection, care,
attention and service in a Pullman car when there is no
Pullman conductor in charge, notwithstanding the railroad
companies exact a higher fare to ride in Pullman cars and
the Pullman Company exacts an additional fare therefor.
Therefore, this constitutes an abuse, an undue and unjust
discrimination, prejudice and disadvantage. In this con
nection, the Commission further finds from the evidence
that the passengers who ride on the trains and pay the fare
[fol. 60] therefor prefer to ride in the chair cars where
they have the protection, care, safety and service of a train
conductor to that of riding in the Pullman car where there
is a porter in charge, regardless of the rate which might be
charged.
(22) The Commission further finds from the testimony
of citizens of this State who voluntarily appeared to testify
and who were not associated with or connected with any
railroad or sleeping car company that
(a) Such witnesses understand that they were required
to pay an extra railroad fare to ride in a Pullman car, over
and above the fare required to ride in the chair cars on
49
the same train; that in addition to this extra fare they
were required to pay an additional charge of tariff rates
for the privilege of riding in the Pullman cars; that such
extra fare was paid because of the convenience, safety,
protection and service in the Pullman cars, including the
services of a Pullman conductor.
(b) The Commission further finds from the testimony of
the witnesses who frequently ride on the trains and on the
Pullman cars that such passengers expect to find both a
Pullman conductor and Pullman porter on the Pullman
cars; that such passengers understand that they are paying
extra for such service and that they do look exclusively to
the Pullman conductor for protection, care and service
while they are riding as passengers on the Pullman cars.
(c) The Commission finds that the experience of such
passengers with the porter in charge has been unsatisfac
tory; that the construction of the Pullman cars is such
that only little curtains protect the passengers one from
another, and that there is a long aisle down the center of
the Pullman cars, and the seats and berths are constructed
alongside of the aisle, and each berth is separated from the
other berths only by these small curtains, and that the lady
[fol. 61] passengers who occupy such expect and are en
titled to the protection, care and service of a Pullman con
ductor while they are thus traveling, and that to deny them
such protection, care and service is an unjust discrimina
tion on the part of the railroads and the Pullman Company.
(d) The Commission further finds that women prefer
not to ride in Pullman cars unless there is a Pullman con
ductor in charge; that they are unwilling to subject them
selves to the supervision of a negro porter and that the
practice on the part of the railroad companies and that of
the Pullman companies in having the porter in charge is
unfair, unjust and unreasonable, so far as these women
passengers are concerned.
(e) The Commission further finds from the testimony
that the mothers of small children in Texas are unwilling
to permit their children to ride in Pullman cars where only
negro porters are in charge; that they entertain a fear that
the children would not be cared for nor protected; that the
4—283
50
children of Texas are entitled to the comfort, convenience
and service of Pullman cars and that to deny them of this
service by failing to provide the necessary employees over
and above that of a porter would be an unjust discrim
ination.
(23) That the rules promulgated by the railroad com
panies of Texas provide that the conductor shall have gen
eral direction and government of the passenger train, but
notwithstanding such rule, in some instances, the train con
ductor never goes into the Pullman cars while the same are
in transit and that he spends his time in the chair cars and
never attempts to exercise any supervision over sleeping-
cars unless called to do so by the Pullman conductor.
(24) The duties of a train conductor are numerous. He
is required to receive and execute all orders relating to the
movement of the train; he must attend to the loading and
unloading of all passengers as well as all baggage, mail and
[fol. 62] express; that the many duties required of the
train conductor consume all of his time and that he does
not have time to supervise the Pullman cars on the trains;
that many of the trains in Texas are very long; that the
regular equipment on one of the trains consists of 18 cars
and some times extra cars; that he must familiarize him
self with general orders and bulletins issued by the sep
arate officers from time to time and see that his train is
properly placed in the station; that he receives orders and
clearances, looks after baggage, mail and express, and see
that same has been properly loaded from the trucks to the
cars, and that loading has been completed; that he fur
nishes the engineer with a copy of orders, as well as the
brakeman or flagman; that he reads the same to the train
porter; that he rides back of the train if the train backs
in or out of the station; that after leaving the station he
lifts the transportation by starting in the .Tim Crow car
and works back; that in some cases he goes into the Pull
man cars and lifts the train transportation; that he also
looks out for the trains and sees that the orders are ful
filled; that meeting points are made and that the stations
are not passed ahead of time; that he sees that the Board
is clear; that it is his duty when trains are meeting each
other to see that his train is on the proper track. He is
required to get off the train at every local station to assist
passengers, no matter how big or how little the town may
51
be. He has supervision over the brakemen and porters.
He receives additional instructions from time to time at
various stations as the train passes on its journey.
(25) That it is impossible for the train conductor to per
form all the duties required of him in the operation of the
train and likewise perform the additional duties of a Pull
man conductor. That it is the custom for the train con
ductor to require the Pullman conductor in many instances
[fol. 63] to collect the train tickets and to deliver them to
the train conductor or send them to him by the train porter,
and in these instances, the train conductor never goes into
the Pullman cars at all. In other instances the train con
ductor simply collects the tickets in the Pullman cars and
never returns thereto unless upon special request of the
Pullman conductor; that the train conductor never renders
any service to the passengers on the Pullman cars, except
when he is specifically requested to do so by the Pullman
conductor.
(26) The Commission finds from all of the evidence in
troduced that the many duties required of a train conductor
demand all of his time; that as a practical matter he does
not have time to render any service to the passengers in
the Pullman cars and as a matter of fact the train con
ductor does not render any service of any character to pas
sengers on the Pullman cars in Texas. In this connection,
the Commission further finds that when the Pullman cars
are being operated without the services of a conductor that
the passengers on Pullman cars are thus deprived of the
services and protection of a conductor and that the pas
sengers riding in the chair cars who have paid less fare to
ride therein do have the services of a white conductor; that
the same constitutes an abuse and unjust discrimination.
(27) The Commission further finds from the testimony
offered that on different occasions Pullman porters while
on duty proceeded to drink excessively and become intoxi
cated, thereby rendering themselves unable to perform the
janitor work required of a Pullman porter, and certainly
unable to perform the duties of a Pullman conductor.
(28) The foregoing acts and things done and performed
by the railroads of Texas and the Pullman Company are
in violation of Articles 4005, 4013 and 6474, Revised Stat
utes 1925, which provide that such railroads and sleeping
52
[fol. 64] car companies shall not collect a fare or compen
sation for any greater or less rate or amount than is
charged all persons under substantially the same circum
stances and conditions.
(29) The foregoing acts and things done and performed
by the railroads of Texas and the Pullman Company are
unjust and unreasonable and amount to unjust and unrea
sonable charges for the services rendered by a colored
porter alone in charge of a sleeping car. And such service
is inadequate to provide for the proper comfort, safety and
convenience of the passengers therein and does not meet the
requirements of the traveling public and the agreement be
tween the railroads and the Pullman Company.
It Is, Therefore, Ordered, Adjudged and Decreed that
it is necessary in order to correct the abuses aforesaid and
eliminate the existing unreasonable and undue disadvan
tage, prejudice and discrimination to such described traffic
that the services, safety, convenience and comfort for which
such extra fare is paid and as contracted between the rail
roads and the Pullman Company be provided, and that
failure to provide it is to the unreasonable and undue dis
advantage and prejudice to and a discrimination against
the said passengers as described, and would be charging a
fare for which contracted services are not performed.
It Is Further Ordered, Adjudged and Decreed that if
such services as contracted to be provided should be fur
nished by having all sleeping cars on each train supervised
by a Pullman conductor while enroute as is the usual and
general practice of the Pullman Company, that such abuse
will be corrected and prevented and such unreasonable and
undue disadvantage, prejudice and discrimination to such
named traffic be eliminated and prevented in the future.
[fol. 65] It is Further Ordered, Adjudged and Decreed
that no extra fare shall be charged or collected by the rail
roads from passengers for the privilege of occupying Pull
man sleeping cars unless the facilities and employees and
supervision of the work of employees and cleanliness of ears
is provided while cars are enroute, all as provided by the
terms of the respective contracts with the Pullman Com
pany, are fully provided.
It is Further Ordered, Adjudged and Decreed that no
extra fare or charge shall be made by the railroads or The
53
Pullman Company for the accommodations of passengers in
a Pullman sleeping car, as provided for by the various con
tracts between the railroads and the Pullman Company, in
which fare or charge the railroad in question will receive or
have any share or which may ultimately contribute to its
having or receiving any remuneration whatsoever unless
the employees of Pullman cars and the cleanliness thereof
are supervised while enroute as provided in said contracts.
It is Further Ordered, Adjudged and Decreed that the
supervision of the work of such employees in Pullman cars
and the cleanliness thereof while enroute as has been ren
dered by Pullman conductors and as now set out in the
Book of Instructions to Pullman conductors now furnished
to such Pullman conductors by the Pullman Company and
introduced as evidence in this case is such supervision as
will meet the requirements of such contracts.
It is Further Ordered, Adjudged and Decreed that no
sleeping car shall be operated on any line of railroad in the
State of Texas when occupied by passengers holding the
proper transportation for the accommodation of such ears,
unless such cars are continuously in the charge of an em
ployee or an authorized agent of the firm or corporation
owning or operating the same having the rank and position
of Pullman conductor.
[fol. 66] It is Further Ordered, Adjudged and Decreed
that no railroad operating in the State of Texas shall
discriminate against passengers in the Pullman cars as
distinguished from the passengers in the chair cars.
It is Further Ordered, Adjudged and Decreed that no
railroad in Texas shall allow any sleeping car or parlor car
to be operated or pulled over its lines for the use and
occupancy of paying passengers of such railroads unless
the employees and services and the supervision of such
employees and the cleanliness of cars are furnished, all as
provided in the contracts between the Pullman Company
and the railroads of Texas made for the benefit of the
traveling public.
It is Further Ordered, Adjudged and Decreed that all
railroad companies, receivers or trustees operating lines
of railroads in Texas be and they are hereby required to
furnish like service on each sleeping car operated over their
lines of railway in Texas as that provided by said railway
company, receiver or trustee for any other sleeping car so
operated.
54
It is Further Ordered, Adjudged and Decreed that all
orders, rules and regulations that are in conflict with this
order are, to the extent of such conflict, expressly repealed
or amended to conform to this order.
It is Further Ordered, Adjudged and Decreed that if
any section, portion, clause or part of this order is held in
valid, the same shall not affect any other section, portion,
clause or part hereof. Except as herein expressly provided,
nothing herein shall modify, amend or repeal any order,
rule or regulation of the Commission heretofore promul
gated or adopted.
It is Further Ordered by the Railroad Commission of
Texas that in any case where it is the desire of any railroad
company, receiver or trustee to operate over its line of rail
way a sleeping car or cars without fully complying with the
[fol. 67] provision of the orders above set out, the Commis
sion shall be notified and its consent secured before such
change or deviation from the terms of said orders is put
in force.
It is not the intention of the Commission to place any
burden on interstate commerce. If any part of this order
or the application and the enforcement thereof when ap
plied to any one or more railroads or any operation thereof
be held to be an undue burden on interstate commerce, then
such holding shall not affect this order as applied to other
operations by railroads not amounting to an undue burden
on interstate commerce.
The effective date of this order shall be December 1, 1939,
and from and after said date all railroads of Texas shall
be required to comply with the terms of this order, which is
an amendment to passenger circular No. 164.
It is so Ordered, at Austin, Texas, on this the 4th day of
November, A. D. 1939.
Railroad Commission of Texas, Lon A. Smith, Chair
man; Jerry Sadler, Commissioner.
Attest: C. F. Petet, Secretary.
55
[fol. 68] E xh ib it “ G ”
pull_ Without Pullman Conductor in State of Texas
man Jtiaiiroaa
line From Time To Time Miles
Southern Pacific L ines
Texas & New Orleans RR
Co.
3128 Terminals: Ft. Worth & Ft. Worth 10.35p Ennis 12.15a 56
Houston Ennis 6.05a Ft. Worth 7.45a 56
Santa F e
Atchinson, Topeka &
Santa Fe Ry. Co.
3015 Terminals: El Paso &
Albuquerque El Paso 10.15p La Tuna 10.50p 18
La Tuna 6.52a El Paso 7.30a 18
M issouri Pacific L ines
Beaumont, Sour Lake &
Western Ry. Co.
3010 Terminals: New Orleans
& Oakland Sabine River 4.20p Houston 7.25p 117
Houston 8.20a Sabine River 11.20a 117
San A ntonio, U valde &
G ulf RR Co.
3748 Terminals: Dallas &
Corpus Christi San Antonio 8.30a Corpus Christi 12.45p 150
Corpus Christi 5.30p San Antonio 9.45p 150
St . L ouis, B rownsville
& M exico R y . Co.
3723 Terminals: St. Louis &
Brownsville Harlingen 7.00a Brownsville 7.55a 25
Brownsville 9.00p Harlingen lO.OOp 25
International— Great
N orthern R. R. Co.
3309 Terminals: Galveston
& St. Louis Galveston 10.30a Houston 11.59a 50
Houston l.lOp Galveston 2.40p 50
T exas & Pacific
Texas & Pacific Ry. Co.
3501 Terminals: St. Louis &
El Paso Texarkana 3 .00p Marshall 4.25p 67
3531 Terminals: Ft. Worth &
Memphis Marshall 2.20a Texarkana 4.10a 67
R ock I sland L ines
Chickago, Rock Island &
Pacific Ry. Co.
3076 Terminals: Oklahoma City
& Amarillo Texola 4.23a Amarillo 7.40a 112
[fol. 69]
M issouri-K ansas-
T exas L ines
Missouri-Kansas-Texas
RR Co. of Texas
3265 Terminals: San Antonio &
Amarillo lO.OOp Texola 12.45a 112
Kansas City San Antonio 1.30p Ft. Worth 9.45p 280
3251 Terminals: Ft. Worth-St.
Waco 3.35p San Antonio 9.00p 192
Louis-Waco Ft. Worth 3.50p Denison 6.25p 96
3258 Terminals: Houston &
Denison 7.00a Waco 11.40a 186
Wichita Falls Ft. Worth 8.30a Wichita Falls 1 .30p 177
Wichita Falls 4.40p Ft. Worth lO.OOp 177
56
E x h ib it “ G” —Continued.
Pull
man Railroad
line
3273 Terminals: San Antonio
& Kansas City
F risco L ines
St. Louis, San Francisco
& Texas Ry. Co.
3424 Terminals: Galveston &
Tulsa
St . L ouis Southw estern
R y . L ines
St. Louis Southwestern
Ry. Co. of Texas
3370 Terminals: Memphis &
Dallas
K ansas C ity Southern
L ines
Kansas City Southern
Ry. Co.
3175 Terminals: Shreveport
& Kansas City
San ta F e
Panhandle and Santa Fe
Railway Co.
3010 Terminals: New Orleans
& Oakland
B urlinoton L ines
Fort Worth and Denver
City Ry. Co.
3106 Terminals: Dallas-Denver
Without Pullman Conductor in State of Texas
From Time To Time Ml
Denison 11.30a Colbert 11.42a
Colbert 6.40p Denison 7.05p
Denison 11.45a Platter 12,05p 1
Platter 6.47p Denison 7.22p I
Texarkana 5.00a Dallas 9.25a IS
Dallas 6. OOp Texarkana 11.05p 1!
Bloomburg 7 .48p The Red River 8 .20p 1
The Red River 10.10a Bloomburg 10.40a I
Sweetwater
Texico
10.20a Texico
1 .53p Sweetwater
3 ,40p 21!
7.00p 2!
Amarillo
Texline
7.55a Texline 11.03a It
7. OOp Amarillo 9 .45p It
[fol. 70] [File endorsement omitted.]
[ fo l . 71] I n U n ited S tates D istrict C ourt
[Title omitted]
T em porary R estrain in g O rder— Filed November 28, 1939
Hearing of the application of the plaintiffs in the above
cause for temporary restraining order having been set for
this date, came the plaintiffs by their attorneys, and pur
suant to due notice came also the defendants by their at
torney, the Attorney General of the State of Texas; and the
parties announced ready for said hearing, and after hearing
and considering the verified amended complaint, and the
57
argument of counsel; and it appearing that in the complaint
the plaintiffs challenge the validity of certain orders of the
Railroad Commission of Texas on Federal constitutional
grounds and that substantial Federal questions are_ pre
sented in the complaint and that this Court has jurisdic
tion of the parties and the subject-matter; and it having
been made clearly to appear from specific facts shown by
the verified complaint that, unless a temporary restraining
order is granted, plaintiffs will suffer immediate and ir
reparable injury, loss and damage, in that the order of the
Railroad Commission dated August 8, 1939 (Exhibit A in
the complaint) and the order of the Railroad Commission
dated November 4, 1939 (Exhibit F in complaint), impose
heavy burdens upon the plaintiffs beginning December 1,
1939; and the plaintiffs are entitled by the laws of the State
of Texas to have said orders reviewed in a court of compe-
[fol. 72] tent jurisdiction in Travis County, Texas, and that
there is no provision in the State law or in the challenged or
ders suspending their enforcement pending such review,
and that, in the absence of a temporary restraining order or
injunction, plaintiffs will be subjected to prosecution for
heavy, daily recurring, penalties for failing and refusing to
obey said orders on and after December 1, 1939;
Wherefore, it is ordered that upon the filing by the plain
tiffs of a good and sufficient bond in the sum of $10,000.00
to be approved by the clerk of this Court, payable to the
defendants named in the complaint, and conditioned that
plaintiffs will answer for all damages and costs which the
defendants may sustain in consequence of the issuance of
this temporary restraining order, or of any extensions
thereof, the clerk of the United States District Court for the
Western District of Texas issue a temporary restraining
order enjoining and restraining the defendants Railroad
Commission of Texas and the members thereof and the At
torney General of the State of Texas, their respective repre
sentatives, agents, servants and employees, from attempting
to enforce against the plaintiffs, or any of them, the afore
said orders of the Railroad Commission of Texas (Exhibits
A and F attached to the complaint), and from instituting or
prosecuting any suit or suits against the plaintiffs, or any
of them, for penalties, or otherwise, for violation of said
orders, or any part thereof. And it is further ordered that
said temporary restraining order shall remain in force only
until the hearing and determination of the application for
58
interlocutory injunction upon notice. And it is further
ordered that a statutory three judge court be convened
a t ------ , Texas, on the — day o f ------19—, a t -------- in., f0i
the purpose of hearing plaintiffs ’ application for interlocu
tory injunction; and that the defendants and the Governor
[fol. 73] of Texas be given notice of said hearing as re
quired by Section 380, Title 28, United States Code, and the
clerk is directed to issue for service on said interested par
ties copies of this order.
Done at Waco, Texas, this the 28th day of November,
A. D. 1939.
(S.) Charles A. Boynton, United States District
J udge.
Ent’d: Civ. 0. B. Vol. 1, page 53.
[File endorsement omitted.]
[fols. 74-76] Bond on restraining order for $10,000.00 ap
proved and filed November 28, 1939, omitted in printing.
[ fo l . 77] l x U n ited S tates D istrict C ourt
[Title omitted]
Order C o n ven in g S tatu to ry T h r e e -J udge C ourt— F iled
January 12, 1940
Plaintiffs having presented their Amended Complaint,
duly verified, praying, among other things, for a preliminary
or temporary injunction, enjoining certain orders of the
Railroad Commission of Texas on Federal constitutional
grounds; and it appearing to me upon considering said
Amended Complaint that the matters therein presented are
within the jurisdiction of a district court of three judges,
as provided in Section 380, Title 28, U. S. Code (Section 266
of the Judicial Code, as amended), it is hereby ordered that
the plaintiffs’ application for said preliminary injunction
as contained in their Amended Complaint shall be heard by
a district court of three judges at Austin, Texas, in the
court room in the United States Court Building, on Feb
ruary 12,1940, at 9 :30 A. M .; and for such purpose I hereby
59
call to my assistance the Honorable Edwin R. Holmes,
United States Circuit Judge for the Fifth Circuit, and the
Honorable James V. Allred, United States District Judge
for the Southern District of Texas, to each of whom a copy
of this order will be forwarded by the clerk of this court.
The parties and the Governor of the State of Texas will be
given notice of said hearing, and the clerk is directed to
issue for service on the Governor of Texas a copy of this
order, together with copy of said Amended Complaint;
and to forward by mail a copy of this order to attorneys of
record for the respective parties.
[fol. 78] Done at San Antonio, Texas, this 12th day of
January, 1940.
(S.) Robert J. McMillan, United States District Judge.
Ent’d: Civ. 0. B., Yol. 1, page 57.
[File endorsement omitted.]
[fol. 79] In U nited S tates D istrict C ourt
W rit to S erve C opy of Order C on ven in g S tatutory T h r e e -
J udge C ourt and A mended C o m plain t—Filed January
17, 1940
The President of the United States of America to the Mar
shal of the Western District of Texas, Greeting:
You Are Hereby Commanded to Serve Honorable W. Lee
O’Daniel, Governor of the State of Texas, with the accom
panying
(1) Certified copy of Order Convening Statutory Three-
Judge Court,
(2) Amended Complaint,
In Case No. 38 Civil Action and styled The Pullman Com
pany, et al., vs. The Railroad Commission of Texas, et al.,
Herein fail not, and due return of this Writ make.
Witness, the Honorable Robert J. McMillan, Judge of
the United States District Court for the Western District
of Texas, and the seal of said Court, at Austin, Texas, this
13th day of January, A. D. 1940.
Maxey Hart, Clerk of said Court. By Joe Steiner,
Deputy. (Seal.)
60
M a r s h a l ’ s R etu rn
Received this writ at Austin, Texas, on January 13, 1940,
and on January 15, 1940, at Austin, Texas, I executed same
by delivering to W. Lee O’Daniel, Governor of the State
[fol. 80] of Texas, in person, a Certified copy of Order Con
vening Statutory Three-Judge Court and Amended Com
plaint, as I am herein commanded.
Guy McNamara, U. S. Marshal, by Oscar T. Martin,
Deputy.
[File endorsement omitted.]
[fol. 81] I n U n ited S tates D istrict C ourt
[Title omitted]
D e f e n d a n t s ’ F irst A m ended M otions to D ism iss and to
S t r ik e C ertain P ortions of C o m p l a in t— Filed January
27, 1940
To Said Honorable Court:
Now come the defendants, the Railroad Commission of
Texas, and Lon A. Smith, Ernest O. Thompson, and Jerry
Sadler, members of said Railroad Commission, and Gerald
C. Mann, Attorney General of Texas, and in lieu of the
motions heretofore filed on the 13th day of December, 1939,
file and present these amended motions, as follows:
1
The defendants move to dismiss the action because the
complaint fails to state a cause of action in favor of any
plaintiff against any defendant upon which relief can be
granted.
2
The defendants move to dismiss the action because
the complaint shows that there is a misjoinder of plaintiffs
and a misjoinder of causes of action, if any, because said
complaint alleges that the enforcement of the orders in
question, when applied to some of the plaintiffs, constitutes
an interference with interstate commerce, and when applied
to the other plaintiffs, does not constitute an interference
61
with interstate commerce, and said complaint shows that the
facts relied on by each plaintiff are distinct and different
from those relied on by the other plaintiffs.
[fol. 82] 3
The defendants move to dismiss the action as against
all plaintiffs for the reason that there is a misjoinder of
parties-plaintiff, in that the relationship between the plain
tiffs is not such that any one or more of the plaintiffs may
take advantage of any alleged injury suffered by the other
plaintiff; and, furthermore, the allegations in the plaintiffs’
Bill of Complaint are not sufficient to show each plaintiff
has individually suffered damages in an amount to give this
Honorable Court jurisdiction.
4
The defendants move to dismiss the action, or in lieu
thereof, to require a severance, because there is a mis
joinder of causes of action, in that the cause of action
asserted by each plaintiff (except The Pullman Company) is
different from that asserted by the other plaintiffs, the
order complained of applied to a different situation as re
spects each plaintiff, under different conditions, and with
different results.
5
The defendants move to dismiss the action as against
plaintiff The Pullman Company for the reason that the peti
tion shows upon its face that such plaintiff has no such
interest as would entitle it to maintain the action.
6
The defendants move to dismiss the action as against
all plaintiffs, except The Pullman Company and one other,
for the reason that there is a misjoinder of causes of action,
in that the cause of action sought to be maintained by each
plaintiff (except The Pullman Company) is different from
the cause of action sought to be maintained by any other
plaintiff.
7
The defendants move to dismiss the action because the
complaint shows that the Railroad Commission of Texas
[fol. 83] had authority under the statutes of Texas to enter
62
the orders and do the acts in question, and the complaint
fails to alleged that there was insufficient evidence or no
evidence before said Commission to support or justify said
orders, or that said Commission entered an order or orders
contrary to the evidence before it, or that in view of the
evidence before said Commission said orders were arbitrary
or unreasonable.
8
The defendants move to dismiss the action because the
complaint shows that the Railroad Commission of Texas
had authority under the statutes of Texas to enter the or
ders and do the acts in question, and the complaint does not
show that said order or the enforcement thereof constitutes
unlawful interference with interstate commerce.
9
The defendants move to dismiss the action because the
complaint shows that the Railroad Commission of Texas
had authority under the statutes of Texas to enter the
orders and do the acts in question, and the complaint does
not show that said orders or the enforcement thereof con
stitute a taking of the plaintiffs’ property “ without due
process of law.”
10
The defendants move to dismiss the action because the
complaint shows that the Railroad Commission of Texas
had authority under the statutes of Texas to enter the
orders and do the acts in question, and the complaint fails
to allege that there was insufficient evidence or no evidence
before said Commission to support or justify said order,
or that said Commission entered an order or orders con
trary to the evidence before it, or that in view of the
evidence before said Commission said orders were arbi
trary or unreasonable, and the complaint does not show that
[fol. 84] said order or the enforcement thereof constitutes
an unlawful interference with interstate commerce, and the
complaint does not show that said orders or the enforce
ment thereof constitute a taking of the plaintiff’s property
‘ ‘ without due process of law. ’ ’
11
The defendants move to strike that part of paragraph
No. 3 in the complaint alleging that the matter in cos-
63
troversy exceeds, exclusive of interest and costs, tlie sum
of Three Thousand Dollars ($3,000.00) as to plaintiffs
jointly, for the reason that such allegation is wholly im
material.
12
The defendants move to strike that part of paragraph No.
7 in the complaint alleging that “ the latter order (Exhibit
“ F ” ) contains many erroneous findings that are contrary
to the facts,” for the reason that such allegation is wholly
immaterial since (1) if the action is merely an equitable one,
and a collateral attack upon an order of the Railroad Com
mission of Texas, to-wit, the order dated November 4, 1939,
a copy of which, marked Exhibit “ F ” , is attached to plain
tiffs ’ petition, then the sufficiency of the evidence to sustain
such order cannot be attacked, and in particular in this
manner, and since (2) if the action be deemed a statutory
appeal from the order of the Railroad Commission under
Article 6453, Revised Civil Statutes of Texas, the findings
of the Railroad Commission cannot be attacked by an in
dependent inquiry into the facts so found, since if such
findings can be attacked it would be upon the only basis that
there was no evidence before the Commission, or that there
was not sufficient evidence before the Commission to sus
tain such findings.
13
The defendants move to strike from the complaint those
allegations in paragraph No. 27 thereof to the effect that the
[fol. 85] quality of service of Pullman cars is not dimin
ished when Pullman conductor operation is not provided
thereon, and that on trains where there is no Pullman con
ductor operation the service rendered to passengers is
of the same character and quality as that accorded where
Pullman conductors are operated, and the allegations con
tained in paragraph No. 28 of said complaint alleging
that the facts do not warrant the conclusion that the quality
of service rendered to its traveling patrons on the lines in
Texas described in Exhibit “ G” is inferior to that ren
dered on the lines that are accompanied by Pullman con
ductors, for the reason that such allegations are wholly im
material. In this connection it is shown that if the action
is an equitable one and a collateral attack upon the order
of the Railroad Commission of Texas appealed from, then
64
the facts found by the Railroad Commission as a basis for
its order are not subject to attack, particularly by ai
inquiry into such facts, and if such action be an appeal from
the order of the Railroad Commission under Article 6453,
Revised Civil Statutes, then an inquiry into such facts is
likewise immaterial since if such findings could be attacked
at all it would only be upon alleging and showing that there
was no evidence before the Railroad Commission, or that
the evidence was insufficient to sustain the finding of the
Railroad Commission.
14
The defendants move to strike that part of paragraph
No. 29 of said complaint alleging that the net amount of
added expense (which would allegedly result from com
pliance with said order) after allowing such offset item
could be approximately Thirty-three Thousand Dollars
($33,000.00) per annum, for the reason that such allegation
is wholly immaterial, and indefinite, and that no facts are
alleged from which it may be determined what loss, if any,
would be suffered by any particular plaintiff.
[fol. 86] 15
The defendants move to strike that part of paragraph
No. 30 in said complaint alleging that the property rights
that will be destroyed by the enforcement of said order
are of the value of a sum exceeding Three Thousand Dollars
($3,000.00) to plaintiffs jointly, for the reason that such
allegation is immaterial, and since each of the plaintiffs
has an independent action, the value to all of the plaintiffs
jointly could not be considered as determining the juris
dictional question.
16
The defendants move to strike paragraph No. 18 of the
complaint for the reason that same states conclusions only,
it pleads no fact, is inflammatory and prejudicial, and is
neither material nor relevant to any issue.
(S.) Gerald C. Mann, Attorney General of Texas.
Cecil C. Rotsch, Assistant Attorney General
Lee Shoptaw, Assistant Attorney General. Glenn
R. Lewis, Assistant Attorney General.
65
January 27, 1940.
The undersigned attorneys for the plaintiffs hereby ac
knowledge that on this date they received a copy of the
above motions; and they have no objections to the filing of
the same.
(S.) Ireland Graves, Attorney for The Pullman Com
pany.
(S.) Claude Pollard, Attorney for all plaintiffs ex
cepting The Pullman Company.
[fol. 87] [File endorsement omitted]
[fol. 88] In U n ited S tates D istrict C ourt
[Title omitted]
D e fen d an ts ’ O rigin al A n sw er— Filed December 13,1939
To Said Honorable Court:
Now come the defendants, the Railroad Commission of
Texas and Lon A. Smith, Ernest 0. Thompson, and Jerry
Sadler, members of said Railroad Commission, and Gerald
C. Mann, Attorney General of Texas, and present the fol
lowing in defense to the cause of action sought to he main
tained against them herein.
First Defense
The complaint fails to state a cause of action in favor
of any plaintiff against any defendant upon which relief
can be granted.
Second Defense
Defendants admit the allegations contained in Para
graphs Nos. 1, 4, 5, 6 and 7 of said petition, and admit all
of paragraph 2 except the last sentence thereof, which last
sentence is denied.
Defendants deny that the order, a copy of which, marked
Exhibit “ F ” , is attached to the complaint, contains er
roneous findings that are contrary to the facts; otherwise,
defendants admit the allegations contained in Paragraph
No. 8 of the complaint.
5—283
6 6
[fol. 89] Defendants deny tlie allegations contained in
Paragraph No. 9 of said complaint, but say that the findings
mentioned in said Paragraph No. 9 formed a part of the
grounds upon which the order dated November 4, 1939, was
based, and in this connection these defendants say that the
findings upon which the order was predicated appear from
said order itself, a copy of which is attached to the com
plaint, marked Exhibit “ F ” .
Defendants deny the allegations contained in Paragraph
No. 10 of said complaint, and say that the facts are as shown
in the Exhibits attached to the complaint.
Defendants deny the allegations contained in Paragraph
No. 11 of said complaint to the effect that the Railroad Com
mission, under existing conditions, is powerless to issue or
enforce a tariff allowing the differential mentioned in said
paragraph, and are without knowledge or information suf
ficient to form a belief as to the truth of the allegation that
such a tariff would be in conflict with interstate tariffs
approved by the Interstate Commerce Commission; other
wise, defendants admit the allegations contained in said
Paragraph No. 11.
These defendants deny the allegations contained in Para
graphs Nos. 3, 12, 13, 14, 16 and 36 of said petition.
Defendants are without knowledge or information suf
ficient to form a belief as to the truth of the allegations con
tained in Paragraph No. 15 of the complaint to the effect
that the contracts between The Pullman Company and the
other plaintiffs have not been breached, and are not be
ing breached, but are being fully performed to the entire
satisfaction of the parties thereto, and to the effect that
it is of no consequence to the passengers whether the rail
roads supply the sleeping car accommodations, or whether
by means of contracts they cause such accommodations to be
[fol. 90] furnished by The Pullman Company, and the other
allegations contained in said Paragraph No. 15 these de
fendants deny.
I f by the allegation in Paragraph No. 17 of the complaint
that “ the Commission has not found, and it is not a fact,
that the Pullman porters on such runs are incompetent, or
that Pullman porters on such runs are inherently, or, as a
class, offensive, untrustworthy, or unsatisfactory” it was
meant to allege that the Commission had not found that the
Pullman porters are incompetent or inherently, or, as a
class, offensive, untrustworthy, or unsatisfactory for porter
67
service, then defendants admit the truth thereof; but if it
was intended to thereby allege that the Commission had
not found, and that it is not a fact, that Pullman porters are
incompetent, or inherently, or, as a class, offensive, or
unsatisfactory as Pullman porters, then the defendants
deny the same. These defendants admit that occasional
drunkenness is not confined to Pullman porters, nor to the
negro race; otherwise, these defendants deny the allega
tions contained in Paragraph No. 17.
Defendants deny that part of Paragraph No. 18 of said
complaint alleging that “ the Bailroad Commission is issu
ing the challenged order has discriminated against certain
employees of the Pullman Company, because they belong
to the negro race” . The allegation in said Paragraph No.
18 to the effect that the order will require the performance
of certain services by members of the white race and thereby
prevent the performance thereof by members of the negro
race of certain compensation which they might earn in the
absence of such order, is denied if such member or members
of the negro race have acquired the rank, qualifications and
training of Pullman conductor. The other allegations in
Paragraph No. 18 are denied.
[fol. 91] These defendants deny those allegations in Para
graph No. 19 of the complaint to the effect that the order
in question burdens interstate commerce, and is in conflict
with applicable passenger tariffs in force with the ap
proval of the Interstate Commerce Commission, and further
deny the allegations contained in said Paragraph No. 19
to the effect that the plaintiff railroad companies are en
titled to transport passengers in the Pullman cars without
being required to conform to the burdens of the challenged
order. Defendants say that they are without knowledge or
information sufficient to form a belief as to the truth of
the allegations contained in Paragraph No. 19 to the effect
that on the lines described in Exhibit “ G” interstate
passengers are transported in the Pullman cars, and that
on some of them, notably those described as Pullman Line
No. 3175, operating between Shreveport, Louisiana, and
Kansas City, Missouri, the only passengers transported in
the Pullman cars in the State of Texas are interstate pas
sengers. Defendants admit that the challenged order con
tains the recitation attributed to it, and set out in quota
tions on page 21, in Paragraph No. 19 of said complaint.
All other allegations contained in Paragraph No. 19 are
denied by the defendants.
6 8
Defendants deny that part of paragraph No. 20 of the
complaint alleging that “ the challenged order, unless en
joined, will operate as an arbitrary and unreasonable in
terference with such right and will require the employment
of additional Pullman employees whose employment is not
warranted by the transportation demands” , and defend
ants say that they are without knowledge or information
sufficient to form a belief as to the truth of the other allega
tions contained in said Paragraph No. 20.
Defendants admit that the challenged order purports to
prohibit the operation in the State of Texas of a Pullman
[fol. 92] or sleeping car or ears as a part of a railroad pas
senger train, unless such cars while occupied by passengers
are continuously in charge of a Pullman conductor, but they
deny that all Pullman cars as an integral part of the train
are at all times in charge of the train conductor, that is,
the effective or actual charge. Defendants admit those
allegations complained — in Paragraph No. 21 to the effect
that at the present time a number of the regularly scheduled
railroad passenger trains in the State of Texas, on which
Pullman sleeping cars are operated, have no Pullman con
ductor on board during all or a portion of the operation.
Defendants admit the allegations contained in said Para
graph No. 21 concerning and explanatory of Exhibit “ G”
attached to said complaint. Defendants are without suf
ficient knowledge or information sufficient to form a belief
as to the truth of the other allegations contained in said
Paragraph No. 21.
These defendants admit the allegations of fact contained
in Paragraph No. 22 of the complaint pertaining to Pullman
Line No. 3273, on page 28; Pullman Line No. 3015, on page
28; Pullman Line No. 3531, at page 28. Defendants are
without knowledge or information sufficient to form a belief
as to the truth of the allegations contained in said Para
graph No. 22 pertaining to Pullman Line No. 3723 to the
effect that compliance with the challenged order would re
quire either two Pullman conductors on the train at the
same time north of Harlingen, or would require the station
ing of a Pullman conductor at either Brownsville or Har
lingen for the purpose of traveling on the train between
those points. The other allegations in said Paragraph No.
22 relating to Pullman Line No. 3723 are admitted. Defend
ants say that they are without knowledge or information
sufficient to form a belief as to the truth of the allegation
69
in Paragraph No. 22 of the complaint pertaining to Pullman
[fol. 93] Line 3128 to the effect that the operation has been
in effect continuously since 1925. Defendants deny that
compliance with the challenged order would require the un
necessary employment of an additional Pullman conductor
to accompany the train between Fort Worth and Ennis.
Other allegations contained in Paragraph No. 22, pertaining
to Pullman Line No. 3128 are admitted. Defendants are
without knowledge or information sufficient to form a belief
as to the truth of the allegation contained in Paragraph No.
22 with reference to Pullman Line No. 3258 to the effect
that on the Pullman car between Fort Worth and Wichita
Falls the line averages 2.3 passengers Northbound, and
3.4 passengers Southbound daily. Defendants admit the
other allegations contained in said Paragraph No. 22 with
reference to Pullman Line No. 3258. Defendants are with
out knowledge or information sufficient to form a belief as
to the truth of the allegation in Paragraph No. 22 of the
complaint pertaining to Pullman Line No. 3309 to the effect
that in the Pullman car between San Antonio and Corpus
Christi the train averages daily three (3) passengers North
bound and four (4) passengers Southbound; otherwise, the
allegations contained in said paragraph with reference to
Pullman Line No. 3309 are admitted. Defendants are with
out knowledge or information sufficient to form a belief
as to the truth of the allegation with reference to Pullman
Line No. 3501 in said Paragraph No. 22 that the method of
operation from Texarkana to Marshall has been in effect
for more than twelve (12) years. Defendants admit the
allegations contained in Paragraph No. 22 of said complaint
pertaining to Pullman Line No. 3424; Pullman Line No.
3273; Pullman Line No. 3015; and Pullman Line No. 3531.
Defendants are without knowledge or information sufficient
to form a belief as to the truth of the allegation that Pull
man Line No. 3175 has operated between Shreveport and
Kansas City without a Pullman conductor for a period of
[fol. 94] approximately seven (7) years. The other allega
tions contained in said Paragraph No. 22 with reference to
Pullman Line No. 3175 are admitted.
_ Defendants are without knowledge or information suffi
cient to form a belief as to the truth of the allegations con
tained in Paragraphs Nos. 23 and 24 of said complaint.
Defendants deny those allegations contained in Para
graph No. 25 of the complaint to the effect that the need for
70
a Pullman conductor on a given train is determined by oper
ating conditions affecting that train, including the volume
of traffic, the length of the train with the consequent de
mands upon the time and services of the railroad and Pull
man employees, and to the effect that the operations on
which Pullman conductors are not now being used in Texas
embrace runs of the kind described in said paragraph, and
those in which traffic is light and where the revenue and
other factors do not warrant the additional expense that
would be incurred in providing Pullman conductors. In
this connection defendants show that other factors than
those mentioned in said paragraph enter into the need of
a Pullman conductor, and that such other factors do war
rant the additional expense if any that would be incurred
in providing Pullman conductors. Defendants are without
knowledge or information sufficient to form a belief as to
the truth of the other allegations contained in said Para
graph No. 25.
Defendants admit that the duties set out in Paragraph
No. 26 of the complaint of Pullman conductors are a part
of the duties of such Pullman Conductors, but deny that
those set forth are all of such duties, and defendants deny
that one Pullman employee on the car is able to do all that
is required to maintain the service, particularly if such
employees is a negro porter. Defendants are without
knowledge or information sufficient to form a belief as to
[fol. 95] the truth of the allegations contained in said Para
graph No. 26 to the effect that the train conductor is in
charge of the entire train, including the Pullman cars, and
that all Pullman employees are subject to his orders, and
that the rules governing the duties of Pullman employees
require them to refer many matters of operation to the
authority and discretion of the train conductor.
Defendants deny those allegations contained in Para
graph No. 27 of the complaint to the effect that the quality
of Pullman car service is not diminished when Pullman
conductor operation is not provided for the same, and
deny that the character of service is the same whether the
Pullman car is in charge of a Pullman conductor, or a Pull
man porter, and deny that Pullman porters are qualified
to perform the duties that would be performed by Pullman
conductors if present. Defendants admit that the success
ful operation of The Pullman Company’s business neces
sarily depends upon the company’s maintaining a higher
71
quality of service to passengers. Defendants are without
knowledge or information sufficient to form a belief as to
the truth of the other allegations contained in said Para
graph No. 27.
Defendants are without knowledge or information suffi
cient to form a belief as to the truth of the allegation con
tained in Paragraph No. 28 of the complaint to the effect
that the Pullman Company’s method of conducting its
operations in Texas is similar to that employed elsewhere
under similar conditions; otherwise, the allegations con
tained in said Paragraph No. 28 are denied.
Defendants deny the allegations contained in Paragraph
No. 29 of the complaint to the effect that the order would
cause a net added expense of approximately $33,000.00 per
annum to the Pullman Company. Defendants are without
knowledge or information sufficient to form a belief as to
the truth of the remaining allegations in said Paragraph
No. 29.
[fol. 96] Defendants deny that allegation in Paragraph
No. 30 of the complaint to the effect that the enforcement
of the order complained of would unconstitutionally deprive
the Pullman Company of any rights; otherwise, defendants
are without knowledge or information sufficient to form a
belief as to the truth of the other allegations in said Para
graph No. 30.
Defendants deny the allegation contained in Paragraph
No. 31 of the complaint to the effect that no complaints
have arisen in Texas from the operation of cars without
Pullman conductors, or from the conduct or services of
Pullman porters on duty in such circumstances. Defend
ants are without knowledge or information sufficient to
form a belief as to the truth of the other allegations con
tained in said Paragraph No. 31.
Defendants admit the allegations contained in Paragraph
No. 32 of the complaint to the effect that the operation of
Pullman cars as integral parts of railroad trains is neces
sary to the conduct of the business of railroad passenger
transportation, and to the effect that the railroads require
sleeping car and other Pullman car accommodations for
their passengers in order to meet the demands of the
traveling public. Defendants are without information or
knowledge sufficient to form a belief as to the remaining
allegations in said Paragraph No. 32.
72
Defendants deny the allegation in Paragraph No. 33
of the complaint to the effect that the Pullman Company
is not a common carrier, and is not engaged in business in
Texas as a common carrier, and to the effect that the rail
road Commission of Texas has no jurisdiction over and no
duties to perform in respect of the Pullman Company. De
fendants are without knowledge or information sufficient
to form a belief as to the truth of the remaining allegations
in said Paragraph No. 33.
[fol. 97] Defendants deny the allegations in Paragraph
No. 34 of the complaint to the effect that the Railroad Com
mission had no authority or power to promulgate or to en
force the order complained of, and deny that plaintiffs
have no adequate remedy at law. Other allegations in said
Paragraph No. 34 are admitted.
Defendants deny the strict correctness of the conclusions
set forth at the outset of Paragraph No. 35 of the com
plaint, and down to 35-a, and say that the order of the
Commission, copy of which is attached to the complaint as
Exhibit “ F ” , shows the correct basis for such action on the
part of the Commission. All other allegations in said Para
graph No. 35 are denied, as well as all other allegations of
fact contained in said complaint which have not been spe
cifically touched upon above.
Third Defense
These defendants say that the order of the Railroad
Commission of Texas dated November 4, 1939, a copy of
which is attached to the complaint as Exhibit “ F ” was en
tered after due notice of the hearing, that the facts therein
found are true, that the Railroad Commission of Texas had
before it ample and sufficient evidence sustaining the facts
therein found, and that such order does not contravene the
provisions of the Federal Constitution mentioned in the
complaint, or any other Articles or Sections thereof, and
that the Railroad Commission of Texas was acting within
the authority of the Constitution and laws of the State of
Texas.
Wherefore, these defendants pray that the relief sought
by the plaintiffs in this cause be denied.
(s) Gerald C. Mann, Attorney General of Texas. Ce
cil C. Rotsch, Assistant Attorney General. Lee
Shoptaw, Assistant Attorney General. Glenn R.
Lewis, Assistant Attorney General, Austin, Texas.
73
[fol. 98] Copy received, December 13, 1939.
(s) Ireland Graves, Attorneys for The Pullman
Company. Claude Pollard, Attorney For Other
Plaintiffs.
[File endorsement omitted.]
[fol. 99] In U n ited S tates D istrict C ourt
[Title omitted]
O rder G ra n tin g W arren J. W est , A lle n H arvey and
F idella H . M cB e y , P u l l m a n P orters, L eave to I n t e r
vene as P l a in t if f s— Filed Feb. 19, 1940
The motion of Warren J. West, Allen Harvey and Fidella
H. McBay for leave to intervene in this cause as plain
tiffs is hereby granted.
Done in open Court this 17th day of February, 1940.
(s) Sami H. Sibley, United States Circuit Judge
for the Fifth Circuit. Robert J. McMillan, United
States District Judge. James V. Allred, United
States District Judge.
Entered: Civ. 0. B., Yol. 1, page 79
[File endorsement omitted.]
[fol. 100] I n U n ited S tates D istrict C ourt
[Title omitted]
Co m plain t of I n terven er -P l a in t if f s W arren J. W est ,
et a l ., P u l l m a n P orters— Filed February 17, 1940
To the Honorable Judges of said Court:
Warren J. West, Allen Harvey and Fidelia H. McBay,
as intervener-plaintiffs, respectfully show to the Court:
1. The said Warren J. West is a resident of the City of
San Antonio, in Bexar County, Texas; and Allen Harvey
and Fidella H. McBay are residents of the City of Ft.
74
Worth, in Tarrant County, Texas. Each of them is a citizen
of the United States of America and of the State of Texas.
2. Intervener-plaintiffs hereby adopt the averments in
the Amended Complaint of the plaintiffs herein, with the
same effect as if they were set forth at length in this com
plaint.
3. Additionally, intervener-plaintiffs aver that they are
regularly employed by The Pullman Company as porters,
and that each is regularly assigned to trains that for at
least a part of the route in the State of Texas are not ac
companied by a Pullman conductor, and where such inter
vener-plaintiff is the only employee of The Pullman Com
pany on the train. Such operations are known as porter-
in-charge runs, and for such service, in addition to the
regular porter’s salary, the porter-in-charge receives ex
tra compensation from The Pullman Company of $13.50
[fob 101] per month, or approximately $162.00 per annum.
The enforcement of the Railroad Commission’s order dated
November 4, 1939, known as Passenger Circular 164 (Ex
hibit F in Plaintiff’s Amended Complaint) would deprive
each of the intervener-plaintiffs of said extra compensation.
4. Said Warren J. West is 62 years of age and has been
regularly employed by The Pullman Company as a porter
for a period of 20 years; the said Allen Harvey is 59 years
of age and has been regularly employed by The Pullman
Company as a porter for a period of 30 years; the said
Fidelia H. McBay is 49 years of age and has been regularly
employed by The Pullman Company as a porter for 21
years. Each of the intervener-plaintiffs is in reasonably
good health. Each of them will be entitled to retire from
active service at the age of 65 years and thereafter will be
entitled to receive monthly compensation or benefits pur
suant to the Federal statute known as the Railroad Retire
ment Act. The benefits that each will receive will be re
duced if the salary that he receives from The Pullman Com
pany during the term of his active service is reduced. Con
sequently, the enforcement of the said Passenger Circular
No. 164 will injuriously affect each of the intervener-plain-
tiffs during the period of his active service and also there
after during the period of his retirement.
5. No notice of the hearing held by the Railroad Commis
sion on August 31, 1939, was given to any of these inter-
75
vener-plaintiffs or to any person then representing any of
them. Intervener-plaintiff's had no knowledge that the hear
ing would be held, and did not attend said hearing in person
or by representative.
6. For a number of years each of the intervener-plain
tiffs has been entrusted by The Pullman Company with the
responsibility of serving as porter-in-charge on Pullman
lines operating in and through the State of Texas. Passen-
[fol. 102] gers on the Pullman cars are not subjected to
the dangers or discriminations as found by the Railroad
Commission in its Order (Passenger Circular 164 as amen
ded), since the porters-in-charge have demonstrated in
long years of service that they are men of good character,
and are faithful, dependable, loyal and competent. Whether
a man has these qualities is not determined by his race or
color. The Pullman Company’s patrons receive while on
the cars in charge of intervener-plaintiffs and other por
ters exactly the same service that they receive when the
porters are not in charge, and in no way is the standard
of service lower in the former instance than it is in the
latter.
7. As shown in said Amended Complaint, the said Rail
road Commission’s order, Amended Passenger Circular
164, will deny to each of the intervener-plaintiffs his rights
as a porter-in-charge on the ground that he is a member of
the colored or negro race, in violation of the equal protec
tion clause and the due process clause of the 14th Amend
ment to the Constitution of the United States. For said
reasons and for the reasons stated in Plaintiffs’ Amended
Complaint, said Railroad Commission order is invalid and
unenforceable.
Wherefore, the intervener-plaintiffs hereby seek the re
lief prayed for in Plaintiffs’ Amended Complaint.
(S.) Warren J. West, (S) Allen Harvey, (S) Fidelia
Hall McBay, Intervener-Plaintiffs. (S) Ireland
Graves, Attorney for Intervener-Plaintiffs. Ad
dress : Norwood Building, Austin, Texas.
[F ile endorsem ent om itted.]
76
[fol. 103] In U n ited S tates D istrict C ourt
[Title omitted]
A pplicatio n of M. B. C u n n in g h a m , et a l ., P u l l m a n C on
ductors, to I n terven e— Filed Feb. 17, 1940
To Said Honorable Court:
Comes now M. B. Cunningham of Fort Worth, Texas,
W. M. Hadley of San Antonio, Texas, W. A. Worley of
Dallas, Texas, and file this their Application to Intervene in
the above styled and numbered cause and with respect
would show:
1
Your applicants are each engaged in the profession as
Pullman Conductors; each of them are now employed by
the Pullman Company, one of the plaintiffs in the above
cause, and have been so employed for many years prior to
the filing of this application. Your applicants file this
application for intervention in this cause on their own
behalf and that of all other Pullman Conductors desiring
to join in such application and on behalf of the Order of
Sleeping Car Conductors, which is an association composed
of about 1500 men engaged in the profession as Pullman
Conductors, and in this association there are approximately
90 per cent of all the Pullman Conductors engaged in the
profession, and for grounds of intervention would show:
2
The subject matter of this litigation is Circular Order
No. 164 promulgated by the Railroad Commission of Texas
[fol. 104] relating to the safety, care, comfort, convenience,
proper accommodation, charges, fares and transportation
of passengers on sleeping cars and pullman cars within the
State of Texas and to prevent abuses, unjust discrimina
tion and extortion in rates. JSuch order was marked Ex
hibit “ F ” and attached to and made a part of the original
complaint as filed by the plaintiffs in this cause, wherein
such order was set out in full.
3
Your intervenors are materially interested in the de
termination by this Plonorable Court as to whether or not
77
said order of the Railroad Commission marked Exhibit
“ F ” above referred to shall be enforced or not enforced,
in that approximately ninety-five per cent of the Pullman
Conductors who serve on the Pullman cars which are ope
rated over the railroads of the State of Texas are members
of the organization above referred to as the Order of Sleep
ing Car Conductors.
4
These intervenors would show that this application is
accompanied by a pleading setting forth the claim for which
this intervention is sought; that a copy of this application
and such pleading have been delivered to all parties affected
thereby.
Wherefore, your applicants respectfully pray that they
be allowed to intervene in this cause.
Respectfully submitted: M. B. Cunningham, W. M.
Hadley, W. A. Worley, Order of Sleeping Car Con
ductors, Intervenors. Culbertson & Morgan, Fort
Worth, Texas, By Cecil A. Morgan, Attorneys for
Intervenors. We interpose no objection: Black,
Graves & Stayton, By Ireland Graves, Attorneys
for Pullman Co. Claude Pollard, Attorneys for
Railroads. Gerald C. Mann, Attorney General of
Texas, By Glenn R. Lewis, Cecil C. Rotsch, Assist
ants, Attorneys for Defendants.
[fol. 105] [File endorsement omitted.]
[fo l. 106] l x U n ited S tates D istrict C ourt
[Title omitted]
P leadings oe I n tebvenobs M. B. C u n n in g h a m , et a l ., P u l l
m a n C onductors—Filed Feb. 17, 1940
To Said Honorable Court:
Come now M. B. Cunningham, W. A. Worley and W. M.
Hadley, on their own behalf and on behalf of all other Pull
man conductors desiring to join herein, and on behalf of
the association known as the Order of Sleeping Car Con
ductors, and with lease of the Court first had and obtained
file this their pleadings herein, and with respect would
show:
I
Tour Intervenors adopt the pleadings of the defendants,
the Railroad Commission of Texas, and Lon A. Smith,
Ernest 0. Thompson and Jerry Sadler, members of said
Railroad Commission, and Gerald C. Mann, Attorney Gen
eral of Texas, and by such adoption do plead each and all of
the facts as pleaded by said defendants as fully and to all
intents and purposes as if the same were fully set forth
herein.
II
Your Intervenors say that the order promulgated by the
Railroad Commission of Texas under date of November 4,
1939, a copy of which has been attached to plaintiff’s com
plaint as Exhibit No. “ F ” was entered after due notice to
all interested parties as to the time and place of such hear
ing, and that all parties at interest, including all the plain
tiffs, appeared by their respective attorneys, and evidence
[fol. 107] was offered by all parties, and after the evidence
was received and weighed, and after arguments were heard
and considered, the Railroad Commission of Texas was
thus advised of all of the material facts relating to the
subject matter as contained in said Exhibit “ F ” , and did
then promulgate such order and that such order does not
contravene any provisions of the Federal Constitution, or
any article or section thereof nor any amendment thereto,
nor is such order in violation of the State Constitution nor
any article or section thereof or amendment thereto, nor is
the same in violation of any of the Statutes of the State of
Texas, hut in strict compliance with and is supported by
the Constitution of the United States and of the State of
Texas and the Statutes thereof.
Wherefore, your Intervenors pray that the relief sought
by the plaintiffs in this cause be denied.
Culbertson & Morgan, Fort Worth, Texas, By Cecil
A. Morgan, Attorneys for Intervenors.
[F ile endorsem ent om itted.]
[ fo l. 108] I n U n ited S tates D istrict C ourt in and for
t h e W estern D istrict of T exas
No. 38— Civil
T h e P u l l m a n C o m p a n y , et a l .,
vs.
R ailroad C o m m ission of T exas, et at ,.
Statement of Evidence—Piled July 22, 1940
Be it remembered that on this 17tli day of February,
A. D. 1940, the above entitled and numbered cause came on
for trial before the Honorable Samuel H. Sibley, United
States Circuit Judge, Fifth Circuit, Honorable Robert J.
McMillan, United States District Judge, Western District
of Texas, and Honorable James Y. Allred, United States
District Judge, Southern District of Texas, at Austin,
Texas, and continued from day to day to its conclusion;
plaintiffs being represented by L. M. Greenlaw, Esq., and
H. S. Anderson, Esq., of Chicago, Illinois, Claude Pollard,
Esq., and Messrs. Black, Graves & Stayton of Austin, Texas;
intervener plaintiffs (Pullman Porters) by Ireland Graves,
Esq., of Austin, Texas; the defendants being represented by
Cecil C. Rotsch, Esq., and Glenn R. Lewis, Esq., Assistant
Attorney Generals of Austin, Texas; and the intervener
(Order of Sleeping Car Conductors) being represented by
Messrs. Culbertson & Morgan of Fort Worth, Texas; and
during said trial the following testimony was introduced
and proceedings had in connection therewith:
[fo l. 109] P l a in t if f s ’ E vidence
Ch a m p C arr y , a witness for plaintiffs, having been duly
sworn, testified as follows:
Direct examination.
Questions by Mr. Graves:
Q. Your name is Champ Carry?
A. Yes, sir.
Q. You are vice president of the Pullman Company in
charge of the operating department?
A. Yes, sir.
79
80
Q. How long have yon been connected with the Pullman
Company and its affiliated companies'?
A. About 21 years.
Q. How long have yon been vice president in charge of
operation?
A. Since May 1st, 1936, I believe.
Q. You are a resident of Chicago, Cooke County, Illinois?
A. No, sir, I am a resident of Lake County, Mundeline,
Illinois.
Q. How is that?
A. Lake County, Illinois, Mundeline, one of the suburbs
of Chicago.
Q. Mundeline?
A. Yes, sir.
Q. Will you please tell us whether you are in charge of
the department of the Pullman Company that has super
vision over the employees that operate on the trains ?
A. Yes, sir, that comes in the operating department.
[fol. 110] Q. That comes in the operating department?
A. Yes, sir.
Q. Now, please tell us something about the system that
the company has, showing what the functions of the various
employees operating in your department are—that is to
say, how do you go about maintaining an efficient organiza
tion on the trains—do you have superintendents?
A. Yes, sir, we have; in the first place, we have several
departments, in Chicago; the car service department and
the car service personnel; the yard department, the shops,
and then out in the districts we have six zones under the
supervision of a superintendent—a zone superintendent.
Those zones are geographic territories arbitrarily arrived
at so as to work out the least amount of traveling, and in
those zones we have the districts, and agencies in charge
of district superintendents or agents, depending on the
amount of business done or the size of the office force; and
under them, of course, we have inspectors of all zones, in
structors, and a general organization necessary to carry on
the business.
Q. Do you have an assistant or one or more assistants
in your office who have direct contact with the superintend
ents out in the various zones and in the districts ?
A. I have two.
Q. Who are they?
A. Mr. Yroman and Mr. Gidney.
81
Q. B. H. Vroman? That is the gentleman who is one of
the witnesses who have been sworn------
A. Yes, sir.
[fol. 111] Q. -—as a proposed witness in this case?
A. Yes, sir.
Q. Now, he is in your office------
A. Yes, sir.
Q. —in Chicago ?
A. Yes, sir.
Q. Now, then, what would be the next step under Mr.
Vroman?
A. The next step under him would be the Zone Superin
tendents.
Q. Now, how many zone superintendents are there?
A. Six.
Q. Is there a zone superintendent in Texas?
A. Yes, sir, at Houston.
Q. Who is that, Mr. M. B. Osborne?
A. Yes, sir.
Q. How long has he been connected with the company?
A. I think it is over 25 years.
Q. Now, under the zone superintendents, what do you
have.
A. District superintendents and agents.
Q. How many of them—how many district superintend
ents and agents do you have in Texas ?
A. Well, you will have to let me think a minute------
Q. We can get that from Mr. Vroman later.
A. We have one at Dallas, one at Fort Worth, one at San
Antonio, one at Houston—and Shreveport is outside of
Texas. Mr. Vroman can give you that definitely.
Q. I will ask Mr. Vroman about that then.
A. All right.
Q. How long, Mr. Carry, has the company been operating
certain trains or certain lines as you call them in charge
[fol. 112] of porters?
A. Well, as near as I can tell, going back into the records,
it was in effect over 60 years ago; it was an order that
we found in the records going back to 1877. Now, I don’t
know whether it was true before that or not, but apparently
it has been true all the way through.
Q. Does the company operate in that way in other parts
of the State, or merely in Texas, at the present time ?
A. You mean other parts of the Country?
6—283
.8 2
Q. Other parts of the country; I beg your pardon?
A. Yes, sir, we operate that way every place that it is
justified.
Q. Has the company adopted any policy of—or has it any
plan of eliminating the conductor------
A. No, sir.
Q. —from its service?
A. No, sir, we use conductors wherever we figure a con
ductor is justified or wherever the service requirements
justify it.
Q. And on the heavier trains------
A. Yes, sir.
Q. —carrying two or more pullman cars, as a rule con
ductors are employed?
A. As a rule, although I think there are some trains with
two pullman cars where they are in charge of porters.
Q. Any of that kind of operating in Texas?
A. No, sir.
Q. All of the Texas operations in charge of porters are
[fol. 113] one car operations?
A. Regularly, yes, sir; there may be an extra car at times
when we have more business than can be handled in the
regular line car when an extra car is put on in operation,
putting a conductor; generally speaking we put a con
ductor on, depending on the conditions prevailing at that
time.
Q. Yes, sir. Approximately how many porters has the
company in its employ?
A. Between nine and ten thousand. I can’t give you the
exact number.
Q. Mr. Vroman would have the figures, I take it?
A. Yes, sir. It fluctuates; we have some on furlough
and I couldn’t say what that would he at any one moment.
Q. The Pullman Company has contracts with the Rail
roads covering the operations of the pullman cars in the
State of Texas and elsewhere?
A. Yes, sir.
Q. Is there any car operated—any pullman car operated
on any railroad in Texas other than pursuant to a contract?
A. Not that I know of.
Q. You know the Railroads that are parties to this
suit------
A. Yes, sir.
83
Q. —and that are involved in these porters-in-charge
operations in Texas ?
A. Yes, sir.
Q. All of these operations are under contracts between
the Railroad—the particular Railroad and the Pullman
Company?
A. Yes, sir, all of them.
[fol. 114] Q. Is there an arrangement in general between
the Railroad and the Pullman Company whereby the Pull
man Company and the Railroad share a part of the revenues
from the Pullman fares on these cars ?
A. All of our contracts provide for the Railroads to share
in the earnings if they reach a certain level. The general
provisions of the contracts are that the Pullman Company
first takes out the cost of the operation and then what we
term as an initial return or profit for doing the business,
and after that we divide any surplus that may be there.
The contracts are generally—there are some little differ
ences in the way that the division is made, but they are
generally to the effect that there will be a division if the
revenue is there.
Q. Do the contracts also contain provisions whereby if
the companies don’t earn a minimum amount the Rail
roads will contribute toward making up the difference, or
will make it up ?
A. Some of them do, yes, s ir ; some of them provide that
if the earnings are not equal to the expenses they will make
up the difference between the earnings and the expenses.
Q. Mr. Carry, I will ask you if you have sufficient famili
arity with the effect of the porter in charge operations, as
contrasted with the operation of the Pullman cars in charge
of Pullman conductors to be able to say whether in general
the porter in charge operations are equal to or inferior
to the other operations?
[fol. 115] Mr. Morgan: If Your Honors please, we object
to a general leading question like that. Certainly it isn’t
confined to Texas, if he is going to ask it at all.
Judge Sibley: I expect we had better stick to Texas.
Judge Graves: All right.
Q. I will ask you to confine that to the State of Texas.
I don’t care for you to go into details; I just asked you the
general question.
. A. Would you mind repeating that question? I got a
little side-tracked here.
84
Q. The question is whether you have had occasion as the
operating official of the company to determine whether the
operations known as porter in charge operations in Texas
have been equal to or inferior to the operations known as
the conductor operations?
A. I certainly have; we study that all the time, and we
are quite sensitive to the fact that if we do not have business
we do not exist; so we follow this up, and if we didn’t think
they were equal to it, we would change it.
Q. The contracts that you refer to are for a term of
years—each one of them is for a term of years ?
A. Yes, sir.
Q. Some of them expiring periodically?
A. They d o ; they are not made at any one time.
Q. Some of them expiring at the end of 1940?
A. Yes, sir.
Q. Some of the contracts have just been made—-—
A. Just been made for five years.
Q. —for a period of five years?
A. Yes, sir.
Q. Were those contracts that are now in existence made
[fob 116] at the time when the porter in charge operations
were in existence?
A. Yes, sir; I don’t think there is a single contract we
have that was not made after porter in charge operations
were in existence in the territory that the particular Rail
roads operate in.
Q. Do you know, Mr. Carry, in what way the Pullman
Company undertakes to supervise its service ? I will direct
your attention to the recital in this order that the only
supervision that the company has over the Pullman porter
is the supervision of the Pullman conductors and that when
they are not on the trains there is no supervision or in
spection.
A. Well, that, of course, is not so. We have, as I said
before, we have the district offices, and the porters and
conductors are all assigned to a district; they have seniority
in the district, and they come under the direct supervision
of the district supervisor or agent and his assistants; and
in addition to that they have these district superintendents
through the zone superintendent; they have inspectors, the
passenger traffic department has inspectors, the yard de
partment has inspectors, that all ride the trains and they are
85
all supervising the service; they supervise the porter serv
ice just as they supervise the conductor service.
Q. In addition to the district superintendent and zone
superintendents do you have any inspectors whose duty
it is to ride the trains and whose entire time is spent
doing that?
A. Yes, sir.
Q. How many of them are there in Texas ?
[fol. 117] A. Well, there are two that work under the
zone superintendent and one that works under the safety
department, one that is under the yard department, and I
believe there is one under the passenger traffic depart
ment.
Q. Now, it will develop, Mr. Carry, that two of these
intervener plaintiffs operate out of Fort Worth and one
of them operated out of San Antonio. Do you have a
district superintendent at each of those places?
A. Yes, sir.
Q. Do you have any way of supervising the operation
of the train at the initial point—for example, where these
two men start on their run at Fort Worth, do you have
any way of knowing whether they—when they report for
duty to take the train or to go out with the train, whether
they are in proper condition in every way?
A. Well, it is the definite duty of the district superin
tendent or his assistant to inspect every train before it
leaves, to see whether the men are in proper condition
and properly uniformed to go out and also that the car
is in proper condition to go out. You know there is a
lot to this service besides just the service on the train.
Q. Suppose that the porter were to be late, or for some
reason he should not be faithful to his duty, and should
not be—or he should be sick, or for any other reason he
is not fit to go out with the train, would there be some
body representing the Pullman Company at the station to
place a substitute on the run?
A. Yes, sir.
Q. Would it or not be his duty to do that?
[fol. 118] A. It would definitely be.
Q. Is that true at San Antonio and Fort Worth and
Houston------
A. Yes, sir.
Q. —and Dallas?
A. Yes, sir.
8 6
Q. Yon have, in other words, not only the district super
intendent but yon have night men whose duty it is to be
at the station before the train goes out?
A. Yes, sir, we have men that inspect all trains before
they leave.
Q. Now, you said something about the service rendered
by the company to the passengers, in addition to the service
rendered by the conductors and the porters. I would like
for you to explain that—what you mean by that.
A. Well, what I mean by that is that we feel it is a
complete service, it has to start with a proper piece of
equipment, but after you get that, the maintenance of
that equipment is as important a part of our service as
the service furnished on the cars,—the yard work, the
cleaning, the painting, the general up-keep, taking care
of the trucks, running a department for safety, periodical
shopping of the cars, and all of those things are just as
important as the men on the train, in our opinion, because
they go to make up a complete service and if any one of
them falls down there is possible justification for com
plaint.
Q. Now, you have told us something about the method
employed by the Pullman Company in supervising the
service. What precaution does the Pullman Company take
to see to it that men of proper—of good character are
employed ?
[fol. 119] A. Well, when we receive an application from
any one we investigate as fully as we know how; in the
case of porters in the larger districts, we have colored
men of whom we know who go around and talk to the
people who live in the neighborhood, and inspect their
families and know all they can about them. If they are
out in the country we would probably send a white man
to do it ; we could possibly even get more information that
way; and after we get them there is a constant supervision
from the time they enter the service, and if we find them
falling down after taking all these precautions, why, we
have to take the necessary action to maintain our stand
ard.
Q. Do you happen to know whether the porters operating
in the State of Texas are Texas men?
A. To the best of my knowledge they are.
Q. They are?
A. About that—I say I am not positive about that.
Q. Who selects the men—do you select them in Chi
cago?
A. Oh, no, the men are selected by the local men who
know them; the district superintendents select them.
Q. How do you go about determining whether an opera
tion shall be porter in charge operation or a conductor
operation?
A. Well, in most cases the district superintendent writes
in and suggests that if it has been a conductor operation
that the conditions warrant a change and that it be made
into a porter in charge operation. We then send inspectors
to go and ride the line and they very frequently talk to
passengers who use the line frequently, and make a general
[fol. 120] study of it. The district superintendent o f
course, would have it reported to the zone superintendent
before it came into the Chicago office, and unless we had
the full approval of the zone superintendent after his in
vestigation, why, we would not do it; but we never order
it from Chicago without the full approval of the local men
who are thoroughly familiar with the conditions prevail
ing on that particular line.
Q. Do you maintain the conductor operations on all lines
where it is your conclusion that conductors are needed for
the service?
A. Yes, sir.
Q. Do you happen to know what the extra pay is that
the porter gets for his porter in charge service?
A. Thirteen dollars and fifty cents a month.
Q. Now, does he get that regardless of whether he is
porter in charge for a portion of the run or for all of the
run?
A. If he is porter in charge for a portion of the run he
gets paid for the full round trip. That is a provision of
our agreement with the porters.
Q- Well, in other words, this porter that operates on
this Brownsville road to which we have referred and who
is on the car, I take it, from St. Louis to Brownsville
and in charge for a distance of 25 miles, does he get the
porter in charge compensation?
A. Yes, sir.
Q. Thirteen dollars and fifty cents a month?
A. Yes, sir.
Q. Do you know whether those jobs are given to the
[fol. 121] older men—the men who have been in the employ
87
8 8
of the company for a long period of time and who have
been tried and who have experience and have demonstrated
that they are competent?
A. That is always considered, because our agreement
with the porters provides that seniority will prevail in the
event fitness and ability is sufficient. Of course, the
seniority prevailing means that the older men have the
first chance at it, and it is only in the event these older
men are not fit and able that we do not place them on
the run; but we never go very far down the line.
Q. Well, under the agreement who has the authority to
determine whether they are fit and able?
A. The company.
Q. The company?
A. Yes, sir.
Q. Do you exercise that privilege?
A. We certainly do.
Judge Graves: That is all for the present.
Judge Sibley: Cross-examine.
Cross-examination.
Questions by Mr. Lewis:
Q. Mr. Carry, briefly, what are the duties of a Pullman
conductor?
A. His duties are to collect fares, and make assignments
of space and generally to supervise the service on the
train.
Q. And briefly what are the duties of a Pullman porter?
A. They help the passengers on the train, make up the
[fob 122] berths, and take care of their needs as far as
they can and keep the car in good condition.
Q. The porters then performs mostly janitor service and
personal service to the passengers?
A. I don’t consider them janitor services. That is done
in the yards. He performs personal services for the pas
sengers.
Q. In those lines where Pullman conductors are used,
I presume that you consider they are needed?
A. In most cases, yes, sir.
Q. And are the Pullman porters on the lines where they
are in charge, are they particularly a better class of people
than the other porters whom you have employed in Texas?
89
A. I wouldn’t say they are a better class but they cer
tainly are the top rank.
Q. But you have large numbers of other porters who
would be just as good?
A. I think we have quite a number that would be quali
fied.
Q. Well, now, how much more does the Pullman con
ductor get for performing his services than a Pullman
porter does when the porter is performing not only the
porters services but also the Pullman conductor services?
A. I don’t know that I understand you. You mean the
difference between the total porter wages and the con
ductors wages, or the thirteen dollars and a half?
Q. The full porters wages when he is acting as con
ductor, and the Pullman conductors wages, what is the
difference between the two?
[fol. 123] A. Between 85 and a hundred dollars.
Q. The Pullman porters draw 85 and a hundred dollars a
month ?
A. Yes, sir.
Q. Now, your whole decision will depend upon the local
conditions when you decide to remove the conductor and
operate through a porter in charge?
A. Yes, sir.
Q. Wholly through local conditions and the local situa
tion?
A. Yes, sir.
Q. Then, when you consider the question of removing a
conductor and putting on a porter you wouldn’t consider
anything except that particular line that is in question?
A. That particular line and its effect, its general effect.
There are many things that apply to all lines.
Q. There would be things which would make it desirable
to have a Pullman conductor in charge of those lines where
conductors are not used------
A. I don’t know of any.
Q. —isn’t that true, Mr. Carry?
A. I don’t know of any.
Q. You see no desirability whatsoever of having a Pull
man conductor on those cars where a Pullman porter is in
charge ?
A. No, sir, I don’t think there is any need.
Q. Yet there is a need for the Pullman conductor of the
ones where a Pullman conductor remains?
A. In most cases.
90
Q. For purposes of supervision?
A. Not necessarily.
Q. Well, do you mean to say that you don’t need any
[fol. 124] supervision?
A. I don’t think we do in those cases. In those small
car lines of one or two cars where we have porters in charge
I think we get plenty of supervision other than the con
ductor supervision.
Q. Where from?
A. The districts, the inspectors.
Q. Is that the only place where you get supervision ?
A. From the whole organization, yes, sir.
Q. You really get none from the train conductors do
you?
A. I don’t know what you mean by supervision. They
are in charge of the train.
Q. It is a theoretical proposition, though, isn’t it, that
they are in charge?
A. I wouldn’t think so; the passengers pay the same rate
and he is entitled to the same consideration from the train
crew as he is in a Pullman car as in a coach. I don’t see
where it is theoretical.
Q. Well, he doesn’t receive any more service out of the
train conductor when the Pullman porter is in charge than
he does when the Pullman conductor is in charge, does he?
A. He might; it depends on his need.
Q. Well, does he?
A. You will have to name a specific case. I can’t answer
a general question of that kind.
Q. Do you depend to any extent upon the assistance from
the train conductor when the Pullman conductor is not
in charge?
A. Yes, sir, and also when he is in charge.
Q. Well, do you depend on him any more when there
isn’t a Pullman conductor in charge than you do when there
is, or not?
[fol. 125] A. No, I would say it is about a stand-off.
Q. So that the part that the train conductor plays and
the train brakeman and the flagman, that has nothing to
do with the need or not need of a Pullman conductor, does
it?
A. If you are speaking of need, no.
Q. I mean in your own determination of the question.
A. I f you say need, no; but the fact that he is there is
91
something; their riding in the car is a consideration that
you cannot ignore; but it is such a rare case where you
have any need to call on them it is hard to say that there
is a need for him, but he is there and you can’t ignore him
from a practical standpoint.
Q. It is true, is it not, that all of the Pullman porters are
negro men?
A. Yes, sir.
Q. And all of the Pullman conductors are white men?
A. Yes, sir.
Q. Your reason is wholly an economic one, when you take
off a Pullman conductor, isn’t that correct?
A. Well, I don’t know, it probably is that we don’t think
it needs it ; that is the reason we take it o ff; we just think
it is — economical thing or a waste to have two men there
when there is only need for one.
Q. The conductors work on a monthly salary, do they
not?
A. Yes, sir.
Q. I mean the Pullman conductors.
[fol. 126] A. A man who has a regular assignment works
on a monthly salary; he works on a------
Q. And you are entitled to call on them for 240 hours of
service per month for their regular pay?
A. Yes, sir.
Q. And if they work longer than that they draw more
pay?
A. Yes, sir.
Q. Now, it is true, is it not, that there are a large num
ber of Pullman conductors in Texas who work by the month
whom you don’t call on?
A. Yes, sir, under our regular contract and agreement
with the conductors, even though, it is short of the regular
assignment they get the full months pay.
Q. Now, if it were possible to use the extra—the unused
of those conductors to operate those lines, you would be
glad to do it ?
A. We couldn’t do it.
Q. You couldn’t do it?
A. No, sir.
Q. If it were possible to do it, would you?
A. I don’t know; of course, that is a question that I
don’t know what you mean because if you mean we work
them more and not pay them any more, why that is one
92
thing; but we don’t feel we need the service so there
wouldn’t be any point in doing it.
Q. Who supervises the work of the employees and the
cleanliness of the cars while the cars are en route, when a
[fol. 127;] Pullman conductor is not there?
A. If there is no inspector there, nobody does.
Q. Nobody does; it is left entirely with the porter?
A. But the point is that there are district people avail
able at intervals along the line to see that it is up to
standard.
Mr. Lewis: That is all.
(Four witnesses excused.)
Judge McMillan: How do you spell your name?
Mr. Carry: C-a-r-r-y.
Judge McMillan: Thank you.
Judge Sibley: Call your next witness.
Mr. Graves: Mr. B. H. Vroman.
B. H. V k o m a n , a witness for plaintiff, having been duly
sworn testified as follows:
Direct examination.
Questions by Mr. Graves:
Q. Where do you live, Mr. Vroman?
A. Chicago, Illinois.
Q. What is your position with the Pullman Company?
A. Assistant to the vice president in charge of operation.
Q. How long have you been connected with the Pullman
company and in what position?
A. Well, it is not quite 35 years; I have had various
positions.
Q. Have you served as a district superintendent?
A. Yes, sir, from the year 1920 to 1938 at Denver, Colo
rado and then I came on to Chicago as zone superintendent,
[fol. 128] and then in charge of the personnel department
for a few years, and for the past four years as assistant to
Mr. Carry.
Q. Have you ever served as a superintendent in Texas?
A. No, I served as an agent down at Galveston many
years ago.
93
Q. Do you personally know these porters that operate
on these lines?
A. A good many of them, not all of them.
Q. Have you made—well, first I will ask you this, has
there been in the past five years, we will say, an increase
in the operation of porter in charge operations?
A. I think there has been a slight increase; we don’t keep
a running record from day to day as to just how many
porter in charge operations we have, but there has been
a slight increase in recent years.
Q. Has there been any greater increase in proportion to
the percentage of increase of porter in charge operations
than there has been a decrease or a falling off in business?
A. No, sir, much less.
Q. Much less?
A. Yes, sir.
Q. How does business compare, we will say, in the end
of 1934 with what it was in the end of 1929?
A. Well, I think there has been more than 50 per cent
decrease in the passengers handled, and I think the falling
off in car operations and the same will apply to conductor
requirements, about 42 or 43 per cent.
[fol. 129] Q. In other words, there has been a 50 per cent
decrease in passengers hauled and a 50 per cent decrease in
number of cars in operation, but a less decrease than that
in the number of conductors employed ?
A. The decrease of cars operated and conductor require
ments have been just about the same.
Q. About the same ?
A. And more than 50 per cent in passengers handled.
Q. Do those propositions hold good in the State of Texas
as well as throughout the country ?
A. Yes, sir.
Q. Do you know how long the porter in charge operations
have been in effect by the company?
A. Well, as Mr. Carry testified, they have been in effect
for 60 years or more.
Q. How long have they been in effect in the State of
Texas ?
A. Well, I have a record of some of them for 21 or 2 years;
a number of them for 15 years or 20 years.
Q. Are these porters that operate on these lines that are
involved in this suit, are they Texas men?
A. Every one.
94
Q. State whether or not it is yonr business to supervise
the service and to maintain such supervision as may he
necessary to maintain the standard of the service ?
A. Well, the direct supervision of the service throughout
the country comes under the zone superintendents.
Q. Well, whom do they operate under?
A. They operate under Mr. Carry’s supervision.
[fol. 130] Q. And you are his assistant?
A. Yes, sir.
Q. Have you made an investigation of the records of the
company with a view of determining these—a comparison
between the service rendered by the porter in charge and the
service rendered on cars where conductors are in charge?
A. We have, very definitely.
Q. Have you made that investigation over a period of
more than a year?
A. Yes, sir.
Q. How far back did you go in your study?
A. It is a continuous proposition; we are covering the
service all the time; we have inspectors in every zone that
do nothing but ride the lines and make reports. So it is
a constant supervision.
Q. I will ask you to state whether from the standpoint
of the company, the service rendered by porters in charge
in the State of Texas is equal to or inferior to the service
rendered on these cars—or other cars in charge of Pull
man conductors?
Mr. Lewis: If the Court please, may we make an objec
tion at this point, that is, that the complaint in this case
does not allege that the Commission’s findings to the effect
that this service of Pullman conductors is needed was not
based upon substantial evidence. There is no attack what
soever made upon the findings of the Commission in that
regard, and we think the Commission’s order would have
to be taken for its face value in that respect, and we object
to the introduction of further evidence of this nature.
[fol. 131] Judge Sibley: Do you regard it as a sort of res
ad judicata proposition or just presumption?
Mr. Lewis: We regard it as a presumption.
Judge Sibley: Well, I think it is that, but wouldn’t they
have a right, if they could, to show that in point of fact
there is no basis for any such conclusion.
Mr. Lewis: Your Honor, they have not made any allega
tion of facts, only as a conclusion; they merely allege there
95
isn’t a need for Pullman conductor service. They have
made no allegation as a basis------
Judge Sibley: Well, the general finding was that there
was a need, that the passengers paid their money and usually
got so and so and ought to have it on one run the same
as the other.
Mr. Lewis: Yes, sir, Your Honor, and I will point out
to that all of these Railroads and the Pullman Company
were present at the proceedings before the Commission.
Judge Sibley: I don’t think there is any res adjudicata
about it.
Mr. Lewis: I am not sure about that, Your Honor. On
this point I am afraid I might be wrong about this ques
tion. The Court a while ago stated that you could not have
an appeal from an order of the Railroad Commission to
the Federal Court. I might be wrong about it but I think
you can, and I think------
Judge Sibley: Well, it depends on the nature of your
appeal and the Texas law. I don’t know what it is. If'it is
[fol. 132] really a judicial suit, why you might bring it per
haps in a Federal Court but if it is a strict appeal, I don’t
think you could.
Mr. Lewis: The statute provides for the filing of a suit
in a Court of competent jurisdiction.
Judge Sibley: Yes, the Federal Court immediately takes
jurisdiction under such circumstances.
Mr. Lewis: And under those circumstances we think it is
incumbent on the parties to allege that the Railroad Com
mission was without a basis for its findings.
Judge Allred: To allege it and show it?
Mr. Lewis: That is right. We------
Judge Sibley: I don’t know but what they are proving
about what you say they do allege.
Mr. Lewis: They allege that, Your Honor, but I think
they would have to allege that the Commission did not have
substantial evidence on which to base their findings. Now,
they have not alleged that so far as------
Judge McMillan: They allege that the action of the Com
mission is unreasonable and confiscatory.
Mr. Lewis: They merely allege in general terms, Your
Honor, that Pullman conductors are not needed; that it
would cause a useless expense.
Judge McMillan: I know but don’t they draw the gen
eral conclusion that the order of the Commission is ‘ un
reasonable?
96
Mr. Lewis: Yes.
Judge McMillan: They wouldn’t have to plead their evi
dence. Couldn’t they support that with evidence?
[fol. 133] Mr. Lewis: They were passed after the pro
ceedings before the Commission.
Judge McMillan: Well, that same question comes up be
fore every Three Judge Court; that is a contention on the
part of the Attorney General that we are bound by the
findings of the Commission and we can’t consider any evi
dence except the evidence before the Eailroad Commission.
Well, that has been ruled on adversely and never has been
up-set yet. It may he that we are wrong about it.
Mr. Lewis: Well, that seems to me to be still doubtful and
we want to preserve our objection in that case.
Judge Sibley: Well, we will hear the evidence.
Mr. Graves: Was the question answered?
The Reporter: No, sir, no answer has been made. I will
read the question to the witness.
(Thereupon the Reporter read the question as follows:
“ I will ask you to state whether from the standpoint of
the company, the service rendered by porters in charge in
the State of Texas is equal to or inferior to the service
rendered on these cars—or other cars in charge of Pullman
conductors?” )
A. My answer is it is.
Q. The service rendered------
A. On the cars in Texas is equal to what it is in other
parts of the country.
Mr. Lewis: Your Honor, is it in line to ask that this ob
jection and exception be taken to similar testimony through
out?
Judge Sibley: That will be all right, sir.
[fol. 134] Mr. Graves: I understand that what counsel
means by that, may it please the Court, is that he objects to
our going into this evidence for the reason that we do not
challenge this order on the ground that it was not based
on substantial evidence heard by the Railroad Commis
sion. If that is the point------
Judge Allred: In other words, that your pleadings are not
sufficient to justify this evidence ?
Mr. Graves: Yes, sir.
Judge Allred: I think that is his position.
97
Mr. Graves: Yes, sir, that the order should be tested by
what was heard by the Commission and not by what is heard
by the Court here.
Mr. Culbertson: Your Honor, may we amplify that
briefly. This is not a trial de novo on the constitutional
g ‘ounds. If it were a trial de novo and a diversity of citi
zenship, then there would be no question but what we could
try this case de novo as to all the issues; but it is being-
attacked on constitutional grounds, and they simply bring
up a question disputing what the Railroad C om m issi mi
found against them. The Supreme Court of the United
States says that is simply a disputable issue of fact found by
the Railroad Commission and this Court should not over
turn it. And we want the objection to go to all of the evi
dence Which would have to do other than with the constitu
tional questions involved here.
Judge Sibley: Well, the constitutional question is pretty
broad; whether it is purely arbitrary and without any basis
that is one constitutional question.
[fol. 135] Mr. Culbertson: We think so but we don’t think
it is more than------
Judge Sibley: Well, he says the service is smooth and
good enough, but whether he can keep the operations and
all those things are other questions. The Railroad Com
mission didn’t think a negro porter could keep the peace
in a car. I don’t know whether there is any trouble like
that in Texas.
Mr. Culbertson: That is a disputable question.
Judge Sibley: Well, the trouble is the Commission
couldn’t try the constitutional question; that is not its
business; that is the business of the Court and we are
obliged to try it when we start into it. Go ahead and ask
the questions.
Q. Mr. Yroman, you have answered as to a comparison
between service rendered on the porter in charge lines in
Texas with the services rendered on other lines outside
of Texas. What I want to direct your attention to is com
parison between the porter in charge service and the serv
ice rendered on those lines—with the services rendered on
lines that are accompanied by a Pullman conductor. Tell
us whether or not there is any difference, and if so, which
is the superior.
7—283
98
A. Our reports indicate that the service is just as good
on the porter in charge lines as it is on lines where we have
the supervision of conductors.
.Q- Mr. Yroman, have you made a study of this order
with the view of determining how many conductors would
have to be employed by the company to comply with this
order, if compliance was had by putting on the conductors,
[fol. 136] rather than taking off the cars?
A. I have.
Q. How many would it require?
A. It would take seventeen and one-third conductors.
Q. In addition to what you have employed now?
A. Yes, sir.
_ Q- Let’s see. What—we have referred to this Browns
ville line, line No. 3723. What would you have to do to
comply with the order in respect of that line?
A. It would be necessary to place a conductor either at
Harlingen or Brownsville, and operate them locally between
those points, a distance of 25 miles, night and morning.
That would involve the expense of one and one-sixth con
ductors. It is really a one conductor operation, but under
our agreement, we are obliged to give them relief at least
four times a month.
Mr. Lewis: If the Court please, we move to strike the
witness’s testimony relative to the agreement, and the testi
mony based on that, because we don’t think that we would
be bound by the contracts that they may have with those
parties.
Judge Sibley: The Commission says you are entitled to
the benefit of it. Don’t you have to take the burden?
Mi. Graves: If you will pardon me just a moment, I
think you misunderstood him.
Q. You were talking about agreements with conductors?
A. Yes, sir, with the conductors.
Mr. Lewis: He is talking about agreements between the
[fol. 137] Pullman Company and the conductors with refer
ence to------
Judge Sibley: Don’t we all know they are organized, and
^ou can’t travel except according to those agreements?
The policy of the Federal Government right now is to make
everybody make agreements of the sort.
Mr. Lewis: That may all be true, Your Honor, but we
don t think that would prohibit their employing men in
99
the capacity of conductors to operate those lines, perhaps,
outside of those agreements.
Judge Sibley: I think as a practical matter, they would
be entitled to prove the situation and the facts.
By Judge Graves:
Q. I will ask you to state whether it is------
Judge Sibley: Is that one that is now just dropped off
with a porter, dropped off from another train?
A. Yes, sir. There is a pretty good picture of it, Your
Honor, on that map there. The conductor operates to Mis
sion, and drops the car off at Harlingen.
By Judge Graves:
Q. Are the agreements with the------
Judge Sibley: The conductor in charge of the car, in
charge of one of the operated cars, goes as far as your
junction there?
A. Yes, sir.
Judge Sibley: And that other car was left off with a
porter to go 25 miles?
A. Yes, sir.
By Judge Graves:
Q. The other car goes to Mission. How far is that?
A. About 35 or 40 miles. I am not sure about that, 35 or
[fol. 138] 40 miles from the junction point.
Q. The agreements with the conductors—have the agree
ments with the conductors been made pursuant to the Na
tional Railway Labor Act?
A. Yes, sir.
Q. It would be pretty hard for you to get out from under
that, wouldn’t it?
A. I believe it would.
Q. What would be required in respect to the first line
that is mentioned in Exhibit G, line No. 3128?
A. That is much similar to the Brownsville line. The
Fort Worth and Houston operation, designated as line 3128,
operates with a porter in charge to Ennis, where it is picked
up with a conductor who operates between Dallas and
Houston, and that is similar to the other line. We would
100
be required to operate a conductor locally between Fort
Worth and Ennis.
Q. These maps that we have handed to Tour Honors
have been arranged in the order in which the lines are
shown on Exhibit G, and the one I am now inquiring
about------
Judge Allred: That doesn’t show what road that is.
A. That is the Southern Pacific.
Judge Sibley: How far is that from Fort Worth to Ennis?
A. I think it is 56 miles, if I am not mistaken.
Judge Sibley: Is that a dropped off car?
A. It is dropped off north-bound, and picked up, of
course, by the Dallas conductor south-bound.
[fob 139] Judge Sibley: The round trip runs on beyond
Ennis ?
A. Yes, sir.
Judge Allred: On up to Dallas north of Ennis?
A. Yes, sir.
By Judge Graves:
Q. As I understand, there is a through line from Dallas
to Houston on the S. P., and on that train leaving at night,
the overnight run from Fort Worth to Houston on the
S. P., and S. P. runs a branch from Fort Worth that con
nects with that train at Ennis, 56 miles down the line?
A. That is absolutely correct.
Q. And you run the Pullman car for that 56 miles from
Fort Worth to Ennis in charge of a conductor?
A. In charge of a porter.
Q. I beg your pardon. And there the car is hooked onto
the main line on which there is a Pullman conductor?
A. That is correct.
Q. And running in the opposite direction, the same proc
ess operates?
A. That is correct.
Q. The schedule of that train at the present time is shown
in Exhibit G, is it not?
A. That is correct.
Q. Leaves Fort Worth at 10:35 P. M. and arrives at En
nis at 12:15 A. M. ?
A. That is right.
Q. Do you happen to know whether one of these inter-
venors operates on that line regularly?
101
A. Yes, sir.
[fol. 140] Q. That man Allen Harvey?
A. Yes, sir.
Q. How long has he been with the company?
A. I think about 21 years, if I am not mistaken. It
might be longer than that.
Q. Stand up, Allen. Is that him?
A. That is he.
Q. All right. Mr. Vroman, you would have to have an
additional conductor, you say, to operate on that train be
tween Port Worth and Ennis?
A. That is right.
Q. And between Ennis and Fort Worth?
A. That is right.
Q. Now, this next line is a Santa Fe line, Atchison,
Topeka and Santa Fe, operates from El Paso to Albuquer
que?
A. That is right.
Q. Line 3015, and according to this exhibit, it reaches
El Paso at 10:15 P. M. and arrives at LaTuna at 10:50
P. M.?
A. Yes, sir.
Judge Sibley: What is the number of that line?
Mr. Graves: 3015.
A. It should be the second one.
Judge Allred: It is the next to the last one in mine.
Mr. Graves: It is the line from El Paso to Albuquerque.
Judge Sibley: I have got it.
By Mr. Graves:
Q. The train operates between El Paso and Albuquerque ?
[fol. 141] A. Yes, sir.
Q. And the porter operates all the way from El Paso
to Albuquerque?
A. Yes, sir.
Q. And the distance in the State of Texas covered by that
operation is what?
A. 18 miles.
Q. From El Paso to LaTuna?
A. Yes, sir.
Q. Leaves El Paso at 10:15 P. M. and arrives at La
Tuna, the border line of Texas and New Mexico, at 10:15
P.M.?
A. Yes, sir.
102
Q. And returning, it evidently leaves Albuquerque at
night and arrives at LaTuna at 6 :50 P. M. and El Paso at
7:30 P. M.?
A. Yes, sir.
Q. In complying with the order, what would you have
to do with respect to that line?
A. We would have to operate a conductor locally out of
El Paso. He would make the round trip each night, up in
the evening and back in the morning.
Q. Mr. Yroman, do you know what the average number
of passengers is on these trains?
Judge Sibley: Which ones, now?
Mr. Graves: I want to find out if he is prepared to
answer that question as to all of them.
A. I know what the average number of passengers are
on a good many of them. I don’t know all of them.
Q. Do you happen to know about the average number of
passengers on that Port Worth to Ennis car and also on
the El Paso to LaTuna?
[fol. 142] A. I don’t know about El Paso and LaTuna,
but the Fort Worth and Houston is a pretty light line. I
think they average about four or five beds a night.
Q. I f the Court will indicate which one of the maps is
next in order, I will take up that line.
Judge Sibley: From Marshall to Little Eock.
Judge Allred: 3531.
By Judge Graves:
Q. The line known as Pullman line 3531 operates from
Fort Worth to Memphis; the train operates from Fort
Worth to Memphis. The porter is in charge going north
on that line between Marshall and Texarkana, a distance of
67 miles?
A. Yes, sir.
Q. The train leaves Fort Worth at night and arrives at
Marshall at 2:20 A. M., and at Texarkana at 4:10 A. M.?
A. That is right.
Q. As a matter of fact, the porter goes on in charge of
that car to Little Eock ?
A. Yes, sir.
Q. But the portion of it in the State of Texas is this 67
miles. That is a one-way operation. The line is in charge
of a conductor returning from Memphis, as I understand
it?
A. That is correct.
Q. What would you have to do in regard to that line to
comply with this order?
A. We would have to station a conductor and probably
operate him out of Fort Worth down as far as Marshall,
to come back on that line.
Q. How many additional conductors would you have to
employ?
[fob 143] A. One conductor. It would be one and a fourth.
We would have to give him relief, the same as any other
lines.
Q. What do you mean by relief?
A. That is by using an extra conductor every fourth day.
Conductors on a night run must be relieved every fifth day.
In other words— every fifth day, it is necessary to furnish
an extra man to make these what we call relief trips.
Q. All of these lines appear to be round trip lines, with
the exception of two of the Texas & Pacific lines. That is,
that 3531 that you have just described, and the other T. &
P. line, 3501?
A. That is right.
Q. And they operate in charge of a porter only one way?
A. That is right.
Q. I f the Court will indicate the next map, I will inquire
about that, and save the Court the trouble of going through
those maps.
Judge Sibley: 3106.
A. 3106 is the—the porter is shown in charge—he is
really in charge from Amarillo to Denver. We merely
show the Texas operation, 7 :55 A. M. to 11:03 A. M. north
bound, and 7 :00 P. M. to 11:45 P. M. south-bound. That
also is a one car operation, and during the winter season
it travels pretty light, and for a number of years we have
operated a porter in charge of it during the daylight
operation.
Judge Sibley: We customarily take a little recess be
tween the morning and noon session. We will take one now
for five minutes.
[fol. 144] (Thereupon, court was recessed at 10:45 A. M.
until 11:05 A. M.)
Judge Sibley: Go ahead, sir,
103
104
By Mr. Graves:
Q. The question, Mr. Vroman, that we had up was in
relation to line 3016 or 3106. 3106, wasn’t it?
A. Yes, sir.
Q. From Dallas to Denver?
A. That is right.
Q. That is where the train goes ?
A. That is right.
Q. And the porter in charge, part of the operation is
from Amarillo to Denver?
A. Yes, sir.
Q. Both ways?
A. That is right.
Q. The porter in charge of operation in there is from
Amarillo to Texline, a distance of 117 miles?
A. That is correct.
Q. And the schedule at present is leaving Amarillo at
7 :55 A. M., arriving at Texline at 11:03 A. M. ?
A. Yes, sir.
Q. And returning, arrive at Texline—leave Texline at
7 :00 P. M. and arrive at Amarillo 9 :45 P. M. ?
A. Yes, sir.
Q. A distance of------
Judge Sibley: You said that was a one car run?
A. Yes, sir.
By Mr. Graves:
Q. Are all of these lines that we have inquired about so
far one car lines?
A. Yes, sir.
Q. One Pullman car?
[fol. 145] A. Yes, sir, all of the porter in charge opera
tions in Texas are one car lines.
Judge Sibley: What becomes of the train at Amarillo?
A. That train continues through to Denver. We simply
show the operation in Texas. It is a through run from
Dallas to Denver.
Judge Sibley: Just one car all the way?
A. Yes, sir, one car north of Amarillo. We have another
car as far as Amarillo, and we operate a conductor that far,
but when we drop one car, we discontinue the conductor
operation.
By Judge Graves:
Q. You have what you call a set-out at Amarillo ?
A. Yes, sir.
Q. And the conductor there stops on that set-out car at
Amarillo ?
A. That is right. It isn’t what we generally consider a
set-out car. What we generally term a set-out car is a car
that arrives early in the morning, and the passengers sleep
there. It isn’t what we call a set-out car that provides for
occupancy.
Q. That is a seasonal operation, your porter in charge
operation?
A. Yes, sir.
Q. And at the time this matter was heard before the Rail
road Commission last August, that car was being operated
in charge of a conductor?
A. Yes, sir.
Q. And ordinarily, there was more than one car on the
train ?
[fol. 146] Q. Yes, sir, we have extra lines during the sum
mer̂ and the conductor operation north of Amarillo was dis
continued when the summer lines were discontinued.
Q. When the summer tourist traffic from Texas to Colo
rado is heavy in the summer months you carry extra cars
and a conductor?
A. Yes, sir.
Q. And when it is light, you have a porter in charge of the
operation ?
A. That operation has been in effect, I think, that way,
for ten years.
̂Q. The next line on the map is line 3748 from Dallas to
Corpus Christi. It is the fourth line shown on Exhibit G,
over the San Antonio, Uvalde, and Gulf Railroad, a part
of the Missouri Pacific system, and that seems to be a day
operation, both ways.
A. That is right.
Q- A distance of 150 miles between San Antonio, and
Corpus Christi?
A. That is right.
Q. Do you happen to know whether that is a light or a
heavy traffic line?
105
106
A. That is a very light line south of San Antonio. It
has considerable business between Fort Worth and San
Antonio, but from San Antonio to Corpus it is very light.
Q. Do you know what the average number of passengers
hauled in that car per day is?
A. A recent check showed that—I have got the figures
here for a thirty day period, and it shows an average of
two passengers south-bound and three passengers north
bound.
Q. What would a conductor have to do if you put him on
[fol. 147] that train?
A. Well, I really don’t see that there would be much for
him to do.
Q. The next one is line 3010, and it appears in two places
on Exhibit G, for the reason that it operates in charge of a
porter at two different points. That train, as I understand
it, is a train between New Orleans, Louisiana, and Oakland,
California?
A. That is the points that the car operates, and it operates
on a number of trains. It isn’t a through train.
Q. Well, as far as the car is concerned, it is a through
car?
A. Yes, sir.
Q. It starts at New Orleans and ends up at Oakland?
A. Yes, sir.
Q. And returning, it starts at Oakland and ends up at
New Orleans?
A. Yes, sir.
Q. Let’s take the Missouri Pacific part of it, and the
train comes out of New Orleans and arrives at the Sabine
River, the border line in Texas, at 4:20 P. M., and arrives
at Houston at 7 :25 P. M. ?
A. Yes, sir.
Q. A distance of 117 miles?
A. That is right.
Q. And on the return trip, it leaves Houston at 8 :20 A. M.
and arrives at the Sabine River at 11:20 A. M. While we
[fol. 148] are considering that line, at the bottom of Exhibit
G, the next to the last line on this supplement that was
added to Exhibit G, appears another portion of it cover
ing that part of the line that is operated over the line of
the Panhandle and Santa Fe Railway Company, reaches
Sweetwater at 10:20 A, M. and arrives at Texico at 3:40
P. M., and returning it leaves Texico at 1:53 P. M. and
arrives at Sweetwater at 7 :00 P. M. ?
A. Yes, sir.
Q. That appears to be a daylight operation?
A. Yes, sir.
Q. That train carries mostly local traffic, I take it?
A. Yes, sir, it does.
Q. In other words, from New Orleans to Oakland, Cali
fornia, it doesn’t carry any through passengers, to speak
of?
A. No, that is right.
Q. It carries a Pullman conductor in the State of Texas
between Houston and Sweetwater?
A. That is correct. We have another car on the train
as far as Sweetwater.
Q. And it is a one car operation for the other portion of
the run?
A. Yes, sir.
Q. Where there is no conductor?
A. Yes, sir.
Q. The next line is 3175 from Shreveport, Louisiana, to
Kansas City, Missouri. That is over what railroad?
A. Kansas City Southern.
[fol. 149] Q. It appears on Exhibit G the third line from
the bottom on the second page, page 85; that line appears
to operate in charge of a Pullman porter all the way from
Shreveport to Kansas City.
A. That is correct.
Q. Is that a light run?
A. Yes, sir, it is.
Q. A one car run?
A. Yes, sir, the entire distance.
Q. And it cuts across a corner of the State of Texas
between the little town of Bloomburg and Red River?
A. Yes, sir.
Q. A distance of 31 miles ?
A. That is correct.
Q. What would you have to do to comply with that order
in regard to that line?
A. We would have to station a conductor up there and
cover that short territory.
Q- I should have asked you what would you have to do to
comply with the order in respect to line 3010, which is from
New Orleans to Houston,
107
108
A. Well, that would take a conductor at each end, a con
ductor to operate between New Orleans and the Sabine
River, and it would be necessary to extend a conductor’s
operation that now terminates at Sweetwater. That would
take an additional man at that end of the run, too.
Q. Now, line 3309, which appears at the sixth line on the
first page of Exhibit G, is an International Great Northern
Railroad Company line. The train operates between Gal-
[fol. 150] veston and St. Louis. Is that correct?
A. Yes, sir.
Q. Over what part do you operate the car in charge of a
porter?
A. Between Galveston and Houston in both directions, a
distance of 50 miles.
Q. Do you know whether that is a light or a heavy line?
A. It is a very light line between Houston and Galveston.
It does a pretty considerable business north of Houston.
Q. Leaves Galveston 10:30 A. M. and arrives Houston
11:59 A. M.?
A. Yes, sir.
Q. On return it leaves Houston 1:10 P. M. and arrives
Galveston 2 :40 P. M. ?
A. Yes, sir.
Q. What would you have to do to comply with the order
on that line?
A. On that run we would extend the present conductor’s
operation, which is between Houston and Palestine, through
to Galveston, and cut his lay-over in Houston on the return
trip. It would take a half man to cover that portion of the
trip.
Q. Now, this is line 3265 between San Antonio and
Kansas City. That is the first line described at the top of
page 85 of Exhibit G, Missouri Kansas Texas train, and that
is a daylight run between San Antonio and Fort Worth?
A. Yes, sir.
Q. That train carries a porter, doesn’t it, only in charge
of the car between San Antonio and Fort Worth north
bound?
A. Yes, sir.
Q. And a porter in charge between Waco and San An
tonio southbound?
[fol. 151] A. Yes, sir.
Q. From 1 :30 P.M. to 9 :45 P.M. on the north-bound trip
and from 3:35 P.M. to 9:00 P.M, on the south-hound trip?
109
A. Yes, sir.
Q. Is that a relatively light run, as compared with these
other runs, or a relatively heavy run?
A. It does more business than these other lines. This
is probably one of the heavier in charge lines in Texas.
Q. A conductor, then, accompanies that train north from
Fort Worth to Kansas City, a Pullman conductor?
A. Yes, sir.
Q. And a Pullman conductor accompanies the train south
from Kansas City to Waco?
A. Yes, sir.
Q. What would you have to do to comply with the order
in respect to that line?
A. We would probably operate the conductor through
to San Antonio, extend the conductor’s operation from
Kansas City to San Antonio, which would cover that terri
tory from Waco to San Antonio and return, and operate
a man locally out of Fort Worth to cover the territory
running north. That would he two conductors.
Q. Two added conductors?
A. Yes, sir.
Q. The next one is 3723, and we have already covered
that in your testimony, haven’t we? That is the Browns
ville train ?
A. Yes, sir.
[fol. 152] Q. The next one appearing in the maps is line
3258. That is the third line on the second page of Ex
hibit G?
A. I would like to explain in connection with that that
this line since these proceedings have started has been
shortened to Fort Worth. It is not now operated between
Fort Worth and Wichita Falls, it operates between Hous
ton and Fort Worth rather than Houston, Wichita Falls.
Q. You mean the Pullman car operates there?
A. Yes, sir.
Q. Since this hearing was held before the Railroad Com
mission in August the Pullman car has been withdrawn
from the train between Fort Worth and Wichita Falls?
A. That is correct. I think January 9th was the date,
if I am not mistaken.
Judge Allred: Is there one still operating to Dallas?
A. Yes, it operates to Fort Worth, between Fort Worth—
or between Houston and Fort Worth.
110
Judge Allred: I am talking about between Wichita Falls
and Dallas.
A. No, sir, I don’t think so.
Q. So that isn’t presently involved, although it was in
volved at the time of the hearing before the Commission!
A. That is right.
Q. The next one is 3424. It is about the center of the
page on page 85, a Frisco train operating between, train
operating between Galveston and Tulsa, a porter running
in charge between Denison and Tulsa!
A. That is right.
[fol. 153] Q. And part of the porter in charge run is in
the state of Texas, between Denison and Platter, a distance
of eleven miles!
A. That is right.
Q. And returning the same way. It seems to be a day
light operation for the part of it in Texas!
A. Yes, sir.
Q. But it is an overnight run in charge of a porter!
A. That is right.
Q. What would you have to do in respect to that line!
A. On that run we would extend the conductor’s opera
tion to Platter. The present conductor terminates—the
operation terminates at Denison, and we would merely
extend that operation to Platter.
Judge Sibley: That conductor doesn’t go on with the
train ?
A. No, sir, he does not.
Q. Well, the conductor that runs as far as Denison goes
on with the MK-T train north, doesn’t he!
A. No, sir, he does not.
Q. The train splits up there!
A. That is right, it splits up there and that is merely
to protect that Fort Worth section of the run. The con
ductor that handles—well, I won’t say that, but the con
ductors, most of the conductors on the Katy operate via
Dallas, and the run on the Fort Worth branch is protected
largely by the local men. This happens to be a San An
tonio man that runs as far as Denison.
Q. Now, the next appearing is 3273, the next appearing
[fol. 154] on the maps, another MK-T run, train operating
between San Antonio and Kansas City, and the Pullman
I l l
ear in charge of porter between Denison and Kansas City!
A. Yes, sir.
Q. The portion of the porter in charge operation in Tesas
seems to be a distance of about seven miles'?
A. That is right.
Q. Each way?
A. That is right.
Q. That is the fourth one of the Katy lines mentioned
on page 85.
Judge Sibley: Does that conductor stop at Denison or
go somewhere else?
A. Yes, sir, he stops at Denison.
Q. Now, apparently the porter operates in charge of
that car from Denison to Kansas City and then back from
Kansas City to Denison?
A. That is right.
Q. So he doesn’t see a Pullman conductor over that
distance of 806 miles?
A. Well, I don’t think it is 806 miles, is it?
Judge Sibley: To and from.
Q. Then your map is wrong if it isn’t.
A. I haven’t got a map here. I didn’t think the distance
was quite that great.
Q. But if he does------
A. Yes, sir, he operates to Kansas City, whatever the
distance is.
Q. Seven miles of it in Texas?
[fob 155] A. That is right.
Q. Did you say what you would have to do about that
line?
A. We would have to put a conductor up there to pro
tect that short distance.
Judge Sibley: Couldn’t you make him live at Bed Biver?
Why couldn’t you do that?
A. I can’t answer that, Judge.
Q. Well, the point that I wanted to inquire about is
whether you would have to put another conductor on to
serve that line?
A. Frankly I can’t answer that definitely from memory.
1 have some records on it, but I can’t answer just what
the arrangement was to protect that.
112
Q. Yon don’t know whether you have counted an extra
conductor among your list?
A. I have the records in my file.
Mr. Graves: Unless the court wants to know about it
I won’t stop to ask him to look it up now.
Q. You might supply that later.
A. Yes, sir.
Q. The next one we have here, Mr. Yroman, is line 3501,
a line that operates, the train operates from St. Louis to
El Paso and El Paso to St. Louis over the T & P, and
apparently it operates in one direction in charge of a
porter, between Texarkana and Marshall, leaving Tex
arkana at 3:00 p. m. and arriving at Marshall at 4:25, a
distance of 67 miles?
A. Yes, sir.
Q. What would you have to do to supply that?
[fol. 156] A. That and the next one, 3501 and 3531, are
both one way operations. We would operate a conductor
out of Little Rock down to Marshall to handle 3501 south
bound and return him in 3531. That would be a man and
a half operation for the two lines.
Q. The next one is line 3076, between Amarillo and Okla
homa City, known as the Rock Island, down at the bottom
of the first page of Exhibit G?
A. Yes, sir.
Q. And that operates with a porter in charge for the en
tire distance of the train?
A. From Oklahoma City to Amarillo, a night run.
Q. It is an overnight train?
A. Yes, sir.
Q. Both ways?
A. Yes, sir.
Q. The distance in Texas is 112 miles?
A. That is correct.
Q. What would you have to do to supply that operation?
A. We would operate a conductor locally out of Amarillo
over to a meeting point, which would probably be some
point beyond Texola, and back on the return trip, leaving
there at 4 :23 in the morning.
Q. The next one is line 3251 between St. Louis and Waco,
Fort Worth, St. Louis and Waco, on the MK-T. It is the
second line shown on the top of page 85 in Exhibit G.
A. Yes, sir.
113
[fol. 157] Q. Operates with a porter in charge between
Fort Worth and Denison going north and between Denison
and Waco sonth, is that right?
A. That is right.
Q. A distance of 96 miles northbound and 186 miles south
bound ?
A. Yes, sir.
Q. What would the compliance with the order occasion
in respect to that line as to conductors ?
A. That is another one I am not clear on from memory.
If you would like to have me look at my records. I ought
to have them here, hut I didn’t bring them with me. I have
them in my portfolio there. I think that southbound, that
is covered by the conductor who would—no, I guess it isn’t.
With your permission I would like to look up and see what
the condition is, if it is important.
Q. Just do that later. We won’t stop to do that now.
A. Yes, sir.
Q. Next is line 3015, from El Paso to Albuquerque, and
you have already testified about that?
A. Yes, sir.
Q. The next is 3370, a line operating between Dallas and
Memphis over the Cotton Belt?
A. Yes, sir.
Q. And it appears------•
A. That is a through porter in charge operation between
Dallas and Memphis, and we would have to operate con
ductors locally out of Dallas to Texarkana and back.
[fol. 158] Q. Now, that operates without a conductor and
in charge of a Pullman porter between Texarkana and Dal
las going south and Dallas and Texarkana going north?
A. Without a conductor the entire distance.
Q. That is the part of it in Texas where you have no
conductor ?
A. Yes, sir, that is right.
Q. So that car travels without a conductor for a distance
of 193 miles in Texas, plus the distance of Texarkana to
Memphis, which is according to this map 289 miles?
A. That is correct.
Q- Ho you recall what you would have to do to comply
with the order in respect to that line?
A. I think the figures show we would have to operate a
conductor and a half on that.
8—283
114
Q. The next line is line 3128 between Fort Worth and
Houston, and you have already testified about that ?
A. Yes, sir.
Q. I believe that covers all of these lines, doesn’t it, Mr.
Y roman ?
A. I think it does, yes, sir.
Q. All of the lines that are being operated in the State of
Texas in charge of porters are shown in Exhibit G attached
to the complaint?
A. Yes, sir.
Q. And one of those lines shown in that exhibit, 3258, is
not now being operated with a porter?
[fol. 159] A. That is correct.
Q. In fact, you have discontinued the line between Fort
Worth and Wichita Falls?
A. That is correct.
Q. Do you recall whether the railroad company requested
the discontinuance of it?
A. It is my understanding they did.
Q. On account of the------
A. We received notification that they had discontinued
that part of the line, shortened the operation.
Q. Mr. Vroman, the order that is being challenged in this
suit states, among other things, that the Commission has
found that where these cars are operated in charge of negro
porters, that the women passengers on these lines are in
danger of being insulted. Now, that is the allegation. I
want to ask you if you have had occasion to examine the
records of the porters operating as porters in charge in
Texas for a period of say five years back?
A. I did.
Q. What is that record with respect to the action of the
porters themselves, as to their treatment of the passengers?
A. We have not had a single case involving a porter in
charge operation in Texas during that period.
Q. When you say you have not had a single case you
mean you have not had any complaints?
A. Any serious complaint in the nature of an assault or
mistreatment or discourtesy or anything of that sort. We
always have reports of passengers carried by on conductor
runs and porter in charge runs; occasionally, I say we get
[fol. 160] some of them, but I say nothing that would reflect
against the actions of a porter toward a woman passenger.
Q. All right, the order also contains a finding to the effect
115
that women passengers, as well as the other passengers, are
in danger of being insulted and in danger of bodily harm
from other passengers on the train, particularly those who
may be under the influence of liquor. Have you examined
the records to determine whether anything like that has
occurred on these porter in charge lines in Texas?
A. There has been nothing on porter in charge lines. The
records showed we did have five such cases on trains where
we operated conductors. It just so happened that way.
We have had no reports of that sort on porter in charge
lines.
Q. These other cases you speak of, is that during the past
five years?
A. Yes, sir.
Q. It covers the same period ?
A. That is right.
Q. I will ask you to state whether the rules of the railroad
company require the railroad train men, that is, the con
ductors and brakemen, to report incidents of that kind or
any other incidents affecting passengers ?
Mr. Culbertson: Now, if the Court please, we object to
that as being hearsay evidence. The rules of the railroad
would be the best evidence.
[fol. 161] Judge Sibley: I think you are perfectly right
about it.
Mr. Culbertson: They are published rules, and we would
like to have them in evidence.
Q. What would be the added expense to the Pullman
Company involved in employing the additional conductors
that would be required to supply these lines, if you had
to comply with the challenged order?
A. $41,000.00; $41,600.00.
Judge Sibley: What length of time does that cover?
A. I beg pardon?
Judge Sibley: What length of time is that ?
A. For a year.
Q. Per annum?
A. Yes, sir.
Q. That would be the additional Pullman conductors’
salaries the company would have to pay out?
116
A. Yes, sir, on the basis—we use a flat average of $2400.00
a year. Their rates, they are on a scaled basis depending
on their length of service, and $200.00 a month we figure is
a fair average.
Q. All right, that would be the expense of that kind.
Would you save any expense by reducing the porters’
salaries?
A. Yes, we would save approximately $5,000.00.
Q. In other words, of the $41,000.00 that you would
pay the conductors you would have to take $5,000.00 of it
away from the porters ?
[fol. 162] A. That is right.
Q. Now, do you know whether any of that would ulti
mately be passed on to the railroads ?
A. That is an accounting matter, but I understood it
would, some portion of it. I am not prepared to say to
what extent it would.
Q. Mr. Bradish is here?
A. Yes, sir.
Q. And he can give us the figures on that?
A. Yes, sir.
Cross-examination.
Questions by Mr. Morgan:
Q. Mr. Yroman, you say it costs $2400.00. Is that the
average for each conductor?
A. Approximately, yes, sir.
Q. What is the maximum for each conductor?
A. $205.00.
Q. What is the minimum?
A. $172.00.
Q. How do you arrive at the figure of $200.00 as being
the average?
A. Well, we have employed no conductors for ten years,
and they are all of them in the higher wage brackets.
Q. You haven’t hired any new conductors?
A. I say not any. I know we took up one man at Cincin
nati, but we haven’t employed very many, two or three at
some places.
[fol. 163] Q. Has that been occasioned by a program of
taking off conductors and substituting porters in charge?
A. No, sir.
117
Q. Now, then, Mr. Yroman, the rank and position of a
Pullman porter as provided in the order; you are of a rank
and are an assistant to the vice-president and you are
superior to the conductors, aren’t you?
A. Well, I guess you would term it that way.
Q. All of these gentlemen that Mr. Carry testified about
being over the conductors, they have a rank and position
at least equal to the conductor, do they not?
A. Yes, sir.
Q. All right. Now, then, I will ask you if it has not been
a custom in Texas and in your system all over that when it
was necessary for you to comply with a rule or regulation
such as this that you proceeded to pool the runs of the vari
ous conductors?
A. No, that is not right.
Q. That isn’t right?
A. No, sir.
Q. You have a man employed, each conductor, for 240
hours per month?
A. That is the basic month’s work.
Q. Yon have a right to call on his time for that much, do
you not?
A. That is right.
Q. That means eight hours a day for thirty days a month?
[fol. 164] A. That is correct.
Q. Less the time he lays off, which is included. That
means you can use his time, then, 240 hours per month?
A. That is right.
Q. And you can use that at such place or such advant
age as you deem best, can’t you?
A. No, I wouldn’t say so.
Q. Why can’t you use that, Mr. Vroman?
A. Well, a man that is in a regular assignment, we make
up a schedule showing what his operations would be. Now,
if we use him beyond that we would expect to have to pay
him for that.
Q. You mean if yon worked a man 180 hours on a regular
assignment per month and then you used him on some short
run you would have to pay him for that short run?
A. Extra, yes, sir.
Q. You mean you can’t pool his run with some other run
and use the entire 240 hours ?
A. No, I don’t mean that. We can pool certain classes
of runs. We don’t pool night runs, but like this run from
118
Palestine down to Houston and then on to Galveston, we
could extend that operation down to Galveston or pool it up,
but we couldn’t pool night runs with any other runs.
Q. Well, that is the one exception that is provided in the
contract between the Pullman Company and the Pullman
conductors, isn’t it?
A. That is right.
ffol. 165] Q. Other than that one exception you can pool
them, can’t you?
A. Yes, we can pool certain types of runs, but there are
few, very few pools throughout the whole country.
Q. Isn’t that a matter of working out the schedule of each
conductor? By pooling you simply mean you work out his
schedule ?
A. That is right.
Q. Let us say a man that may run from Fort Worth to
Kansas City and back, let us say he uses 200 hours a month
doing that. If you desired to you could work out his schedule
where he could make a schedule down to Ennis and back if
it worked out properly with his other run?
A. No, sir.
Q. Why not?
A. Under our agreement we can’t pool long and short
runs to build up the hours to get the maximum hours of 240.
Q. Let’s say if a man runs from Fort Worth to Abilene
and back and he uses on that run 200 hours per month,
could you use his run from Fort Worth to Ennis and hack,
could you use him on that run?
A. No, sir.
Q. Why?
A. Under the agreement that is a one night run up to
Amarillo. We can’t pool that up with anything.
Q. What can you pool then, Mr. Vroman?
A. Well, like this day run down to Corpus Christi, if we
had another run from San Antonio up to—a day run over
[fol. 166] to Houston, for instance, we are not restricted
on pooling when it comes to daylight operations.
Q. All right, how about one on down to Brownsville ?
A. It wouldn’t run to Brownsville. The Brownsville is a
night run from Harlingen on down. How would you get
the conductor down there? You can’t pool runs unless they
come together.
Q. Assuming they come together. Some in San Antonio
come together?
119
A. Yes, sir.
Q. And you could pool those runs?
A. Yes, sir.
Mr. Graves: I beg your pardon, that train doesn’t run
through San Antonio.
Mr. Morgan: I didn’t have any particular train in mind.
A. That is strictly theoretical. But if he did, if they did
come together, you could pool them.
Q. In Houston you have a number of trains that are
affected by this order that do go through Houston, don’t
you?
A. Not very many.
Q. The one from Galveston up to Houston?
A. Yes.
Q. Houston across the Sabine River?
A. Yes, sir.
Q. One from Houston across to Denison?
A. Yes, sir.
Q. Now, would it be possible to pool any of those runs of
the various conductors?
[fol. 167] A. What would be the advantage of pooling
them; if you run a conductor over to the Sabine River and
back you have another operation down to Galveston that
involves the same hourage. You couldn’t pool them to
advantage.
Q. Heretofore you have done that, haven’t you, Mr.
Yroman?
A. Not unless there was some advantage.
Q. I understand, but where there was advantage?
A. Yes, sir, we have pooled some day runs.
Q. Isn’t it true some of your conductors don’t run over
180 or 200 hours per month?
A. Yes, sir.
Q. Therefore, if you should decide to try to work out a
schedule you have a call on their time without additional
compensation for the 240 hours per month?
A. No, I don’t think so. I will say definitely that we
do not. There is nothing to be gained by pooling two one
night runs. It only mixes up an operation for no purpose.
Q. All right. Now, in Texarkana alone there are three
lines that go through there. Would it be possible to pool
any of those together? Have you studied that, Mr. Vro-
man?
120
A. I studied tliose two. We have two one way lines.
Q. Would it be possible to pool those?
A. I think so. I think you could pool those two.
Q. All right, if you pool those two it wouldn’t require an
additional conductor, would it!
A. I pooled these two together and used a conductor and
a half for the two runs. They are both of them one way.
It simply makes a round trip operation.
[fol. 168] Q. Now, then, when you are talking about these
various different lines about which your counsel has gone
over in detail, you are taking into consideration the cost
as to that particular operation, aren’t you?
A. That is right.
Q. And that is all you are taking into consideration, isn’t
it?
A. That is right.
Q. Now, I believe you said you studied this order and its
effect. There is a provision in this order: “ It is further
ordered by the Railroad Commission of Texas that in any
case where it is the desire of any railroad company, re
ceiver or trustee to operate over its line of railway a sleep
ing car or cars without fully complying with the provision
of the orders above set out, the Commission shall be noti
fied and its consent secured before such change or devia
tion from the terms of said orders is put in force.’ ’ Now,
then, have you made application to the Commission as to
the operations on nny of these particular lines for relief as
to that particular part of it?
A. Well, I think our legal people would have to answer
that. I don’t handle matters of that sort.
Q. I just asked you if you know, Mr. Yroman?
A. No, I don’t know.
Q. All right. Now, when did you take off on this Browns
ville run, or did you ever have a conductor in charge there,
sir?
A. I don’t think we ever did.
Q. You don’t think vou ever did?
A. No.
[fol. 169] Q. Has that always been a porter in charge run?
A. I think so.
Q. A porter in charge run?
A. I wouldn’t say definitely about that, Mr. Morgan, but
I know it has been a porter in charge for many, many years.
121
Q. Down at Brownsville you have three railroads, don’t
you?
A. I think the S. P. and the Gulf Coast line are the
only ones that I know that run in there.
Q. How about Harlingen, aren’t there two or three rail
roads in there?
A. Just the same there, I think.
Q. How about this run to Ennis, when did you take the
conductor off that run?
A. The same operation has been in effect for twelve or
fifteen years at least.
Q. Porter in charge, you mean?
A. Yes, sir.
Q. How about the El Paso across to Albuquerque?
A. That was recent, early in 1939.
Q. How did you handle that before, Mr. Yroman?
A. We had a conductor.
Q. Where did he run from?
A. El Paso to Albuquerque.
Q. And return?
A. Yes, sir.
Q. And on account of the expense you took him off, is
that correct?
A. Well, it was felt—it is a one car operation. It used
[fol. 170] to have about three cars on there, but it has been
deteriorating year after year and it got down to a one car
operation, and we felt it wasn’t needed.
Q. Now, El Paso has three railroads, doesn’t it?
A. Yes, I believe so.
Q. Isn’t that a terminal point of railroads there?
A. No, I don’t think so.
Q. Isn’t that the place where your Pullman conductors
live? They operate out of there?
A. I think we have five conductors there.
Q. Have you thought of the possibility of rearranging
their schedules so you could use one of those conductors
on this particular run?
A. We don’t think he is needed. They formerly had it.
That is the reason we took him off.
Q. I understand. Now, then, the one from Amarillo to
Denver, when did you take that run off?
A. What was the question, Mr. Morgan?
Q. The one from Amarillo down to Denver—from Denver
down to Amarillo.
122
A. I can’t remember the exact date. It was early in
September, though, after the summer lines came off.
Q. All right. That is, in the winter time, then, you don’t
have a conductor?
A. That is right.
Q. Well, you govern that, then, by the number of pas
sengers you have, is that the way you do it?
A. The requirements of the service.
[fol. 171] Q. Now, from Dallas to Corpus Christi, you
say you don’t have a conductor on that run ?
A. No conductor between San Antonio and Corpus. We
have one to San Antonio.
Q. How long ago did you take him off?
A. That has been a porter in charge run for many years,
too.
Q. How about the one from New Orleans to Oakland,
California? When did you take that off?
A. Early in 1939.
Q. That is the second one, I believe, you testified about
you have taken off in 1939 ?
A. That is right.
Q. What did you do prior to that time on that run ?
A. It was a conductor operated run between Houston
and New Orleans.
Q. Oh, he operated all the way from New Orleans to
Houston?
A. That is right.
Q. I believe you testified awhile ago that you made a
thirty day test of some sort regarding this run from Corpus
Christi ?
A. Yes, sir.
Q. When was that rest made, Mr. Vroman?
A. The figures were for December.
Q. Of this last year?
A. Yes, sir.
Q. All right. Now, then, with reference to this run from
Shreveport to Kansas City, when did you make that a
[fol. 172] porter in charge run?
A. It has been a porter in charge run for four or five
years. That is like a good many of these others, they used
to have a good many cars in the train and finally it
dwindled down to one and they have been porter in charge
since.
123
Q. Galveston to Houston, when did that become a porter
in charge?
A. That has been a porter in charge for twelve or fifteen
years, too.
Q. The one from Kansas City to San Antonio, when did
you make that a porter in charge ?
A. This last February.
Q. Within the last year ?
A. Yes, sir.
Q. That is the Katy that runs out of San Antonio
through Austin and Waco and on up this way?
A. Yes, sir.
Q. It runs through this city here?
A. Yes, sir.
Q. And that is a very heavy train, heavy traffic?
A. Some portions I believe quite heavy.
Q. You serve the universities that are located up along
the road, the University of Texas, Baylor, and other uni
versities, don’t you?
A. I expect we do.
Q. And you say you took that off in 1939 ?
A. That is right.
[fol. 173] Q. Now, then, where was your conductor prior
to that time or where did he run from?
A. He ran from Kansas City to San Antonio.
Q. Now, then, the one from Houston to Fort Worth,
formerly the Wichita Falls run, has that been taken off en
tirely?
Mr. Morgan: Do I understand that, Judge?
Mr. Graves: The porter in charge has.
Q. You have recently changed back to a conductor on
that, have you?
A. It always did have a conductor in charge as far as
Fort Worth, and we discontinued the sleeping car service
between Fort Worth and Wichita Falls.
Q. All right. On the Frisco, then, from Galveston to
Tulsa. When did you take the conductor off that run?
A. That has been a porter in charge operation for many
years, too.
Q. Now, this other Katy run from San Antonio to Kan
sas City, when did you take that off?
124
A. I can’t tell you on that definitely, Mr. Morgan. It
has been a porter in charge operation for a long time
though.
Q. Well, hasn’t it been within the last two or three years?
A. It might have been three years ago. They have
changed that run over there so much that I am not clear as
to just when it was made. We now have a car that oper
ates to Waco and dead-heads up to Fort Worth, and I think
it is pretty involved operation, and I don’t recall the de
tails of it offhand.
Q. All right, this run from St. Louis to El Paso on the
[fol. 174] T. P., when did you take that conductor off?
A. That is much the same thing. The T. P. has changed
their service a good bit, but the porter between those points,
to my recollection, has been in charge a long time.
Q. Hasn’t that been relatively recent? I mean within the
last two or three years?
A. No, sir, I don’t think so.
Q. All right, how about the one from Amarillo to Okla
homa City, when did you take that conductor off ?
A. Well, I would say approximately two or three years
ago.
Q. All right, sir. Now— —
A. That is much the same as the others. They had other
lines out of Oklahoma City until up to that time.
Q. How about the run on the Katy from Fort Worth to
Waco? That is a recent one, isn’t it?
A. Well, that is the one that I spoke of that I said the line
stops. That is 3251. That stops at Waco and then runs
up to Fort Worth, and I can’t tell you offhand how long
that has been, but it is not recent. It is not in 1939.
Q. Are you sure of that, Mr. Yroman?
A. I am pretty sure of it, yes, sir.
Q. All right, how about the one from Dallas to Memphis ?
A. That was in the early part of 1939 or the latter part
of 1938. That is the Cotton Belt, you mean?
Q. Yes, sir.
A. Yes, sir.
[fol. 175] Q. Well, then, in your operations in Texas, out
of the seventeen, or now sixteen, operations complained of
that you have set forth in your bill of complaint, five or six
of them at least are operations that have been changed
within the last year, and others within the last two or three
years, is that correct?
125
A. I think there are four this last year, if I am not mis
taken.
Q. Well, the tendency is more and more, isn’t it, Mr. Vro-
man, to do this in your entire system?
A. No, I wouldn’t say so, Mr. Morgan. It all depends
on the discontinuance of lines. As I testified this morning,
our service is about fifty per cent what it was some years
ago, and naturally these cars have to come off some trains,
and changed conditions have brought about changes in the
conductor operations.
Q. Over your entire system you have done this same
thing, haven’t you?
A. Well, it has been more pronounced in some sections
than others. Our business in some sections hasn’t fallen
off as much as it has in others. There is no hard and fast
rule. We are simply governed by the make up of the trains
and the requirements of the service.
Q. You mentioned awhile ago something about some con
duct on the train, some five cases, I believe you said?
A. Yes.
Q. I didn’t understand just what occurred. Was that be
tween passengers?
A. That is right.
[fol. 176] Q. And who made that report?
A. The conductor, I think.
Q. All right, Mr. Vroman, are you suggesting to this
court that in the event of misconduct between passengers
on the train that a porter is as well qualified to handle that
situation as a conductor would be ?
A. Absolutely, unqualifiedly.
Q. You think if a man on the train is conducting himself
improperly by reason of drink or otherwise that a porter
could handle the situation as well as a conductor?
A. Mr. Morgan, I think he handles it better. A porter
has more tact in handling a drunken passenger or a passen
ger who is misconducting himself than a conductor has.
If he pukes all over the floor the porter is going to wait on
him and he has more persuasion than the ordinary con
ductor.
Q. I see. All right. Now, then, I believe under your con
tracts that you are talking about you get a fixed sum before
the railroad participates in the profits, isn’t that correct?
_A. Naturally, Mr. Morgan, I am not altogether familiar
with the contracts. I would sooner you would ask some of
126
our accounting people about that. I know in a general way,
bnt I don’t know all about it.
Q. You have those gentlemen here in attendance who will
testify in this case?
A. Yes, sir.
Redirect examination.
Questions by Mr. Graves:
Q. In giving your statement as to the number of con
ductors that would be required to supply these lines if they
were converted into conductor lines, I will ask you whether
[fol. 177] you have made a study of the pooling problem as
well as all other problems that would be involved?
A. Yes, sir, I have.
Q. And you have attempted to work out an arrangement
that would be the most equitable and most satisfactory?
A. Absolutely. I think I explained to you in that run
down to Galveston we were able to couple that up with the
present operation and simply add a half man.
Q. Are the Pullman conductors under the same kind of
supervision from district supervisors, agents, inspectors
and so forth as are the porters?
A. Just the same, the same instructions and same super
vision.
Q. Now, you stated a moment ago that you hadn’t hired
any new conductors for something like ten years. Have
you hired any new porters ?
A. Yes, sir, we have hired some porters, probably two
or three hundred maybe.
Q. What is the ratio of porters to conductors, about how
many porters are there on the lines as compared with the
number of conductors?
A. Well, we have about 9,000 porters and about 1,700 con
ductors, and I can’t tell you the number required to fill regu
lar lines offhand, the number required to fill regular lines
of porters and conductors too.
Q. Ho you happen to know whether there have been any
new porters hired in Texas ?
A. None whatever.
Q. None whatever?
[fol. 178] A. None whatever.
Q. All of the porters that are operating in Texas, whether
in charge or on your conductor lines, are old porters?
127
A. Ten years or better. Most of them are free uniform
men.
Judge McMillan: Free what 1
A. I say free uniform men. In other words, we furnish
free uniforms after ten years service.
Q. This day run that Mr. Morgan referred to on the Katy
as being a very heavy run operates how many Pullman
cars between San Antonio and Fort Worth?
A. One.
Q. And then returning between Waco and San Antonio?
A. One both directions. One car both directions between
Waco and San Antonio. They pick up another car at Waco.
All of these runs are one car operations throughout the en
tire porter in charge operations.
Mr. Graves: I will say this to the court, if I may be per
mitted, and to counsel, that I don’t care to pursue this
matter any further of how many conductors would be re
quired. That is for the simple reason, as we feared, that
practically all the advantage we would get out of it would
be showing jurisdictional amount and the amount is so
large that if we showed two or three hundred per annum
we would certainly have a jurisdictional amount.
(Witness excused.)
(The court then, at 12:00 o ’clock noon, Saturday, Febru
ary 17,1940, recessed until 9:00 o ’clock a. m., Monday, Feb
ruary 19, 1940, at which time the following proceedings
were had:)
[fol. 179] M onday , F ebruary 19, 1940
Morning Session, 9 :00 A. M.
P r e l im in a r y D iscussion
Judge Sibley: Over the week end I have had an oppor
tunity to read the pleadings and various papers in this
case, and I find in the order of the Commission there is a
provision that whereby in any particular case, and that was
the word they used, case, the railroad company desired to
poll a car without compliance with the order, that they
would come to the Commission and get its special consent.
Well, I had the thought that maybe these seventeen runs
128
ought to go to the Commission as special cases to have their
judgment on whether or not they ought to be permitted,
being in peculiar circumstances, not to have to comply, hut
fundings five and eight of the order seem to indicate that
the Commission had, to some extent at least, considered
these seventeen runs, and I notice the pleadings of the Com
mission do not anywhere suggest that the matter is open
and that the railroads and Pullman Company ought to come
to them for special consideration of these cases, and the in
quiry I want to make is whether or not you all are agreed
about that, whether this is a closed chapter as to each of
these seventeen runs, or whether it is a matter that is still
open and that the Commission would have the power and
duty to consider especially.
Mr. Graves: I assume that your Honor wishes to hear
from the Commission first in answer to that question!
Judge Sibley: Well, you attack the whole order broad
side, you said they didn’t have any right to make any
[fol. 180] order at all.
Mr. Graves: Yes, sir, that is correct. I think that I
may as well say to the court that we considered that fea
ture in the order, naturally, before we filed this com
plaint, and as we view it that is simply another and
additional arbitrary feature in the order. All of these
porter in charge lines were considered by the Commis
sion at the hearing, and at the hearing they knew pre
cisely what porter in charge lines there were in the
State of Texas. The only two that have been added to
the complaint, and that the Commission did not consider,
are the two that have been inaugurated since the hear
ing was had, and attached to the complaint by way of
amendment and addendum.
Judge Sibley: I mentioned that for the reason that Fed
eral Courts have a great reluctance toward interfering
with state operations until they get right to the last ditch.
For instance, even in tax cases they require you to ex
haust your administrative remedy before you come into
the Federal Court with constitutional questions. There
must be a last ditch fight in the state set-up, and whether
that has happened or not is what was troubling me.
Mr. Graves: Yes, sir, we gave consideration to that
and that is the thing that impelled us, when they first
issued this order without notice or hearing, to go to the
Commission and ask for a hearing with respect to all of
these runs.
Judge Sibley: They were separately presented to the
Commission?
Mr. Graves: Yes, sir, every one except the two that have
been inaugurated since the hearing.
[fol. 181] Judge Sibley: You say about one or two of these
runs, that they don’t involve anything but interstate pas
sengers. Was all of that before the Commission?
Mr. Graves: Yes, sir.
Judge McMillan: Did they make any order?
Mr. Graves: No, sir. Exhibit F is a new order they
made after the hearing, and it contains the broad, sweep
ing, prohibitory provision in the exact language of the
original order they entered without notice or hearing.
Judge Sibley: And then added this opportunity to come
back to the Commission? Is that a single charter car
or something?
Mr. Graves: I don’t know, Your Honor. I think I ought
to say that in no event has the Commission authority under
the Texas Constitution or the Texas statutes to promul
gate a general sweeping order that amounts to a legisla
tive order, and then say without announcing any standard
that if we see fit to do so we may see fit to grant you
relief from some particular operation. We think that is
nothing but an additional arbitrary feature attached to
the order. Now, if they had promulgated some standard
that would enable us to apply the standard to a given
run and come to them if that run, as we see it, happens
to fall within the standard that would entitle us to an
exemption from the order, that would be a different ques
tion, but we have had two hearings before the Commission
with respect to all of these matters, and we thought it
would be idle to have any more.
[fol. 182] Judge Sibley: I will tell you what we did in a
case in Florida in which it was uncertain whether the ad
ministrative authorities had shot their bolt or hadn’t, we re
tained an injunction for thirty days, I think, in order to give
them opportunity to make the application or take the action
that would bring the matter to a focus, and we let the bill
pend until—I believe in that case it was some Federal deci
sion—they could come to some conclusion as to what they
9—283
129
130
were going to do, and the bill was left pending as a safe
guard.
Mr. Graves: These are all of the porter in charge opera
tions in the State of Texas, and we would still be here with
this very bill.
Judge Sibley: Well, if they mean business, if they have
considered this thing and made their decision there isn’t
any reason to go over it again. I was just asking if they
had done that.
Mr. Graves: Yes, sir, they have considered all of them
except the two runs inaugurated since then.
Judge Sibley: Judge McMillan wants to put it to you
pretty pointedly. He wants to ask you straight off the
bat that as representatives of the Commission whether
the Commission regards these matters as open or whether
they regard them settled?
Mr. Lewis: If the Court please, about the only way we can
answer that is in this way, that looking at this order and
considering it in the light of the testimony that was given
[fol. 183] before the Commission, which we have read, it
doesn’t seem to me that the order is necessarily intended
to preclude each and every line of operation in the State
of Texas. Now, in inspection of the testimony that was
given before the Commission perhaps shows in a general
way consideration of each of these lines of the railroads
and the Pullman cars. Nevertheless, I think a fair reading
of the whole testimony before the Commission simply shows
that the question open for consideration there was the
general authority of the Commission to enter an order of
this kind having a general application, and it seems to me
that a savings clause was meant to take care of specific
situations where a line which objected to this character of
order could go in there and develop the evidence that per
tained to that particular line. And the evidence that was
before the Commission was somewhat of a general nature
which bore on the authority of the Commission to enter
that sort of an order. Now, this order, of course the im
mediate effect of it would apply only to the lines in Texas
which are operated without Pullman conductors, but mani
festly it would apply to the many, many other lines------
Judge Sibley: It applies to every Pullman car running
in Texas? Wouldn’t it be just a breach of those running
without conductors?
131
Mr. Lewis: Yes, sir. And to say that the Commission in
the previous hearing had up for consideration the individual
lines and each and every individual line in Texas would be
going a long ways. I don’t see how it could be said, from
an inspection of the record, that consideration was given to
each and all of these operations. I think each one would
have its own facts to sit on.
[fol. 184] Judge Sibley: Now, in finding five they say
there are seventeen lines run at present without a con
ductor, and that the passengers on them pay the same
amount and don’t get the same service, and they find that
there is a discrimination there. That looks like they passed
on it.
Mr. Lewis: Yes, Your Honor, that paragraph does all
right.
Mr. Graves: In connection with the question that the
Court has raised, I will ask counsel if he has a copy of the
transcript, the official transcript of the record before the
Commission?
Mr. Rotsch: Yes, sir, we have it.
Mr. Graves: We would like to offer in evidence this
transcript, if the Court please.
Judge Sibley: That is a whole lot of evidence. Is there
any result coming from that? Of course, we ought to test
what they did by what they ordered.
Mr. Graves: That has been our contention, your Honor.
Judge Sibley: You all don’t agree about it. We are
killing time. Go ahead with the evidence.
B. H. V ro 'm a n , w as reca lled as a w itn ess f o r p la in tiffs ,
and p re v io u s ly h a v in g been d u ly sw orn , testified fu r th e r as
fo l lo w s :
[fol. 185] Direct examination.
Questions by Mr. Graves:
Q. Mr. Vroman, directing your attention to the matter
that the Commission made a special finding on, its special
finding No. 13, appearing on page 65 of the complaint, I will
ask you to state what special training a conductor receives
from the Pullman Company that is not received by the por
ters in charge?
132
A. None that I know of. The porters receive the same
instructions that a conductor does when he is required to
operate in charge.
Mr. Morgan: If the Court please, may we inquire of coun
sel if this examination of this witness is limited as it was
on Saturday to jurisdictional facts, or is he now going into
the case on the merits ?
Mr. Graves: We hadn’t intended to be limited to jurisdic
tional questions. We intended to go into the merits.
Judge Allred: Will the reporter read the last question and
answer ?
Thereupon the Reporter read the question and answer as
follows:
“ Q. Mr. Vroman, directing your attention to the matter
that the Commission made a special finding on, its special
finding No. 13, appearing on page 65 of the complaint, I will
ask you to state what special training a conductor receives
from the Pullman Company that is not received by the por
ters in charge?
A. None that I know of. The porters receive the same
instructions that a conductor does when he is required to
operate in charge.”
[fol. 186] Q. What books of instructions or bulletins are
issued to the conductors that are not issued to the porters
in charge?
A. None whatever. They receive the same book of in
structions, and these quarterly service and safety meetings
are held and the same information is passed out to the por
ters as to the conductors. The same instruction is covered.
Q. What schools does the company have for conductors
that are not also held for porters in charge?
A. None. We hold quarterly service meetings for the
benefit of conductors and porters both for the purpose of
acquainting them with any new features and for reviewing
regulations that have already been issued from time to time.
Q. When a new conductor is employed by the company
how long does he attend instructions schools or how long
does he spend in an apprenticeship capacity?
A. Usually ten days and he is given instructions by some
one that is familiar with our requirements in regard to the
forms that are used, making up the diagrams and going
over the forms in general, and then he is allowed to make
133
a road trip with an experienced conductor and permitted
to lift the transportation and get instructions that way from
actual contact. The same applies to the porters. They are
given the same instructions in regard to diagram work and
that sort of thing.
Q. What service is rendered by the Pullman conductor
to the Pullman passengers on the train that is different
from the service that is rendered by the porter when the
[fol. 187] conductor is not on the train?
A. We feel that the passenger receives the same service
on a car in charge of a porter that he receives when a con
ductor is present provided the porter lifts the transporta
tion, and he looks after the passenger in every respect as
the passenger receives on a conductor train.
Q. I was going to bring that out, but that isn’t exactly
what the question called for. The question I am now ask
ing you is what is it that the porter has to do when he be
comes a porter in charge in liis contact with the passengers
that he has not theretofore been required to do as a porter?
A. Merely lift the passengers’ transportation.
Q. What additional service does he render to the company
now as distinguished from that that he renders to the pas
senger?
A. He is required when operating in charge to lift the
transportation, prepare the diagram, and, if it is necessary,
to send space messages down the line just the same as the
conductor would, and write up the diagram.
Q. As a matter of fact, as to all of these porter in charge
runs in Texas, does the porter lift the transportation?
A. Not always. At some points where the trains leave
late at night the transportation might be lifted by a con
ductor in the depot who receives for other cars at the same
time, but in the daytime where the transportation is not
lifted in the depot the porter handles it. I might add that
on some trains the train conductor lifts both railroad and
[fol. 188] Pullman transportation and turns the transporta
tion over to the porter as the ticket lift is made. There is
no hard and fast rule about that. Some train conductors
require porters to do it and sometimes they lift it and turn
it over to the porter.
Q. Yon spoke of the service meetings held for the con
ductors and for the porters. Are those meetings joint or
are they separate ? That is, do the porters and conductors
attend jointly a common meeting?
134
A. In most districts they are separate, but in smaller
points joint meetings are held. Not invariably, because
some of the small points are separate, but a good many
of them hold joint meetings.
Q. How many Pullman lines are there in Texas at the
present time?
A. Lines locally in Texas and entering Texas, I think
there are 114.
Q. What do you mean by a Pullman line?
A. Well, a Pullman line, it is all of our operations. That
is a car movement from one point to another. They are
identified by a line number, simply a distinguishing mark.
To quote an example, I refer to this Fort Worth-Houston
line in which the porter operates in charge from Fort Worth
to Ennis. That is known as line 3128. It means a round
trip operation of a car from one terminal to another. We
have some trains that have several cars bearing the same
line number, but usually a line number means one round
[fol. 189] trip operation.
Q. Well, take the Texas Special for example on the Katy,
or the Sunshine Special on the Missouri-Pacific, each of
which trains carries a number of Pullman cars ?
A. Yes, sir.
Q. Does each car have a different line number?
A. No, they don’t. On the Sunshine there are two cars
and that is line 3301, the line that runs to Mexico City.
It is the same type of car, the same destination, and it is
given the same line number. In that case we consider that
a two car line, but usually each car has a separate line
number.
Q. Well, how many Pullman cars are involved in the
Texas operations, in these 114 lines how many Pullman cars
are you using in service in Texas, in and through Texas?
A. Well, I am not sure as to that. You mean Pullman
lines ?
Q. Yes, sir, I mean Pullman lines.
A. 114.
Q. No, I mean how many Pullman cars do you use to
operate those lines?
A. 400. That is the number of cars required to fill these
so-called Texas lines.
Q. How many porter in charge lines are in Texas now?
A. Sixteen.
135
Q. How many cars are in operation in the porter in
charge lines in Texas?
A. I think forty, but I can’t recall that.
[fol. 190] Q. Well, is that approximately correct?
A. I think it is.
Q. You stated that it would require seventeen and a third
additional conductors to supply the sixteen porter in charge
operations if the company had to comply with this order ?
A. That is correct.
Q. Is that the way that you would do it if the order has
to be complied with?
A. Yes, sir.
Q. Could you arrange it so that you could do it any more
economically than that ?
A. No, sir. As a matter of fact, we might go beyond
that. Some of these operations would not be very desir
able operations, and we might go beyond that, hut that is
the minimum.
Q. Now, something is said in the order about the training
that a conductor has in respect to the air conditioning on
the cars as distinguished from that that a porter has. State
what the facts are in that regard.
A. They have the same instructions. The conductors
and porters, in regard to air conditioning. That feature
is covered at the service meetings the same as other fea
tures, and the porters and conductors receive the same
instructions. I think it is pretty generally considered that
the porters know more about it than the conductors do.
They have had the handling of it. I am not trying to
discredit the conductors, but that is common gossip.
[fol. 191] Q. Is this, Mr. Vroman, a copy of the Pullman
Company’s instructions to conductors?
A. Yes, sir, this is a copy of the most recent instructions.
Q. Is that substantially the same copy as the one that
was introduced in evidence at the Commission’s hearing?
A. Yes, sir, it is.
Q. Now, have you a book of instructions there for the
porters?
A. That is included in this book.
Q. The same book?
A. Yes, sir.
Mr. Graves: We offer that in evidence.
136
(The above referred to document was thereupon received
in evidence, the same being marked Plaintiff’s Exhibit
No. 1.)
Q. The order states that the Pullman porter is not quali
fied to discipline a passenger on the train. I will ask you
to state whether or not the Pullman conductor has author
ity to discipline a passenger?
A. He has not. The conductor and the porter have the
same right in respect to disciplining passengers. If it is
some minor infraction each is expected to handle it, but if
it is something serious they must both report the matter
and apply to the railroad conductor.
Q. Do each have authority to eject a passenger from a
train ?
A. No.
Q. If, in the opinion of the porter or conductor, a pas
senger conducts himself so that there is a call for discip-
[fol. 192] linary action, what is the duty of either of them?
A. They must go to the train conductor.
_ Q- Do you know, as a matter of fact, who handles the
air conditioning on the train in the majority of cases?
A. The porter. It must be that way because on the larger
trains that have eight or ten cars the conductor couldn’t
attend to the adjustment or regulation of it. He doesn’t
try to. He doesn’t have time. If there is a car that is
too cold or too hot he must exercise some supervision over
the matter, but if he thinks it needs changing he is to
notify the porter, and I suppose in ninety-five cases out
of a hundred the porter regulates it entirely.
Q. You mean by regulating, you mean adjusting?
A. Yes, sir, adjusting the control levers.
Q. So as to reduce or raise the temperature?
A. That is right. We have a different temperature for
night setting and a day temperature and all of those things.
They have to regulate it when they are going through tun
nels and other things.
(At this time a short recess was taken, at the conclusion
of which the following proceedings were had:)
Judge Sibley: You may proceed, Mr. Graves.
Q. Mr. Vroman, approximately how many Pullman cars
are on the average in operation by the company, all told?
A. Well, I think it is about 4500,
137
Q. What is the approximate number of employees of the
company?
A. In the neighborhood of 25,000.
Q. So that on the average the operation of the cars re
quires about six employees to the car?
[fol. 193] A. Yes, sir, that is the way it works out.
Mr. Graves: That is all now.
Cross-examination.
Questions by Mr. Morgan:
Q. Mr. Yroman, you have separate schools for the por
ters and conductors, don’t you?
A. At some points.
Q. Well in Texas. My remarks will be confined to Texas,
please.
A. No, I think joint meetings were held in San Antonio
and El Paso.
Q. Well, now, do you know that?
A. Yes, I know that.
Q. You know that they have joint meetings in San An
tonio?
A. Yes, sir.
Q. With whom, now?
A. I beg your pardon.
Q. With whom—between the conductors and the porters ?
A. Yes, sir.
Q. Have you ever personally attended any of the schools
in Texas?
A. No, sir, I never have.
Q. What you are testifying is from your reports, then?
A. From the records, yes, sir.
Q. Yes, sir. Now, then, you know that we have a law
that does not allow the colored people to ride in the same
[fol. 194] section of the train with white people?
A. Yes, sir.
Q. And you know that in the Pullman cars only white
passengers are allowed to ride there, and do ride there ?
A. No, I don’t know that.
Q. You don’t know that, Mr. Yroman? Well, do you
haul in Texas in the Pullman cars colored people?
A. Sometimes.
Q. Under what conditions ?
A. If they have a room.
138
Q. Sir?
A. If they have a drawing room.
Q. Well, you don’t allow them to ride out in the Pullman
cars with the other passengers, do you?
A. I think there is a law that prohibits that in Texas,
yes, sir.
Q. Well, actually, they don’t do that, do they?
A. I don’t know, Mr. Morgan.
Q. All right. Now, Mr. Yroman, you have Pullman cars
that accompany the Missiouri Pacific trains from San An
tonio to Austin, don’t you ?
A. Yes, sir.
Q. And those are in charge of a Pullman conductor?
A. Some of them are; I think they all are.
Q. And you have Pullman cars that accompany the Katy
trains?
A. Yes, sir.
Q. Prom San Antonio to Austin?
[fol. 195] A. Yes, sir.
Q. And those are in charge of a Pullman porter?
A. One of them is.
Q. You pass through the same localities, don’t you?
A. Pretty much.
Q. The same communities?
A. Pretty much.
Q. In fact, you use the same tracks for a part of the
distance, don’t you?
A. I believe so.
Q. Now, then, in one instance you furnish a Pullman
porter and a Pullman conductor, and in the other instance
you furnish only a Pullman porter, is that correct?
A. That is right.
Q. Now, those passengers who ride on those various
trains, in one instance will have a Pullman porter and the
other will have a conductor and a porter ?
A. That is correct.
Q. You never run a train—when you have a conductor
on it you never run a train without the porter, do you?
A. No, I never do.
Q. All right. Now, then, from San Antonio to Fort
Worth that same condition exists, doesn’t it?
A. Yes, sir.
Q. That I have just outlined?
A. Yes, sir.
139
Q. And from Houston, don’t you have some runs out of
Houston, where the same condition exists?
A. Yes, sir.
[fol. 196] Q. Don’t you have, in fact, on the Southern
Pacific out of Houston—you have that condition, don’t you?
A. Well, I don’t know just what condition you are re
ferring to.
Q. I mean by that the point I referred to just a minute
ago, that you have some trains that originate at the same
point and go to the same destination on which the pas
sengers who ride on those Pullman cars are accompanied
by a Pullman conductor, and then on other trains which
originate at the same point and go to the same destination
they are accompanied only by negro porters in charge.
Mr. Graves: Just a moment. I do not care to have the
testimony excluded, but I think we should object to it in
order that our position may be consistent, may it please
the Court. There is no statute in Texas, no rule—no
law of any kind that requires the Railroads or the Pullman
Company to maintain identical services on different trains.
It is a matter of common knowledge------
Judge Sibley: No; the evidence goes in. You say it
doesn’t make any difference because there is no law to make
any difference.
Mr. Graves: That is right.
Judge Sibley: All right, go ahead.
Q. Now, Mr. Yroman, on those two trains that we have
outlined the same fare is charged, isn’t it?
A. You mean the railroad fare or Pullman fare?
[fol. 197] Q. Well, we will take first railroad fare.
A. I am not------
Q. Between the point of origin and the destination, do
you not know that the same railroad fare is charged------
A. I think it is.
Q- —between two given points ?
A. I think it is.
Q. Whether you ride the Missouri Pacific or whether you
ride the Katy, the same charge is made ?
A. I think so, yes.
Q. All right. Then, for the privilege of riding in the
Pullman car the Railroad Company does charge an extra
fare, you know that, don’t you?
A. Yes, sir.
140
Q. That is one cent a mile, isn’t it, in Texas?
A. I believe it is.
Q. Then in addition to paying* that extra railroad fare to
ride in the Pullman car, the Pullman Company then charges
an additional fare?
A. They charge for their accommodations.
Q. Well, that is an additional charge, though, in addition
to the railroad fare, and then the extra fare to ride in the
Pullman ?
A. It is an additional expense to the passengers. You
can’t go to the theater without paying for it, and if you ride
in a Pullman car you must pay for a seat or berth; that
applies on both roads and on all roads.
[fol. 198] Q. I understand and your charges are identical
in every instance, whether there is a Pullman porter in
charge or whether there is a Pullman conductor in charge?
A. That is right.
Q. All right; and the same—the same charges are made
whether there are 10 Pullman cars or one Pullman car?
A. That is right.
Q. I believe you testified Saturday, did you not, that in
your opinion, the Pullman conductor, I mean the Pullman
porters—just a minute before I go into that; I want to ask
you this question: now, are the porters in charge, the
porters, are they given any different or special instructions
as distinguished from the regular porters ?
A. Absolutely.
Q. You have different schools for them?
A. Well, they are given special instructions or in charge
work just the same as the conductors would receive;
whereas the ordinary porter does not—is not given that
sort of instruction. We have some porters that are not
qualified to operate in charge, but those that are are given
instructions in that line of work.
Q. Now, your counsel has introduced in evidence here
this book of instructions which says “ Instructions to Con
ductors” . Now, the first paragraph that I see here says,
“ Conductors have jurisdiction over and are responsible
for the proper performance of duties of all car service
[fol. 199] employees on cars under their charge.”
A. That is right.
Q. “ It is their duty to receive passengers, assign accom
modations and make collections therefor, supervise the
service closely” . Now, what service do they supervise;
just what does that phrase mean “ supervise closely” !
A. I think the term “ supervise” explains that pretty
generally. Supervision means that he is in charge, the
same as one person has supervision over any group of em
ployees working under him.
Q. Now, those working under him would be the porters,
is that correct ?
A. Yes, sir.
Q. Who else?
A. Well, some trains have maids and some have barbers,
depending on the makeup of the train.
Q. All right. Reading further: “ and enforce observance
by subordinate car employees of regulations of the com
pany” ,—is that the duty of the conductors to do that,—
“ especially those looking to the comfort of passengers” ?
A. Yes, sir.
Q. Now, last Saturday I believe you testified that in your
opinion the Pullman porters were better qualified to take
care of the situation where there were people drinking or
failing to observe proper decorum on the train, than was a
Pullman conductor ?
A. I don’t think I said that. I said that I thought that
a Pullman porter is better able to handle a drunk passenger,
[fol. 200] I didn’t say general decorum. There might be
a fight between two passengers that probably the conductor
would be better; but to wait on intoxicated people, I think
the porter is better able to handle the situation.
Q. Well, you testified before the Commission when we
had a hearing in Austin, didn’t you ?
A. Yes, sir.
Q. Do you recall your testimony in that case where you
said that—reading from page 109, “ Q. I am talking about
drinking, whether liquor is sold or not, I don’t know about
that. I know it is not sold in Texas. A. Yes, there is a lot
of drinking. Q. Where there is drinking do you think a
white man will allow a negro porter to correct him and tell
kirn what to do? A. I would suppose he wouldn’t want
anybody to tell him what to do. Q. You know, do you not,
that a white man in Texas is not going to allow a negro to
give him orders, and that he would come nearer to allowing
a white conductor to instruct him? A. I presume that is
true.”
141
142
A. Well, I still contend that neither a porter nor a con
ductor has got any license to discipline a passenger. If a
porter can persuade a passenger to do something by reason
ing with him, I don’t call that discipline; that is simply
using a little tact. I have not changed my mind about that.
Q. Well, you just changed your testimony, is that all?
A. No, I haven’t changed my mind.
Mr. Morgan: I think that is all.
[fol. 201] Judge Sibley: I would like to ask just for in
formation, what the Texas Commission does about Pullman
charges. Do they fix them intra-State ?
The Witness: No, sir.
Judge Sibley: You fix them?
The Witness: Yes, sir, the Interstate Commission------
Judge Sibley: The Interstate Commission has no function
there, has it?
The Witness: Yes, sir, the Interstate Commerce Commis
sion—our rates are determined by the Interstate Commerce
Commission. I am not an expert on rates, Judge, but I
know that the Texas Commission does not fix them.
Judge Sibley: Any of them ?
The Witness: No, sir, we have a rate man here that can
explain that.
J udge Sibley: All right.
J udge McMillan: This order makes some collateral regu
lations with regard to rates. What do they predicate
that on?
Mr. Graves: I assume that they predicate it on their
rate making authority. There is a provision in this order
that they shall not charge for riding—charge passengers
for riding in the porter in charge cars where the Railroads
receive any part of the Pullman fares.
Mr. Pollard: If the Court please, in 1906 the Texas Com-
[fol. 202] mission undertook to fix the rates of upper berths
in Pullman cars------
Judge McMillan: Did the Circuit Court of Appeals hold
they couldn’t do that?
Mr. Pollard: The District Court for the Northern Dis
trict of Texas held that the Commission had no authority
over the Pullman Company; that was in 1906 and 1907.
There has no law been passed since.
Judge Sibley: I did not want to divert the case. I simply
asked for information.
143
Mr. Graves: Yes, sir.
Judge Sibley: Go ahead with the examination.
Redirect examination.
Questions by Mr. Graves:
Q. Mr. Vroman, on the long trains where you have two
or more Pullman cars, how many conductors—Pullman
conductors do you have?
A. One. We have no train that—I don’t think we have
a train—I think there is one train out of New York that
operates two conductors, on account of the large number of
cars—12 or 14 cars; but ordinarily one Pullman conductor
is provided for all trains.
Q. And you have some long trains that go through the
State of Texas that have several Pullman cars on them,
don’t you!
A. Yes, sir.
Q. And regardless of the number of cars on those trains
you have only one conductor ?
A. That is correct.
Q. You mentioned barbers and maids. Do some of the
[fol. 203] trains also carry attendants in charge of the
lounge car ?
A. Yes, sir.
Q. Where those attendants are Pullman Company em
ployees, does the Pullman conductor on the train have gen
eral supervision over them ?
A. They come under the supervision of the conductor, the
same as the porters.
Mr. Graves: That is all we have.
Recross-examination.
Questions by Mr. Morgan:
Q. You don’t have any barbers and maids on the Pullman
trains in Texas, do you?
A. No, sir.
Mr. Graves: Well, do you know?
A. I think there are barbers on the Sunset Limited, but
they are not Pullman employees.
Mr. Morgan: That is all.
(Witness excused.)
144
Judge Sibley: Call your next witness.
Mr. Graves: Mr. Bradisb.
L. M. B bad ish , a w itn ess f o r p la in tiffs , h a v in g been duly
sw orn , testified as f o l l o w s :
Direct examination.
Questions by Mr. Graves:
Q. Your name is L. M. Bradish?
A. Yes, sir, it is.
[fol. 204] Q. What is your official connection with the
Pullman Company?
A. I am Assistant Comptroller.
Q. You live in Chicago?
A. Yes, I do.
Q. Your office is in Chicago?
A. It is, yes, sir.
Q. You have to do with the Accounting Department?
A. Yes, sir.
Q. First, I want to ask you, Mr. Bradish—well, how long
have you been in the service of the Pullman Company?
A. Since 1892.
Q. You testified at the Railroad Commission hearing on
August 31st, did you not?
A. Yes, I did.
Q. Have you computed the expense that would devolve
upon the Pullman Company in the way of additional salaries
—conductors salaries, as a consequence of compliance with
the order that is now in dispute, the Railroad Commission
order?
A. Yes, I have.
Q. What would be the cost of the Pullman Company?
A. $25,600 per annum.
Mr. Lewis: I f the .Court please, we desire to object to
that question and answer and move that the answer be
stricken, for the reason that it calls for a pure conclusion,
and it has not been shown by what method he arrived at
that figure.
[fol. 205] Judge Sibley: Well, as to the first objection,
I overrule it. As to the second, I think that is a matter of
cross examination; you can ask him about that.
145
Q. Now, what was the figure you gave, Mr. Bradish?
A. $25,600 a year.
Q. Is that the net cost or is that the gross expense to
which the company would be subjected?
A. That is the gross expense, that is the expense to which
the Pullman Company------
Mr. Morgan: If Your Honor please, we further should
like to object on the ground that the mere fact that this
order if put into effect would cause some expense is no
criterion to determine whether or not it is unconstitutional.
Judge Sibley: It is no final criterion but I think it is an
element to be considered.
Judge McMillan: It would go to show the jurisdictional
amount, too, wouldn’t it?
Mr. Morgan: I assumed, Your Honor, the jurisdiction
had already been established. We further call the Court’s
attention to the fact that this order does not require any
thing of the Pullman Company. It is directed only to the
Railroads.
Judge Sibley: Well, they are partners, you know; both
are deeply interested in the case.
Q. Mr. Bradish, I still want to know whether that figure
is the—whether that is the total amount of salaries that
would be paid to the additional conductors that Mr. Vroman
[fol. 206] said the company would have to have.
A. That is correct; that $25,600 would be the additional
pay to the conductors that we would have to pay—the Pull
man Company.
Q. Well, under your contracts with the Pullman con
ductors ?
A. Yes, under the contracts------
Judge Sibley: What about the saving on the salaries of
the porters in charge ?
The Witness: That is the net.
Judge Sibley: That is the Net?
The Witness: That is the net, $25,600.
Q. That is what I am trying to find out,—what is the
gross amount of salary, approximately?
A. $41,200, I believe it was.
Q. All right. Now, when you subtract the amount that
you now have to pay if you had no porter in charge opera
tions—
10—283
146
A. Yes, sir.
Q. —that would reduce it to what!
A. In total, that would make it $36,100, in total.
Q. All right. Now, then what happens as to the differ
ence between the $25,000 and the $36,000—how do you ac
count for that!
A. That the Railroad Company would have to have a cer
tain difference of $10,000.
Q. Under the contracts!
A. Under the contracts.
Q. Between the Pullman Company and the Railroads
operating under contracts !
A. Yes, sir.
[fol. 207] Q. Operating the Pullman cars under contracts ?
A. Yes, sir, that is right.
Q. I will ask you to state, Mr. Bradish, whether these are
copies of the contracts between the Pullman Company and
the Railroads operating these porter in charge trains in
Texas! (Counsel hands several documents to witness).
A. Yes, they are.
Q. You are familiar with those contracts!
A. Yes, I am.
Q. These are correct copies of them!
A. Yes.
Q. These are the current contracts, the contracts that are
now in force!
A. Yes.
Mr. Graves: We offer them in evidence, may it please the
Court.
(Thereupon the contracts above referred to were marked
as Plaintiff’s Exhibits Nos. 2 to 14, inclusive.)
Q. Now, the contracts that were in effect at the time the
hearing was held by the Commission last August were intro
duced in evidence at that time, were they not!
A. They were submitted and they took extracts from the
contracts; they were not filed.
Q. Well, Mr. Morgan called on the Pullman Company to
furnish copies of the contracts, did he not!
A. Yes, he did; he did.
Q. You furnished them, did you not!
[fol. 208] A. Yes, he had them.
Q. Yes.
147
A. He had them.
Q. Now, then, these are the same contracts, except as to
the contracts that have been entered into since that date ?
A. That is correct.
Q. And you have substituted the new contracts where
there have been changes ?
A. The new contracts are there, yes, sir.
Q. In other words, the contracts between the Pullman
Company and the Railroads which had expired under their
terms in the interval have been substituted by new con
tracts ?
A. There have new contracts been issued. I think the old
contracts, possibly, is not that contract.
Mr. Culbertson: We make the objection, if Your Honors
please, that as to the new contracts made since that time,
that we do not know exactly what the terms of the new con
tracts are, whether they vary the terms of the old contracts,
and so far as they do, we object to the introduction; and we
make a further objection to these contracts that the parties
rights having expired under the contracts at the time of the
hearing and these contracts having been made since the
order went into effect, that they cannot be heard to object
in this case, coming in here under contracts made after the
order was entered into.
Judge Sibley: Well, this is a legislative order and it
works like the law. Whether it is unconstitutional now
seems to be the question and the contracts now, it seems to
[fol. 209] me would be the very point, if they have any effect
at all. I think the present contracts should be in.
Q. I believe in this group of contracts that you have
identified in the two instances where there are new con
tracts that have been entered into since the Commission
hearing, the copies of the old contracts are here also.
A. Well, they are, the old ones and the new ones.
Mr. Graves: So we offer in evidence, for the purpose of
comparison, the old contracts as well as the new ones.
Q. Mr. Bradish, do you know whether the compensation
that the porter will receive under the Railroad Retirement
Act after they have retired will be influenced by the salary
that they receive while they are in active service?
A. Yes, they will be affected.
Q. Well, will they------
148
A. That is, their pension depends npon their earnings;
if they get less earnings they get less pension, and if they
get more they get more.
Mr. Graves: That is all.
Cross-examination.
Questions by Mr. Morgan:
Q. Mr. Bradish, all these contracts, do they not have one
point in common, namely, that the Pullman Company is
guaranteed a certain definite return before the Railroad
shall share in them?
A. No, sir.
[fol. 210] Q. Sir?
A. It does not provide for any return; some of them pro
vide that the Pullman Company’s expenses will either be
taken out of earnings, or in the event the earnings are less
than the expenses, then in some instances the Railroads will
make up the difference between the two.
Q. That is true. In other words------
A. But they do not guarantee any return.
Q. The Pullman Company is to receive a fixed amount,
let’s see, of $8,000 or $7,500 per year per car, what you call
operating expenses?
A. Yes.
Q. Isn’t that true?
A. They will if the cars earn it. Some of them provide
that the—as I say, the Railroads will make up the differ
ence, but other contracts don’t provide for that.
Q. Well, now, can you cite the ones that do not so pro
vide?
A. All the contracts ?
Q. Yes, sir.
A. I can give you some that do not. The T. & P. do
not------
Q. The T. & P.?
A. That is one.
Q. Well, what is your arrangement with the T. & P. ?
A. That contract provides that the revenue in excess of
$9,000 per car per annum will be divided as between the
Pullman Company and the Railway Company, 50 per cent
each.
Q. In other words, the first $9,000 that the car earns will
go to the Pullman Company?
A. If they earn it.
[fol. 211] Q. Yes, sir; and then the earnings, if any, over
and above that amount, will be divided equally between the
T. & P. and the Pullman Company?
A. Any earnings above $9,000, that is correct.
Q. Now, isn’t that same general plan, varying in amounts
as to the gross, isn’t that same general plan provided in
each of your contracts?
A. No, most of the contracts provide that we will recover
use of the gross earnings first for our expenses.
Q. Yes, sir.
A. Second, we will get an initial return of $1,000 per car
per annum, and then all above that will be divided equally
between the two interests.
Q. Well, now do I understand you to say that it provides,
first, that you shall be guaranteed your expenses?
A. You didn’t let me quite finish.
Q. I mean your operating expenses; I mean the money
that comes in, you are first to get your operating expenses
if that amount is made, is that correct ?
A. Yes, if it is we will get it.
Q. And then the first thousand dollars over and above
that you are to get that?
A. That is right.
Q. And then the earnings above those two items, if any,
are to be divided between the Railroads and the Pullman
Company?
A. That is correct; that is correct.
_ Q- Therefore, if this order is put into effect, the addi
tional charges, if any, that are charged against the operation
[fol. 212] of the cars, will under these contracts, be taken
into consideration, and they will be an additional expense
that comes under the first item that the Pullman Com
pany—
A. Yes, it goes in to increase the expenses.
Q. Therefore, before you participate in the second item,
namely, a thousand dollars, or before the Railroads par
ticipate in the third item, the earnings over and above the
first two, this additional expense, if any, would have to be
paid?
A. Yes, yes.
149
150
Q. And that would be taken care of, then if the first initial
operating expenses, along with the other expenses'?
A. It would go in with the other expenses.
Q. Yes, sir. Now, then, this per car—these Pullman cars
that operate in Texas operate under the entire system; you
don’t limit any one car to a specific locality do you, Mr.
Bradish?
A. Cars are usually assigned to lines, but, as you say,
they would be taken off of its line and run in other lines.
Q. And when you are including the expense of each car,
then the profits, if any, over and above the expenses, you
figure that on the entire system, don’t you, of a railroad?
A. Of a railroad, yes, the entire system of cars.
Q. In other words, your contracts with the Missouri Pa
cific are not limited to earnings made in Texas, or any other
State, but are taken of the entire system of the Missouri
Pacific lines ?
A. That is right.
[fol. 213] Q. Well, that same thing is true of all other rail
roads, isn’t it?
A. Yes.
Q. And this expense item, if this order goes into effect,
and you say it would cost you so much money, that likewise
would be spread all over the entire system of a railroad,
wouldn’t it?
A. Yes, it would.
Q. And would not be limited, of course, to any one State?
A. No.
Q. Now, Mr. Bradish, according to your calculations, do
I understand you to say that the total cost to all the Rail
roads in Texas, if this order is put into effect, would be
$10,500—is that your statement ?
A. I don’t think so.
Q. Sir?
A. I don’t think so.
Q. Well, what did you say about that?
A. I said the expenses to the Railroad Companies would
be $10,500. That would be an expense to the Atlantic Coast
Line, if you please.
Q. Sir?
A. Part of that would be an expense to the Atlantic Coast
Line; they would have to stand part of that; every Railroad
in the United States would bear part of that.
Q. Every Railroad in the United States?
151
A. Yes, sir.
Q. It would not be limited, then, just to the Texas roads,
[fol. 214] is that right?
A. That is correct.
Mr. Morgan: That is all.
Redirect examination.
Questions by Mr. Graves:
Q. Mr. Bradish, have you made some calculations to de
termine what Railroads in the State of Texas did share in
the expense and to what extent?
A. Yes, I have.
Q. How many of the Railroads that are parties to this suit
would share in the expense ?
A. There is five of them that would have to bear part of
the expense.
Q. Can you tell us who they are, and approximately what
it is?
A. The Kansas City Southern is small; it would be around
about------
Mr. Culbertson: Now------
A. The Kansas City Southern------
Mr. Culbertson: Excuse me, if Your Honor please, we
want to object to the witness expressing an opinion as to
how much each Railroad would have to bear, because that
would be a matter for the Railroads themselves, taking into
consideration their own accounting problems, to determine
as between the cost of operations and the gross receipts
taken over their entire lines, and then considered in respect
[fol. 215] to their entire lines in Texas; in other words, my
objection goes to this point, that unless this witness is quali
fied to give the gross receipts of, say, the Missouri Pacific
of all the passenger traffic over its lines in Texas, the total
receipts from that traffic, and the part of these expenses
which are allocated to that traffic, why then, he is not com
petent to testify how much of this charge would go to that
Railroad Company.
Judge Sibley: It doesn’t seem to me that it is fortifying
the constitutional part of the order for ns to know what
they did with the expenses in their account; and it looks
152
like to me that if the expense dropped on somebody it shall
fall on everybody, and the initial instance would be the
thing we are concerned with; but how much of it they passed
on to one another we wouldn’t be concerned with. That is
the way it strikes me.
Mr. Culbertson: I don’t know whether I made myself
clear, and I don’t want to be a bore to the Court, but United
States Supreme Court, as we understand it, has held that in
order to determine whether a rate or a charge under an
order is unreasonable or confiscatory, it is not enough just
to show some expenses and show how much it would cost------
Judge Sibley: Well, there is no claim of confiscation here
that I have heard. There is none in the pleadings; they just
claim you are being an unreasonable burden on them.
[fol. 216] Mr. Culbertson: Yes, sir, the same Railroad that
I am contending for, Your Honor, in order that I might get
my objection into the records, is that in order to determine
the reasonableness of a rate it is not sufficient to say that
it costs so much to operate a particular line, but the ratio
of the cost to the entire receipts of the particular line from
a particular kind of traffic must be determined for the pur
pose of finding out how much it is going to cost.
Judge Sibley: Well, somebody has got to pay it. If it is
unreasonable it doesn’t seem to me to matter who has to
pay it, and if it is unreason-ble the Court wouldn’t care who
pays it if it is unreasonable; somebody has got to pay it.
I don’t see any use in wasting time as to the trickles that
this cost takes among the Railroads. I would never get to
the end of that, personally, in my own mind. We will leave
out the accounting methods between the Railroads whereby
they shift and participate in their own troubles.
Mr. Graves: We do not demur to the Court’s ruling; the
only thing we would want to call attention to the fact that
counsel has misconceived the effect of these contracts, and
I am sure that if he studies the contracts, he will find that
he has made an incorrect statement as to how this expense
is allocated.
Judge Sibley: Well, the contracts are in evidence. If
either side can make anything of them, why, they are here.
Q. What is the average expense per car for operating the
Pullman cars ?
[fol. 217] A. About $9700 per car.
Q. Per annum?
A. Per annum, per annum.
153
Judge Sibley: That is where you take conductors into ac
count, of course.
The Witness: Everything, your Honor; all expenses.
Q. Well, included in that average, have you included the
porter in charge operations'?
A. Yes, that cost is in there.
Q. In other words, that is the general average per car
of the Pullman Company’s costs of operating the cars over
the country?
A. That is right.
Judge McMillan: Is that each individual car that costs
$9700, or are you speaking of cars as a unit?
The Witness: That is the average, Your Honor; that is
what we call an actual service—that is, that is on the car
that is moving.
Judge McMillan: When the car is in service.
The Witness: That is the margin, that is all.
Judge Graves: That is all, Mr. Bradish.
(Witness excused.)
[fol. 218] Mr. Graves: We will have Mr. T. C. Olney.
T. C. O l n e y , a w itn ess f o r p la in tiff , h a v in g been d u ly
sworn, testified as fo l lo w s :
Direct examination.
Questions by Mr. Graves:
Q. Your name is T. C. Olney?
A. That is right.
Q. What is your position with the Pullman Company?
A. District Superintendent at New Orleans.
Q. How long have you been with the Pullman Company?
A. Well, let’s see, this is the 42nd year.
Q. How long have you been working for the Company at
New Orleans?
A. Nearly 25 years.
Q. Nearly 25 years?
A. Yes, sir.
Q. Have you been in the capacity of District Superin
tendent during all of that time?
A. Yes, sir.
154
Q. Do you have under your immediate supervision all of
the porters and all of the—all of the Pullman porters and
all of the Pullman conductors that operate out of New
Orleans ?
A. I do.
Q. Approximately how many?
A. Well, right now we have, I think 275 porters and 32
conductors.
Q. By the way, are those porters—are they Northern
men or are they Southern men?
A. I think every one is a Southern man, I can’t think
[fol. 219] of any that is not.
Q. Do you have any porter in charge operations under
your supervision out of New Orleans?
A. Yes, we operate right now 48 porters in charge.
Q. Out of how many lines, operated?
A. Nine lines.
Q. How is that?
A. Nine lines.
Q. Nine lines?
A. Yes, sir.
Q. How many lines, all told, operate out of New Orleans,
in your District?
A. I think it is 48 now.
Q. Forty-eight, and nine of them are porter in charge
lines?
A. Of course, some of them are just for a portion of the
trip, you understand.
Q. Yes. Well, if a porter is in charge during any part
of a trip you characterize that as a porter in charge line ?
A. Yes, because his full time is carried as porter in
charge.
Q. How long, Mr. Olney, have you had operations known
as porter in charge operations in the New Orleans District?
A. Well, almost the entire time that I have been there; I
would say about 24 years.
Q. About 24 years.
A. Twenty-three or 24 years, perhaps longer than that;
I am not sure.
Q. How many complaints during that time have you had
of mistreatment by the porters in charge of women pass
engers ?
Mr. Morgan: If your Honor please, we submit that that
[fol. 220] is not material, as to what happened down in
155
New Orleans. We are not investigating the entire system.
We submit that it is not admissible.
Judge Sibley: Is this Texas territory in your District?
The Witness: I have many lines; I probably operate 150
porters through Texas.
Judge Sibley: Well, I don’t know that that is any reason
for not hearing it. Of course, the South has a peculiar
problem as a whole. I don’t think it is any different in
Texas from what it is in the South as a whole. It seems
to me that this general experience over the entire territory
would be of some help.
Mr. Graves: I think possibly, Your Honor misunderstood
him also. I think he said he had many lines in Texas under
his supervision.
Judge Sibley: Yes, sir, and some are not under his super
vision.
Mr. Graves: That is right.
Judge Sibley: I think his experience in the New Orleans
territory would be fairly illustrative of what might be ex
perienced in Texas. That is what I am trying to say.
Mr. Graves: We would further say that this order con
demns these men because they are negroes and not because
they are Texas men.
Judge Sibley: Well, it may appear that way, but that is
not the language of the order, I don’t suppose.
Mr. Morgan: No, Your Honor, we submit there is no
[fol. 221] provision such as that contained in the order.
Judge Sibley: Yes, you are correct about that. The order
does not say anything of the kind.
Mr. Morgan: Note our exception to the ruling of the
Court, on the other question; not on this, but on my orig
inal objection.
Mr. Graves: Well, will Your Honor indulge me long
enough to read just a sentence from the order?
Judge Sibley: All right. After all, the construction of
the order on this couldn’t affect the examination of this
witness, could it?
Mr. Graves: No, sir, but we didn’t make a full statement
of our case at the beginning here.
Judge Sibley: I understand that perfectly. All of the
porters are colored men. That has been testified to.
Mr. Graves: That is right.
Judge Sibley: I don’t know that it is fair to say it does
so and so on that basis.
156
Mr. Graves: All right. May it please the Court, section
16 of the findings made a part of the order and on which
the order rests, findings of the Commission, are as follows:
“ The Commission further finds from the evidence that
the porters on Pullman cars are negro men. The Commis
sion further finds that if negro men porters are placed in
charge of the Pullman cars when the service of a conductor
is dispensed with, that there is imminent danger of insults
to the lady passengers on the Pullman cars, and that such
condition exists in the 17 operations by the Pullman Com
pany where they do not use conductors, as hereinabove
[fol.222] referred to, and that the same constitutes an
abuse and an undue and unjust disadvantage and discrim
ination. ’ ’
Judge Sibley: You want to prove the untruth of those
findings ?
Mr. Graves: Yes.
Judge Sibley: And I ruled that you could do it in the
New Orleans territory.
Mr. Graves: Yes.
Judge Sibley: What are we fussing about?
Mr. Graves: We have no complaint at all, Your Honor.
Judge Sibley: Go ahead.
By Mr. Graves:
Q. I don’t believe you answered the question.
A. No, I never have—I can’t recall, and have no record
of ever having received a complaint of that kind because
of a porter in charge.
Q. Mistreatment of women passengers on a car where
you had a porter in charge ?
A. Nor any other complaint because of a porter being in
charge.
Q. How long have you been District Superintendent, Mr.
Olney?
A. Since 1908. That would be 32 years.
Q. Did you act in that capacity at any other southern
place, places in the south?
A. Chattanooga and I was assistant at Louisville, Ken
tucky.
Q. How long were you at Chattanooga?
A. From 1908 to 1915, that would be 7 years.
157
[fol. 223] Q. This Line No. 3010, the operation from New
Orleans to Oakland, California, that is under yonr jurisdic
tion. That is the porter operation?
A. Yes, sir.
Q. The porters that operate on that line originate at New
Orleans ? That is, do they work out of New Orleans, or out
of California?
A. Out of New Orleans.
Q. Those porters on that car that leaves New Orleans on
that—what is the name of the train?
A. Gulf Coast Lines, a subsidiary of the Missouri Pacific
Lines.
Q. Those porters that travel on that train come from New
Orleans to Oakland, California, and return?
A. They do.
Q. Who hires the porters in your district?
A. I do.
Q. What investigation do you make for the purpose of
determining whether a porter is a satisfactory man before
you hire him?
A. We investigate all employees for at least five years
hack, and we endeavor to personally interview every em
ployer, not by mail, but personally interview them.
Q. You personally interview all of the persons who have
employed the applicant for the job?
A. Yes, sir.
Q. For a period of five years?
[fol. 224] A. Yes, sir, and we cover every month, try to
cover every month of that five year period.
Q. What else do you do?
A. Well, sir, of course, we size them up as to apparent
character and appearance and personality. That has an im
portance, but naturally the employers for the five years will
give us most of the information that we need.
_Q. After they are employed what steps are taken by the
District Superintendent looking to the supervision of the
men?
. A. Well, we make these inspection trips. I will say in my
district there are four of us who make a weekly trip, and
that—we go out very often and get off a train in the middle
of the night and come back and catch them without their
knowing we are out on the line.
Q- The District Superintendent travels on the train some
too?
158
A. I make at least a trip a week, and my assistant does,
and we have two commissary agents who make a trip a week,
each.
Q. You have traveling inspectors who do nothing else?
A. Yes, our traveling inspectors, not assigned especially
to this district, but they ride the line that way, and inspect
it from the eastern zone, ride the line to the east from New
Orleans.
Q. And they supervise the work of the Pullman porters
and conductors ?
A. Absolutely, the same supervision for both.
[fol. 225] Q. What different character of instruction, if
any, do you give the conductors from the nature of instruc
tions that you give the porters?
A. Well, they are the same for the conductors, and men
who operate in charge, operate with the conductors. They
have the same rules, same rule book, and same instructions
as to clerical work and handling of their reports, also as
to handling the passengers in all respects.
Q. The porter in charge receives the same instructions
from the company periodically and all of the time that the
conductors do?
A. Exactly.
Q. Mr. Olney, who determines primarily whether a given
Pullman line shall be a porter in charge line or shall be a
conductor in charge line?
A. Well, I would, in New Orleans.
Q. The lines operating out of New Orleans------
A. I would recommend according to the character of the
line and whether it should be a conductor or should be a
porter. That would be for the lines that I operate.
Q. What qualifications are taken into account in making
that recommendation? What actuates you in making the
recommendation ?
A. Well, I will have to say frankly if there is only one
car on the train, I would always recommend a porter in
charge because my experience has been that not only is the
in charge work handled as well, but then both work is done
better by a man who runs in charge than a man who doesn’t
[fol. 226] run in charge. He feels his responsibility.
̂Q. They have to make certain reports to the Pullman
Company, something in the nature of paper work, diagrams
and so forth. I will ask you to state how the reports of
that kind made by the porters in charge compare with the
reports made by the conductors ?
A. Well, just as good, as far as I know. Of course, there
are some porters that are better than others, and some con
ductors better than others in their handling of reports, but
I will say that very few diagrams come back from the
auditor on account of a clerical mistake on account of the
porter in charge.
Q. Now, you have meetings attended by the conductors,
and then you have meetings attended by the porters; is
that right?
A. That is right.
Q. At those meetings do the porters in charge receive any
different instructions from what the conductors do ?
A. No, they do not.
Q. Do they receive the same instructions?
A. Identical instructions.
Q. Do you conduct those meetings, or how are they con
ducted?
A. I conduct them, and others take part in the meetings,
certain features.
Q. What steps does the company take to see that the Pull
man cars, when they start on the trip at New Orleans, and
at district points, are in charge of proper service employees?
A. The same they would for a conductor line. They are
[fol. 227] inspected by the platform man; the men are in
spected to see if they are in good condition.
Q. Take this train you have referred to as an illustration,
the car that runs from New Orleans to Oakland. When the
car leaves New Orleans on its regular run, and before it
leaves, does the Pullman Company have anybody at the
station or at the train to inspect these men that go out on
that train?
_A. Absolutely. Every train is sent out by a represent
ative of the company, usually a platform man, or myself, or
an assistant.
Q. That is all, gentlemen.
Cross-examination.
Questions by Mr. Morgan:
Q. Mr. Olney, if there should be any irregularities on the
Part of the Pullman porter while he is in charge, who would
report that? Would he?
159
160
A. The train conductor, I presume. He is in charge of
the train.
Q. I understand, but has that ever happened?
A. I can’t remember a single case.
Q. All right. Now, when yon are taking into considera
tion whether you shall have porters in charge, or conductors
in charge, isn’t the cost item of what it will cost the com
pany, isn’t that one of the things that you take into con
sideration ?
A. Well, naturally, I am interested in the expense, but the
service is a major consideration, always has been, always
[fol. 228] will be.
Q. Mr. Olney, hasn’t it in recent years been the practice
of your company to take off conductors more and more and
put more and more porters in charge ?
A. I can’t say it has at New Orleans.
Q. I believe the testimony here Saturday—I don’t know
whether you were here or not, was to the effect that in Texas
alone there were some four or five conductors taken off in
1939, in Texas, and within the last two or three years there
were some six or seven, or practically half of the operations
in Texas where there is no conductor, is a result of a change
that has been made within the last two or three years. Does
that same condition prevail now?
A. Well, only—if there was any change it would be be
cause business is less, and they have taken the other cars
off the line and there was only one car on the train.
Q. That tendency is increasing, isn’t it?
A. Not at New Orleans.
Q. Sir?
A. I have just about as many men in charge as I did twenty
years ago, and no more.
Q. I think that is all.
Mr. Graves: That is all.
(Witness excused.)
[fol. 229] Judge Allred: Go ahead, Judge.
Mr. Graves: Is the Court going to take any recess this
morning ?
Judge Sibley: We took one. Do you want another?
Mr. Graves: No, but the order of what we were planning
to do might depend on that.
161
Judge Sibley: If you desire to have a recess taken we
would be glad to take it.
Mr. Graves: I wish you would give us five minutes.
Judge Sibley: We will take a five minute recess.
(Thereupon Court was recessed from 10:45 A. M., until
10:55 A. M.)
Mr. Graves: May it please the Court, we have some dis
interested witnesses here, citizens, and out of logical order,
we would like to put them on the stand to accommodate them.
Judge Sibley: All right.
Mr. Graves: There are four of them here at the present
time, and would the Court like to have them all sworn at
once, to save time?
Judge Sibley: Yes, sir.
Mr. Graves: I will ask Mr. Caldwell, Mr. Mitchell and Mr.
Fisk and Mr. Marsh to stand up and be sworn.
[fol. 230] Judge Sibley: Please sit right there at hand.
Take seats so that you can come to the witness stand
promptly. Who is the first?
Mr. Graves: Mr. Caldwell is first.
T hom as J . C ald w ell , a witness produced by the Plaintiffs,
having been first duly sworn, testified as follows:
Direct examination.
Questions by Mr. Graves:
Q. Your name is Thomas J. Caldwell.
A. Yes, sir.
Q. You live in Houston.
A. Yes, sir.
Q. What is your business, Mr. Caldwell?
A. Banking.
Q. Well, you are Vice President of the------
A. Union------
Q. —Union National Bank of Houston?
A. That is right.
Q. You were born in Austin, were you not, Mr. Caldwell?
A. Yes, sir.
Q. Did you live in New Orleans for a while?
A. About four years.
11—283
162
Q. Connected with the bank there ?
A. Yes, sir.
Q. How long have you been connected with the Union
National Bank as Vice President?
[fol. 231] A. About 13 or 14 years.
Q. Mr. Caldwell, in recent years have you had occasion to
travel on the train frequently or infrequently?
A. Rather frequently.
Q. Has your traveling been confined to the State of
Texas, or have you traveled generally over the country?
A. Practically all over the United States.
Q. Practically all over the United States. In your travels,
have you traveled any on trains where the Pullman car was
in charge of a Pullman porter, and where the train was not
accompanied by a Pullman conductor?
A. Upon some occasions, yes.
Q. Do you happen to recall any particular train of that
character that you have traveled on?
A. Well, I think that coming back from Seattle to Houston
last October I was on a car that the negro porter was in
charge of. I have occasion frequently to go to San Angelo,
and until recently the Pullman from San Angelo went to
Dallas and I would go to Brownwood and get on the Houston
Pullman there, and I think that car to Brownwood from San
Angelo was in charge of a negro.
Q. This trip you made from the west cost to Houston, do
you recall whether that was over the Santa Fe?
A. Yes, that was on the Santa Fe. I took the Santa Fe at
San Francisco.
Q. Did you come through Clovis and Sweetwater?
[fol. 232] A. Yes, sir.
Q. Mr. Caldwell what is your—what has been your im
pression of the quality of the service rendered by the porters
in charge of these cars as compared with the service rendered
to Pullman passengers on the trains where a conductor was
present?
A. I think it is quite as good in every respect that I have
been able to notice.
Q. I will ask you to state whether you would have any
hesitancy about entrusting any members of your family, the
ladies, or your wife, or your daughters, to the care of one
of these Pullman porters?
A. I have never thought of such a thing. I wouldn’t have
the slightest hesitation, as far as I am able to feel now.
163
Q. Have you observed any more disorder on these trains,
or on these cars where the porter was in charge than you
have observed on any other trains ?
A. No, sir.
Q. As a matter of fact------
Judge McMillan: Please speak out so that the stenog
rapher can get your answer.
A. No.
By Mr. Graves:
Q. As a matter of fact, how much disorder have you ob
served on the trains ? How much drunkenness and carous
ing?
A. Very, very little. It is remarkable how little I have
observed on the Pullman cars.
Q. That is all.
[fol. 233] Cross-examination.
By Mr. Lewis :
Q. Mr. Caldwell, do you have—have you had any difficulty
with the porter being able to calculate the amount of your
passage?
A. Well, I don’t know that that question has ever arisen
with me.
Q. Where do you buy your tickets ?
A. I always buy my ticket before I get on the train.
Q. Do you ride on a pass or not?
A. No, sir.
Judge McMillan: Answer out so that I can hear, and so
that the Eeporter can hear.
A. No, sir.
By Mr. Lewis:
Q. Does your bank carry railroad accounts?
A. Yes.
Q. You say you would have no hesitancy in entrusting
your wife and daughters on one of these Pullman cars, that
is, attended only by a Pullman porter, in the event there
164
were boisterousness or drunkenness on that car, wouldn’t
you prefer to have a Pullman conductor there?
A. I wouldn’t say so. It never occurred to me to hesitate
on that account.
Q. With drunkenness on there, and some man trying to be
boisterous, wouldn’t you be better satisfied with your wife
on there if the car were in charge of a Pullman conductor?
[fol. 234] A. I don’t think so. I think she would be per
fectly safe under any circumstances. That would be my
feeling.
Q. That is all.
Mr. Graves: That is all, Mr. Caldwell, thank you very
much.
(Witness excused.)
H omer R. M it c h e l l , a witness in said cause produced by
the Plaintiffs, having been first duly sworn, testified as fol
lows :
Direct examination.
Questions by Mr. Graves:
Q. Your name is Homer R. Mitchell?
A. Yes, sir.
Q. You live in Dallas?
A. Yes, sir.
Q. How long have you lived in Dallas ?
A. 36 years.
Q. You are in the insurance business.
A. Yes, sir.
Q. You admit you are a lawyer also, do you?
A. Yes, sir.
Q. Mr. Mitchell, have you had occasion in recent years to
travel frequently on the trains in Texas ?
A. Yes, sir.
Q. Have you traveled on a train where the Pullman cat
[fol. 235] was in charge of a porter, and where there was
no Pullman conductor on the train?
A. Yes, sir, I have.
Q. Have you noticed any difference in the service ren
dered to the Pullman passengers on those cars from the
service rendered where a Pullman conductor was present?
165
A. None at all.
Q. Do yon know any of those porters that operate regu
larly on these trains in Texas'?
A. Oh, by sight, yes, and a few of them by their—some
sort of name.
Q. By their familiar name ?
A. By their familiar name, yes, sir.
Q. Referring to that type of porter, I will ask you to state
whether you would be willing to entrust the female members
of your family in their care on a train on a trip as a Pullman
passenger where the train had no Pullman conductor on it?
A. I would. I would have no hesitation about it.
Q. Have you ever noticed any trouble on the trains where
there was a porter in charge of the Pullman car?
A. I can’t recall any.
Q. That is all, gentlemen.
Cross-examination.
Questions by Mr. Lewis:
Q. Mr. Mitchell, you say you are in the insurance busi
ness?
A. Yes, sir.
[fol. 236] Q. Now, are you carrying either the insurance
for the Pullman Company or the railroads ?
A. No, sir.
Q. Not interested in that insurance?
A. No, sir.
Q. This—what about the cleanliness of these cars? Have
you noticed any difference between those attended by a
Pullman porter acting in both capacities from those that
are also supervised by a conductor?
A. No, sir, I have no recollection of having noticed any.
Q. Have you noticed the condition of the cars in either
event ?
A. I think in a very general way I have noticed, of course,
but I bear no recollection of the distinction in the two.
Q. Have you ever noticed any of the cars out of good
condition, in the way of cleanliness ?
A. I don’t recall having seen one, except on the regular
rounds, they will come around, a slight necessity for their
mopping up, but that was temporary and being attended to.
166
Q. In the event of boisterousness or drunkenness on the
Pullman car would you prefer that a Pullman conductor be
there with the porter or not?
A. I can’t believe that I would have any reason one way
or the other. I am unable to say definitely that I would
prefer it one way or the other. I think at least anything
that I could anticipate would be about as well handled one
[fol. 237] way as the other.
Q. Are you able to say how many times during the past
year you have ridden a Pullman car which did not have a
conductor in charge?
A. Well, I travel, of course, a good deal, between here
and Dallas, and it is probably in charge—probably left in
charge of a porter, and going back in the afternoons, that
is frequently without a conductor, a number of times, and
I sometimes make frequent trips, and then it would be infre
quent for a period of time, but ten or a dozen trips a year.
Q. You always get your ticket before you get on the car?
A. Yes, I think I have always done so.
Q. That is all. Wait just one second. Would you send
your little granddaughter in a Pullman car with only a
Pullman porter in charge?
A. I think so.
Q. Over a long trip?
A. Yes, sir.
Q. That is all.
Mr. Graves: That is all. Thank you.
(Witness excused.)
[fol. 238] C harles A. F is k , a witness produced by the
Plaintiffs, having been first duly sworn, testified as follows:
Direct examination.
Questions by Judge Graves:
Q. Please state your name, Mr. Fisk.
A. Charles A. Fisk.
Q. Where do you live ?
A. Amarillo.
Q. How long have you lived in Amarillo ?
A. About 35 years.
Q. What is your business, Mr. Fisk?
A. Banking.
167
Q. Vice President------
A. Vice President of the First National Bank.
Q. Vice President of the First National Bank of Ama
rillo. Have yon had occasion to travel frequently on trains
in recent years !
A. Yes, sir.
Q. Do you remember whether you have traveled any of
the trains where the Pullman car was in charge of a Pull
man conductor—I mean—a Pullman porter, and no Pull
man conductor on that train.
A. Yes, sir.
Q. You have been a Pullman passenger under those cir
cumstances !
A. Yes, sir.
Q. Have you noticed any difference in the service that is
[fol. 239] rendered to the passengers on that type of train
from that that is rendered to passengers on a train where a
Pullman conductor is present!
A. No, sir.
Q. Mr. Fisk, would you have any hesitancy about placing
female members of your family on a Pullman car of that
kind in charge of a Pullman porter!
A. No, sir.
Q. Where there is no Pullman conductor on the train!
A. No, sir.
Q. Have you ever observed any mistreatment of passen
gers on that kind of a train!
A. No, sir.
Q. That is all.
Cross-examination.
Questions by Mr. Lewis:
Q. Have you ever observed any attempts at misconduct
between any of the passengers on any of those cars!
A. No, sir.
Q. Have you ever observed any misconduct on the part
of a passenger on any such cars, just individual passengers!
A. No, sir.
Q. Disturbing the peace, or getting drunk, anything of
that nature!
A. No, sir, I haven’t.
Q. In the event of any such disturbance or misconduct, do
you think that a negro porter could do just as good a job
[fol. 240] of straightening it out as a Pullman conductor!
168
A. I believe so, in my opinion, yes.
Q. You think he could? That is all.
Mr. Graves: That is all. Thank you, Mr. Fisk.
(Witness excused.)
S tan le y M a r sh , J r ., a witness produced by the Plaintiffs,
having been first duly sworn, testified as follows:
Direct examination.
Questions by Mr. Graves :
Q. You live in Amarillo?
A. Yes, sir.
Q. Your name is Stanley Marsh, Jr.?
A. Yes, sir.
Q. What is your business ?
A. I am in the gas production business.
Q. Have you had occasion to travel on the trains fre
quently in recent years?
A. I judge that I travel about once a month, on the aver
age,, on the trains.
Q. Have you traveled on trains where the Pullman car
was in charge of a porter, and where there was no Pullman
conductor on the train?
A. Yes, sir.
Q. As a Pullman passenger?
[fol. 241] A. Yes, sir.
Q. Plave you noticed any difference in the service ren
dered to the Pullman passengers on that type of train from
the service on the trains where the Pullman conductor was
present?
A. In many cases I didn’t even know whether there was a
conductor there. I didn’t distinguish any difference in
the service.
Q. Have you seen any mistreatment of passengers, either
by passengers or by the Pullman porter on such occasions?
A. No, sir.
Q. That is all.
Cross-examination.
Questions by Mr. Lewis:
Q. Mr. Marsh, how long have you lived in Amarillo?
A. 13 years.
Q. Yon say in most instances you hadn’t noticed the dif
ference !
A. No, sir.
Q. What caused you to observe the fact that there were
not conductors in some instances!
A. I had simply heard that certain trains were porter
in charge trains, and I have noticed it after I heard it.
Q. Who told you about that!
A. In distinguishing between where there are conductors
and where there are not, I have asked some of the lawyers
connected with this case where those cases exist, to refresh
my memory, on where those runs were.
[fol. 242] Q. And do you have any independent recollec
tion of any of the different runs prior to the time these gen
tlemen spoke to you about it!
A. I do on the run from Amarillo to Oklahoma City, on
the Rock Island.
Q. What caused you to remember the difference!
A. I simply remembered back that there was no conduc
tor. That is the way I would like to explain it.
Q. What caused you to notice it!
A. At that time I didn’t notice the difference. I now
remember it.
Q. Did you inquire for a conductor!
A. No, sir.
Q. Did you ever inquire for one!
A. No, sir.
Q. Where do you get your passage, before you get on the
train ?
A. Yes, sir.
Q. Always!
A. Yes, sir.
Q. Did you ever notice any disturbance on the train!
A. Up in Oklahoma I saw one drunken man, is all I re
member.
Q. Did you ever notice any attempt at misconduct on the
part of passengers in the sleeping cars!
A. No, sir.
Q. You never have seen them!
A. No, sir.
[fol. 243] Q. You think that the porter could do as good a
job of straightening that out, if there were any misconduct,
as a conductor!
169
170
A. I will admit that if there were bad misconduct, I would
rather there were ten people------
Judge McMillan: Rather there were what?
A. Ten people there to straighten it out, if my f amily were
on the train.
Q. If there were just some misconduct, you would rather
it would be a white man ?
A. No, as a practical matter, I believe the porter can
handle it.
Q. That is all.
Redirect examination.
Questions by Mr. Graves:
Q. He asked you whether you got your passage before
you got on the train. You don’t travel on passes. You
mean you got your ticket?
A. My ticket.
Q. That is all, thank you very much.
(Witness excused.)
[ fo l . 244] L. M. S hepardson , a w itn ess f o r the p la in tiffs,
h av in g been p re v io u s ly d u ly sw orn , testified as f o l lo w s :
Direct examination.
Questions by Mr. Graves:
Q. Please state your name.
A. L. M. Shepardson.
Q. You live at Waco?
A. Yes, sir.
Q. How long have you lived at Waco ?
A. Thirteen years.
Q. What is your business?
A. I am traffic manager of the Waco Chamber of Com
merce.
Q. Have you had occasion to travel frequently on the
trains as a Pullman passenger in recent years?
A. Many, many times every year.
Q. Have you traveled frequently on Pullman cars that
were in charge of a Pullman porter, where no Pullman con
ductor was present in charge of the car ?
171
A. Yes, sir, many times.
Q. Have you noticed any difference in the service ren
dered to the passengers on those trains as compared with
one where the Pullman conductor is present?
A. None whatever.
Q. Would you have any hesitancy whatever in allowing
your female members of your family to ride on Pullman
cars in charge of porters?
[fol. 245] A. No, sir, they do it many times, and if I may
be permitted to elaborate, when my wife or any of the
female relatives are traveling to and from, I nearly always
call upon the porter to see that they get special attention,
and it is nearly always rendered.
Q. Have you ever noticed any disturbances or mistreat
ment of passengers on the Pullman cars where they were in
charge of porters?
A. No, sir. I have traveled for a great many years, and
I have never seen a passenger mistreated yet.
Cross-examination.
Questions by Mr. Lewis:
Q. Does the presence of the train conductor on that train
have any bearing on the way you feel about it?
A. The presence of the train conductor?
Q. Yes, sir.
A. The train conductor is in charge of the train, and
naturally if there should be any disturbance the porter could
call on him, but I have never found any occasion for any
thing of that kind to happen.
Q. Does that have any bearing on the way you feel about
the question?
A. No, not particularly. This question seems to be as to
whether the passenger is safe with a Pullman porter, as safe
with a Pullman porter as he is with a Pullman conductor,
and I say he is. That has been my observation.
Q. You have never noticed any disturbances on any of
the trains?
[fol. 246] A. Nothing that would be outstanding at all, no.
Nothing that I can lay my finger on particularly.
Q. Do you remember any instance where a man had to
correct a passenger?
A. No, I don’t believe I do. I don’t believe I have noticed
any case of that kind. I have noticed instances, if you want
172
to elaborate, where Pullman conductors have got very offi
cious and have gone beyond their duties, and I have never
seen that on the part of a Pullman porter.
Q. How many times have you noticed that?
A. Well, I know of one particular instance that affected
me that way. That was some time ago.
Q. You are just a little “ agin” them, is that it?
A. No, sir, not in the least. I have occasion to charter
trains two or three times nearly every year, with both Pull
man porters and Pullman conductors on them. I have a
great many friends all over the United States among the
Pullman porters and Pullman conductors. Several in the
audience.
(Witness excused.)
A. G. B oldridge, a w itn ess f o r the p la in tiffs , w as sw orn
and testified as f o l l o w s :
Direct examination.
Questions by Mr. Graves:
Q. Your name is A. G. Boldridge?
A. Yes, sir.
[fol. 247] Q. Are you employed by the Pullman Company?
A. Yes.
Q. In what capacity?
A. Agent at Shreveport right now.
Q. How long have you been in the employ of the Pullman
Company?
A. Slightly over seventeen years.
Q. Have you ever worked for the Pullman Company in
Texas?
A. Yes, sir, most of my time has been in Texas, practically
all of it.
Q. In what capacity?
A. Up until December 11th when I moved to Shreveport
I was in Texas altogether. I have been conductor, day
agent, night agent, agent at Galveston, conductor again,
and service inspector. Now agent at at Galveston.
Q. Now agent at Shreveport, you mean?
A. I mean Shreveport. Pardon me.
Q. How long have you served as inspector in Texas?
A. Almost three years.
173
Q. That was work that required you to travel with the
trains constantly?
A. Yes, practically all the time.
Q. What was the purpose of the traveling that you did?
A. To inspect all of the cars and employees en route,
supervision in general at outlying points.
Q. Well, did you—were you required as a traveling in
spector to make reports?
A. Yes.
[fol. 248] Q. To the company?
A. Yes.
Q. Did the reports cover the work of the conductors as
well as the work of the porters ?
A. Yes, it covered it all.
Q. I will ask you to state how the service was, as you
found it, rendered by the porters in charge, compared with
the service as you found it rendered by the Pullman con
ductors ?
A. Well, in practically every case I found that the cars
were in tip-top condition where the porters were in charge,
and a good many cases where the cars were not in good con
dition with conductors.
Q. Well, in general would you say that there is any differ
ence between the complaints that you had to make as be
tween the two kinds of service?
A. I don’t believe I have had to make any complaints on
porters operating in charge at all during nearly three years.
Q. Now, when you travel on these trains, when you
traveled on these trains did the porter in charge or the con
ductor, as the case happened to be, have any warning that
you were going to travel on that particular train?
A. Sometimes they do. They have a way of signaling
sometimes. I always tried to make a point to get on the
trains where they wouldn’t have that information.
Q. Where they wouldn’t have that information?
A. Yes.
Q. You didn’t give them any such warning then?
[fol. 249] A. No.
Q. Among other things, is it your duty to determine
whether either the conductor or the porter has been drink
ing while on duty ?
A. Yes, sir, absolutely.
Q. Do you endeavor to detect liquor on his breath? In
other words, do you endeavor to find out whether he was
drinking before you got on the train?
174
A. Yes.
Q. Have you had occasion to make reports against por
ters in charge for that offense!
A. No.
Q. Have you also had occasion to inspect different runs
for the purpose of making recommendations as to whether
the run would be made a porter in charge run or conductor
run!
A. Sometimes, yes.
Q. When you were operating as an inspector in Texas
under what superintendents did you work?
A. The zone superintendent, whose office is in Houston.
Q. And who was the district superintendent?
A. Mr. W. H. Irwin.
Q. During the time that you were one of the traveling
inspectors in Texas do you know how many inspectors the
company had traveling the trains in the Texas territory?
A. Two including myself.
Q. Two including yourself?
A. And I understand there was one out of St. Louis came
[fol. 250] down once in awhile.
Q. Now, that was in addition to the traveling that is done
by the district superintendents and their assistants?
' A. Yes.
Q. By the way, Mr. Boldridge, are you a Southern man?
A. Yes, sir, I was born in Lancaster, South Carolina.
(Witness excnsed.)
W. H. I r w in , a w itn ess fo r the p la in tiffs , w as sw orn and
testified as f o l l o w s :
Direct examination.
Questions by Mr. Graves:
Q. Your name is W. H. Irwin?
A. Yes, sir.
Q. What is your position with the Pullman Company?
A. District superintendent of the P'ullman Company at
Houston, Texas.
Q. How long have you been in the employ of the Pullman
Company?
A. Twenty-eight years.
175
Q. How long as district superintendent?
A. A year.
Q. You have been at Houston a year?
A. I have been in Houston twenty years, but I was in
Houston as chief clerk, second assistant superintendent and
assistant superintendent, first assistant superintendent and
district superintendent.
Q. You succeeded Mr. Cease there?
[fol. 251] A. I was made a district superintendent, but we
have an assistant to the vice-president.
Q. I see.
A. That has charge of the Houston zone.
Q. Mr. Irwin, did you have any particular-duties to per
form in behalf of the Pullman Company in respect to the
employment of Pullman porters, or rather applicants for
the job of Pullman porters?
A. Yes, sir, I did all of the work of handling of applica
tions and approving of the applications. That is, if we were
going to take up any porters, the first thing we would bring
the man in that was going to make the application and if
he filled the bill he would make application. We would
cover his time for the last five years, there wouldn’t be any
lapse for five years as to where he had worked, in addition
to three references from three people whom he had worked
for, and in addition to that I would go out and personally
interview the men he worked for, as well as personal ref
erences, and after that I or the porter instructor would go
out where this porter lived, this colored man lived, and
check up his home surroundings and see whether or not he
would be a suitable man for our service. And then after
we had the application completed then, of course, the dis
trict superintendent would approve the application and send
it to the zone superintendent for approval.
Q. Now, what other Pullman employees are engaged in
the state of Texas riding the trains and supervising the
[fol. 252] service other than the traveling inspectors, serv
ice inspectors and superintendents ?
__A. The district superintendent and the assistants.
Q. Hoes the Pullman Company have any other employees
operating out of the district offices other than the porters
and conductors ? Do you have any yard men ?
A. Yes, we have yard inspectors. We have a yard inspec
tor assigned to the Houston zone.
176
Q. Do you have any safety men?
A. We have a safety supervisor also.
Q. Do you have any passenger travel men?
A. We have a passenger travel agent now assigned to the
Houston zone.
Q. Now, do all those men occasionally ride the trains?
A. They are out on the road practically all of the time.
Q. Are they supervising the service while they are on the
trains ?
A. Yes, sir, and they make reports just like a service
inspector would, if they found anything wrong.
Q. If any complaints are made from any source of the
conduct or the dereliction of duty on the part of the porter
in charge in your district would the complaints come under
your notice?
A. Yes.
Q. Would they come to your office ?
A. They would come to my office, yes, sir.
Q. I will ask you to state how many complaints you have
[fol. 253] had of that nature?
A. I don’t recall any, any serious complaints. Of course,
there might be some service complaint, the porter may have
failed to explain the operation of the lower berth ventila
tion to a passenger, but as far as any serious complaints, I
don’t know of any.
Q. Speaking particularly with reference to porters in
charge.
A. Porters in charge, yes, sir.
Q. Do you ever attend any of these meetings, instruction
meetings or schools, as you call it?
A. I conduct the schools in the Houston district. I con
duct the schools. We have quarterly service and safety
meetings and the conductors, we usually start the conduc
tors at 8 :15 in the morning until about 10:00 a. m., and then
the porters from about 10:30 to about 12:00 o ’clock, and
both the conductors and the porters receive the same in
structions, and after the meetings are over we furnish each
and every employee with a resume of just what has been
covered in the service and safety meetings.
Q. Do the Pullman conductors get any instructions or
schoolings that the porters in charge do not get?
A. No, sir.
177
Cross-examination.
Questions by Mr. Morgan:
Q. Do you have any qualifications at all for Pullman con
ductors ?
A. Yes, sir, the same qualifications. We would handle it
the same way we handled the porter. We would check up
[fol. 254] on his application the same.
Q. Do you have any book of instructions for porters in
charge ?
A. Porters in charge use the same book as the conductors.
Q. You don’t have any special instructions for them, do
you?
A. No special instructions, just the same instructions the
conductors get.
Q. How long would it take a traveling inspector to cover
all the lines ? I believe you say you have about 400 cars in
Texas. How long would it take to cover all of the lines in
Texas, just on one trip?
A. Well, don’t figure just the inspectors, because all of
the district representatives and their assistants are out
all the time, and all these lines are covered at least once a
month by some member of the staff in the zone.
Q. All right, can you please answer my question, how
long it would take for one man to cover it all?
Judge Sibley: Why should he answer it if one man doesn’t
cover it all?
Mr. Morgan: I understood, if the Court please, that he
testified he had two inspectors in the state.
Judge Sibley: He says he has a staff, seven or eight or
nine, as I recall it.
A. Yes, your Honor. We all, all the district superin
tendents, the superintendent, the safety supervisor and the
yard inspector and everyone else are instructed when they
go out on trains to inspect the service and make reports.
Q. Well, then, some member of that staff that you refer
to, I believe you sav, gets around at least once a month?
[fol. 255] A. Yes,'sir.
Q. And that is about as often as you can cover it, isn’t
it?
A. Lots of times we have men out there. We cover it
regularly, you understand. There are sometimes five or
12—283
178
six cars in one train, and a man, can cover maybe twenty
or thirty cars a day.
Redirect examination.
Questions by Mr. Graves:
Q. The service inspectors, do they travel the entire trip
every time, or do they get on and get off?
A. They get on and get off, possibly they will ride a
train maybe fifty miles and get off and get on another train,
and they might cover eight or ten trains a day by making
these jumps.
Q. Do they cover a number of trains at night also ?
A. They are on the trains at day and night, and of course
they get on at stations where the employees least suspect
them to get on. We have them do that so we can find out
just what the service is. Many times a man will get on
at midnight or two o ’clock in the morning and he might
go to a meeting point of a train and get off and get on
another train at two-thirty in the morning.
Q. Do you have an agent at the platform at the station
in Houston every time a train goes out of the Houston
station?
A. We have two men, one at the Union Station and one
at the Southern Pacific, and they cover every train to see
the employees are in first class shape and to see that the
[fol. 256] cars are in first class shape, and also they cover
every passing train, every train that passes. We don’t per
mit any train to get out without an employee being there,
myself or a platform representative or some member of
my office seeing that train before it leaves, to see that it
is in first class shape as to employees and equipment.
(Witness excused.)
P . B. V alet , a w itn ess f o r the p la in tiffs , w as sw orn and
testified as f o l l o w s :
Direct examination.
Questions by Mr. Graves:
Q. Your name is F. B. Valet?
A. Yes, sir.
Q. You are district superintendent of the Pullman Com
pany, stationed at Dallas ?
A. Yes, sir.
Q. How long have you been with the Pullman Company?
A. I am in my thirtieth year.
Q. What different positions have you filled?
A. Well, I have filled the positions of clerk, stenographer,
receiving cashier, ticket agent, agent and district superin
tendent.
Q. How long have you been district superintendent at
Dallas ?
A. Since last December.
Q. Do you hold service meetings at the Dallas office?
A. We do.
[fol. 257] Q. Are those meetings held jointly, that is, do
the porters and conductors hold joint meetings or attend
separate meetings?
A. I have held joint meetings, but I haven’t held any
in Dallas as yet. I have only been there two months.
Q. Have you had occasion to form an opinion as to the
comparative service, quality of service rendered in general
by the porters in charge to that of the service rendered
by that of Pullman conductors?
A. I have found it to be equally satisfactory.
Q. Where were you stationed before you went to Dallas?
A. Shreveport.
Q. Shreveport?
A. Yes, sir.
Q. How long were you there ?
A. Twenty years.
Q-_ Well, did any of these porter in charge lines that
are involved in this suit operate through or out of Shreve
port?
A. I think the Kansas City Southern was mentioned.
That line operated out of Shreveport.
Q. The Kansas City Southern line from Shreveport to
Kansas City is one of the lines involved here.
A. Yes, sir.
Q. That line did operate out of Shreveport, out of the
Shreveport office?
A. Yes, sir.
Q. Did you ever have any complaints while you were
there of the conduct or dereliction of duty on the part
[fol. 258] of the porters in charge on that line?
179
180
A. Minor derelictions. Not particularly porters in
charge. We have reports of minor derelictions of em
ployees in the lines at different times.
Judge McMillan: You say that this service rendered by
a porter in charge on one car is just as good as if he had
a conductor?
A. I think so.
Judge McMillan: When does it become desirable to
have a conductor?
A. Well, when you have several cars where each porter
would have to look after his own car.
Q. Each porter can attend to his car just as well with
out a conductor as he can with one, and on a train made
up of eight or nine cars each porter would attend to his
own car?
A. Yes, sir. There are other things that enter into that.
Judge McMillan: What are they ?
A. Assignment of space.
Judge McMillan: You mean shifting space between cars?
A. Yes, sir.
J udge McMillan: Anything else ?
A. I can think of nothing else.
Q. Is it of any importance to the company that you have
one man on the train that knows about the space on the
entire train?
A. Well, where there are severals cars it would be.
Q. That is what I am talking about.
A. Yes.
[fol. 259] Q. As a rule on these longer trains made up
of several Pullman cars is the traffic heavier?
A. It is.
Cross-examination.
Questions by Mr. Morgan:
Q. Would it be difficult for porters to interchange that
information you have just spoken of?
A. Would it be difficult?
Q. Yes, sir. They are just there from one car to another,
aren’t they?
A. It probably would if there are a number of cars in
volved, the space would have to be transferred back and
forth, the assignment rather.
(Witness excused.)
181
A l l e n H a r v e y , a witness for the plaintiffs, having been
previously duly sworn, testified as follows:
Direct examination.
Questions by Mr. Graves:
Q. You are one of the parties to this suit, are you, Allen?
A. Yes, sir.
Q. Allen Harvey is your name?
A. Yes, sir.
Q. Where do you live ?
[fol. 260] A. Fort Worth.
Q. How long have you lived at Fort Worth?
A. About thirty-seven years.
Q. Thirty-seven years ?
A. Yes, sir.
Q. How long have you been working for the Pullman
Company ?
A. About thirty years.
Q. About thirty years ?
A. Yes, sir.
Q. As porter all of that time?
A. Yes, sir, porter.
Q. Where were you born?
A. I was born in Colorado County, between Houston and
San Antonio, on the main line of the Southern Pacific,
Weimar.
Q. Weimar?
A. Yes, sir.
Q. You have lived in Texas practically all your life?
A. Yes, sir, all my life.
Q. Are you a married man?
A. Yes, sir.
Q. Have you got a family?
A. Yes, sir.
Q. What does your family consist of?
A. A wife and a daughter.
Q. Your wife and daughter?
A. Yes, sir.
Q. How much schooling have you had?
[fol. 261] A. I went through high school and about three
years in college.
Q. About three years in college?
A. Yes, sir.
182
Q. What college?
A. Paul Quinn College, Waco.
Q. Is your daughter educated?
A. Yes, sir.
Q. Did she finish high school?
A. Yes, sir. She has her Master’s.
Mr. Morgan: We submit that is not material.
Judge Sibley: Sustain the objection.
Q. Do you own your home?
A. Yes, sir.
Q. Is it paid for?
A. Yes, sir.
Q. Do you own any other property?
A. Yes, sir, I have a little more property.
Q. You have a little more property?
A. Yes, sir.
Q. Some rent houses?
A. Yes, sir.
Mr. Morgan: We object to that.
Judge Sibley: He is answerable personally in damages
if he does anything wrong. Cut that as short as you can.
You can show he is a responsible man, I think.
Mr. Craves: Yes, sir.
Q. Allen, what line are you now operating on as porter?
[fob 262] A. 3128.
Q. 3128?
A. Port Worth------
Q. Where do you start and where do you end?
A. I start at Port Worth to Ennis. I open my diagram,
that is, start to open it on leaving Port Worth as far as
Ennis. I am in charge coming back. I close the diagram
coming into Port Worth.
Q. All right, now, that is on the Southern Pacific?
A. Yes, sir.
Q. A train leaving Port Worth at night for Houston?
A. Yes, sir, 10:35.
Q. And it is a branch that runs out of Fort Worth and
connects with the main line at Ennis?
A. Yes, sir.
Q. And that main line starts at Dallas?
A. Yes, sir.
Q. And there your car is hooked onto a train that has a
Pullman conductor on it?
A. Yes, sir.
Q. What time does your train leave Fort Worth?
A. 10:35.
Q. What time do you leave Ennis ?
A. Coming back?
Q. Going to Houston?
A. At 12:30.
Q. At 12:30?
A. Yes, sir.
[fol. 263] Q. Midnight?
A. Midnight, A. M., yes, sir.
Q. On an average, how many passengers do you haul on
that car?
A. Well, just take on an average, it will average from
live to six and sometimes not that many. Just say on an
average, on an average about five or six.
Q. Are nearly all of them through passengers from Fort
Worth to Houston?
A. Yes, sir, nearly all of them are through passengers.
Very seldom do we have any shorts.
Q. How long have you been running on that line?
A. Oh, I have been over on the Southern Pacific about
seven or eight years, on the Southern Pacific, in charge.
Q. Have you been in charge of that car all the time from
Fort Worth to Ennis?
A. Yes, sir, all that time.
Q. Have you had any other porter in charge operations ?
A. Oh, yes, sir.
Q. Tell us about some of them.
A. Well, I ran between Tulsa and Kansas City in charge.
Q. From Kansas City------
A. When they had the sur-charge on.
Q. When they had the sur-charge on?
A. Yes, sir. That was before they taken it off. I run
between there.
Q. Between where?
A. Tulsa and Kansas City.
Q. Between Tulsa and Kansas City?
ffol. 264] A. Yes, sir, about 263 miles, I think it is.
Q. How long were you on that run?
A. Oh, I was there about, I think about a couple of years.
183
184
Q. Are tliere any others?
A. Well, on the Katy between Muskogee and Tulsa.
Q. Muskogee and where?
A. Tulsa.
Q. Tulsa?
A. Yes, sir, on the Katy.
Q. Any others?
A. Yes, sir, on the Frisco between Fort Worth and Tulsa.
I had that line, too.
Q. That was an in charge line?
A. Yes, sir, that was in charge as far as Sherman.
Q. Well, have you ever run on any other Texas lines in
charge ?
A. No, sir.
Q. Did you ever run out to Abilene?
A. I ran out there about ten years. Of course, I handled
all the transportation, but I didn’t make a diagram at that
time, but I handled it all just the same as in charge. I
didn’t get a conductor until 12:35 at night.
Q. Going which way ?
A. Going east.
Q. Going east?
A. Yes, sir, going to Fort Worth.
Q. That car operated from where?
A. From Fort Worth to Abilene and set out.
Q. Set out at Abilene?
[fol. 265] A. Yes, sir.
Q. What time did you get to Abilene?
A. Got there at 3 :20 in the morning.
Q. Well, did it have a conductor on it from 3 :20 until 8 :00
o ’clock in the morning ?
A. No, sir, the conductor went on to El Paso.
Q. You were in charge of the car?
A. Yes, sir.
Q. From 3 :20 in the morning?
A. Until we discharged passengers at 7 :30. You might
say 7 :30, because they had until 7 :30 to occupy the car, you
see.
Q. How long did you say you ran on that line?
A. About ten years on the T-P out west.
Q. Are you pretty well acquainted with the Abilene
People?
A. Yes, sir, I was well acquainted with them.
Q. Allen, have you ever had a fight with a passenger on
the train?
A. No, sir.
Q. Have you ever had any trouble of any kind?
A. No, sir, never had any trouble, no, sir.
Q. Have you ever had an experience with a drung passen
gers on the train ?
A. Well, I have seen them drinking, but I have never had
no trouble, never did have no serious trouble, no, sir.
Q. Have you ever had an experience with a drunk passen
ger that you couldn’t handle by yourself?
A. No, sir, I never did. I have always pacified them and
[fol. 266] got them to bed or got them quiet some way or
another, you know.
Q. Well, how do you go about handling that? Do you
order them around?
A. Oh, no, sir, you couldn’t do that, you know.
Q. What?
A. You couldn’t do that and get no where with that, Judge,
no, sir. You have to handle them with gloves. Even if you
had a conductor he couldn’t do that, just order them around,
because it wouldn’t go. You would sure have trouble then.
Q. Have you ever had any experience on the train where
a drunk passenger insulted another pasenger?
A. No, sir, I never have, no, sir.
Q. Either on the train where you were in charge of the
Pullman car or where there was a conductor?
A. No, sir, neither one.
Q. What are your instructions from the Pullman Com
pany if you have any—if a passenger on the train that was
unruly whom you can’t pacify, what are your instructions ?
A. Well, my instructions are to go and get the train
conductor.
Q. Get the train conductor?
A. Report it to the train conductor, yes, sir.
Q. What would you do?
A. Yes, sir, that is what I would do.
_ Q. The porter in charge runs have been one car opera
tions, I take it, where you have been in charge?
A. Yes, sir, just one car.
Q. Just one car?
[fol. 267] A. Yes, sir.
185
186
Q. Do you get extra pay from the Pullman Company for
being a porter in charge?
A. Yes, sir.
Q. How much?
A. $13.50 a month.
Q. $13.50 a month?
A. Yes, sir.
Q. What is your age?
A. My age is fifty-nine.
Q. You are fifty-nine years old?
A. Yes, sir.
Q. At what age will you be entitled to retire if you should
want to retire?
A. Supposed to be sixty-five, thirty years in service.
Q. Have you ever had any trouble making change ?
A. No, sir.
Q. For passengers on the train?
A. No, sir, I have never had no trouble.
Q. Have you ever had any trouble with your diagram?
A. No, sir. No, sir, I knock on wood. I never had one
sent back to me, and you know if you make a mistake with
the Pullman Company they will sure send it back.
Q. You never had a diagram to come back on you?
A. No, sir, I never had one to come back on me.
Q. If you make a mistake on it that is what would happen?
A. Yes, sir; oh, yes, sir, that is what would happen, if
just a penny was involved you will get it back.
[fol. 268] Q. Are you a member of the church ?
A. Yes, sir.
Q. What church do you belong to?
A. The Methodist.
Q. What church?
A. A. M. E. Methodist.
Q. At Fort Worth?
A. Yes, sir. I went to church yesterday morning here.
Q. You went to church here yesterday morning?
A. Yes, sir.
Q. Do you drink?
A. No, sir.
Q. Have you ever been guilty of being drunk on duty?
A. No, sir; no, sir, I have never had no trouble about that.
187
Cross-examination.
Questions by Mr. Lewis:
Q. Allen, about how often are you troubled with people
drinking on the ears?
A. Oh, I haven’t had any trouble, just say drinking on
the cars, I can’t recall the day when I have had any. I
haven’t had no trouble at all. I have had them drinking,
but no trouble, no, sir.
Q. "What does it take to be trouble?
A. Well, somebody that is interfering or wants to fight or
disturbing other passengers, that is what I would call
trouble.
Q. How long has it been since you asked a man to be quiet
[fol. 269] or to change his conduct in any way?
A. Well, to change his conduct—well, I have had them
probably in the smoker would get a little loud. They would
be bothering nobody, but among themselves, three or four
men, they would be a little loud, talking, and the way I would
get that quiet is I would go in and ring a false bell myself
and I would say, ‘ ‘ That man say he can’t sleep, ’ ’ and that is
the way I would work that.
Q. Have you ever reported any of those to the Pullman
Company, any misconduct at all?
A. No, sir, I have never had to report nothing.
Q. You have never had any kind of a report on any mis
conduct to make to the company?
A. No, sir.
Q. Have you ever had to call on the train conductor for
assistance ?
A. No, sir, never, I have not since I have been in charge.
Never have I had to call on them.
Q. The rest of the porters that act as conductors, have
you ever heard of any of them having any trouble?
A. No, sir, I never did.
Q. There just wasn’t any?
A. No, sir.
Q. Have you ever noticed any attempted misconduct be
tween men and women on the trains ?
A. No, sir, I never have, because there are very few lady
passengers I haul. I don’t haul many.
[fol. 270] Q. Do you ever have any colored passengers on
the Pullman?
188
A. No, sir, I have never hauled any since I have been in
the Pullman service, thirty years.
Q. How many porters are there on each car?
A. On which one? You mean on the car that I am on?
Q. Yes, when you are operating, when you are a porter
on a Pullman car, how many porters are operating that
ear?
A. Just me. I am the onliest porter on the car.
Q. And that is true whether there is a conductor there
or not?
A. If the conductor is there there is just one porter on
a ear, if the conductor is there, yes, sir.
Q. Have you ever handled a Pullman car with yourself in
charge where there is more than one of such cars?
A. Yes, sir, I have had a car. Not at a starting point.
I have had a car that had a conductor and was cut off, like
say a car from Houston to Port Worth and cut off at Ennis,
but we had a conductor as far as Ennis. It is about fifty-
five miles from Ennis to Fort Worth, and he would go in
with the other car, you know, hut of course everything had
been checked up, you understand.
Q. Is that regularly that you have that ?
A. No. No, sir, I haven’t had that in over a year, it has
been over a year since I have had that. Just once in
awhile when there is an extra car that is put in line or
something like that, yes, sir.
[fol. 271] Redirect examination.
Questions by Mr. Graves:
Q. Who handles the drunk passengers on the Pullman
car when the Pullman conductor is there ?
A. Well, if he can’t do anything- with them he has to go
get the train conductor, the same as I would. I have seen
them have to go get them for different occasions. That is
about tickets or something, something concerned with a
ticket. He just goes and gets the train conductor.
Q. Do they ever call on you to help them with drunk pas
sengers ?
A. Who?
Q. The Pullman conductors ?
A. No, sir, he don’t call on me, because if I have one on
there I try to assist and do as much as I can without him
telling me, yes, sir.
189
Q. Now, on this train that you are operating on now,
where does the brakeman, the train brakeman, ride?
A. He rides on that car, the rear car, the same car I am
on. The rear going and coming.
Q. Is that the rear on the train?
A. Yes, sir.
Q. Both ways?
A. Yes, sir, both ways.
Judge Sibley: That is generally true when you have a
one car Pullman, isn’t it?
A. Yes, sir, with one car, but leaving Houston I am the
rear car, see, where there are four cars on the train, regular
[fol. 272] cars on the train leaving Houston going north,
and when we come into the train at Ennis they come from
Dallas, the regular line, regular line ears. I hook on behind
them. I am still the rear car. I am the rear car going
both ways unless they have something behind me, a dead
head or something like that that is not in service, but as a
general thing I am the rear car.
Q. Then does the brakeman ride in that car going both
ways?
A. Yes, sir, both ways.
Q. Does the train conductor come through the car be
tween Fort Worth and Ennis?
A. Oh, yes, sir, sure; yes sir, he comes back. Yes, sir,
maybe two or three different times before I get to Ennis.
Q. Is that true going both ways ?
A. Yes, sir, both ways.
(Witness excused.)
(At this time, 12:00 o ’clock noon, Monday, February 19,
1940, a recess was taken in this case until 2 :00 o ’clock p. m.,
of the same day, at which time the following proceedings
were had:)
[fob 273] Monday, February 19, 1940.
Afternoon Session: 2 :00 P. M.
Judge Sibley: Call your next witness, please.
Mr. Graves: I will ask West and McBay to come around,
so that they will be near the stand.
190
F. H . M cB a y , a w itn ess f o r p la in tiff, h av in g been duly
sw orn , testified as f o l l o w s :
Direct examination.
Questions by Mr. Graves:
Q. Tour name is F. H. McBay?
A. Yes, sir.
Mr. Graves: Tour Honor, this is an intervener plaintiff.
Judge Sibley: All right.
Q. You live at Fort Worth?
A. Yes, sir.
Q. How long have you lived at Fort Worth?
A. Twenty-five years.
Q. You are a Pullman porter?
A. Yes, sir.
Q. How long have you been working for the Pullman
Company ?
A. Twenty years.
Q. Are you on one of the lines known as a porter in
charge line?
[fol. 274] A. Yes, sir.
Q. Which line is that?
A. Number 3531.
Q. That runs from where to where?
A. From Fort Worth to St. Louis. The Pullman car
runs to Little Rock—it stops at Little Rock.
Q. The Pullman car stops at Little Rock?
A. Yes, sir.
Q. Were you born in Texas?
A. Yes, sir.
Q. Where?
A. Mexia.
Q. Are you a married man?
A. Yes, sir.
Q. Do you have any family?
A. Yes, sir.
Q. Do you have a wife and children?
A. I have a wife, a girl, and a boy.
Q. Any grandchildren?
A. One, yes, sir.
Q. One, you say?
A. Yes, sir.
191
Q. Do you belong to the church?
A. Yes, sir.
Q. What church?
A. Allen Chapel Methodist Church at Fort Worth.
Q. Do you drink?
A. No, sir.
[fol. 275] Q. How long have you been operating as a
porter in charge?
A. About four years.
Q. Have you been on this same line four years ?
A. No, sir; I was over on the line to Houston for a while;
and the line from Fort Worth on the Katy to Denison a
while.
Q. That is three different porter in charge runs that you
have had?
A. Yes, sir.
Q. Now, that is on the Texas Pacific, is it?
A. Yes, sir; Texas Pacific and Missouri Pacific.
Q. Combination of Texas Pacific and Missouri Pacific
trains ?
A. Yes, sir.
Q. The car leaves Fort Worth at what time?
A. 8:45.
Q. At night?
A. Yes, sir.
Q. And when are you put in charge of the car?
A. At Marshall.
Q. At Marshall, Texas ?
A. Yes, sir.
Q. You are in charge from there until where?
A. To Little Rock.
Q. Little Rock, Arkansas ?
A. Yes, sir.
Q. And the car goes ahead from there to Memphis ?
A. Yes, sir.
Q. And coming back you are in charge from where?
[fol. 276] A. Coming back, we have a conductor all the
way.
Q. You operate, do you, from Memphis back to Fort
Worth?
A. Yes, sir.
Q. What time does your car going north or east arrive at
Marshall?
A. We get in there about 2:20 in the morning.
192
Q. And wliat time does it arrive at Texarkana!
A. 4:10 in the morning.
Q. So in the part of the rnn that is in Texas, yon are in
charge from Marshall to Texarkana!
A. Yes, sir.
Q. From 2:00 o ’clock in the mowring to 4:00 o ’clock in
the morning?
A. "Well, I am in charge from Marshall to 8:10 in the
morning. The car arrives at destination at 8:10 in the
morning.
Q. That is at Little Eock?
A. Yes, sir.
Q. Yes; but the part in the State of Texas.
A. At 4:10 in the morning.
Q. Have you ever had any serious trouble of any kind
with any passengers!
A. No, sir.
Q. Have you ever had a row, dispute, or fight with pas
sengers on the train!
A. No, sir; never have.
Q. Have you ever had any trouble with drunk passen
gers?
A. No, sir; I have not. I have had drunk passengers on
[fol. 277] the car, but I have never had any trouble with
them.
Q. How do you go about handling a drunk passenger?
A. If a man is drunk on the car, the first thing I try to
do is to get him to bed. If you can get him to bed pretty
soon, he will go to sleep.
Q. Do you give him any instructions or orders ?
A. No, sir, I don’t give him any orders; I just coax him
along. I give him service and try to get him to bed. If you
can get him to bed, he is not into trouble.
Q. What are your instructions in case you should have a
passenger on your car that you could not handle ?
A. I would first notify the train conductor.
Q. Do you remember having had to do that on any occa
sion when you have been in charge ?
A. No, sir; I have never had it to do.
Q. What does the Pullman conductor do, when he has
trouble of that kind, if he is on the train?
A. He would notify the train conductor.
Q. You get how much extra pay per month for the service
that you are now connected with—the porter in charge run!
193
A. $13.50 a month.
Q. That is a porter in charge run in one direction, but
it is not a porter in charge in the other direction?
A. Both ways. You get paid for it the round trip.
Q. You get paid just the same for a full porter in charge
run?
A. Yes, sir.
[fol. 278] Q. $13.50 a month?
A. Yes, sir.
Q. Do you own your home ?
A. Yes, sir.
Q. Is it paid for?
A. No, sir; I owe $300 on it.
Q. To whom?
A. The Fort Worth Building and Loan Association.
Q. How do you pay it out—quarterly, monthly, yearly, or
how?
A. I have paid the first of every month.
Q. How much is that?
A. $13.o0 a month.
Mr. Morgan: We object to that.
Judge Sibley: The objection is sustained.
Mr. Graves: Does the Court rule out this last answer?
Judge Sibley: Yes, sir. I don’t see the necessity of going
into that. He is just trying to buy his home.
Q. How much education have you had?
A. High school and one year in college.
Q. Have you had any trouble of any kind?
A. No, sir; never in my life.
Q. Ever let a passenger make you mad?
A. No, sir.
Q. Suppose a passenger were to abuse you?
A. Well, that is my job; I am supposed to take it. I am
[fol. 279] not supposed to get angry.
Judge Allred: You mean if you get angry, you don’t let
him know anything about it?
A. I am not so easily made angry.
Q- This car on this porter in charge run from Marshall
to Little Bock is placed where in the train?
A. In the rear of the train.
Q. That is the rear car in the train?
A. Yes, sir; it is the only Pullman car on the train.
13—283
194
Q. Where does the brakeman ride on the train, as a rule?
A. On the rear.
Q. How many cars are there—passenger carrying cars in
the entire train during that part of the run?
A. There is one chair car; and down to Marshall we have
a New Orleans sleeper, and that makes two sleepers; but
after they cut loose from me we have one sleeper, and we
pick up a diner at Little Rock, and that makes one chair
car, a diner, and a Pullman.
Q. Between Marshall and Little Rock what do you have?
A. One chair car and this sleeper.
Q. And the Pullman?
A. Yes, sir.
Q. Does the conductor ever come hack in your car?
A. Very often, yes, sir.
Mr. Graves: That is all.
Cross-examination.
Questions by Mr. Lewis:
Q. Have you ever had an occasion to call the conductor to
help you?
A. No, sir.
[fol. 280] Q. This is, the train conductor.
A. No, sir.
Q. Have you ever had occasion to call on the Pullman con
ductor to help you in any difficulty with passengers?
A. No, sir; I have never had occasion to call on any of
them.
Q. Does the Pullman conductor ever have anything to do
with disorderly passengers?
A. You mean like a drunk man or something like that?
Q. Yes.
A. The porter has that mostly to do. It is the job he has
to worry with.
Q. Did you ever discuss that any with the Pullman con
ductor?
A. No, sir.
Q. Have you ever seen a Pullman conductor remonstrate
with a man that was disorderly, or anything like that?
A. No, sir.
Q. You have never seen a Pullman conductor engage in
anything of that nature ?
A. No, sir.
195
Q. You have always done that yourself?
A. Well, I have had drunk men, but I just go ahead and
get him to bed myself.
Q. Do you have drunk men to put to bed very frequently?
A. No, sir; just now and then; not often.
Q. Do any of them abuse you?
A. They raise sand sometimes, of course, but I manage to
get them to bed and never disturb anybody. Maybe, they
are in the smoker, and I let them stay there until they get
sleepy, and then I get them to bed.
[fol. 281] Q. Do you ever notice any other misconduct be
tween passengers or by passengers?
A. No, sir.
Q. Never seen any?
A. No, sir.
Q. What does the Pullman conductor do on the train?
A. His job is to sell space, take up tickets, and wire space.
Q. When he is not there, do you do it?
A. Yes, sir.
Q. Is that all he does ?'
A. He is over the Pullman car; it is his job to sell tickets
and wire space,------
Q. Most of the time don’t they have their tickets when
they get on the train ?
A. Sometimes passengers have them, and sometimes they
don’t. You might pick up a man between points. Before
he gets off, you might sell his space.
Q. What is the general rule, though, about tickets?
A. The general rule is get your tickets before leaving. I
have had pasengers come down just in the.pinch of time and
buy space on the train.
Q. About how often will that happen?
A. I couldn’t say how often it will happen, but it happens
once in a while.
Q. Every week, or two weeks, or a month?
A. It will happen nearly every once in a while, somebody
coming around.
Q. Without a Pullman ticket?
[fol. 282] A. Yes, sir.
Q. But as a general rule, they will have their Pullman
tickets when they get on the train ?
A. Yes, sir.
Q. Under those circumstances, does anybody have any
trouble showing him which is his berth?
196
A. No, sir, I have had no trouble showing him his berth
when it is sold.
Q. That is already designated, is it f
A. Yes, sir.
Mr. Lewis: That is all.
Redirect examination.
Questions by Mr. Graves:
Q. Have you ever had any trouble making up diagrams'?
A. No, sir.
Mr. Graves: That is all.
(Witness excused.)
W . J . W est , a w itn ess ca lled b y the p la in tiff, h av in g been
d u ly sw orn , testified as f o l l o w s :
Direct examination.
Questions by Mr. Graves:
Q. Your name is W. J. West?
A. Yes, sir.
Q. You are a Pullman porter?
A. Yes, sir.
[fol. 283] Q. Where is your home?
A. My present home now is in San Antonio, Texas.
Q. How long have you lived in San Antonio ?
A. Thirty-one years.
Q. Thirty-one years?
A. Yes, sir.
Q. How long have you been working for the Pullman
Company?
A. Twenty years the 20th of April this coming April.
Q. Are you a married man?
A. Yes, sir.
Q. You have a wife and children?
A. Yes, sir.
Q. Do you belong to the church?
A. Yes, sir.
Q. Where were you born?
A. Platonia, Texas.
197
Q. On what train are yon regularly operating as a porter?
A. On M. K. T. train No. 4 and 3 between San Antonio
and Kansas City. The car goes to Kansas City from San
Antonio.
Q. Do you go with the car from San Antonio to Kansas
City?
A. Yes, sir.
Q. And back?
A. Yes, sir.
Q. Over what part of that trip is the porter in charge?
A. He is in charge from San Antonio to Fort Worth going
north, and from Waco, Texas, to San Antonio, Texas, com
ing back south.
Q. Is that a daylight operation during the part of the trip
[fol. 284] that the car is in charge of the porter?
A. It is daylight operation both ways in charge.
Q. Now, let’s see—what time do you get to Fort Worth?
A. I get to Fort Worth at 9 :45.
Q. At night?
A. At night, yes, sir.
Q. How long have you been on that run ?
A. Nine months.
Q. All of the passengers on that part of the run are seat
passengers, are they?
A. Most of them are seat passengers.
Q. Most of them are seat passengers ?
A. Yes, sir.
Q. Of course, you have some through passengers that
have through space?
A. Once in a while. We hardly ever have over one or
two beds going through from San Antonio all the way
through. Sometimes I may pick up a bed from Austin to
Kansas City, but most times I just have seat passengers to
Fort Worth and Dallas.
_Q. What is what these railroad men call the “ consist” of
this train? How many cars does that train have?
A. That train has a Pullman car that starts at San
Antonio; it has two day coaches, and I think one or two
baggage cars, and a mail car.
Q. It has three cars that carry passengers?
A. Yes, sir.
Q. Where does the brakeman ride in the train, as a rule?
[fol. 285] A. Most of the time he rides back there in the
observation car on the rear end of the train.
198
Q. This observation car, is that the car you are in charge
of from San Antonio to Fort Worth, and then from Waco
to San Antonio ?
A. Yes, sir.
Q. Does the conductor come through the train frequently
or infrequently?
A. Some come through very frequently, and some don’t
come through so frequently, because, I guess, probably he
is busy up ahead in the day coach; but most of them, after
they check the day coach, they come back to the Pullman
coach.
Q. Have you had any trouble on the train with passen
gers?
A. I have not had what I call trouble, no, sir. I have not
had what I call trouble with no passengers. I never have
had no trouble; that is, personal trouble.
Q. Have you had any experience with passengers on your
car who had had too much to drink?
A. Yes, sir, I have, one or two men. I will say two men
since I have been on this line.
Q. Was it serious enough that you had to call the train
conductor, or what did you do about it?
A. Well, I think it might not have been serious enough,
but I went and called the train conductor in this particular
case.
Q. One of these cases?
A. Both cases I called the train conductor. The first case
[fol. 286] was a man that got on at Austin, and he had a
stub reading from Fort Worth to Austin, and when I went
to check the Pullman transportation, he offered me this stub,
and I asked him—I told him I couldn’t honor it because it
had already been used; and he said, “ When did they get
damn black nigger conductors on these cars?” I smiled
and did not say anything. There were probably five or six
men sitting in there who had already given their transpor
tation up; and when he said, “ No, I am not going to pay
no seat fare to no damn nigger conductor,” I thought——
Q. Did you tell him you were a conductor?
A. No, sir. He said, “ When did they get damn nigger
Pullman conductors on this car?” I said, “ Captain, I am
not a conductor; I am just a porter in charge, that is all.”
Then he said, “ I am not going to pay you.”
Q. Did you report that to the train conductor?
A. Yes, sir.
199
Q. What did he do about it ?
A. He came back and told him that he would have to pay
the seat fare to the porter if he wanted to ride back in the
Pullman, or he would have to go up front.
Q. Did he pay it?
A. No, sir; he said, “ Well, I will go up ahead. Where do
you want me to sit?”
Q. All right. Have you ever had any real rows with the
passengers?
A. No, sir; never in my life.
Q. Have you ever had any experiences on these cars
where one passenger was mistreating another passenger?
[fol. 287] A. Well, one experience, where it would have
been a mistreatment if probably I had not been right there
and prevented it from being a mistreatment.
Q. Did you have any trouble handling it?
A. No, sir; I did not have any trouble handling it.
Q. Have you had any trouble making up your diagrams
or reports to the Pullman Company?
A. No, sir; I have never had any trouble.
Mr. Graves: That is all.
Cros s-examination.
Questions by Mr. Lewis:
Q. About how frequent do you observe people that have
been drinking too much, or who are boisterous for some
reason or another?
A. Well, I observe them at all times, because I am in the
car at all times with them.
Q. About how often does that happen? Is that a fairly
everyday occurrence ?
A. No, sir; very seldom that I have had to contend with
drunks on the cars.
Q. Sometimes they get drunk so that you have to contend
with them, don’t you?
A. No, sir; I don’t remember of having any drunks. Most
of the people who ride in the Pullman cars, very few of
them are drunkards; most of them are high class people.
Q. I believe you said the brakeman sometimes rides in the
Pullman ?
A. Yes, sir.
[fol. 288] Q. Whereabouts in the Pullman?
2 0 0
A. He sometimes rides in Section 1 or Section 2, probably
opposite where I am sitting, if there are passengers in the
observation end. When there are no passengers in the
observation end, most of the time he will sit back in the
observation end.
Q. Does he ride back there all the time, or is that sort of
an exception?
A. He is first there, and then up at the front portion of
the train. He has duties to perform on the front end at
various times also.
Q. Which place does he spend most of his time ?
A. When he is not arriving at some station very soon
where he has to perhaps receive or discharge passengers on
the head end, he spends all of his time back there.
Q. How many reports have you made to your company
concerning disorderly conduct on the part of passengers?
A. Just two.
Q. Just the two you mentioned?
A. Yes, sir.
Q. Have those been the only instances of disorderly con
duct that you remember?
A. The only ones that I can remember of during my
twenty years.
Q. Do lewd women ever get on the cars ?
A. Yes, sir; quite a few ladies I handle on my cars.
Mr. Graves: I think he misunderstood you.
[fol. 289] Q. Are you bothered with lewd women getting
on the cars soliciting business ?
A. No, sir; I have never seen a woman of that kind on the
car. If she was one, I didn’t know it.
Mr. Lewis: That is all.
Redirect examination.
Questions by Mr. Graves:
Q. You worked in San Antonio before you worked for the
Pullman Company?
A. Yes, sir; I did.
Q. Did you ever work for the Government?
A. Nine years in the Army.
Q. Did you ever work anywhere else there in San An
tonio ?
2 0 1
A. I worked at the Gunter Office Building eight and a
half years; at the Gibbs Building two years; and I worked
at the Post Office extra about two or three months before
I came back on this job.
Mr. Graves: That is all.
(Witness excused.)
R ip 0 . U nderwood, a w itness ca lled b y the p la in tiff, h a v
ing been du ly sw orn , testified as fo l lo w s :
Direct examination.
Questions by Mr. Graves:
Q. Your name is Rip C. Underwood!
A. Yes, sir.
Q. You live at Amarillo!
A. Yes, sir.
[fol. 290] Q. What is your business!
A. I am in the oil business.
Q. You are also an attorney, are you not!
A. I used to be.
Q. In recent years have you had occasion to travel much
or little!
A. Quite a bit.
Q. Do you use the railroads and Pullman cars for most
of your travel!
A. Yes, sir.
Q. Have you had occasion to travel on' any of these Pull
man cars that were in charge of porters and where no Pull
man conductor was present on the train!
A. Yes, sir; I have, quite a few.
Q. Do you recall any specific lines of that kind that you
have ridden on!
A. Well, I go to Oklahoma City quite frequently.
Q. On the Rock Island!
A. Yes, sir; and I know that situation prevails there; and
I have ridden—I can recall a number of instances where
I have bought my space from the Pullman porter, and I
assumed he was in charge.
Q. Have you ridden frequently on the T. & P. between
Marshall and Texarkana!
2 0 2
A. Yes, sir, I was down at Texarkana quite a bit, and I
have ridden that route; and also between Amarillo and Tex-
line and Dalhart.
Q. On the Fort Worth and Denver?
A. On the Fort Worth and Denver up there, yes, sir.
[fol. 291] Q. Have you ever ridden the daytime train that
leaves here on the Katy at 3 :55 in the afternoon for Fort
Worth and Dallas?
A. Yes, sir.
Q. Well, that car was in charge of a porter, wasn’t it?
A. Yes, sir.
Q. What has been your observation as to the kind of serv
ice rendered to Pullman passengers on those cars, as com
pared with the service that the passengers get on the cars
where the Pullman conductor is on the train?
A. Well, my observation has been that there has been no
difference.
Q. Have you ever seen a Pullman porter have any trouble
of any kind on a train ?
A. No, sir.
Q. Are the cars kept as clean and neat and in as good
condition under those circumstances as they are where the
conductor is present?
A. Well, they have always been clean so far as I have
noticed it either way.
Mr. Graves: That is all.
Cross-examination.
Questions by Mr. Morgan:
Q. Mr. Underwood, do' you have any children?
A. No, sir.
Mr. Morgan: That is all.
(Witness excused.)
[ fo l. 292] L eroy B rown ', a w itness ca lled b y the p laintiff,
h av in g been d u ly sw orn , testified as fo l lo w s :
Direct examination.
Questions by Mr. Graves:
Judge Allred: How many of these Pullman car porters
are you going to have?
Mr. Graves: About six, in addition to this one. We
don’t want to over-do this thing, but that is------
Judge McMillan: Mr. Graves, is your porter testimony
all practically the same, or is there any variance?
Mr. Graves: I don’t believe there is any substantial vari
ance. The three porters that have testified so far are the
three intervenor plaintiffs. Some of these other porters
have operated on other lines, but we don’t propose to show
that the record varies any. We think the record is about
the same.
Judge McMillan: Can’t parties stipulate that these other
witnesses would testify to the same thing if put on the
stand ?
Mr. Culbertson: There has been a little variance.
Judge McMillan: Well, if you want to cross-examine
them, I guess you have a right to do it.
Q. Your name is Leroy Brown?
A. Ye ,̂ sir.
Q. Are you employed by the Pullman Company as a
porter?
[fol. 293] A. Yes, sir.
Q. Do you live in Fort Worth?
A. Yes, sir.
Q. How long have you worked for the Pullman Com
pany as a porter?
A. Thirty-one years.
Judge McMillan: Where did he say he lived?
A. At Fort Worth.
Q. How long have you been living in Fort Worth?
A. Thirty-one years.
Q. Are you a married man?
A. Yes, sir.
Q. Where were you born?
A. Altheimer, Arkansas.
Q. How long have you lived in Texas?
A. Thirty-one years.
Q. How old are you now?
A. Fifty-one.
Q. On what line are you now running as a porter?
A. Fort Worth to Austin.
Q. How long have you been running on that line?
A. A little more than two years,
203
204
Q. Do yon get porter in charge pay for operating on that
line?
A. Yes, sir.
Q. And that is because the car is set out here in the
morning after it gets here ?
A. It is set out here at 4 :30 in the morning.
Q. And from 4:30 in the morning until 6:30 you are in
[fol. 294] charge of the car?
A. Until 8:00 o ’clock.
Q. And at night when you receive passengers on this
same car on the trip from Austin to Fort Worth, the car
is in charge of the porter during what time?
A. From 11:30 until 1 :20 in the morning.
Q. When the train leaves?
A. Yes, sir.
Q. Have you ever had any other porter in charge opera
tions ?
A. Yes, sir.
Q. Where?
A. Between Fort Worth and Denison on the Texas Spe
cial.
Q. On the Texas Special?
A. In route to St. Louis.
Q. On the Texas Special?
A. Yes, sir.
Q. Now, the main line of the Texas Special—the main
train goes through Dallas?
A. Yes, sir.
Q. And there is a branch line that goes from Fort Worth
to Denison, and there is combined with the main train?
A. Yes, sir.
Q. And the car was in charge of the porter from Fort
Worth to Denison?
A. Yes, sir.
Q. How long did you run on that line?
A. Between three and four years.
Q. Is that all the porter in charge experience that you
have had?
A. No, sir.
[fol. 295] Q. Where else?
A. Between Fort Worth and Amarillo.
Q. On what railroad?
A. On the Fort Worth and Denver.
205
Q. Did you stop in Amarillo!
A. Yes, sir.
Q. You were on a ear that was set out at Amarillo?
A. It was a daylight run, leaving Fort Worth and arriv
ing in Amarillo, and hack.
Q. During what part of the time were you in charge?
A. The entire trip both ways.
Q. Both ways on the Fort Worth and Denver?
A. Yes, sir.
Q. How long were you on that run?
A. Two years.
Q. Do you recall any others ?
A. From St. Louis to Little Rock.
Q. On what road?
A. Missouri Pacific.
Q. How long were you on that?
A. About a year.
Q. Now, you referred to the Fort Worth and Denver
run. Did you ever run on that same road all the way
through from Fort Worth or Dallas to Denver?
A. Yes, sir; Colorado Springs and Denver.
Q. Colorado Springs and Denver?
A. Yes, sir.
Q. How long did you run on that line?
ffol. 296] A. Off and on for three or four years.
Q. While you were running on that line, did you ever
have parents put their children on your car on that train
run?
A. Yes, sir.
Q. In your charge?
A. Yes, sir.
Q. Has that happened frequently or infrequently?
A. It happens more on the Texas Special.
Q. It happens more on the Texas Special?
A. Yes, sir, between Fort Worth and Denison, with
children going to school.
Q. Have you ever had any trouble of any kind on the
train with a passenger?
A. Nothing serious.
Q. Have you had drunk passengers on your train?
A. Yes, sir.
Q. Have you ever had any trouble handling drunk pas
sengers ?
A. No, sir.
206
Q. How do you go about handling them?
A. He is always the boss. I let him have his way.
Q. Do you let him impose on other passengers ?
A. No, sir; I have never had any that made any at
tempt to impose on anybody.
Q. If a passenger abuses you, what do you do about that?
A. He never knowed it.
Q. Does it make you mad?
A. Yes, sir.
Q. But he doesn’t know it?
A. No, sir.
[fol. 297] Q. Have you ever had any unfriendly words
with a passenger?
A. No, sir.
Q. On these porter in charge cars that you ran on, where
did the brakeman usually ride ?
A. The present run I am on, the brakeman rides in my
car from Waco to Austin.
Judge McMillan: Unless the other people are going to
controvert it, do you think you ought to accumulate that
evidence? If they are going to controvert it, all right. You
have already proved it by four witnesses.
Mr. Graves: All right. That is all.
Cross-examination.
Questions by Mr. Lewis:
Q. You say you have not had any serious trouble. What
was the nature of any trouble that you did have ?
A. When a drunk man boards my car, I never consider
that serious. I have just always considered that part of
my work.
Q. Does that happen rather frequently?
A. No, sir.
Q. When one of those men abuses you, you just pass it
off and go on?
A. Yes, sir.
Q. Do they do that in the presence of other passengers?
A. They do do it.
Q. Do you report that to anyone?
A. No, sir.
Q. Have you ever noticed any disorderly conduct upon
one passenger towards another?
207
A. Not that I remember.
[fol. 298] Q. Have you ever noticed men trying to form
fresh acquaintances with ladies?
A. No, sir; not recently.
Q. Have you noticed that on some occasions?
A. Well, during the oil boom at Amarillo it happened
over there once or twice.
Judge McMillan: I didn’t quite hear you.
A. During the oil boom at Amarillo I have had it happen.
Judge Allred: In trying to get acqu-inted with ladies on
the train?
A. Yes, sir.
Q. Have you ever had charge of more than one Pullman
car or run?
A. Yes, sir.
Q. That is when the Pullman conductor was not on it ?
A. Not regularly.
Q. How frequently?
A. Well, I have had—oh, two or three times.
Q. Can you handle that as well as you do one?
A. No, sir.
Q. Are there other porters on the other cars too?
A. Yes, sir.
Q. On those occasions when a man passenger would try
to make a fresh acquaintance with a lady, what would you
do about it?
A. Report it to my conductor, if I had one.
Q. If you did not have one, what would you do?
A. Report it to the train conductor.
Q. How many times did you do that?
[fol. 299] A. I don’t remember ever having to go to the
train conductor about a thing like that.
Mr. Lewis: That is all.
Redirect examination.
Questions by Mr. Craves:
Q. Have you ever run on a line where you received in
charge as you do here at Austin ?
A. Yes, sir.
Q. Where?
A. Colorado Springs.
208
Q. Did you ever run in Texas on some other line in Texas
where you received in charge ?
A. At Wichita Falls.
Q. How long did you run on that line?
A. Seven years.
Q. Seven years?
A. Yes, sir.
Q. That is, there was set out a car at Wichita Falls, and
you received the passengers in charge?
A. Yes, sir.
Judge Allred: About when was that ?
A. That was during the oil boom, during 1914 to 1917,
along there.
Q. You say that was back in 1915, 1916?
A. Yes, sir; during the War; and during the oil boom at
Burkburnett out from Wichita Falls.
Q. What would you do if a passenger conducted himself in
[fol. 300] such a way that he was interfering with other pas
sengers or annoying other passengers?
A. If there was a conductor, I would report it to the con
ductor.
Q. What is your instructions with reference to reporting
it to the train conductor ?
A. To report it to the train conductor when I am in charge
and do not have a Pullman conductor.
Mr. Graves: That is all.
(Witness excused.)
Mr. Graves: We will ask J. P. Sample next.
J. P. S a m pl e , a w itness f o r p la in tiffs , h av in g been duly
sw orn , testified as fo l lo w s :
Direct examination.
Questions b y Mr. Graves:
Q. Your name is?
A. J. P. Sample.
Q. J. P. Sample ?
A. Yes, sir.
209
Q. Ton are employed by the Pullman Company as a
porter?
A. Yes, sir.
Q. Are yon operating on a line known as a porter in
charge run ?
A. Yes, sir.
Q. What is your run?
A. No. 3725.
[fol. 301] Q. From where?
A. From Harlingen to Brownsville and return.
Q. But where do you begin your run ?
A. Houston to Brownsville.
Q. The train operates between Houston and Brownsville?
A. Yes, sir.
Q. And the car that you are on operates between Houston
and Brownsville ?
A. Yes, sir.
Q. On the St. Louis, Brownsville & Mexico Railroad?
A. Yes, sir.
Q. That is part of the Missouri Pacific system?
A. Yes, sir.
Q. Where were you born ?
A. Victoria, Texas.
Q. What is your age ?
A. Fifty-seven.
Q. Are you married?
A. Yes, sir.
Q. Have children?
A. Yes, sir.
Q. Where do you live, Houston ?
A. Houston.
Q. Live at Houston?
A. Yes, sir.
Q. How long have you been on this particular line?
. A- Well, I have been on this line several times off and on
since 1918; this last time regular since there was a change
made in the line a little over a year ago, but I had just been
[fol. 302] off a little while, and then I went back.
Q. Have you ever lived at Victoria?
A. Yes, sir, I know everybody in Victoria.
Q. How is that?
A. I know everybody in Victoria.
Q. How long did you live there?
14— 283
210
A. Well, I was born there, and I have been in-Houston
about thirty-six—thirty-four years; I came from Victoria
to Houston.
Q. All right. Now, have you ever had any trouble with
passengers while you were running in charge ?
A. No, sir.
Q. Have you had any experiences with drunk passengers?
A. Well, no, sir, not enough to mention, because our com
pany requires us to make a statement about the least thing
that happens on the cars that is unusual, and I have never
had to do that.
Q. Your train carries a Pullman conductor, and how many
Pullman cars, between Harlingen and Houston?
A. Two.
Q. And one of those cars goes on to Mission?
A. Goes to Mission, yes, sir.
Q. In charge of the conductor?
A. Yes, sir.
Q. And the other car goes to Brownsville?
A. Yes, sir.
Q. In your charge?
A. Yes, sir.
Q. You get the full porter in charge extra pay------
[fol. 303] A. Yes, sir.
Q-—for operating that twenty-five miles round trip?
A. Yes, sir.
Q. Have you had any experience on your train where
passengers insulted other passengers, or mistreated other
passengers?
A. No, sir, as a rule, the general in charge lines are lines
that do not haul very many people anyway, and there is no
way to have a fuss on my car hardly between Brownsville
and Harlingen.
Q. What is the average number of passengers on that car?
A. Sometimes two or three, but when I catch Judge Allred
and his bunch I have plenty of passengers.
Judge Allred: Nothing ever happens on those trips?
A. No, sir.
Judge Allred: Right there, what time does that train get
into Harlingen in the morning?
A. In the morning at 6 :50.
211
Judge Allred: And wlrat time do we get to Brownsville?
A. At 7 :55. We don’t leave Harlingen though until about
6:55.
Judge Allred: You mean that is 7 :00 o ’clock?
A. Yes, sir, I mean 7 :00 o ’clock.
Judge Allred: What time does it leave Brownsville in the
evening ?
A. It leaves Brownsville in the evening at 9:00 o ’clock.
[fob 304] Judge Allred: What time is it back up there at
Harlingen ?
A. 9:50.
Judge Allred: 9 :50. All right.
Mr. Graves: That is all, gentlemen.
Cross-examination.
Questions by Mr. Lewis:
Q; Does anybody ever get on the Pullman that has an in
fectious or contagious disease ?
A. Not that I know of.
Q. You have never seen that?
A. No, sir.
Mr. Lewis: That is all.
(Witness excused.)
Mr. Graves: Eli Morgan is our next witness.
E li M obgax , a w itness fo r p la in tiffs , h av in g been du ly
sworn, testified as fo l lo w s :
Direct examination.
By Mr. Graves:
Q. Your name is Eli Morgan?
A. Yes, sir.
212
Q. And yon work for the Pullman Company as a porter!
A. Yes, sir.
Q. Are you operating on a line known as a porter in
charge line!
A. Yes, sir.
[fol. 305] Q. What line is that!
A. It is line No. 3106 on the Port Worth and Denver, be
tween Dallas and Denver.
Q. Between Dallas and Denver, Colorado!
A. Yes, sir.
Q. That line operates during the busy season, during the
summer time, with a conductor, does it!
A. Yes, sir.
Q. And during the off season------
A. With a porter in charge from Amarillo to Denver.
Q. How is that!
A. With a porter in charge from Amarillo to Denver and
hack.
Q. Yes. Your car runs all the way out from Dallas to
Denver and back!
A. Yes, sir.
Q. And you are in charge of the car from Amarillo to
Denver, and back to Amarillo?
A. Yes, sir.
Q. Does the train have more than one Pullman car on it
between Dallas and Amarillo?
A. Yes, sir, it has two as far as Amarillo.
Q. One car sets out at Amarillo?
A. Yes, sir.
Q. And you go on with the train to Denver?
A. Yes, sir.
Q. How long have you been running on that line?
A. I have been running on that line between three and
four years.
Q. Have you had any other porter in charge experience?
[fol. 306] A. Yes, sir, I ran on the Frisco, Santa Pe they
call it, between—to St. Louis. That line has a car that goes
from Dallas to Port Smith in charge.
Q. You have run on that line?
A. Yes, sir.
Q. Any others?
A. Yes, sir, I run a line between Dallas and Altus, Okla
homa, by way of San Angelo, up to Altus; I run from Sweet
water to Altus and back to Sweetwater in charge.
213
Q. Any other porter in charge experience?
A. Yes, sir, I run on a line between Dallas and St. Louis,
from Wichita Falls to Whitesboro, in charge, and back.
Q. That was on the Katy?
A. Yes, sir.
Q. That line has been discontinued, hasn’t it?
A. Yes, sir.
Q. You ran from Fort Worth to Wichita Falls in charge?
A. From Wichita Falls to Whitesboro in charge.
Q. To Whitesboro?
A. Yes, sir.
Q. And there it connected with another train?
A. Yes, sir.
Q. How long did you run on that line?
A. I ran on that line about three years.
Q. Do you remember any other porter in charge experi
ence?
A. Yes, sir, I ran between Dallas and Shreveport, in
charge.
Q. On what train?
A. On the M. K. & T., from Greenville to Shreveport in
charge, and back to Greenville.
[fol. 307] Q. Well, is that all?
A. No, sir, I operated on a line between Dallas and Tex
arkana and Waco in charge, from Mt. Pleasant to Waco,
and back, in charge.
Q. Any more ?
A. No, sir, that is all.
Q. That is all?
A. Yes, sir.
Q. Have you had any trouble with a passenger on any of
those operations?
A. No, sir, none whatever.
Q. Have you ever had any passengers on your train who
had had too much to drink ?
A. Yes, sir, I have seen many that had too much to drink.
Q. Have you ever had any of them to abuse you?
A. Well, a little, yes, sir.
Q. What did you do about that?
A. Well, the way I do about that, I just keep smiling and
he never knows whether he abuses me or not.
Q. Suppose there is conductor, a Pullman conductor, on
the train, do you have drunk passengers on those trains
too?
214
A. Well, yes, sir, I have had them when there was a Pull
man conductor with me.
Q. As a rule who handles the drunk passenger, whether
there is a Pullman conductor there or not?
A. Well, as a rule the train conductor always handles
them.
Q. Who puts him to bed?
A. Well, I put him to bed.
Q. Have you ever had parents to put children in your
charge ?
A. Yes, sir.
Q. Well, on what runs?
[fol. 308] A. Well, I have had them to put them in my
charge on this run I am on now; I had a man to put a little
boy in my charge from Amarillo to Denver, and then I have
had some people put their boy in charge from Denver to
Dallas with me and back.
Q. Have you ever had any old people in your charge, old
ladies ?
A. Yes, sir.
Q. Have you ever had any experience on your train where
one one passenger mistreated another passenger?
A. Ho, sir, none whatever.
Q. Did you have any trouble making up your diagram?
A. No, sir.
Judge McMillan: Where do you live?
A. Dallas.
Q. You live at Dallas. Do you operate out of Dallas?
A. Yes, sir.
Q. Now?
A. Yes, sir.
Q. Where were you born?
A. Navasota, Grimes County, Texas.
Q. Navasota in Grimes County?
A. Yes, sir.
Q. Are you a married man?
A. Yes, sir.
Q. How old are you?
A. Fifty-six.
Mr. Graves: That is all, gentlemen.
215
[fol. 309] Cross-examination.
Questions by Mr. Morgan:
Q. Yon say your name is Morgan?
A. Yes, sir, Eli Morgan.
Q. Where did you- family come from to Texas?
A. Georgia.
Q. Georgia?
A. Yes, sir.
Q. Eli, were you the porter in charge on that train from
Denver down to Dallas recently and you had a little con
fusion about a drawing room for Mr. Gilbert down at
Amarillo ?
A. No, sir, I wasn’t.
Q. You are not the one?
A. No, sir.
Q. Do you know where that boy is now?
A. No, sir, I don’t.
Q. You know about that, don’t you?
A. No, sir, I don’t.
Q. You don’t know about that?
A. No, sir.
Mr. Morgan: All right, that is all.
(Witness excused.)
Mr. Graves: We will have Harry Sinclair next.
[fol. 310] H. H. Sinclair, a witness for plaintiffs, having
been duly sworn, testified as follows:
Direct examination.
Questions by Mr. Graves:
Q. Your name is H. H. Sinclair?
A. Yes, sir.
Q. You work for the Pullman Company as a porter?
A. Yes, sir.
Q. What is your age ?
A. I will be sixty-one my next birthday; I am sixty past
now.
Q. You are sixty years of age?
A. Yes, sir.
216
Q. Where do you live?
A. I live at Lamarque now, in Galveston County.
Q. Lamarque?
A. Yes, sir.
Q. That is about------
A. About fourteen miles from Galveston.
Q. Do you own your home?
A. Yes, sir.
Q. Is it paid for?
A. Not quite.
Q. How long have you been employed by the Pullman
Company?
A. Thirty-three years.
Q. Did you start out as a porter?
A. No, sir.
Q. Started out as a cleaner?
A. Cleaner, yes, sir.
[fol. 311] Q. When?
A. 1906.
Q. And you have been operating as a porter regularly
since when?
A. Regular since 1910.
Q. Now, you travel on the train—your regular run now
is on the—a train that operates between Galveston and St.
Louis, is that right ?
A. Yes, sir.
Q. On what railroad?
A. Missouri Pacific.
Q. And you live at the Galveston end of the run?
A. Yes, sir, at Lamarque in Galveston County.
Q. Where do you stay in St. Louis ?
A. At the Y. M. C. A.
Q. How long have you been running on this one line?
A. Oh, I have run in charge over there for about seven
years, but I have been operating on the Missouri Pacific
before the Sunshine was put on, oh, I guess about twenty
or twenty-five years ago.
Q. Have you ever had any other porter in charge experi
ence?
A. Yes, sir.
Q. On what railroad?
A. The Santa Fe.
Q. How long did you run on that?
A. About, oh, about a year or year and a half.
217
Q. Now, you are in charge of a Pullman car between
Galveston and Houston?
A. Tes, sir.
Q. On the north or west bound trip, that train leaves Gal-
[fol. 312] veston when?
A. Ten-thirty in the morning.
Q. And arrives at Houston at about?
A. At 11:59.
Q. At 11:59, and then at the other end of the trip when
you are coming back, what time does the train arrive at
Houston?
A. It arrives in Houston at 12:55.
Q. P. M. ?
A. Yes, sir.
Q. And arrives—and then it goes to Galveston, and ar
rives there at about what time ?
A. 2:40.
Q. 2:40 in the afternoon?
A. Yes, sir.
Q. Approximately how many passengers do you handle
on that car between Galveston and Houston?
A. Well, about three or four on an average; sometimes
going to Galveston we have more, more than three or four,
to Galveston, but Galveston only holds two sections in the
car out of Galveston; Houston holds the rest of it.
Q. Do you sell the Pullman transportation at Galveston?
A. No, sir, most of them have tickets; sometimes a pas
senger may come up after he has made a reservation and
didn’t get to the ticket office in time to buy his ticket, and
his name is on the diagram, I might possibly have a tele
gram that lower four or lower nine is reserved for him in
his name, and I would sell it to him then, or I might pick up
a passenger between Galveston and Houston, and if this
[fol. 313] space was open and the passenger got on and
wanted a berth to St. Louis I would sell it to him.
Q. Have you ever been on a porter in charge run where
you operated at night?
A. Not all night, part of the night.
Q. Well, that train that you ran on on the Santa Fe, you
were in charge between what points?
A. Well, I had one line on the Santa Fe from Galveston
to Fort Worth and from Fort Worth back to Galveston; and
then I ran on the tourist car line a good many years ago
from Galveston to Los Angeles; I was in charge of the car
218
from Galveston to Fort Worth, and in charge of the car
from Oklahoma City to Fewton, Kansas.
Q. That was line 14?
A. That was not line 14; the tourist car line was not, but
the other line was line 14; I forget the number of the tourist
car line.
Q. Were you born in Texas?
A. Yes, sir.
Q. Where?
A. Corpus Christi.
Q. Do you belong to the church?
A. Yes, sir, Avenue L Baptist Church, in Galveston.
Q. Are you a married man?
A. Yes, sir.
Q. Own your home?
A. Yes, sir.
[fol. 314] Q. Well, I asked you about that.
A. Yes, sir.
Q. I^beg pardon. You have one adopted child?
A. Yes, sir.
Q. Well, on any of these porter in charge operations
where you were in charge, have you ever had any trouble
of any kind ?
A. Fo, sir.
Mr. Graves : That is all.
Mr. Lewis: Fo questions.
Mr. Morgan: Fo questions.
(Witness excused.)
[fo l. 315] T. M. P alm er , a w itness fo r p la in tiffs , having
been du ly sw orn , testified as fo l lo w s :
Direct examination.
Questions by Mr. Graves :
Q. Your name is T. M. Palmer?
A. Yes, sir.
Q. You are employed by the Pullman Company as a
porter?
A. Yes, sir.
Q. Are you operating on a line known as an in charge
line?
A. I am.
219
Q. From what point to what point?
A. From Denison, Texas, to Kansas City and from Kan
sas City back to Denison, Texas,
Q. On the M. K. & T.?
A. Yes, sir, line 3273.
Q. Where were you born?
A. Texas, Burleson County.
Q. Burleson County?
A. Yes, sir.
Q. At Caldwell or near Caldwell?
A. Near Caldwell.
Q. How old are you?
A. Fifty-six.
Q. Where do you live?
A. San Antonio.
Q. Well, your train then—the train that you operate on,
[fol. 316] plies between Kansas City and San Antonio, is
that it ?
A. Yes, sir.
Q. But you are in charge of the Pullman car between
Denison and Kansas City?
A. Yes, sir, I have a conductor to Denison.
Q. You have a conductor between Denison and San An
tonio, both ways ?
A. Both ways.
Q. Yes. Now, approximately how far is it from Denison
to Kansas City?
A. Well, I figure on it being about 400 miles.
Q. Around 400 miles?
A. Yes, sir.
Q. Do you operate a round trip of about 800 miles with
out a conductor?
A. Yes, sir, I am due to leave Denison at 11:40 a. m., and
I don’t see a conductor until 7 :00 o ’clock the next after
noon.
Q. Well, you don’t have a conductor on your train until
you get back to Denison, do you?
A. No, sir; I mean until 7 :00 o ’clock the next day, p. m.
Q. I see. Now, the part of that trip that is in charge
of the porter in the State of Texas is from Denison to
Platter, is it? Denison to the state line?
A. Yes, sir. Well, we always call-------
Q. Just a few miles?
A. We call it Red River.
220
Q. You call it Red River?
[fol. 317] A. Yes, sir, it is about five miles.
Q. About five miles. The rest of it is out of the state of
Texas ?
A. Out of the state of Texas.
Q. You are a married man?
A. I am.
Q. Own your home ?
A. I am buying it.
Q. How long- have you been with the Pullman Company?
A. I think I have about twenty-three years service, but
I have been with them continuously about twenty.
Q. Continuously for twenty years?
A. Yes, sir.
Q. What other employment have you had?
A. Well------
Q. What were you doing when you went with the Pull
man Company the last time ?
A. I am a barber by trade.
Q. I see.
A. I was barbering.
Q. I see. I thought you worked for the Y. M. C. A. for
a while?
A. Well, that is why I said continuously. In 1916 I com
menced working for the Pullman Company, and then I en
tered the army in about 1917.
Q. I see.
[fol. 318] A. And I was the building secretary of the
Y. M. C. A. during the war—the World War.
Q. I see. Have you ever had any trouble with passen
gers on your train?
A. No, sir, not yet.
Q. Have you had experience with drunk passengers?
A. Some, yes, sir.
Q. Have you ever had any experience where the con
ductor or the—the Pullman conductor or the train conductor
called on you to help them wfith a drunk passenger?
A. No, sir, not with a train conductor, but sometimes
I have when I had a conductor; we would have a drunk
man on, and of course the conductor would tell me he is
drunk, and I says, “ Well, let me handle him, probably
I can do a little more with him than you can.” So I go
at him in a nice way; if it is night I get him to bed, put
him to bed, and then I—and he commences telling me,
221
“ Porter, you are my friend,” and I say, “ Oh, yes, I am
right with you,” and I say, “ get in the bed,” and he says,
“ all right.”
Mr. Graves: That is all.
Cross-examination.
Questions by Mr. Culbertson:
Q. Let me ask you one question. Have you ever in your
experience had any occasion to see a man and a woman try
ing to get acquainted in Pullman cars, or a man and a
woman ?
A. No, sir.
Q. How long did you say—twenty-three years with the
[fol. 319] Pullman Company?
A. Yes, sir, I have twenty years service.
Q. Now, during all that twenty-three years have you
ever seen a man trying to make a fresh acquaintance with
a young lady or a lady on a Pullman car ?
A. Oh, I have seen men in the day time go up and get
acquainted with a lady, maybe she is riding alone, and
finally maybe the man gets acquainted with her and they
commence talking civilly and modestly, and sometimes they
would even carry them to lunch or dinner, but I don’t
think he was trying to be even fresh; I never have seen
nothing like that.
Q. The average white man in Texas would resent any
attempt to correct him if he committed any misconduct,
wouldn’t he?
A. I don’t know.
Q. How is that?
A. I say I don’t know.
Q. You don’t know?
A. No, sir.
Q. Have you ever had a white man resent any attempt
on your part to perform your duties?
A. None, no, sir.
Q. You never have had that to happen at all?
A. No, sir.
Mr. Culbertson: That is all.
(Witness excused.
222
[ fo l . 320] C harley T h u rm on d , a w itness fo r p laintiffs,
h av in g been duly sw orn, testified as fo llow s :
Direct examination.
Questions by Mr. Graves:
Q. Your name is Charley Thurmond?
A. Yes, sir.
Q. What is your age?
A. Fifty-nine, sixty my next birthday.
Q. Sixty your next birthday. How long have you been
with the Pullman Company?
A. Thirty-four years.
Q. Thirty-four years?
A. Yes, sir.
Q. Have you had any experience operating as a porter
in charge?
A. Yes, sir.
Q. Are you operating on such a line now?
A. Yes, sir.
Q. Well, first I will ask you where do you live?
A. Fort Worth.
Q. How long have you lived in Fort Worth?
A. Thirty-five years.
Q. Are you a married man?
A. Yes, sir.
Q. Own your home ?
A. Yes, sir.
Q. All right. Now, Charley, you—how much education,
[fol. 321] have you had?
A. I spent two years in Bishop College, after finishing
high school.
Q. What line are you now operating on?
A. 3271.
Q. From Fort Worth to Austin?
A. Yes, sir.
Q. Is that the same line that Leroy Brown is on?
A. Yes, sir.
Q. All right. You heard his description of it, and yon
and he are on the same run?
A. Yes, sir.
Q. In other words, you come down one night and he
comes down the next night?
223
A. Yes, sir, the car I carry in he brings it out.
Q. Yes. Now, have you had any other porter in charge
experience ?
A. Yes, sir.
Q. Tell us about some of them.
A. Let’s see, I ran—well, let’s see, I hauled soldiers
during the war fourteen months in charge.
Judge Sibley: That is over with. We are thankful that
these are peace times.
A. Yes, sir, I am glad too, Judge. And I run between
Amarillo and Sweetwater.
Q. On what railroad?
A. The G. C. & S. F.
Q. The G. 0. & S. F.?
A. Yes, sir.
[fol. 322] Q. And you were in charge on that line?
A. Yes, sir.
Q. Well, what about the Brownwood, Sweetwater and
Wichita Falls?
A. In charge at Sweetwater—at Wichita Falls.
Q. What about from Wichita Falls to Fort Worth?
A. In charge at Wichita Falls.
Q. That is receiving at Wichita Falls?
A. Yes, sir.
Q. How long have you been running on this line between
Fort Worth and Austin?
A. Since August 24, 1934.
Q. Since 1934?
A. Yes, sir, August 24th.
Q. That is six years and a half?
A. I think so.
Q. You are pretty well acquainted with the passengers
that travel regularly between Fort Worth and Austin?
A. I know quite a few of them.
Q. Are you well acquainted in Fort Worth?
A. Well, I think I am.
Q. Charley, how do you go about handling a drunk pas
senger ?
A. Oh, well, it depends on how they conduct themselves
as to how I conduct myself; but there is never an occasion
whereby I show any contempt or dislike to their conduct;
[fol. 323] I try at all times to keep a smile on my face,
and whatever------
224
Q. Well, from------
A. Pardon me.
Q. How is that?
A. Whatever service that I can render to them I am there
doing it with a smile.
Q. Have yon ever had a personal difficulty or a fight with
a passenger?
A. Not in my natural life, no, sir.
Q. Have you ever tried to order a passenger around,
whether he was drinking or not?
A. No, sir.
Q. And tell him what he had to do?
A. No, sir.
Q. Now, from your experience in both porter in charge
runs and in runs where you have operated with conductors
in charge, I will ask you to state whether you feel that you
are pretty well qualified to handle drunk passengers ?
A. Well, I can only cite my past record in handling them;
from that standpoint I feel that I am.
Mr. Graves: That is all. That is all, gentlemen.
Cross-examination.
Questions by Mr. Morgan:
Q. Ho you have a good many drunks going out of Austin!
A. No, sir.
Q. Well, do you ever have any?
A. Yes, sir.
[fol. 324] Q. Do you ever have drunks come down there
and wake passengers up that have gone to bed early?
A. No, sir.
Q. You mean that has never happened?
A. No, sir, not by me.
Q. At no time?
A. No, sir.
Q. Now, you just bring the car down from Port Worth
to Austin and it is set out here, is that it?
A. That is right.
Q. Then you go back?
A. That is right.
Mr. Morgan: I think that is all.
Mr. Graves: That is all. Thank you.
(Witness excused.)
225
Mr. Morgan: If Your Honor please, if we could have
about five minutes we might be able to stipulate some, if
this is going on indefinitely; we might talk to counsel.
Mr. Graves: I believe it would take us less time to finish
with this one witness. That is all we have today, and
before we bring in any more we might talk about a stipula
tion.
Mr. Morgan: All right, go ahead.
[fol. 325] N oah L an e , a w itness fo r p la in tiffs , hav ing been
duly sw orn, testified as fo l lo w s :
Direct examination.
Question- by Mr. Graves:
Q. Your name is Noah Lane?
A. Yes, sir.
Q. Where do you live?
A. Dallas, Texas.
Q. How old are you?
A. Fifty-three.
Judge McMillan: How old?
The Witness: Fifty-three.
Q. You operate as a porter in charge for the Pullman
Company ?
A. Yes, sir.
Q. On the line------
A. 3259.
Q. —running between Dallas and Austin?
A. Yes, sir.
Q. How long have you been on that line, regularly?
A. Since 1931 this time; I have been on the line twice.
Q. Been on the line twice, but continuously now since
1931?
A. Yes, sir.
Q. You know a good many passengers that travel between
Dallas and Austin, then?
A. Yes, sir, I know most of them.
Q. That car is in charge here during the same period as
[fol. 326] the car—as the Fort Worth car?
15—283
226
A. Yes, sir, the same thing.
Q. That Brown and Thurmond have testified about?
A. Yes, sir.
Q. And you get the porter in charge compensation?
A. Yes, sir.
Q. On that account ?
A. Yes, sir.
Q. Where were you born, Noah?
A. Marshall, Harrison County, Texas.
Q. How long have you lived in Dallas?
A. 35 years.
Q. Are you pretty well acquainted in Dallas?
A. Yes, sir.
Q. What church do you belong to?
A. The Goodstreet Baptist Church.
Q. Do you drink?
A. No, sir.
Q. Don’t drink at all ?
A. No, sir.
Q. What’s been your experience with drunk passengers
on the train—how have you gotten along with them?
A. I humor them.
Q. You humor them?
A. Yes, sir, and coax them along. I get along with them
all right.
Q. Get along with them all right ?
[fol. 327] A. Yes, sir, I have at times when they was drunk,
and one occasion—it has been a good long time ago, about 13
or 14, if I make no mistake, I had a man that was drunk, and
the conductor didn’t want to let him on because he was
drunk.
Q. You mean the Pullman conductor?
A. The Pullman conductor, yes, sir. I knew the man very
well, and I said, “ If you will let me have him,” he was kinda
bad, and I said, “ If you will let me handle him we will save
trouble for all concerned.” Well, he went along and let
me alone, and I got him on the car and he wouldn’t give
up the tickets to the conductor and I said, “ If you will just
leave him to me I will take care of him;” I said, “ I know
him and I will take care of him,” but I was afraid to let him
go to bed because he had two guns on, and I was afraid to
let him go to bed with those guns on because he might wake
up in his sleep and take a shot at somebody, just for fun in
227
his sleep, or something-, and I coaxed and begged him to let
me have his guns, and put them away, and said I would keep
them for him until in the morning, and after I persuaded with
him for a long time,—“ If you will wear them I will let you
have them,” he said, and well, you can see my size; he was
small, and the belt wouldn’t go around me with the two
guns on it, and I wanted to put them in my locker, and he
said, “ No, you have got to wear them.” I said, “ Well, they
[fol. 328] won’t meet, the belt won’t meet on me, that’s all.”
He said, “ Get a string and tie it on,” and so I taken a string
off of a linen bag, and I made the belt meet, and fastened the
guns on me that way, and he still wouldn’t give his tickets up
to the conductor; the conductor was Charlie Dannish, if I
make no mistake, that was his name; I said, “ If you will
just leave him to me I will get his tickets from him; just
leave him alone and leave him to me, ’ ’ which he did, because
he said if he had to come back in the car again, he would
have some fun with him. So the conductor stayed outside
and so the next morning we were going into Hillsboro and
he got up, he just waked up and got up, and I met him and
I says, “ Mr. Lee,” I says, “ are you getting along all
right?” He says, “ Yes, yes, fine.” I says, “ Now, when you
have got time I will take your tickets.’ ’ I said, “ You didn’t
give up your tickets last night. ’ ’ He said, 4 4 Didn’t I ? ” I
says, “ No, sir.” “ I didn’t,” he says, “ Why, I don’t know
why I didn’t.” I says, “ You told me you had done give
them to me, ’ ’ and then he said,4 4 Come on help me find them, ’ ’
and so he and I looked through his clothes and we found them
in his watch-pocket in his vest and he .had the Pullman and
Railroad tickets, and gave them to the conductor; and, of
course, from that time he was all right. You call that trouble,
but I call it fun. On Friday night, I had a man here that
was down here and he didn’t have his clothes on, and he
was unusually loud and I told him, I says, 4 4 Please, be
[fol. 329] quiet,” I says, “ there is a lady here;” He used
some pretty bad language and I said, “ Please be quiet, a
lady will hear you,” and he said, 44All right, I won’t say
any more; ’ ’ and I got him to bed; I was about an hour late
getting him there; of course, I was fixing to go to bed and
I was about an hour late getting him in bud but I finally got
him in bed and I seen that everything was all right and
he was asleep and he had his pants lying down spreading out
ln the middle of the floor and I was afraid that his purse
228
might drop out, so that was why I stayed up to see if he was
asleep, and after he was asleep I went to bed, and the next
morning he woke up and was all right and didn’t know
anything about it. Those are the most serious cases I have
had with drunks.
Q. Well, you have never had any trouble, then, with drunk
passengers that you couldn’t handle ?
A. No, sir.
Q. Along those lines?
A. No, sir.
Mr. Graves: That is all, gentlemen.
Mr. Lewis: No questions.
Mr. Morgan: No questions.
Mr. Graves: That is all.
(Witness excused.)
[fol. 330] Mr. Graves: If the Court would give us about
five minutes I believe it would save time, if Your Honor is
going to take a recess this afternoon.
Judge McMillan: It is 3:30.
Judge Sibley: All right.
(Thereupon Court was recessed at 3:30 p. m. until 3:45
p. m.)
J. I. P oole, a w itness p rod u ced b y the p la in tiffs , having-
been first du ly sw orn, testified as fo l lo w s :
Direct examination.
Questions by Mr. Graves:
Q. What is your name?
A. J. I. Poole.
Q. Where do you live?
A. Smithville, Texas.
Q. Are you employed by the M. K. & T. Railway Company
of Texas?
A. Yes, sir.
Q. In what ca p acity ?
A. Trainmaster.
Q. How long have you been in the employ of the M. K.
& T. Railroad Company?
229
A. Between 28 and 29 years.
Q. In what different capacities?
A. I entered the service of the M. K. & T. as a Train Dis-
[fol. 331] patcher, served in that capacity until 1928, made
Yardmaster and served as Yardmaster and promoted to
Trainmaster until 1919, and served in that capacity until
1931, reduced from Trainmaster to Chief Dispatcher in 1931,
served as Chief Train Dispatcher until 1938, when I was
transferred to South Texas as Trainmaster.
Q. State whether it is your duty to see that the rules of
the company in respect of the operations of trains are car
ried out.
A. That is my responsibility, yes, sir.
Q. And part of the territory between San Antonio and
Fort Worth, and these Katy trains that have been described
here, as being porter in charge lines, is that in your jurisdic
tion ?
A. Between San Antonio and including Waco, is my terri
tory.
Q. So, the train employees and train crews that operate
from San Antonio to Waco are under your jurisdiction?
A. Yes, sir.
Q. What does the railroad company do with the view of
seeing to it that the rules are actually carried out?
_ A. Well, there is various things that we do, depending en
tirely on the case. We continually make checks, that is part
of my job, and several others do the same thing; to see that
the rules are complied with; and if they are not, to make
necessary arrangements to get them complied with.
Q. Do you actually ride the trains for that purpose?
A. Almost continuously.
[fol.332] Q. Have you got a copy of the rules of the
Transportation Department of the Missouri-Kansas & Texas
Lines with you?
A. Yes, sir.
Q. I will ask you if that is a copy of the rules that are
currently in effect?
A. 1925, Transportation Department, yes sir.
Q. We will offer these rules in evidence, and I would
like to ask the witness some questions about them. And
then I will turn it over to the Beporter.
(Thereupon said rules were admitted in evidence as Plain
tiff’s Exhibit No. 15.)
230
By Mr. Graves:
Q. Mr. Poole, who is in charge of the Passenger trains!
A. A train conductor.
Q. In charge of all trains!
A. Yes, sir.
Q. Is he in charge and command over all of the employees
on the train, including the Pullman Company employees!
A. Yes, sir, from the pilot to the tail end of it.
Q. Who, according to the Rules, has authority to eject
a passenger from the train!
A. No one except the passenger train conductor.
Q. What rule is it that covers that!
A. 495, I believe you will find it. I will read it for you.
495 is the rule.
Q. Will you read that rule, please, or the portions of
that that deal with that!
A. “ No train man other than the conductor has authority
[fol. 333] under any circumstances to accept anyone as a
passenger. No train man other than the conductor has
authority to eject a passenger or trespasser from a train,
save under the immediate supervision and direction of the
conductor.” Is that the part you had reference to!
Q. Yes. Now, turn over on the next page and read the
paragraph, the second paragraph on page 106.
A. “ It is the duty of the conductors and trainmen to
attend to the safety and comfort of passengers lawfully on
their trains, and to protect them against actual or threat
ened violence and abusive, profane and obscene language,
or conduct, and any passenger guilty of such violence, lan
guage or conduct should be ejected from the train.”
Mr. Culberson: What page was that on, Mr. Poole!
A. 106.
By Mr. Graves:
Q. What rule requires the employees on the train to re
port difficulties on the train or anything out of the ordinary
to the passenger conductor!
A. Well, the rules, there are two or three rules there-
let’s see, I will call it off to you.
Q. What about Rule 402. Read that.
A. 402. “ All employees, especially those in places of trust,
are required to report any misconduct or negligence af
231
fecting the interests or safety of the railroad, and with
holding such information will be considered proof of neg
ligence or indifference, and treated accordingly.”
[fol. 334] Q. What rule is that which prescribes the duties
of the conductor in respect of passing through the train?
A. Well, the Rule 507, I believe it is, just offhand. I will
look here and see.
Q. Look at 502.
A. 502,1 was pretty close to it, I believe. “ Unless other
wise instructed, passenger conductors are required to be
in attendance on their trains in regular uniform, such time
in advance of leaving as prescribed by special instructions,
and to remain in attendance in full uniform until they reach
the end of their run, discharge their passengers and deliver
their trains in proper condition to their successors or yard
men. They will be held responsible for the cleanliness,
regulated temperature and proper condition of the cars
in their trains, and for the prompt action and general good
conduct of their baggage men, brakemen, and porters, re
quiring them to be on duty in regulation uniform, the pre
scribed time before leaving, and to remain so until the end
of their runs, and all of their duties have been performed.”
Q. Read Rule 505.
A. “ When practicable, conductors must pass through
cars occupied by passengers at least once every hour.”
Q. And 503.
A. “ Passenger conductors must personally give proceed
signal from station platform at all points where stops are
made. ’ ’
[fol. 335] Q. Please read 756.
A. 756. “ Temperature for cars in service: Coaches in
through service 65 to 70 degrees; Pullman sleeping cars
between the hours of 10 p.m. and 6 a.m., about 60 degrees;
Pullman sleeping and parlor cars in daytime, 65 to 70
degrees. Temperature should be kept below rather than
above the highest figure given. Train conductors, at time
of taking charge of trains placed in stations, must observe
the temperature in each car, and if found underheated or
overheated, they must report same promptly, and thermom
eters in any steel cars register the maximum temperature,
as provided for in instructions covering coach equipment,
and in the judgment of conductor is not comfortably heated,
the maximum temperature may be increased, and report
made by the conductor, ’ ’
232
Q. Read 507, Mr. Poole.
A. “ All trains will be run under the directions of the
conductor except when they conflict with the rules, or in
volve risks, in which the engine man will be held equally
responsible.”
Q. 495.
A. 495. I believe we read that, didn’t we Judge? About
the ejecting of passengers?
Q. All right. Do you give instructions to your conduc
tors from time to time?
A. Yes, sir.
Q. The Trainmaster does?
[fol. 336] A. Orally and otherwise, yes, sir.
Q. Does the railroad company make any distinction be
tween the Pullman passengers and passengers on the other
part of the train in respect of the service rendered to them
by the train crew?
A. No, sir, they are all our passengers and are taken
care of accordingly.
Q. Where is the rule that provides that the brakeman will
ride on the rear ?
A. 443-A, on the Revised Rules. It was issued May 1st,
1939, I believe it is. Let’s see. I have the rule somewhere
here. April 1st, 1939. 443-A.
Q. Read the last paragraph of that rule, please, sir.
A. “ Passenger brakemen or flagmen will, so far as prac
ticable, ride near rear of passenger trains to observe and
acknowledge signals, and may, when, necessary, ride in
lounge cars and observation sleepers, when it can be done
without inconvenience to passengers. ’ ’
Q. Is there any rule that would exempt the train conduc
tor from responsibility for the Pullman cars or the pas
sengers in the P'ullman cars?
A. No, absolutely none.
Q. Mr. Poole, are these rules reasonably well complied
with?
A. Yes, sir, I say they are.
Q. And it is your business------
A. If they wasn’t, I wouldn’t be here.
[fol. 337] Q. Do you mean they would get somebody to
fill your job?
A. They would get somebody that would.
Q. Are these rules that you have particularly referred to,
233
and specially referred to here and read, what are known as
standard railroad rules ?
A. Yes, sir, they are known as standard rules; while not
verbatim, they do not read like some of the lines, they are
practically the same all the way through. They are known
as standard operating train rules.
Q. Do they apply on all railroads in the State of Texas?
A. I would say yes, practically the same. All of the rail
roads that I know of have what we call the standard rules.
Q. Do you know of any reason why the service rendered
on the Pullman cars that are known as these porter in charge
runs is inferior in any way to the services on the other cars,
other trains?
A. No, sir, the runs where we have those, two runs that
I presume that you refer to, between San Antonio, on three
and four, they are short runs, and I would say if anything,
they would have more attention, but the care is just the
same.
Q. All right. That is all, gentlemen.
Cross-examination.
Questions by Mr. Morgan:
Q. Mr. Poole, according to your contracts between the
railroads and the Pullman Company, the Pullman employees
are not employees of the railroad, are they?
A. Well, they are not considered so. So far as our trans-
[fol. 338] portation rules are concerned, but certainly if
there was any misconduct on their part, we would do some
thing about it, if that is what you have reference to. I
don’t think they get their pay off of our payroll. I don’t
know how they arrange that part of it.
Q. You assume the same responsibility for passengers
in a Pullman as you do passengers in a chair car, is that
correct?
A. Yes, sir.
Q. And that Pullman is just as much a part of that train
as the chair car is a part of the train?
A. Yes, sir.
Q. The Pullman car is just as much a part of the train
as the engine ?
A. Yes, sir, it is a part of the train.
Q. And you treat it and operate it as such?
A. Yes.
234
Q. If a passenger on the Pullman car is boisterous and
loud and undresses, and so on, it is the duty of the operator
of the Pullman car to have him ejected?
A. If he couldn’t be handled any other way. We have lots
of things come up that they don’t necessarily have to eject
the passenger. I will say that there are few of those cases,
it — seldom that those cases occur.
Q. As a matter of fact, you don’t have a strict compliance
with those rules, but what you think as a matter of expe
dience that may occur on each particular occasion.
A. I don’t agree with you. I think the meaning of the
[fol. 339] rule is complied with.
Q. I am not going to argue the point, Mr. Poole.
A. I was trying to give you an answer, I beg your pardon.
Q. If a man should do that, he would be in violation of
the rule?
A. If he would do what ?
Q. If he was loud and boisterous and cursing there, and
making a noise.
A. I wouldn’t say if he cursed to the extent that it would
—if he cursed to the extent that it would be an annoyance
to the other passengers, the lady passengers, there are con
ditions that enter into it. I have heard people use profane
language in places where I didn’t think it would be consid
ered an annoyance. It would be a matter of handling the
condition as it would arise, as to who was present.
Q. You are not employed by the Pullman Company?
A. No, sir.
Q. You are a railroad man, instead of a Pullman em
ployee ?
A. Yes, sir, I am employed by the M. K. & T. Railroad.
Q. And I believe you say you are the Trainmaster ?
A. Yes, sir, in charge of the Ivaty operations in this sec
tion.
Q. In charge of operations in this section?
A. Yes.
Q. During your many years ’ experience in that operation,
has the railroad ever tried substituting negro men in the
place of white conductors?
[fol. 340] A. In charge of the trains, you mean?
Q. Yes.
A. No, they had white conductors when I came to the
Katy, and we still have them.
235
Q. You still have them?
A. Yes, sir.
Q. At any time have you ever tried using a porter in
charge of the train instead of the conductor in charge of
the train?
A. We have porters on our trains that are very efficient
in their particular jobs.
Q. I understand, but have you ever put a porter in charge
of your train, and not had a white conductor in charge?
A. No, sir, I have never operated a passenger train with
a negro in charge of it, no, sir.
Q. Now, Mr. Poole, isn’t it a fact that you—under the
laws of this state, that you haul the colored passengers in
one section of the train, and the white passengers in an
other section of the train?
A. Yes, sir.
Q. And do you not obey that law, and is that not a rule
you comply with continually in the movement of passengers ?
A. Yes, sir.
Q. Isn’t it also a fact that the colored passengers are in
the front part of the front coach, according to the Jim
Crow law, isn’t that where they usually ride?
A. Yes, sir, that is the usual practice, depending upon the
[fol. 341] make-up of the train.
Q. You don’t have any colored passengers in the Pullman
car?
A. No, I have known of it happening, but not frequently.
Q. That is all.
(Witness excused.)
H. R. McK ee, a witness produced by the plaintiffs, hav
ing been first duly sworn, testified as follows :
Direct examination:
Questions by Mr. Graves :
Q. What are your initials, Mr. McKee?
A. H. R.
Q. Where do you live ?
A. Slaton, Texas.
Q- You are employed by what railroad?
A. By the P. & S. F. Railroad.
236
Q. That is the Panhandle and Santa Fe?
A. A subsidiary of the Santa Fe Railroad.
Q. That is, then, a part of the Santa Fe system?
A. Yes, sir.
Q. In what capacity are you employed?
A. Division Superintendent.
Q. The part of the Santa Fe System between Clovis and
Sweetwater, is that in your Division ?
A. It is.
[fol. 342] Q. Are you familiar with the operations of that
train that carries a Pullman car from Oakland—I mean
from New Orleans to Oakland, California?
A. Yes, sir, quite familiar with it.
Q. It passes through your territory?
A. Yes, sir. It passes through Slaton.
Q. And the train employees on that car are under your
supervision ?
A. Yes, sir.
Q. I mean on that train?
A. Yes, sir.
Q. Mr. McKee, you heard the rules read by Mr. Poole,
who has just testified?
A. Yes, sir.
Q. I will ask you to state whether or not those are sub
stantially the standard Railroad Rules ?
A. Those are substantially standard rules, and are in
effect on the Santa Fe Railroad, in substance. The wording
might be somewhat different, but the meaning is the same.
Q. Does the Santa Fe also regard the passengers on the
Pullman cars as railroad passengers ?
A. They do.
Q. Does the Santa Fe recognize the responsibility of
giving to them the same service that it gives to the passen
gers on other parts of the train ?
A. Yes, sir.
[fol. 343] Q. The conductor with the Santa Fe is also in
charge of the entire train ?
A. Yes, sir, the conductor, he is the captain of the train,
there is no question about that.
Q. Now, you heard Mr. Poole’s testimony about the opera
tions of the Katy. I will ask you to state whether the Santa
Fe is operated in substantially the same way ?
A. Yes, sir, very much the same. I see very little differ
ence, if any. I might say, in the way of observation, that
237
we make it a point to see whether the rules are observed.
We have trainmasters, transportation inspectors that get
on these trains out at way stations to find out what is going
on, rather than leaving from the terminal, and we think we
know pretty well what is going on on our trains.
Q. How long have you been employed by the Santa Fe
Railroad?
A. 30 years.
Q. In what different capacities ?
A. Superintendent 12 years, Trainmaster 15 years, and
Chief Dispatcher and Train Dispatcher, 3 years.
Q. Is it your duty to see that these standard operating
rules are performed and are carried out?
A. It is.
Q. Do you think they are ?
A. I am certain that they are.
Q. That is all, gentlemen.
[fol. 344] Cross-examination.
Questions by Mr. Morgan:
Q. Mr. McKee, you say you live out in west Texas?
A. Yes, sir.
Q. And you have been with the Santa Fe, the same system
for a number of years ?
A. Yes, sir.
Q. Have you ever known of the Santa Fe trying to use
that plan of substituting train porters in lieu of train con
ductors ?
A. No, that never happened on the Santa Fe.
Q. It never happened on that train?
A. You are talking about train conductors, not Pullman
conductors ?
Q. Yes, sir, train conductors.
A. No, that never happened on the Santa Fe.
Q. You use only white men for your train conductors?
A. Yes, sir.
Q- You have them in charge of the train?
A. Yes, sir.
Q. They have charge of the engineer and fireman and
baggage men and express man; they are all under his gen
eral supervision?
A. Yes, sir.
238
Q. And your Pullman ear, when it is tied on to a Santa Fe
train, it is an integrated part of the entire train?
A. Yes, sir.
[fol. 345] Q. It is just as much a part of the Santa Fe
train as the chair car, or the engine is a part of the train ?
A. That is right.
Q. You treat it as such, don’t you?
A. Yes, sir.
Q. You treat the passengers as such, don’t you?
A. Yes, sir.
Q. You, of course, are familiar with the fact that the rail
road companies, not only the Santa Fe, but all other com
panies, charge an additional fare for passengers that ride
in the Pullman cars, over and above the regular fare they
would have to pay to chair cars ?
A. Yes, sir, that is Pullman fare.
Q. That goes first to the Railroad and the Pullman
charges extra fare for the berth?
A. Yes, sir.
Q. Isn’t that practice uniform among all railroads in
Texas, Mr. McKee?
A. I think so, as far as I know.
Judge Sibley: Mr. McKee, do any of the Texas railroads
run their own sleeping cars?
A. Not to my knowledge. I might qualify that by saying
I have only been in west Texas about a year and a half.
Formerly I was in New Mexico, Kansas and Colorado. My
experience in west Texas is only a year and a half, but an
swering your question, I know of no line that operates
independently.
[fol. 346] Mr. Morgan: That is all, Your Honor.
Redirect examination.
Questions by Mr. Graves:
Q. Do you know about these streamline trains that are
operated between Dallas and Houston; that is, daylight
trains ?
A. No, sir, I have never been over in that territory.
Q. I see.
A. We had streamline trains supervision in New Mexico
that ran between Los Angeles and Chicago, but I am not
acquainted with the Fort Worth territory.
239
Q. All right, sir, thank you.
(Witness excused.)
W. J. R ogers, a w itness ca lled b y p la in tiffs , h av in g been
duly sw orn, testified as fo l lo w s :
Direct examination.
Questions by Mr. Anderson:
Q. State your name.
A. W. J. Rogers.
Q. What is your position?
A. Chairman of the Southwestern Passengers Associa
tion, and also publishing agent under power of attorney on
file with the Interstate Commerce Commission.
Q. How long have you been so employed?
[fol. 347] A. I have been with the Southwestern Pas
sengers Association almost twenty years. Prior to that
time I was with the Missouri, Kansas & Texas for almost
thirty years.
Q. In your capacity under power of attorney on file with
the Interstate Commerce Commission and the rate regulat
ing authorities of the various states in the Southwest, in
cluding the state of Texas, are you familiar with the tariff
schedules ?
A. Yes, sir.
Q. Do the transportation charges in the state of Texas
have nation-wide application?
A. Yes, sir; except as to coach fares, certain territory
like the Southeast have a lower rate than we have in the
Western territory. Where we have a rate of two cents per
mile for transportation and chair cars, they have one and a
half cents, except one or two lines in the Southeast that
adhere to two cents, the same as the west.
Q. What are the maximum fares prescribed by the Inter
state Commerce Commission?
A. For transportation in sleeping or parlor cars, three
cents per mile. For transportation in coaches or chair cars
ln western territory, it is two cents per mile. In the South
east, it is one and a half cents, and in the East, under pas
senger rate case 26550, the Interstate Commerce Commis
sion prescribed a rate of three cents in parlor and sleeping
240
cars, and two cents in coaches. Later, the Eastern lines
[fol. 348] made application for an increase, and they were
given an increase to two and a half cents per mile on coach
travel for an experimental period. That period expired on
January 24 of this year, and they got an extension, and later
the Interstate Commerce Commission considered their case,
and they declined to further extend the two and a half
cents; so on March 24, 1940, they will go to two cents per
mile, the same as we are.
Q. Has permission been granted by the Interstate Com
merce Commission to charge a higher fare in sleeping cars
than day coaches?
A. The Interstate Commerce Commission, as I say, set
the three cents per mile as the maximum charge for trans
portation in parlor and sleeping cars, and a lower charge for
coaches.
Q. And that applies with regard to interstate business in
Texas as well as any other place?
A. Yes, sir; we voluntarily reduced the passenger fares
in western territory on December 1, 1933, to three cents for
transportation, parlor and sleeping cars, and two cents
coaches, we went to the Railroad Commission for the neces
sary authority to put in the same rate in Texas, and that
authority was granted us.
Q. From your knowledge of this order of the Interstate
Commerce Commission allowing the higher rail rate for
[fol. 349] sleeping cars, do you know whether there is any
provision that first-class fares may be charged only when
an employee of the rank of Pullman conductor is in charge
of the car?
A. No, sir; there is no such provision.
Q. Are you familiar with the order of the Railroad Com
mission, found on page 79, which provides that no extra
fares may be charged or collected by the railroads from pas
sengers for the privilege of occupying Pullman sleeping
cars unless facilities, employees, and supervision of em
ployees, and cleanliness of cars is provided while en route!
A. I read that order, yes, sir, and am familiar with it.
Q. Are you aware of and have you made any study of the
effect that would have on first-class fares that would result
from that part of the order of the Railroad Commission?
A. Yes, sir; I have. In connection with certain of these
line cars, as illustrated, we will take the Pullman line car
3010 operating over Gulf Coast line for the Missouri Pacific
241
between New Orleans and Houston. The current one-way
fare applicable to passengers occupying Pullman and pas
senger cars is $11.15. The effect of the order would be that
a passenger occupying that car could not be charged any
more than the three cents per mile fare to the first Texas
point; and then the two cents per mile coach fare for the
remainder of the distance, which would result in a total
charge of $10.06, or a reduction of $1.09. Now, in reducing
the fare between New Orleans and Houston $1.09, that
means that under Section 4 of the Interstate Commerce
[fol. 350] Commission Act, any aggregate of these gateways
would have to be taken up, and the rates reduced from other
territories. That reduction wrnuld extend to Washington,
D. C., the entire Southeast, through the New Orleans Gate
way, and entirely equalized by other gateways where it is
the regular custom of giving the public the benefit of the
lowest rate by all routes; and then it wmuld continue on be
yond Houston to El Paso and on almost to the Coast. Well,
it will probably go to Los Angeles.
Q- ATtat do you mean by the gateway?
A. I mean this,—if the fare from Atlanta, Georgia, over
to New Orleans would be equalized by Memphis, Tennessee,
for example, to say, El Paso and points west by Memphis
and Kansas City. And as you go further east, when you get
to Washington, they would be equalized by the upper gate
ways, such as Chicago and St. Louis, and then the author
ized route from there, which would be the ordinary route by
which they carry the short-line fares from those gateways.
Another case, we have a Pullman line 3370 between Mem
phis, Tennessee, and Dallas over the St. Louis and South
western. The first-class fare there is $14.04 between Mem
phis and Dallas. The combination fare over the Texas bor
der, using the first-class fare to Texarkana, and the inter
state coach fare of $3.71, would result in a through rate of
[fol. 351] $12.19, making a difference of $1.85, so you have a
loss of $1.85 that carries on to the east, and the territory af
fected would be Washington, New York, Philadelphia, and
New England territory to Dallas and to points beyond, El
Paso, and all the way to the coast. In fact, it would take out
in almost every instance $1.85 from that vast territory from
coast to coast. Maybe in one or two instances, where the
combination might run a little lower, like between New York
16—283
242
and Los Angeles, the difference would only be 69 cents.
That is due to the fare construction by other gateways.
Q. Do you have any other examples?
A. Well, we have now on that schedule—on that line 3251
you have an entirely different situation between St. Louis
and Waco. The combination over Denison would result in
lowering that fare to $21.21, a difference of $1.35. When
you cut St. Louis to Waco, it also cuts the territory north of
St. Louis and the territory south of Waco. It reduces the
fare. And Fort Worth to St. Louis, in the opposite direc
tion, that-same line car where you have from Fort Worth
north-bound, you would have a rate made up by using the
interstate Fort Worth to Denison, and then the first class
rate, making $19.43, as against the Forth Worth-St. Louis
rate of $20.29. The difference is 96 cents. At Kansas City
you have a peculiar situation in regard to line car, Kansas
City to San Antonio, known as line 3265. The one-way first-
class fare for transportation, parlor and sleeping car, is
[fol. 352] $23.19. It is the same in each direction; but south
bound the combination there over Waco results in lowering
the rate by $1.87. North-bound, on account of the situation
being a little different, the car being in charge of the porter
all the way to Fort Worth, the difference is $2.77. In that
particular case, the chances are that the railroad would use
their lowest rate in both directions, because it would be hard
to separate as between the two.
Q. Now, going back to this line 3010 from New Orleans to
Houston, with particular reference to the portion to Hous
ton from the Sabine River, isn’t there a competing railroad
that runs almost parallel to that?
A. Yes, sir.
Q. What railroad is that?
A. The Southern Pacific.
Q. And the Sunset Limited runs on that road?
A. Yes, sir.
Q. If there is a reduction made on the Missouri Pacific
line between the Sabine River and Houston, wouldn’t the
Southern Pacific immediately reduce their rate?
A. Yes, sir; they would.
Q. They would meet the rate?
A. Yes, sir; the two lines carry the same fare. They
carry the lowest combination there between those points,
and that is the fare over both routes.
Q. And aren’t there other lines that run parallel in the
state of Texas where the same condition would exist?
[fol. 353] A. Yes, sir; between Memphis and Dallas, the
Missouri Pacific operates a car by Texarkana over the
Texas Pacific. They would be obliged to meet the conditions
created by the car over the Cotton Belt.
Q. How about the M. K. & T. and Missouri Pacific from
Port Worth or Dallas down here to San Antonio?
A. You would have the same condition there where there
are these other competing lines,—like take out of Fort
Worth to San Antonio, the I. & G. N. have a car there, and
they would have to meet it.
Q. If you can ride for two cents a mile, or approximately
that, in a Pullman car on the train where there is only a
Pullman porter on the Pullman car, and the competing line
would meet that rate on a train where they carried a Pull
man conductor, wouldn’t that, in turn, make the first rail
road reduce to where their trains would carry that?
A- It would do that. The Katy is a fair example between
Kansas City and San Antonio.
Mr. Morgan: We object to that. It is wholly speculative,—
what one railroad might do or another one might do.
Mr. Anderson: I withdraw the question. That is all.
Cross-examination.
Questions by Mr. Morgan:
Q. Mr. Rogers, to ride in a chair car in Texas, a pas
senger is required to pay two cents a mile?
[fol. 354] A. That is the coach rate.
Q. Then if that same passenger desires to ride on the
Pullman, he is required to pay to the railroad company an
additional one cent per mile?
A. He pays three cents per mile. The difference happens
to be one cent, yes, sir.
Q. He pays three cents a mile, then?
A. Well, in Texas, of course, the statute rate is three
cents a mile. The Railroad Commission, on their own initia
tive, reduced the coach fare to two cents a mile.
Q. They made application to the Railroad Commission
tor the reduction?
243
244
A. They made application to the Railroad Commission,
which they are obliged to do, whether it is an increase or a
redaction that is sought.
Q. Now, then, they could make application, if they so de
sired, to change their rate to conform to this order, couldn’t
they?
A. They can make an application to the Railroad Com
mission to make any rate they saw fit to make.
Q. Or they could just go ahead and comply with this order
too, couldn’t they, by simply having the Pullman Company
furnish the Pullman conductor ?
A. I could not answer that. That is an operating matter.
I could not speak on an operating matter.
Q. You were speaking about those various rates and costs
[fol. 355] there. Can you tell us whether or not it would not
be cheaper for the railroads to require the Pullman Com
pany to just go ahead and comply with this order?
A. I could not say about that.
Q. I will ask you this question, Mr. Rogers. You do know
of your own knowledge that the railroads have not attempted
yet to comply with this order, don’t you?
A. Yes, sir.
Q. And yon do know the figures you have given and re
sults that those statistics show, that you gave, are purely
hypothetical, aren’t they?
A. The effect of compliance with the order would result
in these amounts. ~
Q. But so far as number of passengers who might ride
on the train if they had a porter where they could ride for
two cents, or a conductor in charge where they could ride
for three cents, that is an untried matter about which neither
you nor I would know what the public would do ?
A. We really know what the public would do in time.
They usually take advantage of the lowest possible rate for
whatever class of service they are obtaining; we know that.
That is a demonstrated thing.
Mr. Morgan: That is all.
[fol. 356] Redirect examination.
Questions by Mr. Anderson:
Q. Have the rail rates always been under the authority of
the Texas Railroad Commission?
245
A. Yes, sir.
Q. Wasn’t there an order of the Interstate Commerce
Commission in effect for a good many years which made
these rate orders void?
A. When the Interstate Commerce Commission increased
passenger rates in August, 1920, by 20 per cent, it raised
the passenger fare from three to 3.6 cents per mile. The
statute rate in the state of Texas was 3 cents per mile, and
by reason of the fact there was a statute rate, that estopped
the roads from raising the rate intrastate in Texas until we
secured the necessary 13 section order, and after the level
was increased in Texas eliminating the burden on interstate
traffic.
Q. You spoke of Interstate Commerce Commission allow
ing a charge of 3 cents rail rate in Pullman cars. Didn’t the
Interstate Commerce Commission indicate approval of this
3 cents rate in Pullman cars because of the smaller number
of passengers carried?
Mr. Morgan: We object to the question as to why the
Interstate Commerce Commission did something. What
motivated them is certainly not material.
Judge Sibley: I presume what they said would be proof of
[fol. 357] that. I think your objection is good.
Mr. Anderson: I believe that is all.
(Witness excused.)
A. C. J ackson , a w itness ca lled by p la in tiffs , having been
duly sw orn, testified as fo llow s :
Direct examination.
Questions by Mr. Anderson:
Q. State your name.
A. A. C. Jackson.
Q. State your business.
A. Assistant general passenger agent, Missouri Pacific.
Q. How long have you been so employed?
A. Seven years in that capacity.
Q. Where is your home?
A. Houston.
Q. How long have you lived in Texas ?
A. Since 1907.
246
Q. You heard Mr. Rogers testify that there would be
$1.09 difference in an interstate rate where this particular
part of the order having to do with the rate structure pro
vides that no extra charge shall be made where the car is
manned only by a Pullman porter ?
A. Yes, sir.
Q. That train has how many cars on it, Mr. Jackson? I
[fol. 358] am referring to line 3010.
A. Four passenger-carrying cars.
Q. How many Pullman cars ?
A. One.
Q. Is that a heavy or light line? Do you know anything
about the passengers that are carried in that Pullman car?
A. In a general way, it is a local train—principally a
local train.
Q. It makes a lot of stops?
A. Yes, sir.
Q. There is another road that runs parallel to your road
from the Sabine River to Houston?
A. Yes, sir.
Q. That is the Southern Pacific?
A. Yes, sir; that is correct.
Q. If you comply with this order by charging a coach rate
on this train that carries one Pullman car in charge of a
porter, what do you think the Southern Pacific is going to
do about that ?
A. Competitive conditions would answer that. They
would immediately meet our charge.
Mr. Anderson: I think that is all.
[fol. 359] Cross-examination.
Questions by Mr. Culberson:
Q. Mr. Jackson, the questions that have been asked are
whether the observance of this first provision of the order
would have those effects upon the rates; that is to say,
that part of the order which says that the rate shall not
be charged unless the Railroad, in effect, compelled the
Pullman Company to keep the conductors on the train?
A. That is substantially the order.
_ Q. If the railroad compelled the Pullman Company to
live up to its contract, then you would not have that situa
tion about the rate increase?
247
A. I don’t know that the railroad can compel the Pull
man Company to do that.
Q. Let’s assume that they could do it.
A. I can’t assume that.
Q. The order about which he interrogates you says that
they shall not charge a rate unless Pullman conductors are
furnished or unless supervision is furnished in accordance
with the contract, and all of his questions assumed that
you are going to observe that order?
A. Yes, sir; to avoid the penalty.
Q. Let’s assume that you have a right to enforce it.
Now, assuming the same things he did, and assuming that
you do have the right to compel the Pullman Company to
[fol. 360] perform the services which the Railroad Com
mission says it contracted to furnish,—that is, to keep
supervision on these Pullmans, then you would not have
this question of losing this revenue, would you?
A. First, let me say that I am not familiar enough with
the contract to say whether that assumption can be had—
whether the railroad company can compel the Pullman
Company.
Q. The whole question is hypothetical on that assump
tion.
A. I answered his question on the basis, assuming we
would be made to comply with the order of the Railroad
Commission.
Q. He was interrogating you about the first order, I
believe—which one was that?
Mr. Anderson: Page 79.
Q. He was interrogating you about this provision of the
order,—“ It is further ordered, adjudged, and decreed, that
no extra fare shall be charged or collected by the railroad
from the passenger for the privilege of occupying Pullman
sleeping cars unless facilities and employees and super
vision of the work of employees and the cleanliness of the
cars is provided while the cars are en route, or as pro
vided by the terms of the respective contracts with the
Pullman Company, are fully complied with.” He asked
the previous witnesses what effect it would have on the
revenues of the railroad if you were compelled to comply
[fol. 361] with that provision of the order, and the testi
mony of the previous witness was that $1.09 example. Now,
248
then, your answer is hypotheticated upon the assumption
you could enforce that contract, and that it means what the
Railroad Commission says. Now, I am asking you to
make the same assumption and tell this Court if the same
result will be had if you compel them to keep the conduc
tors on the train.
A. I am not familiar with the contract.
Q. You are not familiar with the contract?
A. No, sir.
Mr. Graves: We can shorten this by admitting that if
the Pullman Company put the conductors on the trains,
this provision in respect to rates has no application.
Mr. Culbertson: That is all.
(Witness excused.)
[fol. 362] J. M. Vostau, Jr., a witness called by plaintiffs,
having been duly sworn, testified as follows :
Direct examination.
Questions by Mr. Graves:
Q. Your name is J. M. Vonau, Jr.?
A. Yes, sir; that is correct.
Q. Where is your home?
A. Houston, Texas.
Q. You are in the employ of what railroad company?
A. Southern Pacific,—the Texas & New Orleans Com
pany, commonly known as the Southern Pacific.
Q. How long have you been in the employ of the Southern
Pacific Railroad Company?
A. Twenty-three years.
Q. What is your present status with the company?
A. My present title is assistant general passenger agent,
specifically in charge of rates and tariffs.
Q. Are you familiar with the operations of the trains
and the make-up of the trains of the T. & N. 0. or Southern
Pacific in the State of Texas?
A. Yes, sir; I am familiar in a general way, but as I
stated, my specific duties are in connection with rates and
tariffs.
Q. Does the Southern Pacific system have a train known
as the Streamline train operating between Dallas and
Houston?
249
A. Yes, sir.
Q. Is the train made up entirely of modern cars built on
the streamline type ?
A. Exactly.
Q. How many cars does the train carry?
A. The train carries five cars.
Q. What is the name of those trains?
[fol. 363] A. We have one that is operated as a non-stop
in the evening,—the Sunbeam; and then a train in the
morning with similar equipment that operates on a slightly
slower schedule, known as the Hustler.
Q. Those trains make a round trip a day between Dallas
and Houston ?
A. That is right.
Q. What is the consist of the train ?
A. Well, the Sunbeam non-stop train in the evening has
three coaches, a parlor, and a diner, lounge, observation car.
Q. That diner, lounge, observation car is one car?
A. That is correct.
Q. So that it has five passenger-carrying cars?
A. That is correct.
Q. And how many head end cars?
A. One head end car—baggage car.
Q. A baggage car and five passenger-carrying cars ?
A. Yes, sir.
Q. Does the railroad company own all of the cars in
the train?
A. Yes, sir; it is railroad company equipment, so far
as I know.
Q. So there are no Pullman cars on the train?
A. No, sir.
Q. Now, does the railroad company charge the first-class
railroad fare to passengers riding in the parlor car?
A. Yes, sir; we charge three cents a mile, or a rate base
of three cents a mile in the parlor car.
Q. In other words, you charge the rate for riding in that
parlor car that you charge on the Sunset Limited for
riding in the Pullman cars on the Sunset Limited?
[fol. 364] A. That is right.
Q. Now, in addition to that, do you charge a seat fare?
A. Yes ; we charge a seat fare. From Dallas to Houston,
that seat fare is $1.05.
Q- So that you make a charge that is equivalent to the
first-class railroad rate, and then you make an extra charge
250
as the Pullman Company would make if that parlor car
were owned and operated by the Pullman Company?
A. Yes, sir; and that is for extra advantages that that
particular type of travel affords. For example, each pas
senger has a particular reserved seat, and also the use of
that lounge observation car, and that has radio facilities and
current magazines, and so forth,—a service over and above
what the passenger gets who rides at the lower rate in the
coaches or other cars.
Q. Just as the passengers in the Pullman car have sep
arate seats assigned to them?
A. Yes, sir; they have space reserved in a Pullman car
or parlor car. Each passenger is assigned a specific seat,
and it is protected by the porter in charge, as I understand
it, and their baggage and so forth is protected, and it is no
question of having to sit in your seat all of the time to
keep it. If you get up and then come back later that seat
is still available to you.
Q. Who built those cars?
A. The name?
Q. Yes sir.
A. The Pullman Company as I understand it.
Q. They were built by the Standard Pullman Car Manu
facturing Company?
[fol. 365] A. Yes, sir.
Q. The same company that builds the Pullman cars?
A. Yes, sir.
Q. Do you have an attendant on that parlor car ?
A. Yes, sir; we have a special attendant in charge of that
parlor car.
Q. Is he a colored man?
A. Yes, sir; so far as I know.
Q. Do you have also an extra conductor in charge of that
car?
A. No; we have a train conductor in charge of the whole
train.
Q. Now, you have passengers riding in a car, for which
you get the first class railroad fare, and then for which you
charge an extra charge for the seat in that parlor car, and
yet you don’t have a parlor car conductor, do you?
A. That is correct; we don’t have a second conductor.
We have a train conductor who has charge of the whole
train, and he collects the transportation. Now, in that par
ticular car the porter does not collect the transportation.
251
Our conductor collects the railroad transportation, and re
ceipts their ticket, or if the passenger does not have the
seat fare ticket he collects the seat fare charge.
Q. Have you had any trouble from the attendant in that
car mistreating or insulting any of your passengers ?
A. Not that I know of.
Q. If any of the passengers on the car had been insulted
or assaulted you would know about it?
A. I think I would, because I am in the passenger service
department and naturally when a criticism or complaint
arrives it comes to the passenger service department, and
[fol. 366] we try to keep informed of what is going on,
and I have not heard of any trouble in that respect.
Q. Are there any other railroads that have such trains
as that in Texas—trains that compete with the Sunbeam
and-----
A. Yes, sir, there is the Zephyr train of the B. & R. I.,
that operates between Houston and Dallas.
Q. Do they have this modern streamlined equipment, too?
A. Yes, sir, so far as I know. I have never ridden them,
but I have seen them, and I understand that is the kind of
trains they are.
Q. Do you know whether they charge an extra fare for
riding in their parlor cars ?
A. Their fares and charges are identical with ours.
Q. What railroad is it that operates the Zephyr ?
A. The Burlington & Rock Island.
Q. Are those the only streamlined trains that you know
of in Texas?
A. Yes.
Judge McMillan: The Burlington Railroad is not char
tered in the State of Texas, is it? They have some con
nection with some other railroad, don’t they?
A. That line is owned jointly.
Judge Allred: The Burlington does not come into Texas,
does it?
Mr. Graves: It is operated by the Rock Island.
Judge McMillan: The Burlington is not a party to this
suit, is it ?
Mr. Graves: No, sir.
Judge McMillan: I don’t think it is material then.
Q. Mr. Vonau, the Southern Pacific operates through
trains between New Orleans and San Francisco and be-
252
[fol. 367] tween New Orleans and Los Angeles, and I under
stand you operate a train known as the Sunset Limited
between New Orleans and San Francisco, and another train
known as the Argonaut between New Orleans and Los
Angeles ?
A. Yes, sir; those are daily transcontinental trains.
Q- What special service do those trains render in the
service of attendants that are not carried on the regular
trains ?
A. In each train we operate a lounge car for the benefit
of standard sleeping car passenger, which offers barber
service, valet service, shower baths, radio, free magazines,
and so forth.
Q. Do each of those trains carry a number of Pullman
cars ?
A. Yes, sir, they do.
Q. They have one train conductor to each of the trains?
A. Yes.
Q. And one Pullman conductor ?
A. That is correct.
Q. And a Pullman porter on each car ?
A. That is correct.
Q. Now, then, if this train that operates between New
Orleans and Oakland, California, that parallels the South
ern Pacific line between New Orleans and Houston should
reduce the railroad fare for passengers riding in this Pull
man car, what would the Southern Pacific do in respect of
the railroad fares for passengers riding on the Southern
Pacific trains between New Orleans and Houston?
A. Well, immediately------
Mr. Lewis: We object to that as wholly speculative,
something beyond his power or control.
Judge Sibley: I can guess, we can all guess from our
[fol. 368] knowledge of how railroads operate; but it
doesn’t seem to me that it has to do with what we have to
decide here.
Mr. Graves: I am not sure that it is an essential fact
at all.
Judge Sibley: As I understand you, you say the Com
mission did not give you any notice of a rate hearing to
begin with, and that part of the order goes out on that
ground.
Mr. Graves: Yes, sir.
253
Judge Sibley: If you are wrong about this and it was
within their power to make a new class rate—that is, two
cents a mile—and they have a right to do it, they can do it.
Mr. Graves: If it was not unreasonable and arbitrary,
but we would still have a right to complain about it in such
an action as this.
Judge McMillan: Does this order say that the rate shall
be two cents a mile in the event there is no conductor; or
does it say unless you comply with the contract it will be
two cents a mile, and then goes on to construe the contract ?
It was a sort of round about way to get at it.
Mr. Graves: That is right, but we take it that none of
the plaintiffs would be willing to run the risk of a penalty
if that phase of the order should be applicable and should
stand. They would not run the risk of the penalty for
violating it.
Judge Sibley: If you were to change your contract it
would knock that part of the thing out, it looks like.
Judge McMillan: Is there anything in your contract to
require you to have a Pullman conductor ?
Mr. Graves: No, sir.
[fol. 369] Judge McMillan: That is simply the Railroad
Commission’s construction of it.
Mr. Graves: Yes, sir.
Judge McMillan: To get back to your original question
of whether or not other railroads would compete or not,
how would that illustrate the power of the Commission or
the reasonableness of what it did?
Mr. Graves : We think it would be a circumstance to show
it would be an unreasonable provision or requirement.
Judge McMillan: Any change they made in Texas rates
would be the same thing. You would cut them off from
changing a rate.
Mr. Graves: It would affect interstate rates inevitably
also. We don’t care to pursue it any further.
Judge Sibley: It would constitute discrimination between
railroads, because one might be complying with the Pull
man conductor proposition, and if the other was not, it
would require them to lower their rates to meet the com
petition.
Mr. Graves: I think it would. This is the last question
we had to ask this witness.
Q. Did you answer the question?
254
A. Will you state the question once more, please, sir? As
I recall it, you asked me if the Southern Pacific would feel
compelled to meet the reduction in rates caused by the non
conductor operation on a competing line between New Or
leans and Houston.
Q. That is right.
A. I would answer that, following rate policies and the
policies that the railroads have followed for twenty years
[fol. 370] or more, I would say yes, without qualification;
and that would have to be made effective or we would make
every effort to make it effective simultaneously with the
line that reduced the rate.
Mr. Graves: That is all.
Cross-examination.
Questions by Mr. Morgan:
Q. Are you familiar with the fares that are charged by
your train going from Houston to Dallas and return?
A. Yes, sir.
Q. How much is that fare?
A. Well, it depends in which equipment you would want
to travel.
Q. Let us say in the chair car.
A. We have a special rate of $4.00,—a one way coach
fare. That is in what we call a chair car coach.
Q. Is that one way or round trip?
A. That is one way.
Q. What is the round trip charge ?
A. The round trip is $6.00.
Q. What is the distance from Houston to Dallas?
A. On our railroad it is 263 miles.
Q. Do you know the fare that is charged on the Zephyr,
to which the gentleman referred awhile ago, from Dallas
to Houston and return?
A. The fares are identical.
Q. Do you know that the same fare is charged from Fort
Worth to Houston and return?
A. Yes, sir.
Q. Do you know that from Waxahaehie, Texas, to Hous-
[fol. 371] ton and back it is identically the same fare?
A. I think it is.
Q. You have three points of origin, either Fort Worth,
Dallas, or Waxahaehie, to Houston and return, and it is
identically the same fare, isn’t it?
255
A. Yes, sir.
Q. And from Fort Worth to Houston is a distance in
excess of 300 miles, isn’t it?
A. On our railroad it is 285 miles.
Q. All right. Then you do have in that particular in
stance special concessions as to rates ?
A. Well, that $4.00 rate we have is an experimental rate.
We put it in last April on special authority from the Rail
road Commission to meet highway competition,—that is the
rate charged by the bus lines and we are trying to recap
ture some of our business from the highway.
Q. And in order to meet bus competition you are charg
ing from Waxahachie, Dallas and Fort Worth the same
round trip rate the buses are charging?
A. We are charging from Dallas—the fact it is the same
in Fort Worth is caused by the physical condition of other
lines. We did not put the rate of $6.00 in to Fort Worth.
It was brought in by other lines.
Q. But you now have that rate ?
A. Naturally we would meet the condition.
Q. If one wanted to ride your train from Fort Worth to
Houston they would only have to pay $6.00 for a round trip
in a chair car ?
A. Yes, sir.
[fol. 372] Q. Therefore you are charging just a fraction
more than a cent a mile for travel on that round trip, aren’t
you?
A. Well, to Fort Worth it is about one and a half cents
a mile. Between Houston and Dallas it is a little more than
one and a half cents a mile by taking the shortest line, and
that is the way rates are made. The rate would be $3.70
on one and a half cent basis per mile, so you see it would
be about one and three-quarters cents.
Q. Which company made a special request of the Rail
road Commission as it applied to that particular operation?
A. Our company did not make the special request. This
is a rate that all the railroads operating between Dallas and
Port Worth and Houston attempted to test out. Mr. Rogers
made that application in behalf of all the railroads inter
ested in that traffic.
Q. Do you know whether, of your own knowledge, your
railroad has made application for an exemption as to the
operation of the order in question as it relates to this spe
cific train or any other train of your company?
A. I can’t answer that question.
256
Q. Do you know?
A. No, sir, I do not.
Mr. Morgan: I think that is all.
Judge Sibley: We will recess until nine o ’clock in the
morning.
(The Court then, at 5 :05 o ’clock p. m., Monday, February
19, 1940, recessed until 9:00 o ’clock a. m., Tuesday, Feb
ruary 20, 1940, at which time the following proceedings
were had:)
[fol. 373] Tuesday, February 20, 1940
Morning Session: 9 :00 o ’clock
M. P. S trickland , a w itness fo r the p la in tiffs , w as sworn
and testified as fo llo w s :
Direct examination.
Questions by Mr. Graves:
Q. Your name, sir, is M. P. Strickland?
A. Correct.
Q. You live in San Antonio?
A. I do.
Q. You are president of the Stowers Furniture Com
pany ?
A. I am.
Q. How long have you lived in San Antonio?
A. Off and on for forty-six years.
Q. Have you had occasion to travel frequently or infre
quently on railroad trains and on Pullman cars in recent
years?
A. Yes.
Q. Frequently?
A. Frequently, yes.
Q. What has been your impression, Mr. Strickland, of the
service rendered on trains by Pullman porters ?
A. Satisfactory.
Q. Have you ridden on trains to which the Pullman car
was accompanied by a Pullman porter but not a Pullman
conductor?
A. I have.
Q. Have you noticed any difference in the quality of serv
ice on those cars?
A. None.
257
[fol. 374] Q. From the others?
A. No, sir.
Q. I will ask you to state whether you would have any
hesitancy in permitting members of your family to travel
on cars that were in charge of the Pullman porter and where
there was no Pullman conductor present?
A. I would not.
Q. Where were you born?
A. I was born in Douglas County, Georgia, Lithia
Springs.
Cross-examination.
Questions by Mr. Lewis:
Q. Mr. Strickland, does it make any difference to you
whether the train conductor ever goes into that Pullman car
or not?
A. Not any particular difference. All he does is take up
your ticket.
Q. If your wife were traveling by herself would it make
any difference to you whether the train conductor ever went
in that car or not ?
A. It would not.
Q. Regardless of whether there was a Pullman conductor
in there ?
A. No.
Q. Do you have any daughters ?
A. No. I have a son ten years of age.
Q. Ten years of age?
A. Yes, sir.
Q. Would you prefer to put him in charge of a Pullman
porter rather than a Pullman conductor?
A. I don’t think he would be in charge of either the Pull
man porter or the conductor if he were riding in the car.
[fol. 375] Q. If you put him in the car by himself would
you prefer that there be a Pullman conductor there?
A. Well, I think perhaps I would prefer that there would
be a Pullman conductor.
Q. Why?
A. Well, I think that he would perhaps give him a little
more attention. The Pullman porter has other duties, and
perhaps he would give him a little more attention than the
conductor—than the porter.
17—283
258
Q. And under many circumstances you would simply
rather have the Pullman conductor there?
A. I can’t say that I would.
Q. In case of disturbance you would, wouldn’t you?
A. What do you mean by disturbance ?
Q. In the case of disturbance among other passengers
you would feel lots better if there were a Pullman conductor
back there, wouldn’t you, if your little boy was riding in
there ?
A. I have never been on a train when there was a dis
turbance.
Q. In the event of disturbance you would prefer that
there be a Pullman conductor back there?
A. If there was not a Pullman conductor there would be
a train conductor back there.
Q. In the car?
A. I don’t know that I—I think that perhaps he would be
protected if there wasn’t a Pullman conductor there, there
would be other white men on the train probably. I seldom
ride on a train when there are not other passengers, and
usually the class of passenger that rides in the Pullman is
a little better than that that would be on the chair car, per
haps.
[fol. 376] Redirect examination.
Questions by Mr. Graves :
Q. What is your recollection as to how many Pullman
cars there are on the train where there is only a Pullman
porter there and no Pullman conductor?
A. Usually one Pullman car only. My experience has
been between San Antonio and Laredo. I have ridden on
that train when it was in charge of a porter.
Q. What has been your experience as to whether or not
the brakeman usually rides in that car?
A. The brakeman usually rides in the ear. He is in and
out of the car.
(Witness excused.)
W illiam C. Clegg, called as a witness on behalf of the
Plaintiffs, being first duly sworn, testified as follows:
Direct examination.
Questions by Mr. Craves:
Q. Your name is William C. Clegg?
A. Yes, sir.
Q. You are a resident of San Antonio?
A. Yes, sir.
Q. A native of San Antonio?
A. Yes, sir.
Q. You are connected with the Clegg Company there?
A. Yes, sir.
Q. Mr. Clegg, have you had occasion to travel frequently
in recent years ?
A. Yes, sir.
[fol. 377] Q. On Pullman cars?
A. Yes, sir.
Q. What has been your experience and observation as
to the service rendered on Pullman cars by the Pullman
porters?
A. The very best so far as I know. I have never been
inconvenienced any and I have been very comfortable.
Q. Have you traveled on cars where the Pullman car was
in charge of the Pullman porter and there was no Pullman
conductor present?
A. I may have. I don’t recollect any particular case of
that sort.
Q. Have you ever seen any case of mistreatment or dis
courtesy to passengers by a Pullman porter?
A. No, sir, I don’t recollect any.
Cross-examination.
Questions by Mr. Lewis:
Q. Mr. Clegg, the Pullman porter shines your shoes at
night, does he?
A. Yes, sir.
Q. And he makes up your bed?
A. Yes, sir.
Q. And he sweeps out the car ?
A. Yes, sir.
259
260
Q. And does other menial tasks around in the car?
A. Yes, sir.
Q. If you were sending your wife on a trip or one of your
children you would prefer to have another man in executive
charge of that car rather than the fellow that does the
menial tasks, wouldn’t you?
ffol. 378] A. You mean for a long trip or a short trip?
Q. Well, first say a long trip.
A. I would think so.
Q. And correspondingly for a short trip, wouldn’t you?
A. Well, it never occurred to me. I never weighed it any.
I guess so, yes, sir.
Q. You would feel just a little bit safer with your family
in there with a white man conductor in charge of that car
rather than in charge of a man who does those menial tasks,
wouldn’t you?
A. Yes, sir.
(Witness excused.)
C. A. G-oeth , a w itness fo r the p la in tiffs , h av in g been first
du ly sw orn, testified as fo llo w s :
Direct examination.
Questions by Mr. Graves:
Q. Your name is C. A. Goeth?
A. Yes, sir.
Q. You are a resident of San Antonio?
A. Yes, sir.
Q. You are an attorney by profession?
A. Yes, sir.
Q. Mr. Goeth, how long have you lived in San Antonio?
A. About fifty years.
Q. Are you a native Texan?
A. Yes, sir.
Q. Mr. Goeth, have you had occasion to travel frequently
in recent years on trains and on Pullman cars ?
[fol. 379] A. I have.
Q. Have you observed the quality of service rendered by
the porters on the Pullman cars?
A. Yes, sir, I have.
261
Q. Will you state whether it has been satisfactory or un
satisfactory from the standpoint of the passenger?
A. Very satisfactory.
Q. Do yon recall whether you have ridden on Pullman cars
that were in charge of a Pullman porter and where there was
no conductor present!
A. Yes, sir.
Q. Have you noticed any difference in the quality of serv
ice rendered by the Pullman Company!
A. I have not.
Q. To the passengers under those circumstances ?
A. I have not.
Cross-examination.
Questions by Mr. Lewis:
Q. Mr. G-oeth, if you were to go into a small, nice looking
hotel and found that the porter was also in charge of that
little hotel you would leave, wouldn’t you?
A. That situation has never occurred to me. I can’t say
whether I would or not.
Q. It is contrary to human nature that it should be a suc
cessful operation to place executive duties, or to place a man
in charge who also performs the menial tasks of shining
your shoes and making-your beds, isn’t it?
A. It would be in some circumstances, yes, sir.
Q. When you go on a trip you purchase a Pullman ticket.
Where do you buy that ticket as a general rule ?
A. At the city office.
[fol. 380] Q. At the city office?
A. In San Antonio, yes, sir.
Q. Do you have any particular reason for buying it there
rather than waiting to get it on the train ? Is it just a matter
of convenience ?
A. A matter of convenience, yes, sir.
Q. The porters whom you find on the Pullman cars, do you
think they would be satisfactory, transferred from those
duties to that of selling the tickets?
A. Having the porter sell me the ticket?
Q. Yes, sir.
A. I don’t think that would disturb me.
Q. To have him transferred to the town office where you
buy your ticket?
262
A. That has never occurred to me. I don’t know that that
has ever happened. So far as I know, I don’t think it has
ever happened.
Q. What is the personnel of your family, how many
children?
A. Two.
Q. Boys or girls?
A. Boys.
Q. Bo you have any grandchildren?
A. Yes, sir.
Q. Boys or girls?
A. Two boys and one girl.
Q. In the case of a trip of say eight or ten hours and you
were going to place your granddaughter or your other two
grandchildren on the Pullman car, would you feel better
about it if that car was in charge of a Pullman conductor
rather than merely of a porter?
[fol. 381] A. I would not have the slightest concern if it
were only in charge of a porter.
Q. Would you depend somewhat on the train conductor
in that feeling?
A. I would not.
(W itn ess excused .)
Judge Sibley: Is there any need of multiplying these wit
nesses, gentlemen? We have all ridden on Pullmans, and
we know that no number of witnesses is going' to change our.
ideas of what is going to happen, unless there might be some
extraordinary circumstances.
Mr. Graves: We will defer to the Court’s wishes, then,
Your Honor.
E. P. B u rke , a w itness fo r the p la in tiffs , was sw orn, and
testified as fo l lo w s :
Direct examination.
Questions by Mr. Graves:
Q. Your name is E. P. Burke ?
A. It is.
Q. What position do you hold with the Pullman Company?
263
A. Passenger traffic manager.
Q. How long have you been with the Pullman Company!
A. I have been with them for forty years.
Q. Do you know whether the Pullman Company has pri
vate cars!
A. They have.
Q. It has a number of private cars that it furnishes on
[fol. 382] on occasions when required?
A. They do, sir.
Q. Now, the rates for the use of the private cars, how is
that determined ?
A. They are part of the tariff on file with the United
States Interstate Commerce Commission.
Q. Does the tariff for the use of those cars contemplate the
furnishing of a conductor with the car?
A. It does not. The tariff provides that a cook and two
attendants will be supplied.
Q. Who for the Pullman Company files the tariff with the
Interstate Commerce Commission?
A. I do.
Judge Sibley: Are these private cars sleeping cars?
A. They are, sir, and they also have living facilities,
rooms, meals, those facilities.
Judge Sibley: This order mentioned sleeping cars.
A. A private car in addition to having facilities for sleep
ing purposes, having rooms, has an observation lounge, din
ing room and cooking facilities. In fact, it is a complete
living unit.
Q. Now, then, as a matter of practice do you actually fur
nish a conductor with those cars when you furnish them?
A. We do not.
Q. Do they operate on trains where the other Pullman car
or cars are in charge of Pullman conductors?
A. Frequently they are and frequently they are located in
[fol. 383] those trains ahead of the other cars, separated
from the other cars so that there will be no disturbance of the
occupants of the private cars.
Q. If they are located on a train where there is a Pullman
conductor does the Pullman conductor have any supervision
over that car, the private car?
A. He has none. There is no occasion for it.
264
Q. And if they are in a train where the Pullman porter is
in charge of the one Pullman car on that train, I am speaking
of the regular equipment.
A. Yes, sir.
Q. Does the Pullman porter who is in charge of the reg
ular Pullman car have any jurisdiction over the private car?
A. He would have none.
Q. Is that a copy of the tariff that you speak of?
A. These are pages of the tariff that govern the private
car rates of the Southwestern section of the country.
Q. Give us the short name of the tariff?
A. Southwestern section rate book, tariff, I. C. C. No.
A-12.
Mr. Graves: We offer this in evidence.
Mr. Lewis: If the Court please, may we ask this witness
a question with reference to this to see whether it is admis
sible or not?
Judge Sibley: Yes, sir.
Voir Dire by Mr. Lewis :
Q. Are the cars that you are speaking of known as sleep
ing cars or included in sleeping cars, when you speak of
sleeping cars?
A. They are known as private cars. They contain sleep-
[fol. 384] ing car facilities and as such would be a part of
the sleeping car facilities of the Pullman Company.
Q. When you mention sleeping cars would it include these
cars?
A. I would say it does because they have sleeping facil
ities and they are a part of the Pullman Company equipment
and the rates are governed by the tariff.
Questions by Mr. Graves (resumed):
Q. Are these cars operated in Texas as well as out of
Texas ?
A. There have been movements of those cars in Texas. I
understand that in one year there were eleven such move
ments either into, out of, or through the State of Texas.
Judge McMillan: Where do these three employes sleep
on this private car ?
A. There is a small head-end section where they live and
where they prepare the meals.
Judge McMillan: If you put a conductor on would there be
a place for Mm to sleep?
A. No, sir. They are very limited quarters, naturally,
with the idea of giving as much space as possible to the party
chartering the equipment.
Judge McMillan: Who lifts that transportation for the
Pullman Company and the railroad?
A. It is usually paid for in a lump sum in advance.
Usually an arrangement is made with the Pullman Company
and the railroad company for all collections, that is, includ
ing not only the transportation but also parking charges and
service charges during the stops at the places where the car
is stopped over.
Judge McMillan: You don’t have any regular private
ffol. 385] car routes, it is just a hit or miss proposition?
A. Yes, sir.
Judge McMillan: You might have one tomorrow and you
might not have another one for some time?
A. That is true.
Judge McMillan: Would those cars be used by land com
panies and so forth?
A. No, sir, by people that would like to have exclusive
service, a little above what would be available in a regular
train or where their movement takes them to a spot where
they couldn’t get desirable accommodations on the regular
train.
265
Voir Dire by Mr. Lewis (resumed):
Q. Are those the cars that are referred to in this exhibit
here as composite cars?
A. No, sir, you will find those rates at the top of page
seventeen of that tariff A-12 under section four, headed
“ private car per diem rates.”
Q. These, then, would be private cars rather than the
standard sleeping cars?
A. Yes, sir.
Q. Do you have to get special permission each time one
of these cars operates, from the Railroad Commission?
A. No, sir, the rates are permanently filed. They are a
Part of the tariff.
Q. Have you applied to the Railroad Commission for an
exception to this order with reference to this character of
cars.
266
A. I know of no application to the Commission. You
refer, may I ask, to the state Commission of Texas ?
[fol. 386] Q. Yes, sir.
A. No application has been made. Our tariffs are not on
file with the Texas Commission.
(Thereupon the above referred to document was received
in evidence and marked Plaintiffs’ Exhibit No. 6.)
(Witness excused.)
Mr. Graves: In view of the Court’s intimations, I think
we are through except for one thing. We have some affi
davits that cover two subjects. One group of affidavits
cover the subject of the make-up of these trains, what these
railroad men call the consist of the trains. The other group
of affidavits cover the subject of the difference between the
revenues that would annually be taken in by the railroads
involved in this suit if they applied to the coach rate, the
average coach rates to the passengers in the Pullman cars
instead of the first class rates that are now applicable. We
are preparing now, by an understanding with opposing coun
sel, an excerpt from those affidavits, with a view of con
densing the record on that subject, and we will have it ready
by noon; and with that understanding we will rest.
Judge Sibley: All right.
[ fo l. 387] D efen d an t ’s E vidence
M. B. C u n n in g h a m , a w itness fo r the defendants, was
sw orn and testified as fo llo w s :
Direct examination.
Questions by Mr. Morgan:
Q. You are M. B. Cunningham?
A. Yes, sir.
Q. You live in Fort Worth?
A. Yes, sir.
Q. How long have you been working for the Pullman
Company as a conductor, Mr. Cunningham?
A. Thirty-five years next month.
Q. You say thirty-five years?
A. Thirty-five years.
267
Q. What various roads have you run on? Briefly out
line them.
A. All the roads in Texas that carry sleeping car equip
ment.
Q. All the roads?
A. All the roads.
Q. What is your run at this time?
A. On the Katy Blue Bonnet, Fort Worth to Kansas
City.
Q. How often do you go out on that train, Mr. Cun
ningham ?
A. Every three days.
Q. Have you been continuously in the service of the Pull
man Company as a conductor for thirty-five years?
A. I have.
Q. You are one of the intervenors in this suit, are you not?
A. Yes, sir.
Mr. G-raves: He is an intervenor defendant, as I un
derstand.
Mr. Morgan: Yes, sir. There are two groups of in
tervenors.
[fol. 388] Mr. Graves : Yes, sir.
Q. Now, Mr. Cunningham, are you familiar with the rules
and regulations of the Pullman Company as promulgated
for the use and instruction of Pullman conductors?
A. Yes, sir.
Q. Do you have one of their little books that are fur
nished to Pullman conductors?
A. Yes, sir.
Q. Do you have that with you?
A. Yes, sir.
Q. Is that the same book that was offered here in evi
dence yesterday on behalf of the plaintiffs, as instructions
to conductors?
A. Yes, sir.
Q. I have forgotten the exhibit number, but that is iden
tically the same book?
A. Yes, sir.
Q. Have you, in your experience, had occasion to attend
the schools that are had for the conductors?
A. Yes, sir.
Q. Where do you attend those schools, Mr. Cunningham?
A. In Fort Worth.
268
Q. Are those schools attended by the Pullman conductors
in that area?
A. Yes, sir.
Q. Are they likewise attended by the porters in that area?
A. Yes, sir.
Q. Do you attend the same schools ?
A. No, sir.
[fol. 389] Q. You attend separate meetings?
A. Yes, sir.
Q. But you do know there are schools for the porters ?
A. For the porters, yes, sir.
Q. Now, Mr. Cunningham, on this question of schools
that are had, how long do they usually take ?
A. Well, anywhere from an hour, probably, to an hour
and a half.
Q. How often are they?
A. They try to get through in an hour’s time.
Q. How often are they held?
A. Quarterly.
Q. Four times a year?
A. Yes, sir.
Q. Four times a year?
A. Four times a year.
Q. Now who attends those schools as instructors?
A. Well, in Fort Worth we have three that are instruc
tors. One is the district superintendent, and his assistant.
We have a safety supervisor that attends to the safety
measures.
Q. What subjects are studies at these meetings?
A. Service in general and safety.
Q. All right. In addition to that does the company cause
to be issued certain bulletins for the Pullman conductors?
A. Yes, sir, special bulletins that are posted in a bulletin
book.
Q. Are those issued at any given intervals or just peri
odically ?
A. At periodical times.
Q. There is no set time for that?
A. No.
[fol. 390] Q. Are those bulletins likewise furnished to
the porters?
A. Yes, sir.
Q. All right. Now, then, when you talk about supervis
ing service as a Pullman conductor, will you please tell the
Court just what you do, what a Pullman conductor does
when he is: supervising the service ?
A. Well, he has various and numerous duties to perform.
Q. All right, what are they? That is what I want.
A. He has to look out after the air conditioning equip
ment; look after his porter to see that his porters are in
uniform and the proper uniform and that they are in a
clean condition, the uniforms are clean and neat looking.
He has to look out after the cars, see that the cars are in
shape to go out on the lines.
Q. All right, what else, if anything?
A. Well, everything that comes under that category. He
has to see to everything.
Q. All right. Now, how about the passengers? What if
any service do you render to the passengers ?
A. Why, I render the service of taking care of passen
gers. I have passengers put in my care sometimes at the
station before I leave. Sometimes old people and some
times children and girls. Those are looked out after to
see that they are taken care of, to see that they get their
meals served in the sleeping car if they are too feeble to
go to a dining car or not able to go to a dining car.
Q. All right, how about the sanitation of the car? Who
is responsible to see1 that it is properly cared for?
A. The Pullman conductor.
Q. Mr. Cunningham, are you familiar with the sanitary
[fol. 391] code provided by the statutes of Texas?
A. I am.
Q. Whose duty is it to see that the sanitation of the Pull
man car is properly provided for?
A. The Pullman conductor.
Mr. Graves: Just a moment. Is he speaking now about
when a Pullman conductor is on the train or when there is
no Pullman conductor on the train ?
Mr. Morgan: When a Pullman conductor is on the train,
Mr. Graves.
Mr. Graves: All right.
Q. Now, then, you say that it is your responsibility about
air conditioning. What instructions do they give you about
air conditioning? You haven’t had that but about three
or four years, have you, Mr. Cunningham?
A. I think it has been about four or five years.
269
270
Q. What special instructions, if any, do you receive
about that ?
A. Of course, we don’t have any instructions in regard
to the mechanical part of the air conditioning equipment.
We couldn’t correct a mechanical error. We have instruc
tions as to how to control the air conditioning on the inside
of the car at what is known as the control panel. We have
certain temperatures for day time and certain tempera
tures for night time. We are supposed to use a day time
temperature, a temperature for day time only, and not
night temperature, and vice versa with the night tempera
tures. In the event of a failure in this air conditioning,
cars getting too hot when it is supposed to be comfortable
or cool, we have to go then and see what is the trouble.
There is a red light on that board that flashes, usually will
flash when there is any trouble in the line, but I have known
[fol. 392]occasions when the red light didn’t flash and we
would have to go hunt for it otherwise. I have found times
when the car was heating in the summer time, and have gone
and found a stuck valve. Well, you can go to your control
panel and find out where those valves are located and go
look and see whether it is on or off, on an on or off position.
If it is you can sometimes adjust that by shaking the lever
backwards and forwards and it will pick up and start again.
Q. All right.
A. And you might say that the Pullman conductors on
the cars are held strictly accountable for man failures, wliat
is known as man failures. That is something that they can
correct, that they should know, according to their instruc
tions, and if carried out they could prevent.
Q. All right, what experience, if any, have you had with
the porters leaving the ladders in the aisles, stools in the
aisles ?
A. Porters have a little short ladder that they use in
making down berths. They use that little ladder in order
to climb up so they can hook the curtains over the curtain
rods and for other purposes for which it might become
necessary to use it. There are some porters that will
leave that ladder standing in the passageway or the aisle
way opposite the berth they are making, propped up
against the head board, or I mean against the end of the
other berth across in the opposite section. The conductor
has to look and see that those aisleways are kept clear of
271
those ladders. There is danger of passengers passing
through the car and tripping over it. The instructions
are to fold that ladder and place it back under the berth
that he is making.
Q. All right.
[fob 393] A. Take the longer ladder which is used for
climbing into the upper berths. The porters will carry
those ladders sometimes to a passenger that is wanting to
get into the upper berth, and in place of carrying it back to
the locker and placing it in the locker he will leave it stand
ing up against the bulkhead at the end of the car, which is
contrary to instructions. The ladder is liable to fall and
slip down against some passenger coming through the car.
Q. You are not suggesting to the Court that every porter
does that all the time ?
A. No, sir.
Q. Does that occasionally happen?
A. That occasionally happens, yes, sir.
Q. Is it the duty of the conductor to supervise that service
and see that that isn’t done?
A. Yes, sir.
Q. What about the linen room, is it your duty to supervise
that?
A. The which?
Q. The linen department.
A. No, we don’t have anything to do with the linen. Of
course, if we see a porter starting to make down a berth
with linen that is marked or soiled or doesn’t seem to be
suitable or in an insanitary condition, we would stop him
and have him use different linen.
Q. All right. Now, Mr. Cunningham, in your many years
of experience have you ever had any personal encounters
with a Pullman porter?
A. Yes, sir.
Q. Just briefly tell the Court what happened and on what
occasion ?
[fol. 394] A. Well, one evening as we were leaving Galves
ton some years ago I had a porter on the car and the porter
seemed to be in kind of—just not quite himself, like he might
have been drinking. I called the Pullman’s agent’s atten
tion to it at that time, who happened to be on the platform,
tie said to the porter, he said------
Q. Never mind what he said. Just let’s get along.
272
A. Well, we were receiving the passengers for the car,
and that was the car that was closest to the station. Of
course, I worked back at that car so that all passengers
who came back I conld direct them to the different cars in
the train. I had three different cars. After we got out of
town------
Q. That was out of Galveston?
A. Yes, sir. I went forward and started at the front end
of the car and worked back. Not with the train conductor.
I lift railroad transportation and also Pullman transporta
tion. I worked back through the cars until I got back to this
last car that the Pullman porter was in that looked like he
had been drinking. There were no passengers in this car
with the exception of the Pullman agent from the Galveston
district. He was sitting at the back end of the car in one
section back of the section where this porter was making-
down a berth. As I came along I noticed the porter climbing
up on top of the arm rest and seats to unhook the curtain
rods in the upper berth, that is for the upper berth, to put
the rod in position. I said something to him about it. I was
asking him if he didn’t have a short ladder or box or some
thing to stand on instead of climbing up on those head rests
or arm rests. He didn’t say anything in reply, but turned
and struck me in the top of the head with a berth key.
[fol. 395] Q. With a what?
A. A berth key.
Q. One of those big keys used to open the berths with?
A. Yes, sir, a heavy instrument used to open berths. This
blow was struck with force enough to knock me on my back
in the section opposite, and when he struck me I fell in this
section opposite. Mr. Magden got up and came forward and
tried to get hold of the porter to separate him, get him off
me, and in the—in his efforts to get the porter away from
me he got blood on the front of his coat, his clothes, and
when I finally did get the porter off me, why, my head was
bleeding quite a bit, blood was all over my clothes.
Q. Were you carried to the hospital, Mr. Cunningham?
A. After I got to Forth Worth the next morning I went to
the hospital and had several sti-ches sewed in my head.
Q. And was the porter tried for that?
A. The porter was arrested and taken off the train at the
first stop and tried in the Galveston County Court and given
three years, a three year sentence.
273
Q. Now, Mr. Cunningham, I will ask you if you have had
any experience in the handling of conventions? Have you
had any experience with that?
A. Yes, sir.
Q. Did you ever handle a bunch of cattlemen on cattle
men’s conventions?
A. Yes, sir, I used to have those, quite a good many of
them. I had one in particular I remember about. I had, I
think, three or four extra cars that trip on the breaking up
of that convention in Forth Worth, and I had one porter in
there, I had gone to the cars before the cars were ready to
leave, before we were ready to receive passengers, and I had
[fol. 396] gone through to see how the porters were, if they
were on the job. So I had one porter that said he knew all
about how to handle this business, cowboys, so I said all
right. So after the train was ready to leave town I went
back, and the train left, and I started working on my last car
and worked forward, and just as I got through working that
car and stepped into the vestibule I heard a commotion
coming through from the other car, a passenger said, “ Let
me to the black son-of-a-bitch, let me hit him.” And the
porter rushed out into the vestibule and he had on a white
jacket and blood was running down on the white jacket
and he had a red front on him, so much blood. He run behind
me and said, “ Conductor, save me. Don’t let them hit me
anymore. ” So as they come through the door I raised my
hand up and said, “ Gentlemen, what is the trouble?” And
they said, “ We asked that black son-of-a-gun to do some
thing in there and he said he would do it when he got ready, ’ ’
and he said, “ we proceeded to make him do it.”
Q. All right, that was a bunch of cowboys out of Fort
Worth?
A. Cattlemen and cowboys out of Forth Worth.
Q. All right, Mr. Cunningham, did you ever have any men
on the train that tried to make improper advances toward
the lady passengers on the train ?
A. I have, yes, sir.
Q. Well, just tell us an experience of that sort.
A. I had one occasion in particular. That was out in El
Paso some years back, quite a few years ago. Now, there
was a lady on the car, she was kind of a timid natured lady,
didn’t seem to be a seasoned traveler or anything like that.
There was a man on the car that was in the section right
18—283
274
close by, just behind her. I think he came along and smiled
[fol. 397] and he sat down in the seat in front of her and
talked awhile, and finally he got over on the seat by the side
of her, and he annoyed the lady so much that she had to have
her berth made down and go to bed. This was along about
six o ’clock in the evening. The next morning she got up
and went to the dining car and it was the same old story
over again. Finally I had to intervene. The next morn
ing I went and asked the lady if she hadn’t been annoyed by
the passenger. She said she had. So she said she wished
I would do something about it.
Q. All right, what did you do ?
A. I went to the gentleman and told him that he would
have to leave the lady alone, that she didn’t care to have any
more conversation with him, she was being annoyed and he
would have to leave her alone. He threatened to report me
to the Pullman Company for exceeding my authority. So I
agreed with him that he had a perfect right to do so. But
he never did make any report.
Q. All right, what experience, if any, have you had with
porters while on duty becoming intoxicated, Mr. Cunning
ham?
A. I had one case of a Fort Worth porter, who is still in
service today I might add, on a Santa Fe train. We had a
drawing room of passengers, I think about three of four
gentlemen. These gentlemen were playing cards and drink
ing. In fact, they drank a long way into the early morning
hours. The porter was serving them, taking care of them in
the way of getting ice and stuff for them. I saw how things
were going. I cautioned the porter to be careful, not to go
too far as to happen to take a drink of any of the liquor they
had there because he might get in a condition where he
[fol. 398] wouldn’t be able to serve the passengers. In the
same car I had a man and a woman that were trying to get
acquainted, and finally did get acquainted to a certain extent
that I thought there might be something otherwise than just
a mere acquaintanceship. I also instructed this porter when
I went to bed to be sure and look out after that situation. So
I retired about the usual time, and after about two hours I
was awakened by some commotion or talking outside, and
I looked out over the curtain rod from the upper berth and I
could see this man coming out this woman’s berth that were
getting together the night before. This porter just about
275
the same time came reeling down the aisleway of the car
drunk. I got back, got up immediately and put my clothes
on and got back on the job and stayed on the job from there
on into Kansas City. On my diagram for that half of the
morning I made a notation that my rest period was cut two
hours short on account of a drunk porter. The Pullman
Company paid me two hours extra time.
Q. Now, you say that during that time, was that the time
you were supposed to be resting or were supposed to be in
bed sleeping, Mr. Cunningham?
A. Yes, sir.
Q. Conductors do have on these long runs—you have rest
periods ?
A. On my long runs I have four hours.
Q. And likewise the porters have rest periods?
A. They have four hours.
Q. And during that time you say you saw this man climb
ing out of the berth of this lady?
A. Yes, sir.
Q. Now, was it the duty of the porter to have charge of the
[fol. 399] car during the time you were asleep?
A. Service—in a certain way, yes.
Q. I mean supervise such services as that?
A. Oh, yes; yes, sir.
Q. All right. Now, Mr. Cunningham, have you had any
experiences of men on the train wanting to buy drawing
rooms for the purpose of occupying those with ladies they
have met on the train ?
A. Yes, sir, it was just a few months ago on this run to
Kansas City I had two passengers, a gentleman and a lady
in the car that came in from San Antonio, and they went to
the lounge car after leaving Denison and became acquainted
up there, and the man came back into the—as we pulled out
of Denison I went up through the lounge car and I saw this
gentleman and lady drinking, and then later about 11:30, I
think probably, this man came back into the other car where
I was_ sitting and said he would like to have the drawing
loom if he could get it. I said, “ Why, certainly you can get
it; you will have to have an extra fare railroad ticket,
though, and then the difference between the single occupancy
rate of the drawing room and your lower berth rate charged
you too” ; and he said, “ Well, we have got another ticket.”
1 said, “ Where is it” ? He said, “ Up here in the lounge
276
car. ’ ’ I said, “ You mean the lady that you have been sitting
there drinking with!” He said, “ Yes.” “ Well,” I said
“ There won’t be anything doing in that respect.” So he
said I shouldn’t see so much. I said, “ That’s what I ’m
here for.”
Q. Well, did he offer to tip you!
A. No.
[fol. 400] Q. What about tipping—is that a custom that
prevails on Pullman trains with reference to the conduc
tors; are they ordinarily tipped, Mr. Cunningham!
A. You mean for purposes of that kind!
Q. Yes, sir, or any other kind.
A. No.
Q. The Pullman conductors are never tipped, are they!
A. No.
Q. What about Pullman porters!
A. Pullman porters are tipped, yes; it is part of their
salary.
Q. All right.
Mr. Graves: We ask that that last statement be stricken.
It was not responsive to the question, and it is a conclusion
on his part.
Judge Sibley: He could not have meant it accurately be
cause the company does not pay it. I guess he meant that
it is part of their income and that they expect to get it. That
is common knowledge.
Mr. Graves: Yes, sir, and we recognize that.
Q. Now, Mr. Cunningham, you are Vice President of
the Order of Sleeping Car Conductors, aren’t you?
A. Yes, sir.
Q. You were here in attendance, of course, yesterday and
saw all of these Pullman porters who came in here to
testify?
A. Yes, sir.
Q. Is there any controversy, Mr. Cunningham, between
the Pullman conductors and Pullman porters ?
A. None whatever.
Q. You gentlemen are not angry with the Pullman por-
[fol. 401] ters, are you?
A. No, sir, we have no fight with the Pullman porters.
Q. In the main, do you find the Pullman porter to be
pretty high-classed colored men?
A. We do.
277
Q. But you do find these exceptions which you have out
lined here?
A. We do find exceptions, yes.
Q. Well, do you find that the porters, just the rank and
file of porters, whether or not they are careless oftentimes
in carrying out their assignments on the cars?
A. Yes, sir, some of them are very careless.
Q. Now, what experience, if any, have you had with ref
erence to sanitation on the car, Mr. Cunningham, and par
ticularly with reference to the way the porters------
A. Well, sanitation is one thing we look out for very care
fully because there is a lot that depends upon sanitation and
how the car is taken care of, especially if you have some
contagious diseases in the car; if you have something of a
contagious nature, why, they have to be—if it is a very bad
case they have to be isolated in the drawing room in charge
of a nurse; but sometimes we have cases like tuberculosis
which are in the car—in the body of the car. A berth that
has been sold to a tubercular passenger has to be condemned
and not put on sale until the car reaches the terminal, where
it is fumigated. Then the berth is left down, you might say,
not even put away and locked up; it is left down so the bed
ding, the sheets and the pillows and blankets can air out
and the curtains are buttoned across so it won’t be unsightly
to the passengers in the car.
[fol. 402] Q. I see.
A. In the other part—in the smoking rooms the porter
frequently has to clean the smoking room and the smoking
room floors and look into the closets and clean them. He
is supposed to take his mop and use a bucket and mop those
floors and use formaldehyde as a deodorant in those closets;
and he mops up his smoking room floors quite frequently
throughout the day and before retiring at night. There is
one practice that a good many porters have which has
caused a great deal of inconvenience on the company’s side,
and that is dipping his mops in the hoppers and scouring
the floors.
Q. By that term, you mean that they dip the mop into
the commode, is that what you mean?
A. Yes, they dip the mop into the commode.
Q- Yes, sir.
A. It looks as if they are clean but germs are there
nevertheless; it cover a floor and whenever it dries you have
a bad condition.
278
Q. Yes, sir. Now, have you ever known of a case where
they used too much of this disinfectant?
A. Yes, sir, I had one porter one night that had some
passengers in a smoking room and he wanted to go to bed;
it was getting along after his bedtime, and he wanted to
go to bed; so he takes a bucket of formaldehyde and wets
the floor and scours around with it and in a very few min
utes they all got up and went to bed. I walked in a very
few minutes afterwards and the air was so'full of formalde
hyde it made my eyes smart and sting; he said he wanted
them to go to bed and they sure moved out when he put
that on the floor.
[fol. 403] Q. Mr. Cunningham, in the event of a wreck on
a train whose duty is it to take care of the passengers on
the Pullman car?
A. The Pullman conductor’s.
Q. What instructions, if any, are you given by the Pull
man Company with reference to your assignments in the
event of such a catastrophe ?
A. Give all the aid you can to those passengers that have
been injured or wounded; if necessary, take blankets out
of the car, and tear up sheets and make bandages out of
them—pillow slips or sheets, and make—if the car is turned
over you have to take the passengers out and you can take
the mattresses out there and lay them on the ground so
you can lay the wounded passengers on these mattresses.
Q. Have you ever been unfortunate enough to be in a
wreck, Mr. Cunningham.
A. Yes, sir.
Q. On one or more occasions ?
A. Several, yes, sir.
Q. Mr. Cunningham, in your long years of experience as
a Pullman conductor, are you familiar with the plans that
are worked out between the Pullman conductors on the one
side and the Pullman Company on the other side, with
reference to rearranging schedules and pooling runs for
conductors ?
A. Some, yes, sir.
Q. Will you please tell the Court just how this pooling
is done? By pooling you mean rearranging schedules to
use up the hours of the conductors. Will you tell the Court
[fol. 404] just how that is done?
A. Why, by taking two runs and pooling them together.
Two one night runs of less than 14 hours total elapsed
279
time cannot be pooled, but a run of 14 hours or more total
elapsed time can be pooled with the shorter run; in that
instance if you had conductors on a run of 14 hours or
more, you could pool—and they did not make the 240 hours
each month, you could pool those conductors with the
shorter run and consume all the hours less than 240 hours.
Q. And all of that time up to 240 hours would not cost
the Pullman Company any additional charge at all?
A. No, sir, no.
Q. If you worked more than 240 hours, then what addi
tional pay, if any, would you receive?
A. You would receive the extra rate—that is, the extra
service, extra time at the hour rate.
Q. Well, now, let’s be specific, if we can, and illustrate
with one particular run to show how this pooling or rear
ranging of schedules would operate.
A. Well, there is one particular run which we will use
as it stands now in Fort Worth with the line that I am on.
We make 220 hours per month, that is figuring on an 8
hour day with 30 hours (days) a month. There is three
conductors on that line.
Q. That leaves 20 hours per month of time for each con
ductor that is not used in service?
A. For each conductor that is not used. Now, then, we
have a little short run down to Ennis. The conductors that
come in on that run come in and are released at 8 o ’clock
one morning and do not report until 5 :15 the second after-
[fol. 405] noon. The conductors on those runs could make
the trip down to Ennis and back and have all day in Fort
Worth after his run from Ennis; he would have all day in
Fort Worth from 8 o ’clock in the morning until 10 o ’clock
at night on his outbound trip. They could be pooled to
gether with something like about 15 hours of excess time
to each conductor.
Q. All right. Now, have the conductors in the past, and
are they at this time ready to cooperate with the Pullman
Company in rearranging these schedules and pooling these
runs, not only at Fort Worth but at Dallas and at Houston
and all over, in order to comply with the requirements of
this particular order?
A. Yes, sir.
Q. And as far as the conductors are concerned they are
perfectly willing to change their own schedules and rear
280
range them and pool them so that those runs that do not
have conductors may have conductors?
A. The conductors do not have any control of their sched
ules.
Q. I understand.
A. Schedules are made by the Company.
Q. Don’t you have an operating agreement between the
conductors and the Pullman Company?
A. Yes, sir, we have an operating agreement, but not as
to individual schedules.
Q. Well, I understand the final determination of the mat
ter is left to the discretion of the Pullman Company, and
they can ultimately say whether they want to do this or
not do it.
A. Absolutely, yes, sir.
[fol. 406] Q. All right. Now, have you known of the Pull
man Company being required to employ any additional con
ductors to take care of different changes that have been
made by the various regulatory bodies throughout the
years ?
A. No, I haven’t.
Q. Do they employ additional conductors or has it been
the custom in the past for them to rearrange the schedules
and pool the schedules of the present conductors in order
to take care of this extra work, if any?
A. That has been the practice, yes, sir.
Q. Now, Mr. Cunningham, what do you find from your
experience on the trains today with reference to the drink
ing of intoxicating liquors?
A. Well, the amount of drinking is on the increase on the
trains I am on. I can’t speak for other trains; only the ones
I am on.
Q. I understand, but on the trains you are on you say
it is on the increase?
A. On the increase, yes, sir.
Q. You mean there is more drinking today than you have
ever known before at any time?
A. Yes, sir.
Q. How often would you say to the Court that you en
countered some man or some lady who has had too much
to drink on your run?
A. Well, it seems like almost every trip. There may be
a trip or two occasionally that there isn’t someone drinking
either in the lounge car or in the Pullman car.
281
Q. Mr. Cunningham, has there grown up a custom or
[fol. 407] does there at this time exist—in the last few years
the custom of some of the lady passengers on the train
drinking as distinguished from formerly?
A. Yes, sir, there’s almost as many lady passengers drink
ing nowadays as there are men.
Q. That same condition formerly didn’t exist, did it?
A. No, it didn’t exist before.
Q. Now, does that cause any additional difficulties in
maintaining proper decorum on the cars?
A. It does, yes, sir.
Q. From your experience in dealing with the porters,
Mr. Cunningham, have you found that they are able to
handle a white lady, let’s say, when she has had too much
to drink?
A. Well, they never handle them when I am on the train.
I can’t imagine how they could handle a situation of that
kind.
Q. You always personally attend to matters of that kind?
A. Oh, yes, sir, yes, sir.
Q. Now, Mr. Cunningham, is it a part of your duty as
conductor to assign space to passengers who get on the
cars ?
A. Yes, sir.
Q. Of course, you make out your diagrams?
A. Yes, sir.
Q. And the Pullman porters shine the shoes and carries
the baggage in and out and does the menial labor that is
clone ?
A. Yes, sir.
[fol. 408] Q. Now, Mr. Cunningham, what experience, if
any, have you had with reference to taking over Pullman
cars that have been in charge of a porter in charge when you
come on your run and find that the porter in charge, with
reference, particularly, my question is directed to the sani
tary condition of the car ?
A. On my trip northbound I pick up a car that has been in
charge of a porter from Oklahoma City to Parsons; that
car is picked up along about 4 o ’clock in the morning, and
I don’t get back into this car until along about 6 :15, and the
car—as a usual thing the car is in a very nice condition when
I get back into it. So I can’t say very much about that par
ticular matter.
2 8 2
Q. All right. You haven’t had a great deal of experience
on that, then?
A. No, sir.
Q. Now, Mr. Cunningham, I will ask you if this custom
is on the increase or decrease of men and women becoming
familiar or more familiar on the train—is that custom on
the decrease or increase at this time ?
A. Well, I wouldn’t say it is on the increase; we have
always had those conditions.
Q. Well, with reference to the other conduct of passengers
do you find more of that now than you used to ?
A. There seems to be more of it now than usually because
of the drinking in the cars. Why, with the drinking there
is more familiarity than before.
Mr. Morgan: I think that is all.
[fol. 409] Cross-examination.
Questions by Mr. Graves:
Q. How long did you say, Mr. Cunningham, you have
been in the employ of the Pullman Company?
A. It will be 35 years in—it will be 35 in July.
Q. With reference to this incident where the porter at
tacked you out of Galveston, Mr. Magnon was the Pullman
agent who was on the train at the time?
A. Yes, sir.
Q. He is dead, isn’t he?
A. I don’t think so. He is retired and living in Houston.
Q. You don’t know that he is dead?
A. No, if he is dead, I don’t know it.
Q. When was that, Mr. Cunningham?
A. In 1928 or 1929.
Q. You are sure it was not in 1925?
A. No, it was not in 1925.
Q. It was not in 1925?
A. No, it has been since that time.
Q. You, of course, draw a distinction, Mr. Cunningham,
between these colored men that have good characters and
the others that do not have good characters?
A. Oh, yes, sir; we have got plenty of porters that are
good porters, all right.
Q. How is that?
A. I say we have got plenty of porters that are good
porters.
Q. How much special training does a Pullman conductor
get before he is put in charge of a run?
A. He has ten days instruction on the road with another
conductor.
[fol. 410] Q. 10 days instruction on the road ?
A. Yes, sir.
Q. As a kind of an apprenticeship ?
A. Yes, sir, he serves an apprenticeship; yes, sir.
Q. And he gets paid during that time?
A. Yes, sir. He also has a six month probationary period.
Q. These books of instructions to which you referred are
furnished to all of the car service employees are they not?
A. Yes, sir.
Q. The porter has them as well as the conductor?
A. Yes, sir, the same book.
Q. Yes, sir. How long before leaving time are you re
quired to report on duty at the train?
A. Oh, let’s see, on this run that I am on now I report
at 5:15 and we leave at 5 :50.
Q. How long before leaving time is a porter required to
report?
A. I don’t know about that; I think they report a little
earlier than that; maybe 5 o ’clock.
Q. They are always there when you get there?
A. Not all of the time.
Q. Well, they are supposed to be, aren’t they?
A. They are supposed to be, yes, sir.
Q. If they are not there, they are reported, aren’t they?
A. Yes, sir.
Q. Just what is it now that you do in respect to this air
conditioning equipment on the train, that a man of ordinary
intelligence and a little training can’t also do?
A. Well, there isn’t anything.
Q. These instances to which you have referred in which
you have rendered special or unusual services to passengers,
[fol. 411] like say, an old lady who needs assistance, such
incidents have occurred on the train, of course, where the
conductor is in charge of the Pullman cars------
A. Yes.
Q. And you are not in position to say what happens on
these cars when similar incidents occur, where the porters
are in charge ?
283
284
A. No, I wouldn’t know anything about that.
Q. What is the run that you are on now, Mr. Cunningham?
A. On the Katy Blue Bonnet from Fort Worth to Kansas
City.
Q. How many cars—how many Pullman cars are in the
train, one or more ?
A. We leave out with two cars.
Q. You leave Fort Worth with two cars?
A. With two cars, yes, sir. We interchange cars, though,
en route; there is a St. Louis conductor that comes up from
Balias that connects with us at Denison.
Q. Now, you go on, then, to Kansas City?
A. Yes, sir.
Q. You tie on another main train at Denison?
A. Yes, sir, we consolidate the two trains at Denison and
run as one train from Denison to Muskogee. At Muskogee
they divide the trains again, one portion going to St. Louis
and the other to Kansas City.
Q. I see. Then how many conductors are on the train,
from then on when the train is consolidated?
A. Two conductors between Denison and Muskogee.
Q. How many, then, between Muskogee and Kansas City?
A. Just one Pullman conductor.
[fol. 412] Q. Well, when you say two conductors, you mean
two Pullman conductors, don’t you?
A. Two Pullman conductors; one St. Louis conductor with
the St. Louis equipment, and one Kansas City conductor
with the Kansas City equipment; they are on the train that
has been consolidated at Denison between Denison and
Muskogee.
Q. Yes.
A. Yes, sir; and then when they are split again, of course,
the St. Louis conductor goes with his equipment to St. Louis,
and I go with my equipment to Kansas City.
Q. When the train is split, do you know how many Pull
man cars are on each branch of the train?
A. Two on each train.
Q. Two on each train?
A. Yes, sir.
Q. Have you ever had charge of more than two cars on a
given train?
A. On that train ?
Q. On any train.
A. Oh, yes, I have had as many as 7 and 8 cars.
285
Q. 7 and 8 Pullman cars?
A. Yes, sir.
Q. Now, you said something about conventions, these con
vention trains, and you mentioned one incident, I believe,
that happened on a convention train, or was that a conven
tion train where these------
A. Well, it wasn’t what you might call a convention train;
it was extra equipment put in to catch the overflow from
the breaking up of a convention. It was on a regular train;
it was not on a special train.
[fol. 413] Q. When was that incident?
A. Oh, that is quite a number of years ago.
Q. Can you give us an approximate idea?
A. Oh, it might be possibly 15 years ago.
Q. 15 years ago ?
A. Yes, sir.
Q. You mentioned wrecks. Are wrecks on the railroad
trains frequent now or infrequent?
A. They are less than they used to be, considerably less.
Q. You don’t know what the statistics are on it, do you?
A. No, I don’t.
Q. Well, since------
A. That is, I haven’t had any notice of wrecks coming
under my own supervision or in the immediate territory
where I operate; that is what I speak of.
Q. Well, you do, in fact, know, that as a matter of fact,
since you have been running on railroad trains the wrecks
have been practically eliminated?
A. Yes, sir, a great many of them. We do not have very
many bad wrecks any more.
Q. Now, you said that you have drinking on almost every
train and on almost every trip that you take?
A. Yes, sir.
Q. Do you mean by that to say that you have passengers
who get drunk on every trip ?
A. They don’t get drunk; very seldom we ever have a
passenger that gets down.
Q. As a matter of fact, what you mean is that on a train
such as the one you are now running on there is more social
drinking?
A. Social drinking in the club car—what is called the
[fol. 414] club car or lounge car.
Q. Yes.
2 8 6
A. And sometimes the drinking is in the body of the car
—the body of the Pullman car. If a passenger wants a
table put up in his section of the car and he is served with
set-ups, Mineral Water or White Rock from the club car
or dining car, that is his privilege.
Q. When is the last time you know of a passenger being
hurt on one of your trains from a ladder being left out in
the-isle ?
A. Well, we don’t have that.
Q. You don’t have that?
A. No, sir, it has occurred, but it hasn’t occurred with me.
Q. Well, of course, you don’t know what happens in that
respect on these porter in charge runs?
A. No, I can’t say about what happens on the porter in
charge runs.
Q. Your testimony here as to your experience and ob
servation is based entirely upon what you have—on the
experience that you have had when a conductor was present?
A. Yes, when I was on the train, sure.
Q. Now, you recognize the fact that a Pullman conductor
should be better qualified after he, has had years of experi
ence than when he is right new, don’t you?
A. Well, I would think certainly that he has improved
with age and experience.
Q. Yes, you recognize that that is an asset in your favor,
in your particular case—you are better qualified now by
reason of your experience?
A. Yes, sir, and I think the company advertises that fact
[fob 415] in a poster that they have of Conductor Chiles
of New York City, showing him as a Pullman conductor of
years experience and as being a qualified and efficient man.
Q. Do the rules of the Company require the Pullman con
ductor to report to the train conductor any serious or un
usual incident on the train, such as where a passenger may
become unruly?
A. If it is of such a nature that you can’t control it your
self, yes, sir.
Q. You have no authority to eject the passenger?
A. No.
Q. The train conductor is the only man that has that
authority?
A. Yes, sir.
Q. And in every instance where a situation arises that
calls for discretion, if there is any doubt as to what is the
287
proper procedure, you are instructed to confer with the
train conductor, are you not?
A. That is our instructions, yes, sir.
Q. And then you are supposed to follow his decision?
A. Well, when I report to him he does the acting then.
Q. Yes. Now, what are the average number of passen
gers on the train—on the car that you are running on now ?
A. Well, on one car, the Kansas City to San Antonio
car, I have come out of Kansas City recently with it sold
out completely, uppers and lowers and drawing rooms—a
twelve section observation car. It usually runs, though, all
lowers and the drawing rooms and you might say three
or four uppers; sometimes it is lighter than that, but not
often; it always has all the lowers.
Q. All right. What is the average number of passengers
[fol. 416] that you have in the two cars, Pullman passen
gers ?
A. In the two cars? Well, let’s see, say, 15 or 18; I
would say around about anywhere from 15 to 20 passengers
in the two cars.
Q. In each one or in the two cars ?
A. No, in the two cars.
Q. All right, 7 or 8 per car?
A. Well, yes.
Q. 7 to 10 per car?
A. Well, something like 6 passengers, somewhere around
there.
Q. All right. How long does it take you to lift the trans
portation in the two cars ?
A. About 15 to 20 minutes.
Q. You and the conductor usually work together in that
process ?
A. We work together------
Q. Yes, sir.
A. —unless there is an occasion where sometimes I
work by myself; if the conductor has heavy work in front,
why, he will ask me to take up his tickets for him, and then
I will take his as well as my own.
Q. How long does it take you, then, to make up your dia
gram?
A. Well, if I had to start with a blank diagram and make
it up it would probably take me 45 minutes or more; but
my diagram is already started and all I have to do when I
leave town is to enter the tickets on the diagram—the cash
and tickets that I take up; in that instance it doesn’t take
over—probably not more than 10 minutes.
Q. All right. Now, if a train was just—had half as many
cars on it as this train you are now running on, one car
instead of two, and' the average number of passengers on
that car was about half that many, how long would it take
[fol. 417] you then to perform those two services, lift the
transportation and complete your diagram!
A. Oh, just about one half of the time.
Q. Well, that would be a total of 10 or 15 minutes for
both services?
A. Yes, sir.
Q. Then, on such a train as this Cotton Belt run, line 3370
from Dallas to Memphis, where you say you had an average
of 3 passengers per day, after you had completed that proc
ess that you have just described, what would you be doing
the rest of the time on the trip ?
A. The same as I would be if I had the car full.
Q. The same as you would be if you had the car full?
A. Yes, sir.
Q. How much of the time would you be sitting down in a
seat?
A. Oh, probably I would be sitting down more than I
would on a heavy car, because on a heavy car you have more
duties to perform and more to look out after.
Q. Yes.
A. Well, if a car didn’t have but one passenger in it,
if the car got hot, and that passenger made a complaint,
it would be just as hard on you as if it would be full of
passengers.
Q. Yes.
A. So then you have to take care of that situation just
the same if the car is light as you would if it was full of
passengers.
Q. Yes. If you go through a train that has several Pull
man cars on it and you change the regulator, so as to either
[fol. 418] lower the temperature or raise it, the instruc
tions are that you shall notify the porter that you have
changed it?
A. Yes, sir.
Q. Mr. Cunningham, what office do you hold in the Sleep
ing Car Conductor’s Association?
A. Vice President of the Grand Division.
Q. Vice president?
A. Yes, sir, Vice President.
Q. Vice President of what?
A. Of the Grand Division.
Q. What is the name of the organization?
A. Order of Sleeping Car Conductors.
Q. Order of Sleeping Car Conductors?
A. Yes, sir.
Q. And it is national in its scope?
A. ^rational in its scope. It is international too, you
might say.
Q. International too ?
A. Yes, sir.
Q. This limitation that is upon the Pullman Company’s
right to pool these runs is the result of an agreement be
tween the Pullman Company and the organization, is it
not?
A. In respect to the one—to one night operations, yes, sir.
Q. Well, whatever the limitations are, there are certain
limitations upon the Pullman Company?
A. Yes, whatever the limitations are they are the result
of an agreement between the Order of Sleeping Car Con
ductors and the Pullman Company.
Q. Yes.
Judge McMillan: Is this an independent union or is it
[fol. 419] affiliated with something?
The Witness: With the American Federation of Labor.
Judge McMillan: How long has it been in existence?
The Witness: Nearly 20 years.
Judge McMillan: Nearly 20 years?
The Witness: Yes, sir.
Judge Sibley: Anything else, Mr. Graves?
Mr. Graves: Yes, sir.
Q. This order that was promulgated by the Railroad
Commission was originally issued at the request of the
Order of Sleeping Car Conductors through their attorneys ?
A. That is right.
Q. And at the time that order was issued there was no
notice of hearing at all before the order was issued?
A. No, I think the Commission------
Mr. Lewis: If the Court please, we object to that. The
records would be the best evidence.
289
19—283
290
Judge Sibley: I was wondering about that. The record
didn’t disclose to me whether there was a hearing or not
before the first order.
Mr. Graves: Yes, sir, the answer admits there was one
hearing, Your Honor.
Judge Allred: That is my understanding of the plead
ings.
Mr. Graves: Yes, sir. Well, but the order speaks for
itself to this extent, the order states—the original order
states that it was done on the Commission’s own motion,
[fol. 420] and we want to show that it was done at the re
quest of this organization.
Judge Sibley: Well, how would that matter? The Com
mission did it.
Judge McMillan: They are the powers that be. Are
we concerned with their motives?
Mr. Graves: Yes, sir; we have authorities that we think
would be applicable on that very point. We think, in
other words, that a Court of Equity, when it comes to pass
on the reasonableness of an order of this kind or any
other kind of police regulation can look under the skin
for it.
Judge McMillan: That is certainly contrary to all hold
ings of Three Judge Courts in the oil cases; it frequently
develops that we are not concerned with their motives.
Mr. Graves: Yes, sir, if you have a question of regula
tion or something of that kind, where they have the un
doubted power, that would be a different question, but
if it is as to rates, take the opinion of Judge White, then
Associate Justice, in the 219 United States in Southern
Pacific against the I. C. C., the Court held that it was the
duty of the Court to look underneath the surface of the
order and determine what is behind it, and whether or not
it is an honest, good, fair rate order.
Judge Sibley: Well, I am against you on the merits of
it, but if you want to put it into the record, we might be
wrong in our ideas and you might be entitled to have it in.
[fol. 421] Mr. Graves: I don’t care to pursue it any fur
ther, Your Honor.
Judge Sibley: All right, sir.
Q. You don’t pretend, Mr. Cunningham, to say to the
Court that conductors are all perfect, and the porters are,
in the main, not perfect?
291
A. No, sir.
Q. These frailties are human frailties, are they not!
A. Yes, sir.
Q. And these matters that you have mentioned are mat
ters of character, and the conductors, if they are not the
right kind of men, are subject to those criticisms too.
A. Yes, sir, we have some conductors that are not 100%
perfect.
Q. In the main, though, they are good men, are they not?
A. I think so.
Q. Just as in the main the porters are good men.
A. Yes, sir, or anyone else.
Q. Well, now, they are better than the average because
the company makes an effort to get good men in both capaci
ties, doesn’t it?
A. Yes, sir.
Q. In the beginning?
A. Yes, sir, they investigate very thoroughly to find out
whether they have got good men before they employ them.
Q. And keep on supervising them to find out whether
they have made any mistakes?
A. From time to time, yes, sir.
Q. You testified at the Railroad Commission hearing,
didn’t you, Mr. Cunningham.
A. I did, yes, sir.
[fol. 422] Q. That is all.
Redirect examination.
Questions by Mr. Morgan:
Q. Mr. Cunningham, how often do the train conductors
actually go back through the Pullman cars?
A. Sometimes once on the trip to Kansas City out of the
Division, out of Kansas City, sometimes twice, it all depends
on their duties in the front. If they have got quite a bit to
do, and haven’t got time they can’t possibly come back
through.
Q. Do the train conductors have keys to the Pullman
cars ?
A. No, sir.
Q. Who does have car keys for the Pullman cars?
A. The Pullman porter and Pullman conductor.
Q. You, as a conductor, or the porter, or either of you,
you could lock the door so that the train conductor couldn’t
ever get back there?
292
_A. Yes, sir, he couldn’t open the door from the outside
without a key.
Q. What is the duty of the Pullman conductor when the
train is switching; like when your train goes to Waco?
A. Where they are cutting a train in two, and switching
out a car, it is the duty of the conductor to go through and
instruct the porter and put the tail gates across, and not
only put them across, but fasten, them, because there have
been times that passengers have been injured, and not only
passengers, but employees, on account of them not being
fastened.
[fol. 423] Q. Is that the responsibility of the Pullman con
ductor ?
A. Yes, sir.
Q. How often do you see supervisors on these trains,
Pullman cars?
A. On my train, I guess it would be once a month.
Q. How often does the brakeman come through the car?
A. On the train that I have out of Kansas City the brake-
man rides at the back, and that is over a flat track there, and
he rides there probably for that reason.
Q. Is that uniformly true? Do brakemen always ride
back there ?
A. No, sir, in some instances the brakemen do not ride
back there. They come through the cars occasionally, but
they don’t ride back there.
Q. What service, if any, does the train brakemen render
to the passengers in the Pullman car ?
A. None whatever.
Q. \\ hat service, if any, does the porter in the chair car
render to the Pullman passengers?
A. None whatever.
Q. Does he ever go back there?
A. No, he has no business there.
Q. When we speak of brakemen and flagmen, those terms
are used, mean the same thing, do they not?
A. Not necessarily. They have trains where they have a
biakeman exclusively, and also a flagman, but not on these
trains.
Q. I am talking about those trains.
A. I don’t know if there are any Texas trains that have
[fol. 424] the two different.
Q. I didn’t get it clear when you were talking about that
gate. What kind of a gate is that?
293
A. A collapsible gate. It is called a tail gate, on the end
of each passenger car and Pullman car.
Q. Is it a hazard to the passengers ?
A. It is a hazard, if you don’t fasten it, because they may
become very loose, and if you lean against it, sometimes
they will collapse and shut up.
Q. What have you found about the porters? Have they
caught on to the operation of this air conditioning very
well ?
A. Some of them haven’t, no.
Q. Some of them haven’t?
A. No. Seems to be all Dutch to some of them.
Q. All right, Mr. Cunningham, have you found that most
porters like the temperature a little warmer than white
people?
A. As a rule the porters like a little warmer temperature
than anyone else, yes, sir.
Q. Now, Mr. Cunningham, when these zone superintend
ents or zone supervisors or agents for the Pullman Com
pany who do the inspection, you conductors kind of have a
grapevine route, as well as the porters, of getting the mes
sage around that this fellow is in that territory, don’t you?
A. Yes, sir, a method of signals.
Q. And when the supervisor is going to be around, all of
the conductors know about it, and all of the porters know
about it?
A. Yes, sir, sometimes as much as an hour or more in
advance.
Mr. Graves: I don’t think it is very important, but I think
he is covering a great deal of territory, asking whether all
[fol. 425] of them know about it.
Judge Sibley: Didn’t one of your witnesses so testify.
Mr. Graves: Yes, sir, and we don’t make any question
about that. They probably endeavor to find out about it,
but I don’t see how a man can know that they always know
about them.
Judge Sibley: Even in school it was a little different when
the teacher was looking than when she wasn’t. All right,
any further questions?
By Mr. Morgan:
Q. What supervision, Mr. Cunningham, if any, do the
porters have in the operation of that car other than what
294
they receive from the conductors, other than when these
supervisors are coming along ? Do I make myself clear ?
A. I don’t believe I got that.
Q. All right. What supervision does the Pullman car
have while en route?
A. You mean the Pullman porters------
Q. What supervision, if there isn’t a Pullman conductor
there, what supervision is there on the car other than the
supervisor who travels periodically?
A. None only what the Pullman conductor gives out.
Q. That is all.
Becross-examination.
Questions by Mr. Graves:
Q. Some questions have been asked you by counsel about
what goes on on your trains. I will have to ask you again;
[fol. 426] you are speaking entirely from your experience
on the trains where Pullman conductors are present?
A. Speaking entirely from my experience as a conductor
on cars on which I operate.
Q. So, you don’t know how often the train conductor
comes through the train on these porter in charge opera
tions ?
A. No, sir, I can’t answer something on a car I was never
on.
Q. And you don’t know where the brakeman or flagman
rides on those trains?
A. No, sir, I don’t.
Q. That is all.
Judge Sibley: We will take a five minute recess.
(Witness excused.)
(Thereupon at 10:40 o ’clock A. M. Court was recessed
until 10:55 o ’clock A. M.)
W. M. H adley, a witness introduced by the Interveners,
having been first duly sworn, testified as follows:
Direct examination.
Questions by Mr. Morgan :
Q. What is your name, please?
A. W. M. Hadley.
295
Q. Where do you live?
A. San Antonio, Texas.
Q. How long have you lived in San Antonio?
A. Since March 1920.
Q. What business are you engaged in?
[fol. 427] A. Pullman conductor.
Q. How long have you been thus engaged?
A. It will be 15 years next June.
Q. Continuously?
A. Yes, sir.
Q. Over what railroads have you run, Mr. Hadley, during
that time ?
A. During that time, practically all of the railroads in the
State of Texas.
Q. You were shifted about?
A. I have been, while I was on the extra board for 9 years.
Q. You are a party to this suit, aren’t you, Mr. Hadley,
as one of the interveners?
A. So I understand, yes, sir.
Q. Mr. Hadley, will you tell the Court briefly just what
you do in supervising the service of a Pullman car?
A. Well, I go according to the instructions from the Pull
man Company, which is to—when I go down to the train at
night, I report for duty, check up the cars, find out if the
porters are on duty, and check my diagrams, as I go through
the stations, and find out if the berths are made properly,
single sections or rooms, and that the air conditioning is
properly set. I do that frequently. If I happen to meet the
platform man, and he tells me that he has just been through
there, I don’t check after him, but frequently he says he
doesn’t have time, and for me to go ahead.
Q. That is before you take off?
A. Yes, sir.
[fol. 428] Q. After the train starts, what do you do ?
A. If I don’t collect the tickets at the table inside the
station, railroad and Pullman, what we don’t get there, I
take up on the train, and collect cash fares, because they
have gotten down late. I transfer passengers from upper
berths to lowers, and lower accom-odations, and things of
that land. Then, I go through the train and—that is, the
cars in my charge, and check them to find out if they match
up with the diagrams, and go back and work my diagrams
up then.
296
Q. Is it a part of your duty under your instructions to
keep proper decorum in the cars?
A. Yes, sir, all employees on the Pullman cars are under
my personal supervision, and I am held accountable for
their actions.
Q. I am not talking about the duty to the employees. Is
it your duty to see that on the cars the passengers on the
cars conduct themselves properly?
A. I so understand.
Q. Do you do that?
A. I try to.
Q. With reference to the employees, is it your duty to
see that the employees on the car properly carry out their
instructions and their assignments?
A. Yes, sir.
Q. Do you do that?
A. Yes, sir, I endeavor to do that.
Q. What is your run at this time, Mr. Hadley?
[fol. 429] A. Well, I operate on two runs. I operate on
what we call the Katy Limited, or 11 o ’clock Katy from
San Antonio to Austin, from Dallas to Denison, Texas, and
return. My next trip is from San Antonio to Corpus Christi
on the one-car line.
Q. Is your run what is commonly known in the language
of the conductor as a “ pool” run?
A. It is pooled in a way. It is two runs together. In
order to make a relief run, two reliefs that would make a
regular run, or regular work, we pool those, and that makes
a regular conductor operation.
Q. While we are on that subject, will you tell the Court
how there could be any additional pooling or changing of
schedules of conductors in your particular runs to take care
of one of the lines complained of in this bill, namely, the
one from Denison up the Oklahoma line. Is it possible for
pooling to be accomplished there?
A. I don’t think it would be necessary to pool the line.
The hours would be so short to run a man over to Durant
on that. It is only about 25 minutes between the time where
we get off at Denison.
Q. Was the terminal point formerly at Durant?
A. One time we ran to Parsons, Kansas, and one time
to Durant.
Q. How long does it take the train to run from Denison
to Durant?
297
A. About 25 minutes.
Q. How much per hour are the overtime conductors paid?
A. It is based on overtime, up to 240 hours, just the regu
lar rate of pay.
Q. What is the regular rate of pay?
A. 80̂ per hour.
[fol. 430] Q. In this particular case, would it be possible
for that run to be extended to Durant without consuming-
more than 240 hours of the conductors’ hours on the train?
A. Well, it would take a little more than that, I believe,
on the 31 day month, anyhow.
Q. You have attempted to calculate that, haven’t you?
A. It wouldn’t run over that on me, because my hours are
shorter on the other end of the trip, but two conductors on
the 31 day month, I am pretty sure it would run a little bit
overtime, not much.
Q. What experience, if any, have you had with reference
to children or old people being committed to your particular
care on their journeys?
A. I have had many cases of parents bringing their chil
dren down, placing them in my care for various trips. Also,
with children bringing their elderly parents down, sick, af
flicted people.
Q. Can you give us a specific instance of some children
that have been committed to your care, of tender age ?
A. I know of a good many of them. I can remember one
that I had out of Houston, Rosenberg, Texas, a few years
ago, and some passengers came to the train, and when I
opened up the trap the porter and myself, they were stand
ing near, and they said, “ Where is the Pullman conductor? ’ ’
and I said, “ I am.” They said, “ We have a little girl to
place in your care.” She was going to Los Angeles, Cali
fornia. She had only half fare ticket, so that she was less
than 12 years old.
Q. She was traveling alone, Mr. Hadley?
A. Yes, sir, so they gave me a letter------
[fol. 431] Q. You mean, her family?
A. Yes, sir, her family gave me a letter, that said in that
letter where she was going, and what they would like for
her to eat in the diner, and asked if I would look after her,
and I told them that I would, and would turn the letter
over to the connecting conductor in route, and would tell
him to turn it over to the next one.
298
Q. Is that an unusual, or an average, ordinary experience
that Pullman conductors have ?
A. We have ones similar to that frequently. Sometimes
they don’t give letters, but just ask us to take care of their
children going from point to point.
Q. Mr. Hadley, have you ever had any experience with
passengers on the train, both men and women, attempting
to become intimate with the others?
A. Yes, sir, I have had a number of cases of that kind,
Q. Hoes that happen frequently or infrequently?
A. Well, I wouldn’t know just how to term the words
frequently or infrequently there. It happens ever so often.
Q. Well, can you be specific? Can you tell the Court of
a definite experience on that, in recent times, that you have
had?
A. Yes, sir, I can.
Q. All right, just relate it briefly.
A. Well, I had one case going out of San Antonio on the
train, S. P. 313, at that time was operating a car to Corpus
Christi, and another to McAllen and Brownsville. I was
lifting my transportation. I found there was a lady on a
ticket, and a gentleman on a pass. They were getting pretty
familiar with one another. I had lifted their transportation
[fol. 432] and saw they were not man and wife, so as I
started out to the other car I told the porter to kind of watch
that party for me. I was going ahead and would be busy
for a few minutes, and if anything happened out of the
ordinary, to get me immediately.
They were kind of making a scene before the other pas
sengers, and so he came up to me in a few minutes and says,
“ Cap, that man has just gone to bed with that woman.”
So I immediately went back, and knowing the man’s name,
I shook the curtain, and didn’t get any reply, I shook it
again and told him they only had transportation for one
party for that particular berth, and still I didn’t get any
reply, and so I called the man by name and told him to go
to his place in another car. He had a place assigned to him,
and he immediately got out and put on his coat and put his
feet in his shoes and went back to the car where he belonged.
Q. The man did comply with your request?
A. Yes, it didn’t cause enough trouble for me to think I
would have to go get the train conductor.
Q. Have you had any experience with any man or woman
on the train reaching a stage of insanity, becoming men
tally unbalanced1?
A. Yes, sir, I had something similar to that a short time
ago.
Q. What was that?
A. I was on this 11 o ’clock Katy, which I run on, and
there was a passenger that I found boarded the train at
Muskogee, Oklahoma, and he had been drinking all the way
down. After leaving Dallas at night I was back in the lounge
[fol. 433] car making up my diagram and in making up my
tickets, and this party came back and sat down in the car
smoking, and talking, and I thought he was talking peculiar
like, so all of a sudden he told me, he said, “ Conductor,
this isn’t right.’ ’ He said, “ I am not going to have what
is going on.’ ’ He said, “ There are some people in this car
that have a dummy, and are trying to scare me with it, put
it in my seat. ’ ’ I looked at him, and I said, ‘ ‘ Certainly we
are not going to have anything like that------’ ’
Q. Let’s not go into too much detail.
A. —at any rate, the man acted out of his head, and
evidently was, and he raised so much Cain, and got up
waving his arms, and said he would kill those people if
they didn’t quit trying to scare him with that dummy, and
I suggested that I move him, and he wanted to stay and
fight it out with the dummy, and finally I persuaded him to
move to another car. By that time it was twelve-forty-five,
and the train conductor came back to check with me, and I
told him what had happened, and I asked him to move him
to Section 15, where there was a section that wasn’t full.
Q. And did the train conductor—what time did the train
conductor get there?
A. About 12:45.
Q. Was that the first time you had seen him after leaving
Dallas about 11?
A. Yes, sir.
Q. What did the train conductor do with him?
A. He went with him, and I got my diagrams and was
going to put out my cards, and when I got to the next car,
[fol. 434] instead of No. 15, the man was in the drawing
room, and the conductor was standing by the door, and I
told him, I said, “ Section No. 15 is where this man was
going.’ ’ And he said, “ He has gone in this drawing room
and I can’t get him out.” And I went in the drawing room,
and I said, “ We are tired of this business. The train con
299
300
ductor will stop this train and put you off if you don’t stop
this.” And he followed me on off, and I put him in the
section, and he acted as though he was going to bed, and in
a few minutes the porter told me the man was going ahead.
There were ghosts in the car, and he went to the day coach
and stayed there the balance of the night.
Q. What did you find was wrong with the man?
A. I understood from the passengers the nest morning
who were talking about his actions, he had been in the hos
pital for delerium tremens, and had started drinking again.
Q. Mr. Hadley, what—have you had occasion in your
operations to take over a car that formerly was in charge
of the porter, and the term is commonly referred to as
porter in charge cars?
A. I do that every trip on the Ivaty.
Q. Where do you pick up that car?
A. I pick up two at Austin. The porters also have the
Ft. Worth and Dallas car, and when I leave Denison I pick
up the Kansas City car that the porters handled from Kan
sas City to Denison and Tulsa------
Q. What has been your experience in reference to clean
liness of those cars?
A. Some are different from others. Some porters seem
to try to do their work, but most of the time I find there are
[fol. 435] cigarette stubs and ashes and matches in the bot
tom of the car, sometimes I find beer bottles rolling around
in there, a danger and a hazard to passengers.
Q. What are the regulations of the cars with reference to
allowing passengers to smoke in the regular chair of Pull
man cars?
A. They are instructed to request them to refrain from
smoking there.
Q. Is there a compartment provided------
A. Yes, sir, there is a smoking room for men, and in some
of the cars there is a lounge car.
Q. What has been your experience with reference to pas
sengers that you have taken over on these porter in charge
cars as to smoking in the main body of the car?
A. I find on numerous occasions, and have reported some
of them, at Denison when I pick up one from Tulsa and one
from Kansas City, when they have a pretty good bunch o
oil men in there, sometimes they have 10 or 12 people ina
car, why, the cars have cigarette stubs and ashes on t e
floor, and beer bottles rolling around, and sometimes ^hen
you go in out of the fresh air the smoke is thick. They
301
smoke so much the air conditioning hasn’t been able to pull
it out.
Q. What effect does that have on the air conditioning
system ?
A. It doesn’t have anything to do with the system, it
makes the air foul.
Q. Do you know that smoke has been one of the most
perplexing and difficult problems of the air conditioning
system to handle ?
A. No, sir.
Q. You are not familiar with that?
[fol. 436] A. No, sir.
Q. What has been the experience you have had with the
passengers when you find their car in that condition, and the
passengers thus engaged in smoking, have you had occasion
to request them to refrain them from smoking in the car?
A. I always do that.
Q. What has been the attitude of the passengers?
A. A number of them have called my attention to the fact
that they have been smoking from Tulsa to Denison, or from
Kansas City, and they don’t know why they should stop
now.
Q. And on that trip before you took over was the porter
allowing them to smoke?
A. Yes, evidently, from the looks of the car, and the ashes.
Q. What experience have you had with reference to the
porters giving you the diagrams when you took over those
cars ? What condition do you ordinarily find them in ?
A. Well, I find that especially on the Tulsa-Denison car,
where there are five different porters operate, that I catch,
or the Tulsa-Galveston car, and I pick them up at Denison,
I have to make changes. There are tickets entered in error,
and sometimes the wrong rate. I have found it where they
collected the wrong rate, or too much for the fare, and I
have to correct those diagrams, and there is another dia
gram turned over to me that the porter closes at Tulsa when
he takes that car in, and it is turned in to me to hand in to
the office at San Antonio. Some of those, the cashiers have
told me of those diagrams, and I have seen them sending a
note------
Mr. Graves: We object to that, and ask that it be stricken,
[fol. 437] Judge Sibley: All right, the hearsay is excluded.
Q- Now, Mr. Hadley, what has been your experience with
reference to the porters leaving the ladders in the aisles, the
302
long ladders that go to the second berth, the upper berth,
and the short ladders and stools, what do you find about
that?
A. We find that frequently that the ladder is in the aisle,
and we request them to keep the ladder out of the aisle; and
also the linen locker door is open frequently, and is a hazard
to passengers coming around the corner. We close it and
tell the porter to keep it closed.
Q. Where is the linen locker door you talk about?
A. Directly behind the smoking room on a car as you turn
around to come into the car.
Q. Is that a relatively small space in there?
A. Yes, sir, a little locker, and the door opens outward.
Q. They often leave that door open?
A. Yes, sir, and the company keeps after us all the time
about that.
Q. Details like that, is it your duty to see that those details
are cared for from time to time?
A. We are instructed in every safety and service meeting
to that effect, yes, sir.
Q. Well, in your operations as a conductor are you con
stantly on the watch for such items as that?
A. Positively. If I don’t I would be reprimanded.
Q. What about the sanitation, the sanitary condition of
the cars? Is that part of your assignment and part of your
responsibility?
A. Yes, sir.
Q. Are you constantly attending to that when you are on
the car?
[fol. 438] A. Yes, sir.
Q. What about the ventilation on the car?
A. Yes, sir, the same way. I find frequently in the lounge
car that the ventilator back in the smoking room is left
closed, and if that is true that smoke is allowed to go all over
the car. I frequently find that closed and I close it or tell
the porter to.
Q. What do you mean when you pick up a car ?
A. Like at Denison when I pick up a car, San Antonio
to Kansas City, it is a lounge car from San Antonio to
Denison.
Q. All right. Now, Mr. Hadley, air conditioning is rela
tively new on the trains, it is the last three or four or five
years at least, isn’t it?
303
A. Yes, sir, some four or five years.
Q. Do you know whether they have both mechanical re
frigeration as well as using ice for the cooling of the cars?
A. Yes, sir, we have mechanical, ice, and some steam cars.
Q. All right. Now, conductors are given special instruc
tions on the temperatures and how to regulate the air condi
tioning, aren’t they?
A. That is right.
Q. Now, what have you found as to the porters? Do the
porters catch onto the operation of the air conditioning
pretty well or not?
A. Well, some of them do, but there are some that we have
considerable trouble with, especially when a car gets too hot.
We find more of them too hot than anything else. And I
will ask the porter to make a correction to see if he knows
about it, and numerous times they will go to the panel and
try to make it from there. It isn’t always that you can.
Sometimes you will find a valve stuck, frequently you will
[fol. 439] find a valve stuck.
Q. Where are the valves located on a car?
A. Usually in the end sections on most cars. You will go
there and pull the seat out and there is a little trap there
and you can work that valve with your hand. The porters
have those instructions the same as we do, but they don’t
get it.
Q. Such difficulties as you are enumerating, they are usual
or unusual?
A. I have some of them practically on every trip.
Q. Then do you have some instructions, or I mean do you
have some particular difficulty with the porter on those par
ticular items?
A. Not with the same porters.
Q. I don’t mean that, I mean with reference to the air
conditioning ?
A. Yes, sir.
Q. Do you have both winter air conditioning and summer
air conditioning?
A. No, sir, we don’t use the ice on the cars now, or don’t
have the cooling air conditioning. Of course, we have air
conditioning the year around. There is a difference in the
air conditioning and cooling. You don’t want to conflict
with that. There is air cooling and air conditioning. The
cars that are air conditioned are air conditioned summer and
winter.
304
Q. You still steam heat them in the winter time, don’t you?
A. Yes, sir.
Q. And that likewise is a matter that comes under your
supervision?
A. Yes, sir.
Q. Steam heating* is an old process that has been in use
[fol. 440] many years, isn’t it?
A. As far as I know. I have known it always.
Q. Your run now is from San Antonio to Denison, Texas?
A. That is right.
Q. On that run you have occasion, of course, to pass
through Austin?
A. Yes, sir.
Q. Have you ever had occasion to handle university stu
dents? I mean students attending the University of Texas?
A. Numbers of times.
Q. When these university students go off to Fort Worth
or Dallas on a football game they are usually a pretty rowdy
bunch, aren’t they?
A. Yes, sir. They are out for a good time.
Q. What experience have you had, if any, with those stu
dents failing to obey the requests of the Pullman porters?
A. Well, on one particular trip through Austin, in picking
up some cars here, I found that a porter came running back
to me where I was working and said that the students were
breaking in the door and said they were going to kill him
if he didn’t let them through to have some spaces, that there
was no room in the coaches. And I rushed up there at the
door and found that the glass had been broken and screen
torn and a bunch of students milling around there demand
ing to get in.
Q. You mean the glass on the Pullman door?
A. Yes, sir.
Q. Now, was that door between the Pullman and chair
ears, was that locked?
A. Yes, sir, I had it locked because the students were
demanding to get in there before that time when I went back
to do some work, because they said there wasn’t any room
[fol. 441] ahead. We didn’t want them in the Pullman be
cause they were not Pullman passengers.
Q. Did the porter attempt to handle the situation?
A. I guess he did. They were ringing the bell and he
went up there and they demanded to get in and he w o u l d n ’t
305
let them in, as I told him not to, and they broke the glass and
screen.
Q. What did you do ?
A. I told them they couldn’t come back and they said they
would, and I just kind of put up a bluff, I guess. I said they
would come back over my dead body. But I guess they
didn’t, because I am still here.
Q. Have you had occasion or experience with university
students riding in the Pullman cars attempting to get bois
terous when riding in the cars ?
A. Yes, sir.
Q. That isn’t true of all students, of course, but some of
them do that, don’t they, Mr. Hadley?
A. That is correct.
Q. They are not any different from some other folks, the
grown folks?
A. The old folks, too, yes, sir.
Q. Have you ever had occasion to find some of those boys
and girls attempting to conduct themselves improperly on
the train?
A. Yes, sir.
Q. Well, just tell the Court one instance of that, please.
A. Well, I took a young student out of the berth with a
girl student going through Austin one time, after we left
Austin, and sent him up ahead to the chair car, took him
up there and told him to remain up there. I happened to
know the young lady, to know her name and her family, and
[fol. 442] I told him that I would report both of them if he
didn’t, and he did, he stayed up there.
Q. Of course, he complied with your request?
A. Yes, sir.
Q. What do you find with reference to the amount of
drinking that now goes on on the train, Mr. Hadley?
A. Well, it is much more now than it used to be, because
it is openly done. It is permitted. They get on sometimes
with a bottle in their hand. I have found them coming right
down the ramp of the depot swinging a bottle, a quart bottle.
Some people don’t seem to care who sees them or anything.
Q. Would you say to the court that the amount of drinking
now is greater than it has been during the fifteen years you
have been on the Pullman cars?
A. Yes, sir, much more, by women, men and students.
20—283
306
Q. Do you find that same thing true with reference to
lady passengers the same as you do to men?
A. Yes, sir.
Q. I mean the increase. I am not suggesting they all
drink.
A. Yes, sir.
Q. Now, Mr. Hadley, have you ever had occasion for a
woman passenger on your train to become intoxicated to the
extent she was unable to take care of herself and it became
necessary for you to take care of her?
A. Yes, sir.
Q. When was that?
A. Well, there was one that I testified to before the other
hearing.
Q. You mean the other hearing, the hearing before the
Railroad Commission?
A. Yes, sir.
[fol. 443] Q. Briefly what was that?
A. Well, that was a party who got on the train at Gal
veston, Texas, and she—I didn’t notice her being drunk
when she got on, but it was hot weather and evidently the
liquor was too much for her, and when I went into the
body of the car she was very much intoxicated and creating
a disturbance and talking loud, and I tried to get her ticket
from her and I had to have a scuffle in order to do so.
She jerked me clear into the berth in doing that, and I finally
secured the ticket, and they wired to Houston to take the
woman off the ear, that she wasn’t in a condition to remain
in there. However, in the meantime there was a young lady
that suggested she help me handle her, and I was very glad
she did. She and I took the woman to the dressing room.
Q. You mean a young lady, some------
A. A passenger on the train, yes, sir, and I apologized to
some of the other passengers on the train, told them we
couldn’t help that, that it was a case of liquor, and we took
the lady to the dressing room, and she was going to try
to quiet her and later bring her to her berth. And I told
her to ring me when she wanted me and I would assist her.
And she rang the bell and the porter came to me, I was
coming back from the other car, and he told me this lady
was ringing, and I went back and found this lady in a
terrible condition. She was on the floor and her dress was
over her head and in a messy condition. I helped this lady,
got her to the berth and got her in there, and this woman
307
sat on the side of her berth and finally got her to sleep.
By the time we got to Houston she was asleep, and the
[fol. 444] officers were down there, but since she was asleep
they let her go on to San Antonio. She was a manicurist in
one of the hotels there.
Q. You pick up this car that comes through Austin that
goes to Fort Worth and Dallas? There are two cars set
out here. You pick up those, don’t you?
A. Yes, sir, about 1 :20 in the morning, or 1 :10.
Q. You were here yesterday and heard the Pullman por
ters, both of whom operate on those cars. You heard their
testimony, didn’t you?
A. Yes, sir.
Q. Have you ever had occasion to eject any visiting
passengers who were boisterous and loud? I mean people
who were visiting the passengers on the train who were
boisterous and loud, when you came through here to pick
up those cars?
A. Yes, sir, with those same porters that testified.
Q. What time does your train get in here, Mr. Hadley?
A. Around 1:05 or 1 :10. We are due out at 1:20.
Q. That was 1:00 A. M.f
A. Yes, sir, in the morning.
Q. Passengers are permitted to get on the cars who are
going to Fort Worth and Dallas, is that right?
A. Yes, sir.
Q. They can get on at 9 :30 on up ?
A. Yes, sir, and go to bed.
_ Q- And then when the train, when this train comes by it
picks up those two sleepers that are set out here?
A. Yes, sir.
Q. What do you find with reference to the condition of
the students at times in those cars?
A. At times I find that the students, especially when the
students are traveling, and there are several students in
[fol. 445] there talking to the students that are going away,
and they are drinking and smoking in the body of the car.
Q. You mean at 1:00 o ’clock in the morning?
A. That is right. Sometimes we can hardly get them off
there when the train starts, we have a time getting them
out of there and keeping them from getting hurt.
Q. Do you ever find that these boys fail to take up the
proper transportation of these people riding on the cars?
A. Yes, sir.
308
Q. Can yon cite an instance ?
A. On my last trip through here.
Q. When was that!
A. On the morning of the 17th, I believe.
Q. Was that last Friday night?
A. Yes, sir, about that time.
Q. All right, go ahead.
A. When I took the transportation over from the porters
I found that in checking it in one of the envelopes, there
was three or four or five passes of Mr. Rice M. Tilley’s,
but neither one of them was a Katy pass, for Katy trans
portation. In other words, none of the transportation was
good on this line or this railroad. And I usually try to
check that before it is turned over to the train conductor,
although I don’t lift it myself. It has caused confusion
before, and I try to check it myself. I called that to the
attention of the porter and he said that was what he gave
him, and I said, “ Don’t you try to see whether the trans
portation is good?” And he said he thought he knew,
[fol. 446] And I said, “ I guess you will have to wake up
Mr. Tilley and get his transportation.” And Mr. Tilley
was in lower one and his wife in lower twelve. And he
woke up Mr. Tilley and got his transportation back and
got his Katy transportation, and he gave his other trans
portation back. Other times I find they haven’t taken
up tickets at all and sometimes they get the wrong portion
of a Pullman ticket.
Q. All right, Mr. Hadley, have you ever found any tend
ency on the part—or can you cite us an illustration in
Texas—I believe you were telling us about the one from
Amarillo, about the two couples that were attempting to
stage a party on your train?
A. Yes, sir.
Q. Tell us briefly about that.
A. Yes, sir. Coming out of Amarillo, I believe it was
the Fort Worth & Denver, two men kissed their wives and
children goodbye, got on the train. They had two lower
berths. They immediately went to the day coach, got two
women, brought them back, said they wanted to get a berth
for these girls. So I told them I didn’t have anything but
an upper berth left. The man said, “ I will take the upper
and give the girls the lower.” I said all right. So I sold
him the upper berth. But later, as I figure it was possible,
they tried to and did get to bed with the women in the
309
lower berths, not going in the uppers. So I went to the
berths and got them out. One man kicked a little, but the
other didn’t so much. Finally I got this one up in his
upper berth and told him it would be a good idea for him
to get up there and stay there, and he did. But I sat up
that night instead of retiring, going to bed, as I am due
to go, and watched and saw that they did not get together,
[fol. 447] Q. All right.
A. Well, they did get back together, but I got them out.
Q. I just want to ask you one more experience. I don’t
want to burden the Court with this line of testimony, but------
A. I might say, Mr. Morgan, the Pullman Company OK’d
my time and paid me for guarding there.
Q. What experience, if any, have you had with elderly
women or blind women on the train!
A. Well, I had one out of Dallas.
Q. How long ago is that!
A. I don’t remember. It hasn’t been so terribly long
ago. I don’t remember the date.
Q. Mr. Hadley, will you briefly relate that experience!
A. Those things just happen.
Q. Relate to the Court your experience with this elderly
blind woman.
A. Well, she was brought to my train and they asked me
to look after her. It was some of her people. I don’t
know whether it was her daughters or relatives or what.
And they explained something about her physical disability.
They didn’t state she was entirely blind, they just said
she couldn’t see very well. But going through the car the
bell rang, and I went to her—to this berth, and I recog
nized that it was her berth, and I asked her what I could
do, and she said, “ Is this the conductor!” She said, I
believe, ‘ ‘ I want the conductor, ’ ’ is what she said, ‘ ‘ I want
the conductor.” So she told me she wanted to go to the
rest room, wanted me to assist her to the rest room. I said,
“ I will be glad to,” and I did. I pushed the door open and
told her where she could find the toilet, but she couldn’t
see it to get into it, so I went into the room and opened
[fol. 448] the toilet door and had to assist her and have
her hand on the bell, I put her hand on the bell and told
her where to ring, that I would wait outside for her and
help her back to her berth, and she rang and I assisted
her back to her berth. She was a very old lady and couldn’t
see.
310
Q. Mr. Hadley, how often do the train conductors go
through your Pullman cars'?
A. On which line?
Q. On any line.
A. Well, on this Katy going out of Denison I lift the
transportation for myself and the train conductor and they
come back and get it after it has been lifted and take it
back up ahead and check it. On the S-P I do the same
thing.
Q. By lifting transportation do you mean that you are
the one who actually asks the passenger for his tickets ?
A. Yes, sir.
Q. That is lifting transportation?
A. I take up the Pullman and railroad transportation on
both lines that I operate on.
Q. And the conductor doesn’t even collect the passenger
fare?
A. No, sir, not on these lines.
Q. And he occasionally goes through the train?
A. Yes, sir.
Q. Is that correct?
A. Yes, sir.
Q. Now, the Pullman cars are invariably on the back end
of the chair cars, aren’t they?
A. How is that?
[fol. 449] Q. I say the Pullman, the sleeping cars are on
the back part of the train?
A. Yes, sir. Sometimes we have—now and then we have
a day coach in between sleeping cars in order to facilitate
the shifting or switching of the cars at Waco or Austin
or the like. Now and then that is done.
Q. Now, ordinarily the Pullman cars are the rear cars
on each train, is that right?
A. Yes, sir.
Q. And those, of course, the Pullman conductor and the
Pullman porters are the only ones that have keys to the
cars?
A. As far as I know, yes, sir.
Q. That is true in your run, isn’t it?
A. I think now and then some train conductor gets ahold
of a key. I don’t think the Pullman Company furnishes it.
Mr. Graves: What was that you said? I didn’t get that.
311
A. I say I believe now and then some train conductor
gets a key, but I don’t think that the Pullman Company
furnishes it. It is my understanding they don’t.
Q. How often on your run, Mr. Hadley, do you have
occasion to see a supervisor or someone in authority of
the Pullman Company that is your superior officer ? How
often do you see them on your runs?
A. Well, I might see two or three in one month and
then I might not see any for three months.
Q. What is the practice of the brakemen with reference
to riding on the back end of the Pullman cars, on your runs?
A. Well, on one run the brakeman rides back there ex
cept at stops where he helps the train conductor load and
[fol. 450] unload passengers, discharge passengers.
Cross-examination.
Questions by Mr. Graves:
Q. Which runs are those, Mr. Hadley?
A. Sir?
Q. Which run is that that the brakeman rides in your
car on?
A. That is on the lounge car between San Antonio and
Denison and Denison and San Antonio.
Q. That car is on the rear end of the train?
A. Yes, sir.
Q. What about this run between San Antonio and Corpus
Christi?
A. Well, there are some of them there that are hardly
ever back there.
Q. How many cars are there on that train?
A. One car.
Q. One Pullman?
A. Yes, sir.
Q. Mr. Hadley, these incidents that you have related are
unusual incidents, or are they typical of the everyday ex
perience of a Pullman conductor?
A. No, I am glad to say we don’t have that experience
every day, sir.
Q. So when counsel asked yon a few minutes ago to just
give the Court one instance and you described one—do you
have a number of such incidents that you could describe?
A. Oh, yes, sir. If necessary I could go on here and
relate you plenty of instances of similar character.
312
Q. All right, how many have you had of that kind, now,
in the last year?
A. Oh, in just the last year ?
A. Yes, sir.
[fol. 451] A. I don’t know. It wouldn’t be so many in the
last year, no, sir. I am speaking of in the last fifteen years.
Q. How many have you had in the last five years ?
A. Of course, it wouldn’t be near as many as it would be
in fifteen. We don’t try to remember all those things. It is
just a part of our duty to look after those things. We try
to get them attended to and let them go by. You have to
study to bring those things out. It takes thought and study
to remember those things.
Q. Can you now remember any other similar incident like
that in the entire fifteen years?
Judge McMillan: What are you talking about? He has
told about several incidents.
Mr. Graves: I was talking about the one where counsel
directed his attention to it and said “ please relate one such
incident,” as though there had been many others. It was
the one where he made a young student get out of the berth.
A. Yes, sir, I can.
Q. How many of those can you recall?
A. Eight now I would have to think to recall offhand, but
any number of them.
Q. Do you think if you would get off and cogitate about it
that you could recall some others ?
A. Yes, sir, I know. I could.
Q. But you can’t now?
A. Well, I don’t know. I might in a few moments time.
Q. I am asking you to tell about one other.
A. You want me to tell about one other right now?
Q. Yes, sir.
A. Well, coming out of Dallas on this train, this same
ffol. 452] 11:00 o ’clock Katy, I had a young couple get
together, and this man was on a pass, and the girl, the best I
remember, she was on a pass too, and I could possibly find
her name for you if you want it.
Q. Were they students?
A. Sir?
Q. Were they students?
A. The man was.
Q. The man was a student?
313
A. Yes, sir.
Q. When was that?
A. They got together on the train.
Q. When was that?
A. That has been less than a year ago.
Q. Can yon think of any others ?
A. Not offhand, no, sir.
Q. Do you report such incidents to the company?
A. Sometimes I do, yes, sir. Not all the time.
Q. The rules require you to report them, don’t they?
A. They do if I have difficulty with them, yes, sir. If I
don’t have any difficulty I don’t know that it is necessary.
If the man immediately goes to his space and there is no
argument or anything of the kind, that is just kind of a
closed incident.
Q. Well, the language of the rule is that you are required
to report any unusual incident that happens on the train,
is that not correct ?
A. Similar to that, yes, sir.
[fol. 453] Q. But some of these incidents you have not
reported?
A. That is right, yes, sir. If we reported every incident
that happened we would be writing all the time, we never
would have any time for ourselves.
Q. Now, then, one of the incidents to which you referred
was one where you happened to be in the car ahead and you
say the porter came and got you?
A. Yes, sir.
Q. And you went back then into his car?
A. Yes, sir.
Q. And gave it the required attention ?
A. That is right.
Q. Now, if an incident should have happened on a train
where the porter was in charge and where there was one
Pullman car and one passenger car ahead, where would the
passenger conductor be, the train conductor?
A. He would be up in the day coach, I suppose, where he
usually rides.
Q. He would be in the day coach or Pullman car, one of
those two cars, wouldn’t he?
A. One of the three cars maybe.
Q. One of the three if there were three cars and one of
the two if there were two cars ?
314
A. Yes, sir, unless he was on the ground. If they were
stopped he could be on the ground looking after orders, if
they were stopped.
Q. Which one of these porters was it that you referred to
[fol. 454] here as having found, when you came in here the
other night, that he had failed to perform his duty, when
you arrived here at 1 :20 A. M. ?
A. I believe it was Brown back there.
Q. On the Fort Worth car?
A. That is right, yes, sir.
Q. Now, what was that incident that he had failed to take
care of?
A. He lifted the wrong transportation for passengers.
Q. That was Mr. Tilley?
A. Rice M. Tilley, that is right.
Q. Who awakened Mr. Tilley?
A. I permitted the porter to do it. He had lifted the
transportation wrong.
Q. You say permitted. Didn’t you instruct him to do it?
A. Yes, sir.
Q. Why didn’t you let him sleep until the next morning
and get it then?
A. The train conductor would have come back and get it.
It is our instructions to see—I have had train conductors to
come back at times prior to that and have us wake the pas
senger up and get it when the fare was lifted wrong.
Q. On how many occasions have you found beer bottles
in the car here when you picked up that connection here at
1:20 in the morning ?
A. Oh, I couldn’t enumerate those occasions. It don’t
happen every trip, but it has happened.
Q. Well, it is an infrequent happening, isn’t it?
A. I would call it infrequent, yes, sir. It isn’t an every
day occurrence. It didn’t happen when I was stationed over
[fol. 455] here looking after those cars in 1928.
Q. It never did happen?
A. No, sir. I didn’t permit passengers to go in and dis
turb the other passengers.
Q. You have made mistakes yourself ?
A. Yes, sir.
Q. On the train, haven’t you?
A. Yes, sir, positively.
Q. You have let passengers go from Dallas, Waxahachie,
and places like that, to San Antonio when they wanted to go
to Houston, haven’t you?
315
A. Yes, sir, I let a passenger here a short time ago, an
attorney, do that. He got in the wrong bed and he admitted
it was his fault. He signed a statement that it was his own
fault.
Q. Let’s see about that. I want to know what you did
about it.
A. I had a statement. I think Mr. Yroman has it, if you
will read it.
Q. He had railroad transportation for where!
A. He had railroad transportation anywhere he wanted
to go in the State of Texas, I guess, on the MK-T. He had
a pass.
Q. He had a pass!
A. Yes, sir.
Q. He told you where he was going!
A. That is right.
Q. And you sold him a berth!
A. Yes, sir.
Q. A Pullman berth in the last car on the train!
A. No, sir, I did not.
Q. The car that you were then in!
A. No, sir.
[fol. 456] Q. Which car was it in!
A. In the car ahead of the one I was in.
Q. And you told him then where his berth was!
A. I told him, I told him I had turned the light on in the
berth and told him what berth he had and what car he had,
and I had given him a receipt to that effect.
Q. Instead of his going to his destination, to what point
was he carried?
A. He got in bed in the wrong berth. He didn’t go up to
his car. He got in a berth in the same car he was then in
and went to San Antonio.
Q. When you arrived at Waco the conductor that picked
up the San Antonio car—the Houston car—called your at
tention to the fact that there was one passenger shy in that
car, didn’t he !
A. Yes, sir.
Q. You didn’t then check the other car to see whether the
passenger that was shy in the one car was in the other car!
A. No, sir. It was my understanding that the passenger
was to set up to Waco. He had some schedules, and I had
asked this porter Lane back here if the passenger had gone
ahead and he told me he had.
Q. As a matter of fact, he had, hadn’t he!
316
A. No, sir.
Q. The passenger had gone ahead and later come back,
hadn’t he ?
A. No, sir, he never did go ahead.
Q. He never did go ahead?
A. No, sir.
Q. Under the rules, Mr. Hadley, it was your duty to check
your car, wasn’t it?
A. I did check the car before the passenger went to bed.
[fol.457] Q. Yes.
A. And put out my call card. The car was checked on
arriving at Waxahachie where this passenger got on, and
then I worked my passengers afterward.
Q. If this conductor found that he was shy one passenger
and called your attention to it and you had checked your——
Judge Sibley: Is there any use trying that out ? He says
he has made mistakes.
Mr. Graves: If I may, Your Honor, I would like to ask
this one question.
Judge Sibley: All right.
Q. If you had then checked the other car, the San Antonio
car, you would have discovered that the passenger was in
there ?
A. Sir?
Q. I say you would have discovered that the passenger
was in there ?
A. If I had rechecked this other car I would have found
the passenger in there, that is correct.
Judge Sibley: I don’t want to be impatient, gentlemen,
but these are questions that an intelligent person could an
swer easily, and it doesn’t seem necessary to load the record
up with them.
(Witness excused.)
W. L. B eambe, a w itness fo r the defendants, was sworn
and testified as fo l lo w s :
D irect exam ination.
Questions by Mr. Rotsch:
Q. What is your name?
A. Beamer, W. L. Beamer.
317
[fol. 458] Q. How old are you, Mr. Beamer?
A. Sixty-one.
Q. Where is your home?
A. Denison.
Q. How long have you lived in Texas ?
A. Forty-one years.
Q. And where were you born?
A. Georgia.
Q. Now, who are you employed by?
A. The MK-T Railroad.
Q. In what capacity are you employed now?
A. Conductor.
Q. How long have you been working for the MK-T Rail
road, altogether?
A. It will be thirty-nine years the first day of April.
Q. When you first went to work for the MK-T what job
did you have ?
A. Well, I had a job as check clerk and shipping clerk in
the store department, and later timekeeper for the me
chanical department.
Q. How long have you been a conductor?
A. I was promoted in 1907.
Q. Now, you haven’t been with the MK-T continuously,
since you went to work, have you?
A. Well, I have held my rights continually. However,
I was off from March, 1923, until March, 1935, as salaried
chairman for the Order of the Railway Conductors for the
Katy Lines.
Q. What do you mean by salaried chairman for the Order
of Railway Conductors ?
A. They have a chairman for the system on a salary who
[fol. 459] handles schedule matters and agreements.
Q, You did that work then for approximately twelve
years?
A. Yes, sir.
Q. Now, what is your run? That is, on what train or
trains do you work on now?
A. I am in what we call a pool out of Denison, between
Denison and Dallas and Denison and Fort Worth.
Q. Where do those—you mean you run one time from
Denison to Fort Worth and back and another time from
Denison to Dallas and back?
A. The way we start out is Denison to Dallas. We go
down of a morning and stay in Dallas all day and come back
318
that night on the Bine Bonnet. The next day we come to
Fort Worth on the Blue Bonnet and go down of a morning
and come back that evening, and the next day, the third day,
we go down to Fort Worth on the Katy Flyer, or 25, and
back, in continuous service, on train 24, and the fourth day
we lay over. There are four of us in that pool.
Q. Now, are there any Pullman cars on any of those trains
that are known as porter in charge cars that don’t have
Pullman conductors ?
A. Yes, sir, on the No. 11, of the Blue Bonnet South on
the Fort Worth side.
Q. Do the other trains that you operate on have Pullman
conductors, though, in charge of the Pullmans ?
A. Yes, sir.
Q. Have you ever worked on any other runs as a train
conductor in which there was a Pullman car without a Pull
man conductor in charge of it, a porter in charge run?
[fol. 460] A. I have worked some between Wichita Falls
and Whitesboro where no Pullman conductor was on the
car, just a Pullman porter.
Q. That was before your present runs ?
A. It was during the time that the man over there was
off and I took his vacancy.
Q. Now, are the Pullman cars fixed so they can be locked
with a key ?
A. Yes, sir.
Q. Who carries the key to those Pullman cars?
A. The Pullman porter and the Pullman conductor, I
suppose.
Q. You don’t have a key?
A. I did have one and they made me give it up.
Q. Do you recall any instance of the car being locked by
the Pullman porter so that you couldn’t go back through
the Pullman car?
A. Yes, sir. Occasionally in Denison where they are
shifting the train porters, probably some of them are off
duty and those that are off duty will lock their cars so
people can’t get in and out, and I have found those doors,
those cars locked.
Q. That confines you, then, up to the part where the chair
cars and coaches are and the baggage car?
A. Yes, sir, except you can punch a button and they will
come and let you in.
319
Q. But you have to depend on the Pullman porter coming
and unlocking the door and letting you in?
A. Yes, sir.
Q. Now, have you observed these porters in charge to
some extent on your run, going back there occasionally?
A. Not very closely. I generally go back and do my work,
[fol. 461] Q. Then have you observed the cars and the con
ductors where they have a conductor in charge, a Pullman
conductor, I mean, have you observed them and their work ?
A. I have worked with them, yes, sir.
Q. Now, do you recall any instances, particularly on that
run through Whitesboro up towards Wichita Palls, of
lady passengers being on the car where there is just a porter
in charge and something unusual occurring that attracted
your attention?
A. I remember on one occasion we didn’t have any pass
engers out of Wichita Palls, and when we got to Henrietta
we picked up a woman. I went back before we got to
Nocona and got her transportation. The porter waited for
me, and he got his transportation at the same time. I went
to the rear end of the car and when I came back she asked
me if that was all the passengers that was on the car, and
I told her that she was the only passenger.
Q. You were the train conductor?
A. Yes, sir.
Q. All right.
A. And she spoke about the business and one thing or
another, and she said she believed she would rather ride
over ahead if she was going to be back there by herself, and
I told her there was probably room over there for her in the
chair car. And I worked on ahead all the time, and leaving
Nocona I noticed she was over in the chair car and stayed
there until we got nearly to Whitesboro.
Q. Did she express herself as being afraid to be back
there in the Pullman with the porter?
A. Not in that way. She said it was rather lonesome
[fol. 462] back there, looked rather lonesome. She made
no complaint about that.
Q. Now, during that interval when you were working as
chairman for the Order of Railway Conductors, do you re
member an instance similar to that of a lady being on a car
where there was a porter in charge ?
A. Yes, sir.
320
Q. Tell the Court about that incident.
A. Well, coming out of Oklahoma City when they had
the car that set out—that is, it built up the train at Okla
homa City—the train conductor or train crew went on duty
about 11:00 o ’clock. The Pullman porter opened up the
Pullman car at 9:00 or 9:30 and loaded passengers for
Muskogee, or down the line. So I went down and got in
that car going to Muskogee and when I went in there there
was a lady sitting up in the front end of the car and I
sat down in the rear end of the car. The porter was on
the outside when I went in, and of course he came in and
went to making down berths. He made down two or three
and the lady got up and looked around a little and she came
back and introduced herself to me and told me she was
going to Muskogee and wanted to know where I was going
and all about me, and then she; apologized for trying to
form my acquaintance or make the inquiry she had made,
but she said she was planning to go home but didn’t like
to go to bed with a negro porter there, and she went out
then and went over to the depot, and I went to bed, and the
next morning I saw her get off at Muskogee, and I did too,
but this other passenger was all.
Q. Now, Mr. Beamer, basing your answer that we are
now asking for on your experience, is it your opinion that
[fol. 463] it is necessary for the safety and welfare of the
passengers on a sleeping car that there be a, Pullman con
ductor in charge of the car in addition to a Pullman porter ?
Mr. Graves: Now, just a minute. May it please the
Court, we object to his expressing an opinion as to the ulti
mate fact to be decided by the Court.
Judge Sibley: That looks like it is objectionable. Do
you wish to argue it!
Mr. Rotsch: No, we don’t wish to argue it.
Judge Sibley: Exclude the evidence.
Q. Mr. Beamer, have you ever regulated a ventilating
system in a Pullman car when you were on the train as train
conductor?
A. No, sir.
Q. Do you know anything about the ventilating system
of Pullman cars ?
A. No, sir.
Q. Do you exercise authority over the ones in charge of
the Pullman car, that is, the Pullman conductor or the
321
porter in charge, whichever it happens to be! And by that
I mean what do you actually do! Do you give them orders,
tell them how to do, or do you just leave them to operate as
they see fit! Tell us about that.
A. I have never instructed a Pullman employee to do
anything. I would if they were to call on me to assist them
in ejecting a passenger or anything of that nature.
Q. Well, do you, as far as the actual operation is con
cerned, do you supervise the Pullman car or do you leave
the supervision of the Pullman car entirely up to the Pull
man employee !
A. Inside of the car I leave it up to the employees.
[fol. 464] Q. And do you go on the basis that that is your
job and you don’t butt in on it, is that right!
A. Yes, sir, that is right. But I would like to qualify that
statement a little.
Q. All right.
A. If it is permissible. It has been stated here that a con
ductor is a captain of the boat from the Pilot to the rear
end of the train, which is always considered true. But that
applies, as I understand it and always have, to the opera
tion of the train and the conduct of the employees on the
train. Now, when it comes to the engineer, when it comes
to the operation of the train, we try to cooperate with him,
or in other wrnrds, at times instruct him what we want him
to do. When it comes to the mechanism of the engine, tell
ing him how to operate or run that engine, we don’t do
that, and if he has a man failure we don’t report him and
he doesn’t report it to us. The same way with the mail and
express men and the dining car system. We don’t go in the
dining car and give them any instructions at all. That is a
separate department. And if one conducts himself unbe
coming or anything of that kind I would try to handle it,
and the same way is true with the Pullman people. We
haven’t got any book of instructions or rules or we don’t
know anything about their rules or instructions, but we do
know about what we would do or try to do in case of im
proper conduct or if they were to call on us to help them.
Q. Mr. Beamer, you have observed the porters and Pull
man conductors and those porters designated as porters in
charge. Do you have an opinion on whether you would have
a preference as to who you would place members of your
21—283
322
[fol. 465] family in charge of, particularly the women mem
bers of your family, if you were sending them on a trip?
A. Well, I would say this, if I was to go down to a place
to send any members of my family, which is four daughters
and a wife, and there were two trains standing there ready
to go the same place and one had a Pullman porter in charge
and one had a Pullman porter and conductor, I would put
them on the one with the Pullman conductor.
Q. The one with the conductor?
A. Yes, sir.
(Witness excused.)
(The Court then, at 12:05 p. m., Tuesday, February 20,
1940, recessed until 2:00 p. m., of the same day, at which
time the following proceedings were had:)
[fol. 466] Tuesday, February 20, 1940
Afternoon Session, 2:00 o ’clock
W. L. B eamer, a witness called by the defendants, re
sumed the witness stand, and testified as follows:
Cross-examination.
Questions by Mr. Graves:
Q. Yon are an M. K. & T. Railroad conductor?
A. Yes, sir.
Q. A passenger conductor?
A. Yes, sir.
Q. Do you have a copy of the book of rules governing the
operation of trains ?
A. I have one at home, yes, sir.
Q. The company has furnished you with one?
A. Yes, sir.
Q. And they furnish the same rules to all conductor-, do
they not?
A. Yes, sir.
Q. You endeavor to enforce those rules on your train?
A. Well, yes, sir; we try to carry them out.
Mr. Graves: That is all.
(Witness excused.)
323
C. E. L owery, a w itness called by defendants, having been
duly sw orn, testified as fo l lo w s :
Direct examination.
Questions by Mr. Rotscli:
Q. What is your name?
[fol. 467] A. C. E. Lowery.
Q. How old are you?
A. Sixty-three.
Q. By whom are you employed?
A. M. K. & T. Railroad Company.
Q. How long have you been an employee of the M. K. & T.
Railroad Company?
A. My service record shows from 1892.
Q. Continuously?
A. Yes, sir.
Q. Up to the present time?
A. Yes, sir.
Q. What position and line of work are you in now for the
M. K. & T. Railroad?
A. Passenger conductor.
Q. How long have you been a passenger conductor?
A. Approximately twenty years.
Q. By ‘ ‘ passenger conductor ’ ’, you mean train conductor ?
A. Yes, sir.
Q. Where do you live?
A. San Antonio.
Q. What run are you on at the present time as a passenger
train conductor?
A. North-bound I leave San Antonio at 1 :30 in the after
noon and arrive at Waco at 7 :00 o ’clock; and returning, I
leave Waco at noon and arrive at San Antonio at 4 :30.
Q. Your run consists of San Antonio to Waco, and re
turn?
A. Yes, sir.
Q. On that run are there any Pullman cars on your train?
[fol. 468] A. Yes, sir; north-bound there is one Pullman
car; south-bound there are regularly three.
Q. Is there what is termed a porter in charge any time on
that Train? That is, is there a time when there is no Pull
man conductor, but only a porter in charge of the car ?
A. That would be the north-bound train from San Antonio
to Waco.
324
Q. This north-bound train is a local train, is it?
A. Yes, sir.
Q. It stops at the smaller places ?
A. Yes, sir.
Q. Tell the Court what your duties are and what you
actually do when the train stops at these stations.
A. Well, if the brakeman is on the rear end, I work the
trap for the white people to get on and off the train, and I
watch the loading and unloading of the mail, baggage and
express, and either authorize or give the proceed signal
for the train.
Q. You say you watch the place for the white people
to get off and on the train?
A. Yes, sir.
Q. How many cars are there on that train that carry white
people ?
A. The chair car is exclusively white, and the day coach
is a “ Jim Crow” car—that is, it has two compartments, one
for white and one for colored.
Q. One for white and one for Negoes?
[fol. 469] A. Yes, sir.
Q. And there is a Pullman in addition to that?
A. Yes, sir.
Q. Is the Pullman on the rear of the train?
A. Well, not always. At the present time it rides on the
rear.
Q. When you are watching the people get on and off, do
you stand up by the chair car and coach where they get off?
A. I am usually close to the mail car.
Q. How far is that from the entrance where the people
get on and off the Pullman car ?
A. Well, possibly the Pullman car would be the fourth car
back.
Q. Who watches and takes care of the people who get on
and off the Pullman car on your train?
A. The porter, I notice, usually puts his box down and
loads and unloads the passengers.
Q. When you make stops at small places like Georgetown,
—that is one place you go through ?
A. Yes, sir.
Q. And other towns, and somebody gets on the Pullman
car, do you know of your own knowledge when they get on
that Pullman car?
A. Not always.
325
Q. You mean that you are so busy at the front end of
the train you can’t watch all of it!
A. I would not pay so close attention to that as to the day
coaches, because I expect the Pullman employees to take
care of that.
Q. When that train starts, you don’t know whether or not
someone has gotten on the Pullman car, or not!
[fol. 470] A. No, sir; not positively.
Q. Now, what do you do, and what are your actual duties
when the train starts and is in motion from one town to an
other town !
A. I pass through the coaches always to see if any pas
sengers got on,—usually on information from the brakeman,
if he works the trap. If he does not, I am in position to know
who got on there.
Q. Do you supervise the chair cars and the coaches where
passengers ride,—that is, the cars where passengers ride,
other than the Pullman, personally, and go through them
quite often!
A. Yes, sir.
Q. Tell the Court whether or not you personally super
vise the Pullman car, or do you leave that up to the Pullman
employees!
A. Well, I figure the passenger there is the Pullman Com
pany’s passenger, and it is their business to look out for
them up to the point where something unusual might occur.
Q. Are the Pullman cars fixed so that the door can be
locked!
A. I believe there is a night latch. You can open the door
with the knob from the inside, but not from the outside.
Q. It takes a key to open it from the outside when it is
locked?
A. Yes, sir.
Q. Do you carry a key!
A. No, sir.
Q. Have you known of instances when it was locked so
that you could not have gotten in there if you had wanted
to get in there quickly?
[fol. 471] A. A few times I have found them locked when
I didn’t expect it. I have authorized them to lock the door.
Q. Do you go back there if they come up—if some of the
Pullman employees come up to the front of the train and
ask you to go back there because of some unusual circurn-
326
stance, do you make a special trip and go back to the Pull
man car?
A. Yes, sir.
Q. Do you recall any instances, or did it ever happen that
you went back there because of the misconduct of passen
gers, particularly between men and women?
A. Yes, sir; in several cases in the past ten or fifteen
years.
Q. Don’t give all of them, but pick out one instance as
to misconduct between men and women, and tell the Court.
A. Well, the most recent case, I think, was something like
seven or eight months ago the Pullman conductor came over
to me and told me that there was either a man or a lady in
the wrong berth, and we went back together and pulled on
the curtain of the berth and asked if there were two pas
sengers in there, and the man said there was, and I said,
“ I want the other ticket,” and he said, “ I belong in the
other berth across the aisle.”
Q. Was that a man and wife?
A. They were riding on government orders under dif
ferent names and had purchased separate berths.
Q. What did they do then?
A. He readily crossed over, and I heard no more about it.
[fol. 472] Q. He got out of the berth he was in?
A. Yes.
Q. Now, your line that you run on from San Antonio to
Waco goes through Austin, which is the capital, and where
the University of Texas is located?
A. Yes, sir.
Q. Do quite a few students ride on your train?
A. Well, at the opening and closing of school and during
the football season, quite a number.
Q. Before I go into this question of the students, let me
ask you,—do people who are intoxicated by excessive use
of liquor sometimes get on your train?
A. Quite often.
Q. Does that give trouble to the people in charge of the
train?
A. There is a good deal of difference in drunks. Some are
good natured and jolly fellows, and others want to fight
and bother other people.
Q. State whether or not people in general have the re
spect for Pullman porters that they do for the train con
ductor and the Pullman conductor?
327
A. My opinion is I don’t think so.
Mr. Graves: I think that is a matter not within his prov
ince, and we object to it on that ground.
Judge Sibley: If he knows about it, I guess he can tell
it. We all have our ideas about it.
Q. What was your answer?
A. In my opinion, they do not.
Q. You don’t think they have the respect for the Pull
man porter that they do for the Pullman and train con
ductors ?
[fol. 473] A. No, sir.
Q. Do you recall any instance where persons showed their
disrespect to Pullman porters to such an extent that the
Pullman porter had to leave the car?
A. Well, I don’t know whether you would call it disre
spect or not. I had one drunk run the porter through six
sleepers and the chair car where I was, and asked for
help.
Q. When was that?
A. About a year ago.
Q. Where was this Pullman porter stationed at the time?
A. I believe he was in the rear car.
Q. You were up in the front part of the train?
A. Yes, sir.
Q. What did you do when he ran up to you, and what was
the situation?
A. I had advance notice before that there was some trou
ble, because the Pullman conductor had told me that he
and the porter had to pull this man off the brakeman, but
he said he thought the trouble was settled. I did not see
the man, but an hour or so after I left Austin, the porter
ran into the coach where I was, and said there was a man
back there raising a row and said he was going to kill him,
and immediately I looked up, and the man was right be
hind him.
Q. Did you prevent the man from killing the porter?
A. I told the porter to go back and lock his door, and I
kept the man in the car where I was.
[fol. 474] Q. It was a white man?
A. Yes, sir.
Q. What time of the night was this?
A. It was 2:00 or possibly a little later.
Q. In the morning?
328
A. Yes, sir.
Q. Was the train carrying a Pullman conductor at that
time?
A. Yes, sir.
Q. But was that conductor on duty, or was he taking this
interval when they are off duty, and he was asleep on the
train ?
A. He was off duty at that particular time.
Q. And the one on duty was just the Pullman porter on
the Pullman car ?
A. That is the way I understand it.
Q. Now, do you have any trouble from the students?
Something was said about students.
A. Well, they are rather boisterous, I would say, more
in a mischievous way, and very destructive, that is, in
crowds.
Q. In addition to the University of Texas students, there
are the Baylor students out of Waco?
A. And the S. M. U. and T. C. U. students.
Q. The S. M. U. students out of Dallas and the T. C. U.
students out of Fort Worth?
A. Yes, sir.
Q. You haul quite a few of those on your run?
A. Yes, sir.
[fol. 475] Q. During the holiday seasons how many stu
dents are sometimes on your train ?
A. It varies from 150 to 300.
Q. You mean there are sometimes as many as 300 on
the chair cars and coach cars?
A. We have sometimes four or five or six coaches and
chair cars. Sometimes we have as high as twelve or four
teen cars under those conditions.
Q. When you get several coaches or chair cars like that
and an extra number of students like that on account of the
rush or holiday season, how much actual time and actual
supervision do you devote to the Pullman cars between
Waco and Austin or Austin and Waco?
A. Well, with crowds like that and that length of train,
I can’t give it much attention.
Q. How many times do you get back there going from
Austin to Waco?
A. I might not go back any more after I take up the
Pullman transportation, under those conditions.
329
Q. You mean you only get back there one time during
that trip?
A. That would be possible during a trip of that kind.
Q. How far is that trip ?
A. 109 miles.
Q. How do these students get along with the Pullman
porters?
A. As a matter of personal knowledge as to what might
occur between the two of them, I don’t know.
[fol. 476] Q. Now, is there any equipment or mechanism
or machinery on the cars that some of these students some
times meddle with when they have a mischievous mood on?
A. Well, they will take the fuses out of the lights and take
the globes out of the lights; and the worst thing they can
do is set the emergency brake by pulling the cord that
runs the entire length of the train.
Q. Does it take much of your time and attention to see
that that is not done?
A. There is not much we can do about it until it happens.
Q. Can that happen on the Pullman car as well as on the
chair car?
A. Yes, sir; there are emergency cords on all of them.
Q. That cord runs all the way the length of the train?
A. All the way the length of the chair cars and coaches.
I am not sure about the Pullman, but there is a cord attach
ment in there which operates the emergency valves.
Q. Do you know of any instances, of your own knowl
edge, where some mischievous students interfered with
the machinery and created quite a bit of trouble?
A. That practically happens on every train where a large
bunch of them ride.
Q. Give us a specific instance.
A. I was on the regular train out of here at 1:20, and
they were running a special just ahead of us, and they
had been pulling the air on the train and stopping it a num
ber of times. Of course, we did not know how far they
were ahead of us at that particular time, and in one place
[fol. 477] they stopped the train, and we came near run
ning into them.
Q. How close did you come to running into them?
A. We were not more than ten feet from the rear of the
train when the engine stopped.
330
Q. Now, do you think that a Pullman conductor on sleep
ing cars where there is only one sleeping car on the train
serves any purpose?
A. Well, he has his paper work and the supervision of
anything that goes on back there, and the car and passen
gers all come under his duties.
Q. Do you think a Pullman conductor under those cir
cumstances is necessary?
A. I think it would be much better.
Q. Prom what standpoint?
A. I would feel like I had less responsibility back there,—
that the situation would be better taken care of.
Q. And the safety of the passengers and the train better
taken care of?
A. Yes, sir; that is my opinion.
Q. Let’s get back to what you do in actually supervising
a Pullman car. When you do get back finally to the Pull
man car, if you see anyone smoking there, would you take
it upon yourself to have them quit smoking?
A. No, sir.
Q. You don’t take that responsibility?
[fol. 478] A. No, sir.
Q. Has a Pullman porter ever called your attention to
drinking and smoking and incidents like that in the Pullman
car? I mean except where it got so bad they run the Pull
man porter out of the car.
A. You mean particularly smoking?
Q. Yes.
A. I never had any employee of the Pullman company
complain of passengers smoking to me and ask me to stop it.
Q. Has a Pullman porter ever called your attention where
there is a Pullman porter in charge and no conductor, when
they have any misconduct of passengers, except in an in
stance where he is actually run out of the car—has he ever
called you back?
A. It has only been about a year where I have been work
ing where there was not a conductor in charge, and that was
a daylight run, and a daylight run there is lots less drinking
than on night runs.
Q. If there has been any misconduct in violation of the
rule, where the Pullman porter is in charge and there is no
conductor, he has not called it to your attention, but it has
just continued without your being called back there?
A. If there has been any, I didn’t know it.
331
Q. Do you take it upon yourself to go back and make a
sanitary inspection of the Pullman cars ?
A. No; I figure that that is under the jurisdiction of the
Pullman Company and that they will look after it ; and they
are under my direction the same as the baggage man or
[fol. 479] the mail clerk or the engine crew, as particularly
applied to their conduct, but not as to the technical work.
Q. Do you go back there and regulate the heat and ventila
tion?
A. No, sir.
Q. You leave that up to the Pullman employees?
A. Yes, sir.
Q. How many employees are there on the train that you
operate on?
A. Well, north-bound, it would be one Pullman porter,
myself, a brakeman, and train porter. That is the operating
crew besides the engineer and fireman. Of course, there are
the dining room employees, the baggage man, and the mail
clerk.
Q. On the chair cars the ones that attend to the passen
gers are the train conductor, the brakeman, and the train
porter ?
A. Yes, sir.
Q. The train porter, an M. K. & T. employee, as well as
the Pullman porter?
A. Yes, sir.
Q. And there is one chair car and one coach that has com
partments for colored and white people together?
A. Yes, sir.
Q. And then on the Pullman car where there is a porter in
charge only, on your run there is just a porter in charge?
A. Yes, sir; that is right.
Q. How many passengers ride in the Pullman cars both
ways on your train?
[fol. 480] A. Well, it is hard to say what the average
would be; but I take it out of Austin in the last few months
it has been running from 10 to 28 in one car. I don’t know
what the general average would figure up.
Q. Now, one other point. Tell us the accommodations and
the equipment in the chair car on the present M. K. & T.
train that you operate on.
A. Well, we have chair cars that are practically new, and
I would say were the last word. There are inclined chairs
with plush upholstery, and a ladies’ smoking room in one
332
end and a men’s smoking room in the other, and running
water, and tables to put up between the seats on which they
serve their meals.
Q. The meals are served in these chair cars ?
A. Yes, sir; we furnish them pillows day and night on re
quest free.
Q. Now, this is not the Pullman, but the M. K. & T. chair
car?
A. Yes, sir.
Q. Is it air conditioned?
A. Yes, sir.
Q. How does that compare with the Pullman car ?
A. For daylight travel I would prefer it to the Pullman
car.
Q. Is the physical equipment as comfortable?
A. The arrangements of the seats are different, but I
should think more comfortable.
Q. In the chair cars ?
A. Yes, sir.
Q. Nicer seats and nicer equipment?
[fol. 481] A. Yes, sir.
Q. What does the Pullman car have that the chair car does
not have ?
A. Well, they have magazines and writing paper, and
some of the lounge cars that the Pullman passengers use are
equipped with radios.
Q. That is all you can think of additional that they have
that the chair cars do not have?
A. I don’t know of anything else.
Q. Then there is the train conductor, the brakeman, and
the train porter in charge of the chair car?
A. Yes; we are all up there.
Q. Were you served with a subpoena to come up here and
testify?
A. Yes, sir.
Mr. Eotsch: That is all.
Cross-examination.
Questions by Mr. Graves:
Q. You have a copy of the railroad rules, have you not?
A. Yes, sir.
333
Q. You endeavor to see that the rules are complied with
on your train?
A. Well, not absolutely.
Q. You don’t try to see that they are complied with?
A. Under certain conditions I would be rather lenient in
the application of certain rules.
Q. Do you or not endeavor to comply with the rules in the
way that the company construes the rules and attempt to
have them carried out?
[fol. 482] A. I would try to comply with them in the way
that they would approve of.
Q. Now, in answer to a question a moment ago, you said
that in the chair car of the train, there was the conductor,
the brakeman, and the porter in charge?
A. We are working on that end of the train. I am in
charge of the train.
Q. You are in charge of the whole train, are you not?
A. That is right.
Q. On this afternoon train that passes through here at
3:55 going north to Dallas and Fort Worth, that is the
train that you are running on now ?
A. Yes, sir.
Q. It leaves San Antonio when?
A. 1:30 in the afternoon.
Q. Who takes up the transportation of the passengers in
the Pullman car in that train?
A. I take up the transportation—the railroad transpor
tation. The porter takes up the Pullman transportation.
Q. You are together when that is done?
A. As a rule, wTe work together, yes, sir.
Q. So that when the train stops and a passenger enters
the Pullman car, do you go back there then and get his
ticket ?
A. If I knew he was on there, yes, sir.
Q. How do you happen to find out ?
A. I would expect the porter or brakeman or somebody
to tell me that he was back there. In the absence of that, I
would expect the Pullman porter to bring the ticket or
notify me.
[fol. 483] Q. The Pullman porter?
A. Yes, sir.
Q- If a passenger got on your train at San Marcos, or
Georgetown, or Austin, you would not know about it un
334
less either the brakeman or the Pullman porter came up
and told you about it?
A. En route I would go back and check with him to see
if our lists corresponded. That is our instructions. Either
with whoever is in charge or the conductor. Our instruc
tions are to check frequently to see that we are together
on the number of passengers in the Pullman.
Mr. Graves: That is all.
Mr. Eotsch: That is all we have.
Mr. Morgan: We have a large number of witnesses who
have not been here before. Shall we have them all sworn
at the same time?
Judge Sibley: I wish you would; it will save time.
(Thereupon witnesses were sworn.)
M bs. H. B. S h a n k , having been called as a witness by
intervenors, having been duly sworn, testified as fo llo w s :
Direct examination.
Questions by Mr. Morgan:
Q. What is your name ?
A. Mrs. H. B. Shank.
[fol. 484] Q. Where do you live?
A. Fort Worth.
Q. What business is your husband engaged in?
A. In the general insurance business.
Q. Have you any children, Mrs. Shank?
A. I do.
Q. How old are they?
A. They are now eight and ten. Last year they were
seven and nine.
Q. Both little girls?
A. Yes; they are.
Q. Do you have occasion to travel on the Pullman trains?
A. Yes, sir, I do.
Q. Do you do that extensively?
A. Yes, sir, I do.
Q. Have you had occasion recently to go to the western
coast and to the eastern coast a great deal on Pullmans?
A. Yes, sir.
335
Q. When yon travel on the Pullman car, do you realize
that you are required to pay an additional charge to the
railroad company of at least one cent per mile, and then
in addition to that you pay for the privilege of riding in
the Pullman car; you understand that ?
A. Yes; I do.
Q. Over and above a charge that is made for the privilege
of riding in the chair car?
A. Yes; I do.
Q. Now, when you have occasion to use a Pullman car,
[fol. 485] you expect to find a Pullman conductor on the
train ?
A. Yes; indeed, I do.
Q. If you had occasion to use the Pullman where there
was no Pullman conductor in charge of the train, but only
a porter in charge of the Pullman, would you ride on
the Pullman?
Mr. Graves: In order to be consistent, we make the ob
jection that that is not the criterion by which any issue
in this case may be decided, and we object to it on that
ground.
Judge Sibley: I really do not know what the Railroad
Commission’s function is about these Pullman matters. It
has been indicated that some court has ruled that they do
not have any. If that is the law, it puts this case in one
shape; but if they have the right to regulate the service
on a Pullman, I suppose what the public wants and demands
might have some relevancy. I am unfortunately not fa
miliar with your law.
Mr. Graves: Of course, that is a disputed issue.
Judge Sibley: Maybe we had better hear the evidence,
and see what we will do with it afterwards.
Q. The question was, would you ride on the Pullman
car if only a Pullman porter were in charge of the car?
A. I don’t think so. I don’t know that that has been the
case, but if it has, I certainly would not have ridden on
the Pullman car with only a porter in charge if I had
[fol. 486] known it.
Q- I f you should have occasion to send you r children on
the train, to whom w ould you com m it those tw o little g irls
for safe transportation?
A. I would put them in charge of a conductor.
Q- You mean a Pullman conductor?
336
A. The Pullman conductor, yes, sir, on the Pullman car.
Q. Would you think the little girls are safer in charge
of a Pullman conductor than they are in charge of a Pull
man porter?
A. I would expect them to be.
Mr. Morgan: That is all.
Cross-examination.
Questions by Mr. Graves:
Q. You are a resident of Port Worth, aren’t you?
A. Yes, sir.
Q. You are a good friend of Mr. Morgan’s?
A. Yes, sir; I am.
Q. The attorney in this case?
A. Yes, sir.
Q. You came to the Railroad Commission hearing at
his request?
A. Yes, sir; I came to the Railroad Commission hearing
at his request.
Q. And also to this trial?
A. Yes, sir. I am very pleased to come at his request.
Q. Are you a native of Texas?
A. I am.
Mr. Graves: That is all.
(Witness excused.)
[fo l. 487] Mbs. R. P. L ightfoot, a w itness called by in-
tervenors, having been duly sworn, testified as fo l lo w s :
Direct examination.
Questions by Mr. Morgan:
Q. State your name.
A. Mrs. R. P. Lightfoot.
Q. Where do you live?
A. 2402 Rio Grande Street, Austin, Texas.
Q. You live here in Austin, Texas?
A. Yes, sir.
Q. Are you the daughter of Judge Smith of Fort Worth?
A. Yes, sir.
337
Q. I believe you were born in Waxahachie; is that cor
rect!
A. Yes.
Q. Have you had occasion to ride on the trains—the Pull
man cars in particular!
A. Yes; I went to school in the north, and lived in the
north a good many years, and commuted back and forth a
good deal.
Q. Did you in your experience in commuting on Pullman
cars, did you have occasion when you and your children
were particularly in need of the service of a conductor-
A. When I was a young woman, I had a baby verv, very
ill on a train.
Q. Where were you going then!
A. To Chicago.
Q. Prom where!
A. Prom Fort Worth.
Q. You got on the train at Fort Worth!
[fol. 488] A. Yes, sir.
Q. Your baby became ill!
A. Yes, *?ir.
Q. Whereabouts was that!
A. He became slightly ill about through Missouri or
about the top of Oklahoma.
Q. How old was the baby!
A. He was still a baby, just toddling around.
Q. What did the Pullman conductor do to assist you!
A. The doctor said the child would never have lived if
it had not been for him.
Q. What did he do!
A. He sent the porter for hot water and put hot appli
cations on the child, and then when the child looked like
he was dying, he gave it artificial respiration and tele
graphed ahead for a doctor to be in the St. Louis yard to
take charge of it.
Q. You say that he did administer artificial respiration!
A. Yes, sir.
Q. Did he stay in the compartment or berth with you!
A. Yes; he stayed right by my side until the doctor had
relieved him of the child, and he also held the train until
the medicine could get there.
Q. Was that at your request or your suggestion!
A. I was too frightened to know. The Pullman conductor
did that for me.
22—283
338
Q. And you think the service he rendered to you probably
saved the life of your baby?
[fol. 489] A. The doctor said so.
Q. Do you think a Pullman porter could have done the
same thing for you?
A. Well, I thought I was pretty well equipped to attend
to my child, but I was not; so I would not think a porter
would be. This man knew more than I did.
Q. You' live out here by the University, do you not?
A. Yes.
Q. You have occasion to see University boys and girls a
great deal?
A. I have been here five years.
Q. You have a boy in school here?
A. Yes.
Q. Do you think the boys and girls pay much attention to
a Pullman porter?
A. Well, that is hard to say. There are certain classes
of children, as well as porters; but an obstreperous child
does not pay any attention to anyone, unless they know it
has authority; and I shouldn’t think they would pay much
attention to someone whom they had been taught form in
fancy that they did not have to pay attention to.
Q. If you had occasion to ride on a Pullman car, would
you feel safer if you had a Pullman conductor in charge than
if you only had a Pullman porter in charge?
A. I would feel very much safer.
Mr. Morgan: That is all.
Mr. Graves : No questions.
(Witness excused.)
[fol. 490] Mr. Morgan: We would like to have Miss Betty
Johnson, please.
Miss B etty J ohnson , a witness for defendants, having
been duly sworn, testified as follows:
Direct examination.
Questions by Mr. Morgan:
Q. Miss Betty, where is your home?
A. Los Angeles, California.
339
Q. Are you a student now in the University of Texas?
A. Yes, I am.
Q. How many years have you been there?
A. This makes the fourth year.
Q. Well, you are a graduate, then; you are a senior this
year.
A. Yes, I am.
Q. Miss Johnson, have you had occasion to ride on Pull
man trains a great deal?
A. Yes, sir.
Q. How often do you go to and from California from
Texas?
A. Usually about twice a year.
Q. When you do this traveling, do you go by Pullman car?
A. I have most of the time.
Q. Miss Betty, when you do travel on a Pullman car, do
you realize that you are required to pay an addition to’the
tram fare an additional one cent per mile and then an addi-
[fol. 491] tion to that for riding on the Pullman?
A. Yes, sir.
_Mr. Graves: It is an immaterial matter, Your Honors, for
this purpose, and I am sure counsel does not want to mis
represent the record at all, but as a matter of fact, the basic
differential is one cent between three cents and two cents
but those are merely basic rates, and it doesn’t mean that in
every instance or in the majority of instances that the dif
ferential is one cent per mile.
Judge Sibley: It is probably really competitive at the
bottom.
Mr. Graves: Yes, sir, that is correct.
Judge Sibley: All right, go ahead.
Q. Now, Miss Johnson, in «rding these trains have you
ever m your experience had occasion for some of the pas
sengers on the train to make advances towards you?
A. Yes, sir, I have.
Q. To whom did you look to for your protection in such an
event ?
A. I went to the Pullman conductor.
Q. Have you in your experience in riding on Pullman
trams, Miss Betty, witnessed drinking on the part of passen
gers on the cars ?
A. Yes.
340
Q. Has that been considerable amount or just a small
amount ?
A. A great deal.
Q. When you get on the Pullman car, Miss Betty, to whom
do you look for your safety and protection?
[fol. 492] A. Well, directly, I look to the Pullman conduc
tor.
Q. Well, do you look to the Pullman conductor or do you
look to the Pullman porter ?
A. No, I don’t look to the Pullman porter; he merely helps
me.
Q. What do you expect the Pullman porter to do for you,
Miss Betty, when you get on the train?
A. Well, I expect him to make the bed, to help me with my
bags, putting them in the train and out of the train and to
help me—if I happen to be in an upper berth to help me
get up to the upper berth.
Q. Well, for any other service on the train to whom do you
look, then?
A. To the Pullman conductor.
Q. Miss Betty, would you feel as safe on the train if there
is only a Pullman porter in charge of the train, as you would
if there was a Pullman conductor ?
A. No, I don’t think I would.
Mr. Morgan: That is all.
Mr. Graves: That is all.
Mr. Morgan: By the way, one question, Miss Betty.
Q. Do you say you did encounter this drinking and im
proper advances to you on more than one occasion or just
one?
A. Just once.
Q. What did you do?
A. Well, I didn’t know what to do at first; it was about
three years ago when I was a freshman here, and the only
thing I could think to do was to go to the Pullman conductor
[fol. 493] and ask him to have the men stop drinking or else
retire to another place to do so.
Mr. Morgan: All right. That is all.
(Witness excused.)
Mr. M organ: Mrs. Vardell, please.
341
M bs . P at V abdell , a witness for defendants, having been
duly sworn, testified as follows:
Direct examination.
Questions by Mr. Morgan:
Q. Your name is Mrs. Pat Vardell?
A. Yes.
Q. You live here in Austin?
A. Yes, I do.
Q. How many children do you have, Mrs. Vardell?
A. I have two.
Q. Have you ever had occasion to send those children
when they were at a tender age by train?
A. I did; I sent them to Mississippi from Fort Worth.
Q. To whom did you commit those children for safe
transportation?
A. To the Pullman conductor.
Q. How old is your little girl now, Mrs. Vardell?
A. She is 13 now.
Q. If you had occasion to send her to any point across
Texas on a Pullman car to whom would you commit her for
safe transportation?
[fol. 494] A. To the conductor.
Q. Would you send her if there were only a Pullman
porter in charge of the cars ?
A. I don’t think I would.
Q. If you are traveling on a Pullman train yourself, Mrs.
Vardell, to whom do you look for your safety and protec
tion?
A. To the conductor.
Q. Would you feel as safe if you knew that there was no
conductor on the train, and only a porter on the train?
A. No, I wouldn’t in any emergency.
Q. Have you ever had the train conductor to render to
you any service on the train, Mrs. Vardell, when you were
in a Pullman car? By the train conductor, I mean the
man up in front of the chair car—the conductor up there.
A. Not when I was riding in the Pullman.
Mr. Morgan: That is all.
Mr. Graves: No questions.
(Witness excused.)
Mr. M organ: W e will take John Roberts.
342
J ohn R oberts, a witness for defendants, having been duly
sworn, testified as follows:
Direct examination.
Questions by Mr. Morgan:
Q. Yonr name is John Roberts?
A. Yes, sir.
Q. Where do yon live, John?
A. San Antonio.
[fol. 495] Q. Are you a student now in the University?
A. Yes, sir.
Q. Have you had occasion to ride on Pullman cars, John?
A. Yes, sir.
Q. What year is this for you in school?
A. This is my fifth year.
Q. What do you study?
A. Law.
Q. John, you have been out at the University for five years
and you know the students pretty well, don’t you?
A. Yes, sir.
Q. Prom your experience with those students—have you
ever had occasion to go on special trains with students,
football specials and things of that kind?
A. Yes, sir.
Q. John, do you think that the students would listen
to any correction from—on the part of a Pullman porter?
A. Well, do you mean would they obey him?
Q. Yes, sir.
A. I believe they would.
Q. You think they would?
A. Yes, sir.
Q. Do you think they would be more likely to obey a Pull
man conductor than they would a Pullman porter?
A. Yes, sir.
Q. John, do you think that—you know that there is a
great deal of drinking going on on trains, don’t you?
A. Yes, sir.
Q. Do you think the women folks would be safer on the
train if there was a Pullman conductor in charge than they
[fol. 496] would be if there was only a Pullman porter?
A. I believe so.
Mr. M organ : That is all.
343
Cross-examination.
Questions by Mr. Graves:
Q. How old are you?
A. Twenty-two.
Q. Were you born in San Antonio?
A. No, sir.
Q. Where were you born?
A. Born in Crowell, Texas.
Q. Crowell?
A. Crowell, Texas.
Q. Crowell, Texas?
A. Yes, sir.
Q. How many students are there in the University of
Texas now?
A. Oh, over 10,000, about 11,000.
Mr. Graves: That is all, Mr. Morgan.
(Witness excused.)
Mr. Morgan: We will take Miss Dorothy Dorman.
Miss D orothy D orman , a witness for defendants, having
been duly sworn, testified as follows:
Direct examination.
Questions by Mr. Morgan:
Q. Miss Dorman, where do you live?
A. Dallas.
Q. Are you a native of Dallas?
[fol. 497] A. Yes, sir.
Q. You, too, are a student in the University?
A. Yes, sir.
Q. Have you had occasion to ride on Pullmans, Miss
Dorman?
A. Yes, sir.
Q. When you were riding on the Pullman trains, do you
think that you are safer if there is a conductor in charge
than you are if there is only a negro porter in charge?
A. I think so.
344
Mr. Morgan: That is all.
(Witness excused.)
Mr. Morgan: Nest, I would like to have Miss Matala.
Miss M abia M atala, a w itness fo r defendants, having-
been duly sworn, testified as fo llo w s :
Direct examination.
Questions by Mr. Morgan:
Q. Miss Matala, where do you live?
A. In Dallas.
Q. How long have you been living in Dallas ?
A. One year.
Judge McMillan: What is the name, counsel?
Mr. Morgan: Maria Matala, M-a-t-a-l-a.
The Witness: That is right.
Judge McMillan: What is your first name?
The Witness: Maria, M-a-r-i-a.
Judge McMillan: Matala ?
The Witness: That is right.
[fol. 498] Judge McMillan: I just keep the names of wit
nesses.
Mr. Morgan: Yes.
Q. Miss Matala, where did yon come from before you
moved to Dallas?
A. Minnesota.
Q. You are a native of Minnesota?
A. Yes, I am.
Q. Have you had occasion to ride on Pullman trains?
A. Yes, sir.
Q. Miss Matala, when you are riding on the Pullman
trains do you think you are safer if there is a Pullman con
ductor in charge of that train than you would be if only a
negro porter was in charge ?
A. Yes.
Q. You were born, yon sav, and grew up in Minnesota?
A. Yes.
Mr. Morgan: I think that is all.
(Witness excused.)
Mr. Morgan: I will next like to have Miss Muse.
345
Miss M argie M use, a witness for defendants, having been
duly sworn, testified as follows:
Direct examination.
Questions by Mr. Morgan:
Q. You are Miss Margie Muse?
A. Yes, sir.
Q. You live here in Austin, do you, Miss Muse, now?
[fol.499] A. Yes.
Q. Where are you employed?
A. At the Scottish Rite Dormitory.
Q. In what capacity?
A. I am on the staff.
Q. In what capacity did you say?
A. I am on the staff.
Q. On the staff. Now, just what are your duties—do you
supervise or help to take care of the girls?
A. My title is Associate Social Director.
Q. Now, Miss Muse, the Scottish Rite Dormitory is on
the Campus of the University maintained for a house of
young women who are in attendance at the University?
A. Yes, sir.
Q. And it is your duty to help to take care of those girls?
A. Yes.
Q. Do you, Miss Muse, have occasion on your behalf to
occasionally ride on the Pullman cars?
A. Occasionally.
Q. By the way, Miss Muse, are you the daughter of the old
Judge Muse who used to be at Sherman?
A. I am.
Q. All right; you are a Texas girl, then, aren’t you?
A. Texas born, yes.
Q. Miss Muse, if you were riding in a Pullman car would
you feel that you were safer if you had a conductor in
[fol. 500] charge than you would feel if you had only a
porter in charge?
A. I would.
346
Q. What about the young women who are under your su
pervision out there, when you have occasion to send them
from the University home.
A. Well, I have nothing to do with the way they go home.
They have permission from their parents, they have signed
permissions.
Q. I understand, but I am asking you this question, do you
think the girls—it would be safer for their protection for
them to be under the care of a conductor than it would be
for them to he only under the care of a Negro porter?
A. Yes, sir, I think so with the conductor.
Q. Miss Muse, in your travels do you remember seeing a
train conductor hack in the Pullman cars?
A. I don’t recall.
Q. You seldom, if ever, see the conductor, do you?
A. Yes, I do.
Mr. Morgan: I believe that is all.
Mr. Graves: No questions.
(Witness excused.)
Mr. Morgan: We will have Miss Ann Hill, please.
[fol. 501] A n nie C. H ill , a witness for defendants, having
been duly sworn, testified as follows:
Direct examination.
Questions by Mr. Morgan:
Q. You have lived here in Austin for a long time, haven’t
you, Miss Ann?
A. Yes, sir.
Q. You have been associated with the University for a
number of years, haven’t you?
A. I have.
Q. You have girls that now live in your home with you,
Miss Ann?
A. I do.
Q. Do you have occasion to be intimate and closely asso
ciated with the girls------
A. Yes, sir.
Q. —as well as the young men over in the Library?
A. Yes, sir.
347
Q. Miss Ann, you use the Pullman cars, do you, when you
travel ?
A. Yes.
Q. For your own protection and safety do you feel that
you would rather be traveling if you had a Pullman con
ductor in charge than if you had only a porter in charge ?
A. I certainly would.
Q. Do you think, Miss Ann, that the young men—the young
girls that are with you as well as the other girls in the
[fol. 502] University—do you think they would be safer if
they were under the care of a conductor than they would be
if they were under the care only of a porter?
A. That is the way I feel about it.
Q. You, of course, are familiar, Miss Ann, with the
amount of drinking that goes on on the Pullman cars ?
A. Largely from hearsay; not from------
Q. Yes, I understand. I believe that is all.
Cross-examination.
Questions by Mr. Graves:
Q. Miss Annie, you travel frequently on Pullman cars?
A. Well, my vacations are largely trips somewhere.
Q. On the Pullmans ?
A. Practically almost always on the Pullmans.
Q. Yes, ma’am. Now, you draw a distinction, do you not,
between a colored man who has put in long years of service
and experience in the employ of a company like the Pull
man Company, acted as a porter and has proved to be trust
worthy and faithful and a man of good character, and
another man that you don’t know anything about?
A. Well, I think there would be, of course, a differ
ence—
Q. You would attach—pardon me------
A. But I think that I would always feel safer if I knew
there was a Pullman conductor—a white Pullman conductor
on my coach. I have that feeling.
Q. Do you mean to say that you don’t think there are any
[fol. 503] colored people that are faithful and trustworthy
and reliable?
A. Not at all, no; I don’t have that feeling; I think there
are.
Q. As a matter of fact, you know some of them are, don’t
you, Miss Annie?
348
A. Why, certainly; certainly I do.
Mr. Graves: That is all.
(Witness excused.)
Mr. Morgan: We will have Elliot Roberts next.
E lliot R oberts, a witness for defendants, having been
duly sworn, testified as follows:
Direct examination.
Questions by Mr. Morgan:
Q. Your name is Elliot Roberts'?
A. Yes, sir.
Q. Where do you live, Elliot?
A. San Benito, Sir.
Judge McMillan: What is the name, please?
The Witness: Elliot Roberts.
Mr. Morgan: Elliot Roberts.
Judge McMillan: Where does he live?
Mr. Morgan: San Benito.
Q. You, too, are a student, are you, Elliot?
A. Yes, sir.
Q. You, of course, make these trips that University boys
make when they go off on these excursions to Fort Worth
[fol. 504] and Dallas?
A. Sometimes.
Q. You have had occasion to ride on the train, of course?
A. Yes, sir.
Q. Elliot, do you think the boys and girls would pay much
attention to a Pullman porter?
A. On excursions, no, sir.
Q. Do you think they would be more likely to pay atten
tion to the Pullman conductor?
A. I do think so.
Q. Elliot, if you had occasion to send some member of
your family—your mother—do you have a sister?
A. No, sir.
Q. If your mother were going away do you feel that she
would be safer if she were in charge of a Pullman conductor
than she would be if only in charge of a Pullman porter?
349
A. Well, just from what you have said, yes, sir.
Mr. Morgan: I believe that is all.
Mr. Graves : That is all.
(Witness excused.)
Mr. Morgan: If Your Honor please, we could go on with
this indefinitely. I want to use just one more boy and then
we will discontinue, because the others that are here, I think,
if placed on the stand would testify to the same things.
Judge Sibley: All right.
Mr. Graves: We are not in any querulous mood with
counsel, my friend, here, but we do object to his statement
that he could go on with this indefinitely because we don’t
[fol. 505] think that he could. (Laughter)
Mr. Morgan: I believe the record shows there are over
10,000 students at the University. (Laughter)
L am bert E oot, a witness for defendants, having been duly
sworn, testified as follows:
Direct examination.
Questions by Mr. Morgan:
Q. Your name is Mr. Eoot?
A. Yes, sir.
Q. What is your first name ?
A. Lambert.
Q. Where do you live, Lambert?
A. Mineral Wells.
Q. That is right over west of Fort Worth, isn’t it?
A. Yes, sir.
Q. Lambert, you, too, are a student out in the University,
are you not?
A. Yes, sir.
Q. What year is this for you out there?
A. This is my first year.
Q. You are a freshman?
A. Well, I started in Law School; I went to Oklahoma
four years.
Q- Oh, you got off to Oklahoma and went to school?
A. Yes, sir.
[fol. 506] Q. And you are in Law School this year?
350
A. Yes, sir.
Q. Have you any sisters'?
A. Yes, sir, I have.
Q. How old are they?
A. One sister is 30.
Q. She is older than you?
A. Yes, sir.
Q. Lambert, would you think that your mother or your
sister would be as safe on a Pullman train—with a porter
in charge as they would be if they were in charge of a Pull
man conductor?
A. Well, they might be as safe, but I believe I would rely
more on a conductor than I would a porter.
Q. You think you would feel better about it if you knew
they were in charge of a conductor than you would if you
knew they were in charge of a porter?
A. Yes, sir.
Mr. Morgan: I think that is all.
Mr. Graves: That is all.
Mr. Morgan: This gentleman right here, I would like to
have him; this gentleman sitting here on the end, please.
[fo l. 507] B ob Coquat, a w itness fo r defendants, having
been duly sw orn, testified as fo l lo w s :
Direct examination.
Questions by Mr. Morgan:
Q. You are Mr. Bob Cokert?
A. Bob Coquat, C-o-q-u-a-t.
Q. C-o-q-u-a-t, is that the way you spell it?
A. That is right.
Q. Where do you live, Bob?
A. At Three Rivers.
Q. Three Rivers, Texas?
A. That is right.
Q. Are you a student at the University?
A. Yes, I am.
Q. Bob, have you had occasion to use the Pullman cars—
the Pullman trains a great deal?
A. Yes, I have.
351
Q. Did you have occasion this last summer to make a
rather extended trip?
A. Yes, I did.
Q. Where did you go?
A. We went to Europe, but, of course, first we went to
New York—from San Antonio to New York.
Q. By train?
A. Yes, sir, by train.
Q. By “ we” , whom do you mean?
A. My mother and my sister and I.
[fob 508] Q. Your mother and your sister and you?
A. Yes, sir.
Q. So you made the round trip from here to New York
and back on your European trip by train?
A. Yes, sir.
Q. And you rode on the Pullman?
A. Yes, sir.
Q. Now, Bob, do you think that your mother or your sis
ter1 would be safer on a train if they were under the super
vision of a Pullman conductor than they would be if they
were only under the supervision of a Pullman porter ?
A. Yes, sir, I do.
Mr. Morgan: You may have the witness.
Cross-examination.
Questions by Mr. Graves:
Q. Where did you say you lived ?
A. Sir?
Q. Where do you live?
A. At Three Rivers, Texas.
Q. Yes.
Mr. Graves: That is all.
Mr. Morgan: I believe that is all, if Your Honors please,
with these boys. If Your Honors please, may these witnesses
be excused; they want to go back.
Judge Sibley: Yes, sir, if you are through with them,
they may go.
[fol. 509] Mr. Morgan: Is that all right with you?
Mr. Graves: Yes, sir.
Mr. Morgan: If Your Honors please, we are just about
through with our testimony. We are in this position;
352
we had on the suggestion of counsel as to the length of
time we thought it would take, we both were under the
impression that it would probably take longer than it
has; they advised us yesterday afternoon that they thought
that it would probably consume half of the morning, and
all along we thought that would take up most of today.
We are not asking that the matter be delayed at all, but
we may be in position now, if the Court will give us just
about five minutes, to say to the Court that we are through
with our testimony; but I would like for the Court to give
us just a few minutes to confer with associate counsel.
Judge Sibley: Well, we usually take about a five minute
recess in the middle of the afternoon, so we will take it
now.
Mr. Morgan: All right; thank you.
(Thereupon at 3:15 o ’clock p. m. a recess was taken
until 3:30 o ’clock p. m.)
Mr. Morgan: May it please the Court, counsel has agreed
to stipulate as to one item.
Judge Sibley: Yes, sir.
[fo l. 510] S tipulation
Mr. Morgan: And that is pursuant to the provisions of
the Order that they are complaining of. I should like to
read into the record the provisions about which I should
like to stipulate, and then I will attempt to stipulate it,
if I may.
“ It is further ordered by the Railroad Commission of
Texas that in any case where it is the desire of any rail
road company, receiver or trustee to operate over its line
of railway a sleeping car or cars without fully complying
with the provisions of the orders above set out, the Com
mission shall be notified, and its consent secured before
such change or divergency from the terms of said orders
is put in force.”
In connection with that, we would like to stipulate, if
the Court please, that none of the plaintiffs in this suit
have notified the Commission of its desire to be relieved
from the provisions of the order, nor has such consent
been secured, nor has there been issued by the Commis
sion any order itself, nor no application made for such
exception.
353
Judge Sibley: Do you close?
Mr. Morgan: Yes, sir, with that.
Judge McMillan: Are you going to stipulate that?
Mr. Graves: Yes, I think I understood, and that is, that
[fol. 511] we made no application for an exception to the
order.
Mr. Morgan: Yes.
Mr. Graves: That is all right.
Mr. Morgan: With that, we close, if Your Honors please.
Colloquy
Mr. Graves: We have nothing, except these statements
that we referred to this morning, and we desire to put
them in evidence. Counsel are looking over them now.
There is one other matter. We filed a petition of inter
vention for the three intervener plaintiffs, and it adopts
the allegations of the complaint, the amended complaint,
and it has only one fact, I believe, that isn’t in the com
plaint, conditionally; and that is, that these three inter
veners had no notice of the hearing that was held by the
Railroad Commission, and took no part in it, and knew
nothing about it.
Counsel haven’t denied that, they haven’t filed any an
swer to it. They haven’t really had much time in which
to prepare an answer, but I assume they will not contro
vert those facts.
Mr. Lewis: We will agree that the intervening porters
did not receive any notice of the prospective hearing
before the Commission.
Mr. Graves: And didn’t participate in it.
Mr. Lewis: We will agree they didn’t participate in it
as parties. I don’t know whether any of them were wit
nesses or not.
Mr. Graves: None of them were there, were they, Mr.
Morgan, you were there?
[fol. 512] Mr. Morgan: They were not there, but we are
not prepared to agree they were not notified.
Judge Sibley: They are sitting out there. We can find
out if you can’t agree about it.
Mr. Graves: We have alleged it and they haven’t denied
it.
Judge McMillan: The Assistant Attorney General has
stipulated that they were not notified. Can the intervener
control his case?
23—283
354
Mr. Morgan: No, sir.
Judge Sibley: That acknowledgment of fact is made.
Anything further now?
Mr. Graves: May it please the Court, there is one other
point. I believe it was yesterday; it may have been this
morning, when we offered the Railroad Commission records
in evidence, and Your Honors indicated that he thought
it was perhaps not admissible. We really didn’t under
stand whether there was a definite ruling on that point,
and we offer it in evidence.
Judge Sibley: What do you offer it to show? Of course,
it isn’t original evidence, what everybody said.
Mr. Graves: That is right, and we don’t care to offer
it for that purpose, and wouldn’t want it considered for
the purpose of showing what the facts are, but merely
for the purpose of aiding the Court in interpreting the
Order. I think that is the only purpose that it should
serve.
[fol. 513] Judge Sibley: I don’t see how it could serve
that function. It is a right lengthZy Order, written in
English.
Mr. Graves: Well, we really don’t care to press it. We
would like to offer it, though, and if the Court desires
to look over it, and if we, in the course of argument can
point out in any way, it might have that—serve that pur
pose—we would like for the Court to reserve the ruling
on it.
Judge Sibley: Well, do you all want it in or out?
Mr. Lewis: If the Court please, we have no great ob
jection, but there have been no pleadings attacking the
findings of the Commission in that respect. We lodge an
objection to it on that basis, that it is immaterial and
irrelevant.
Judge Sibley: We are in the position of a reviewing
Court for the Commission. It might be that we ought
to know what they decided on, but if we are here as an
outside power trying to enforce the Constitution of the
United States, I don’t think we would have any business
with what was proven there.
Judge McMillan: If you had attacked that order on
the ground that they didn’t have a fair hearing, and there
was no evidence introduced before them to support the
order, you might come up under the Supreme Court de
cisions, but you have no such attack on it, so what is the
use of putting that record in evidence?
355
[fol. 514] Mr. Graves: I doubt if it would become ma
terial except on one feature, that we think isn’t in the
case, and that is the rate feature of the case, and we
think that------
Judge McMillan: Is there any ambiguity in the order
that has to be explained? The order speaks for itself.
Judge Sibley: What sort of hearing there was would
be primarily fixed by the notice required. You have got
the notice here.
Mr. Graves: Yes, sir. There was one circumstance that
happened at the hearing that I might mention at the out
set, and having that notice, we called on the Commission
at the outset of the hearing to advise us what statute they
relied on for the basis of the promulgation of the order
that they had originally issued, which was the matter that
we thought would be heard again and the Commission,
the record shows, that we got no response on that ques
tion, and we called on the gentlemen who had inaugurated
the matter, counsel for the Pullman conductors’ organi
zation, and we got no response, and we think it is cumu
lative of the fact that at that time we didn’t have any
notice that it was contemplated that it would be a rate
hearing.
Judge Sibley: Well, in the absence of any more definite
purpose stated, we will rule it inadmissible.
Mr. Graves: We except.
[fol. 515] Judge Sibley: Have the other matters been put
in shape?
Mr. Graves: We are offering these two matters here
that counsel has indicated that they do not object to as
to form, but they have some objection as to the substance
of it.
Judge Sibley: Well?
Mr. Graves: And I would like to offer the two memo
randa in evidence as being the resume of the affidavits,
and as representing what the witnesses would testify if
they were here.
_ Mr. Morgan: He has two instruments, one he calls con
sist of trains, to which we have no objection.
Judge Sibley: Which trains are those?
Mr. Morgan: Those are the trains involved in the------
Judge Sibley: Seventeen runs.
Mr. Morgan: Seventeen operations, I think, aren’t they,
Judge? The other seems to be a short form of statement
of different witnesses, and as to the passenger miles per
annum, average coach rate, the average first class rate,
and the difference. I assume from what counsel has said
that this is offered on the theory that if this rate feature
should be enforced that------
Judge Sibley: What they would lose by it.
Mr. Morgan: What they would lose by it, and we think
that is immaterial and not a proper criterion, and there
[fol. 516] are other methods that might be employed. There
is no way to tell, in the absence of a test, as to just what
the results would be, and therefore, at this time we think
it wholly immaterial to any issue.
Judge Sibley: I think it might have some bearing on
the reasonableness of the action taken. We will let it in.
Mr. Morgan: Note our exception.
Mr. Lewis: Your Honor, may be adopt that objection?
Judge Sibley: All right, sir.
(Thereupon said instruments were admitted in evidence
as Plaintiffs’ Exhibits Nos. 17 and 18, respectively.)
Mr. Graves: The plaintiffs, and Intervener Plaintiffs
will close, Your Honor.
C lose of T e stim o n y
[fol. 516-A] Plaintiff ’s Exhibit N o. 17
(Endorsed in ink) No. 38 Civil
Filed Feb. 20, 1940
Maxey Hart, Clerk
Pullman Line No. Consist of Train Crew
3128
T&NO RR CO.
(Affidavit of J. H
Walsh, Supt.)
3015
AT&SF Ry. Co.
Affidavit of J. W.
Murphy, Trainmaster
Pullman Car
Two day coaches
Train Conductor
Brakeman or Flagman
Pullman porter
3010—BSL&W Ry. Co. Pullman Car Train ConductorAffidavit of A. C. Jackson,
Asst. Genl. Passenger Agent
and A. B. Kelly, Asst. Genl.
Mgr.
Three passenger cars Train Porter
Flagman
Pullman Porter
3748—SAU&G RR CO. Pullman car
Two Passenger cars
Train Conductor
Train Porter
Flagman
Pullman Porter3723—ST. LB&M Ry. Co. Pullman Car
Two Passenger Cars
Train Conductor
Train Porter
Flagman
Pullman Porter
Baggage Car
Pullman Car
Combination Coach
Train Conductor
Brakeman or Flagman
Pullman Porter
357
P l a in t if f ’s E x h ib it No. 17
Pullman Line No. Consist of Train Crew
3501—T&P Ry. Co.
(Affidavit by W. T. Long,
Jr., Supt. of Trans.)
Texarkana to Marshall:
Pullman Car
Two Day Coaches
Mail & Baggage Cars
Train Conductor
Flagman
Train Porter
Pullman Porter
3531
Marshall to Texarkana
Pullman Car
One Day Coach
Mail & Baggage Car
Train Conductor
Flagman
Train Porter
Pullman Porter
3076
(Affidavit of T. W. Bowdry,
Genl. Pass. Agent of CRI&P
Ry. Co.)
Pullman Car
One Cafe Coach
Mail and Baggage Car
Train Conductor
Brakeman
Pullman Porter
[fol. 516-B]
3265—MK&T
Affidavit of F. B.
Griffin, General
Passenger Agent
Pullman Car
Two Coaches
Train Conductor
Flagman
Train Porter
Pullman Porter
3251 Pullman Car
Two Coaches
Train Conductor
Flagman
Train Porter
Pullman Porter
3258 Pullman Car
Two Coaches
Train Conductor
Flagman
Pullman Porter
3273 Pullman Car
Two Coaches
Conductor
Flagman
Train Porter
Pullman Porter
3424—St. LSF&T RY. Co.
(Affidavit of C. J.
Stephenson, Vice Pres.
& Genl. Manager)
Pullman Car
Combination baggage-mail car
Coach
Diner-Lounge
Train Conductor
Brakeman
Train Porter
Pullman Porter
3370—St. L. SW Ry. Co.
Affidavit of E. Rhone,
Asst. Supt.
Pullman Car
Passenger Car
Cafe-Lounge Car
Train Conductor
Flagman
Train Porter
Attendant in charge
Cafe-Lounge Car
Pullman Porter
3175
KCS Ry. Co.
Affidavit of F. H. Hooper,
Supt. of Southern Division
Conductor
Brakeman or flagman
Train Porter
Pullman Porter
3010
P&SF Ry. Co.
Affidavit of H. R. McKee,
Division Supt.
Pullman Car
Two day coaches
Diner
Mail, Baggage & Express Car
Train Conductor
Flagman
Pullman Porter
3106
FW&DC RY Co.
General Passenger
Agent—F. D. Daggett
Pullman Car
Two day coaches
Dining Car
Train Conductor
Flagman
Pullman Porter
358
Endorsed: No. 38 Civil
Filed February 20, 1940
Maxey Hart, Clerk
[fol. 516-C] P l a in tif f ’s Ex h ib it N o. 18
Passenger Average
Name of Affiant and Railroad Miles Per Average First-Class Differ-
_________________________________ Annum Coach Rate Rate ence
Accounts AT&SF Ry. Co.
AT&SF Ry. CO.
Line 3015 AT&SF Ry. Co.
Line 3010 P&SFe Ry. Co.
107,862 2.500.00
2.762.00
L. A. Fritts, Auditor, Freight and
Passenger Accounts BSL&W Ry. Co.
Pullman Line 3010 242,096 1.65)1 2.30)1 .65(1
242,096 x .65 equals $1,573.63
SAU&G RR CO.
Pullman Line 3748 332,059 1.65 2.30 .65
332,059 x .65 equals $2,158.39
St. LB&M Ry. Co.
Pullman Line 3723 73,009 1.65 2.30 .65
73,009 x . 65 equals $ 474.56
L. W. Prior, Auditor Freight &
Passenger Receipts I&GN RR CO.
Pullman Line 3309 91,317 1.54 2.05 .51
91,317 x .51 equals $ 465.72
[fol. 516-D]
G. W. Danner, Auditor, T&P Ry.
Pullman Line 3501
Pullman Line 3531
130,856
248,252
1.65 2.30 .65
130,856 x .65 equals $ 850.56
1.65 2.30 .65
248,252 x .65 equals $1,613.64
M. E. Pierce, Auditor Pass. Traffic—
CRI&P Ry. Co.
Pullman Line 3076 1,126,400 Loss $2,987.63
0. H. Bower, Auditor MK&T RR Co
Line 3251
Line 3258
Line 3265
Line 3273
500,050
155,590
916,265
12,695
.451
1,584,600 x .451 equals $7,146.55
B. B. Lewis, Auditor, St.L-SF&T
Ry. Co.
Line 3424 16,594 $.017477 $.021334 $ .003857
16,594 x $.003857 equals $64.01
W. G. Buechner, Auditor of Revenue
KCS Ry. Co.
Line 3175 1,182,124 Loss...................................$ 503.60
O. D. Weaver, Auditor of Revenue
RW&DC Ry. Co.
Line 3106 436,672 ,018f£ .0203 0023
436,672 x .0023 equals $1,004.34
359
[fol. 516-E]
Plaintiff’s Exhibit No. 18, Cont’d.
Proportion of
Number of Proportion Revenue that
Revenue of Revenue Would Accrue
Rail Accruing on same tickets
Name of Affiant Tickets Between if Coach Fare
and Railroad Honored Texarkana Basis were
and Dallas Assessed
A. R. Wood Audi
tor for Trustee, St.
L-S. W. Railway
Company
Pullman Line 3370 1,133 $4,429.37 3,279.20 $1,150.17
Difference in
Revenue to St. L.
SW Ry. of Tex.
Between Texarkana
and Dallas for
Twelve Months
Period
Between Ennis and Ft. Worth
J. T. Monroe, Pas
senger Traffic Man
ager 2,559 $2,933.84 $2,143.62 $790.22Pullman Line ________ _
3128
[fol. 517] Reporters’ Certificate to foregoing transcript
omitted in printing.
[File endorsement omitted.]
[fol. 518] I n U n ited S tates D istrict C ourt foe t h e W est
ern D istrict of T exas , A u s t in D ivision
Civil Action No. 38
T h e P u l l m a n C o m p a n y , et al., Plaintiffs,
v.
T he R ailroad C o m m issio n of T exas , et al., Defendants
Before Sibley, Circuit Judge, and McMillan and Allred,
District Judges.
O p in io n — Filed April 3, 1940
P er Curiam :
The Pullman Company and a large number of Railway
Companies operating in Texas and Trustees in charge of
Railways operating in Texas bring this suit against the
Railroad Commission of Texas, the various members thereof
and the Attorney General, to restrain the enforcement of a
360
certain order made by the Commission on the 4th day of
November, 1939.
The order purports to be made pursuant to the statutes
of the State of Texas and a sum in excess of the jurisdic
tional amount is shown to be involved. The ground of at
tack is the unconstitutionality of the order. A temporary
restraining order was applied for and granted. Accord
ingly, a case for three judges, under Section 266 of the
Judicial Code, is presented. The case has been tried on
its merits by a court so organized.
Upon the trial, without objection on the part of anyone,
leave was granted to three Pullman porters and to three
Pullman conductors to intervene. The Pullman porters
made common cause with the plaintiffs and the Pullman con
ductors aligned themselves with the defendants.
[fol. 519] The order complained of is long and contains
some twenty-nine very extensive findings of fact. These
are followed by certain recitals labeled as orders and cer
tain decrees with regard to rates which may be charged
under certain circumstances by the Railroads and the Pull
man Company. However, the gist of the order and the pro:
vision which is particularly assailed and which it is manifest
it was the prime purpose of the order to put into effect, is as
follows:
“ It Is Further Ordered, Adjudged and Decreed that no
sleeping car shall be operated on any line of railroad in
the State of Texas when occupied by passengers holding the
proper transportation for the accommodation of such cars,
unless such cars are continuously in the charge of an em
ployee or an authorized agent of the firm or corporation
owning or operating the same having the rank and position
of Pullman conductor. ’ ’
Plaintiffs make their attack upon a great many grounds.
It is unnecessary to mention more than two or three of them.
It is first asserted that the order is not within the authoriy
delegated to the Railroad Commission by any statute or
law of the State of Texas. It is said, second, that in so far
as it purports to relate to transportation rates, it is void
for the reason that it was issued without notice of a hearing
for such purpose. It is further contended that the order is
unjust, arbitrary, unsupported by any basis in fact and, ac
cordingly, confiscatory. Defendants joined issue with plain
361
tiffs upon these matters and evidence was introduced at
great length by both sides.
It appears without contradiction that there are some six
teen or seventeen routes in Texas where the Pullman cars,
so far as the Pullman Company is concerned, are in charge
of a porter. In most cases, this occurs only where the dis
tance traversed is short, and it is invariably true that it
occurs only in instances where there is only one Pullman
car on the train. The general control of the Pullman car
[fol. 520] and the passengers therein is lodged in the Rail
road conductor. On trains where two or more Pullman cars
are being carried contemporaneously, a Pullman conductor
is in charge, subject, however, to the train conductor.
We are confronted at the outset by the question as to
what authority the Railroad Commission has to make the
challenged order. The Railroad Commission is a creature
of statute. It gets no authority by implication or from the
common law. It is given the authority by statute to correct
abuses, but the Texas courts have been uniform in holding
that the abuse must be one defined by law. In Railroad Com
mission v. H. & T. C. Ry. Co., 90 Texas, at page 352, the Su
preme Court says:
“ The question then arises, What abuses can the Rail
road Commission correct? We think that it must be some
abuse which has been defined by the law, and that the Com
mission would not by this power be authorized to enact a
law defining what is an abuse or a disregard of duty on the
part of a railroad corporation.”
In State v. Sugarland Ry. Co., 163 S. W. 1047 (writ refused),
the Court said:
“ The Commission is a creature of the statute, based upon
constitutional provision for the establishment of an agency
in this state, with such powers as may be deemed adequate
and advisable. Section 2, Art. 10, Const, of Texas. Being
a creature of statute, with such powers only as the Legisla
ture deemed adequate and advisable, it could deraign no
authority by implication or from the common law. See
Railroad Commission v. G-., H. & S. A. Ry. Co., 51 Tex. Civ.
App. 447, 112 S. W. 353. An order of the Commission, to be
valid, must be based upon some express provision or dele
gation of power made by statute. R. R. Com. v. Gr., H. & S.
A. Ry., supra; I. & G. N. R. R. Co. v. R. R. Com., 99 Tex.
362
332, 89 S. W. 961. We think that, before the appellee could
claim the protection of such order, it must be able to put
its finger upon the statute conferring upon the Commission
the authority to make the same, which has not been done. ’ ’
See also State v. St. L. S. W. Ey. Co., 165 S. W. 491.
[fol. 521] There is no Texas statute which forbids the
operation of a train carrying a Pullman car without a Pull
man conductor, nor is there any statute that defines such
action as an abuse. The Legislature has fixed the necessary
members of a train crew and a Pullman conductor is not in
cluded. Article 6380, Vernon’s Annotated Texas Statutes,
1925. Defendants do not deny the correctness of the law as
set out in the decisions quoted from. In fact they state,
upon page 13 of their brief, that they concur in those views.
Being called upon to put their finger upon the statute which
authorizes the making of an order of this kind, they point
to Article 6474. That Article does not denounce the trans
portation of a Pullman car without a Pullman conductor
as an abuse, but relates to the matter of unjust discrimin
ation and defines certain things which shall, under its terms,
constitute unjust discrimination. It is summarized by de
fendants in their brief as follows :
“ A duty is imposed on the railroads not to give any undue
or unreasonable preference to any person or locality or sub
ject any traffic to any disadvantage whatsoever, and a pen
alty is prescribed for failing to observe such duty.”
We are not of the opinion that the order is sustained by
the provisions of this statute. It will be noted that the
statute denounces unjust discrimination. The Supreme
Court of Texas, in construing Section 2 of Article 10 of the
Constitution, upon which the statute is based, said, in St.
Louis Southwestern Railway Co. v. State of Texas, 113
Texas, at page 579:
“ But, whatever meaning should be ascribed to the word
unjust, two things seem perfectly plain in construing Sec
tion 2 of Article X, of the Constitution, towit: first, that all
discrimination in passenger fares was not forbidden, but
only such as would operate unjustly. ’ ’
It is certainly not an unjust discrimination to adapt the
service to different conditions of traffic. Every train is not
required to be the duplicate of every other train in order to
avoid unjust discrimination. The record in the case fails
363
to support the contention that there is any unjust discrim-
[fol. 522] ination as against the public generally by reason
of the fact that on certain trains where only one Pullman
car is being handled, the operation, so far as the Pullman
Company is concerned, is in charge of a porter, who is sub
ject to the direction and control of the train conductor.
However, without regard to these matters, the order can
not be upheld as a correction of an unjust discrimination,
because it is not within the Legislative definition of that
term and the Commission is without power to make one
of its own.
As we have heretofore noted, it cannot stand as a correc
tion of an abuse, because the so-called abuse has not been
defined or prohibited by law.
The regulation cannot be sustained as a rate order for the
reasons, first, it was not made after notice given as required
by law, and second, it is apparently predicated upon an at
tempt upon the part of the Commission to construe and en
force certain contracts between the Railroads and the
Pullman Company, which it is without any statutory author
ity to do. Furthermore, in so far as it attempts to regulate
the rates charged by the Pullman Company, it is void, as the
Commission has no jurisdiction over the Pullman Company.
The intervenors Pullman conductors have raised on their
own account certain jurisdictional questions, predicated
upon the assertion and assumption in some instances that
plaintiffs are operating their railroads in Texas in viola
tion of the law. If it be conceded that, as intervenors, they
have the right to question the propriety of the main pro
ceeding in this fashion, we are still of the opinion that their
contention is without merit and should be overruled.
The views which have been expressed make it unnecessary
to rule on the question as to whether the order is arbitrary.
The Commission being without statutory authority to make
[fol. 523] an order of this character, the question as to its
reasonableness is immaterial.
It accordingly follows from what has been said that a de
cree should be entered for the plaintiffs, and its terms may
be settled after notice.
(S) Sainl. H. Sibley, Circuit Judge. James V. Allred,
District Judge. Robert J. McMillan, District
Judge.
[File endorsement omitted.]
364
[fol. 524] In U nited S tates D istrict C ourt for the W est
ern D istrict oe T exas, A ustin D ivision
Civil Action No. 38
T h e P ullm an Com pany , et al., Plaintiffs,
vs.
T he R ailroad C ommission oe T exas, et al., Defendants
F inal J udgment— Filed April 23, 1940
This action came on to be heard on February 17, 1940,
at this term, on the plaintiffs’ motion for preliminary in
junction, and at the same time on final trial on the merits,
before a statutory court of three judges consisting of Sib
ley, Circuit Judge, and McMillan and Allred, District
Judges; and, upon conclusion of the evidence, was argued
by counsel, and thereupon, upon consideration thereof, it
was Ordered, Adjudged and Decreed as follows, viz:
1. That the defendants’ motions to dismiss the action be
and are hereby overruled.
2. That the defendants, the Railroad Commission of Texas
and Lon A. Smith, Ernest 0. Thompson and Jerry Sadler,
members of said commission, and Gerald C. Mann, Attorney
General of the State of Texas, their respective successors,
agents, representatives and employees, be and they are, each
and all, hereby permanently enjoined from attempting to
enforce against the plaintiffs, or any of them, the order of
the Railroad Commission of Texas dated November 4, 1939
(Railroad Commission Docket No. 3669-R, an “ Order
amending passenger circular No. 164, issued by the Railroad
[fol. 525] Commission of Texas on the 8tli day of August,
1939” ) and the order of the Railroad Commission of Texas
dated the 8th day of August, 1939, known as Passenger Cir
cular 164, copies of which are attached to the Amended Com
plaint as Exhibit F and Exhibit A, respectively; and from
instituting or prosecuting any suit or suits against the
plaintiffs, or any of them, for penalties, or otherwise, for
the violation of said orders, or any part thereof; and from
taking any steps whatsoever looking to the enforcement of
said orders, and from seeking in any way to penalize plain
tiffs, or any of them, for violating or not obeying said
orders, or any part thereof.
365
3. All costs incurred by the intervening defendants, or
occasioned by their intervention, are taxed against said in
tervening defendants, M. B. Cunningham, W. A. Worley and
W. M. Hadley. All other costs are taxed against the defend
ant the Railroad Commission of Texas.
To all of which judgment the defendants, including the
intervening defendants, duly excepted.
Done this 23rd day of April 1940.
(S) Sami. H. Sibley, Circuit Judge. Robert J. Mc
Millan, District Judge. James V. Allred, District
Judge.
Approved as to form:
Claude Pollard, Ireland Graves, Attys. for Plffs.
Cecil C. Rotsch, Assistant Attorney General of Texas, At
torney for the Railroad Commission of Texas, the mem
bers thereof and the Attorney General of Texas.
Cecil A. Morgan, Attorney for intervening defendants.
Ent: Civ. 0. B., Vol. 1, p. 93.
(File endorsement omitted.)
[fol. 526] lx U nited S tates D istrict C ourt
[Title omitted]
F indings op F act and C onclusions op L aw— Filed June
11, 1940
F indings of F act
1. The Pullman Company and a number of railway com
panies operating in Texas and trustees in charge of rail
ways operating in Texas bring this suit against the Rail
road Commission of Texas, the members thereof and the
Attorney General of Texas, to restrain the enforcement
of a certain order made by the Commission on November
4, 1939. In issuing the order the Commission purported to
act pursuant to Texas statutes, and a sum in excess of the
jurisdictional amount is shown to be involved. The order
is challenged on constitutional grounds. A temporary re-
366
straining order was applied for and granted, and the plain
tiffs continued to press for preliminary injunction. Ac
cordingly, a case for three judges, under Section 266 of
the Judicial Code, is presented. The case has been tried
on its merits by a court so organized.
2. The complaint charged, and the proof shows, that
the amount in controversy exceeds $3,000.00, exclusive of
interest and costs. Compliance with the challenged orders
would devolve upon The Pullman Company an annual gross
expense of approximately $41,000.00, or an annual net ex-
[fol. 527] pense of approximately $36,000.00; and by virtue
of certain contracts between The Pullman Company and
the railroad companies, a portion of this expense would
be passed on to the railroads, but The Pullman Company
would ultimately suffer a net annual expense of approxi
mately $25,000.00.
3. Upon the trial, without objection, leave was granted
to three Pullman porters to intervene as plaintiffs, and
to three Pullman conductors to intervene as defendants.
Each of the porters receives extra compensation of $13.50
per month if on any part of his run he acts as porter-in-
charge. If the order of the Railroad Commission, com
plained of herein, is enforced, the intervening plaintiffs
and other porters operating in Texas as porters-in-charge
will lose such extra compensation; and their retirement pay
will in consequence be reduced.
4. The order complained of (a copy of which appears
as Exhibit P appended to the Complaint) contains twenty-
nine findings of fact, followed by certain recitals labeled
as orders and decrees. The attack upon the order was con
centrated, in main, upon a section, manifestly expressing
the prime purpose and object sought to be accomplished by
the Commission, reading as follows:
“ It Is Further Ordered, Adjudged And Decreed that no
sleeping car shall be operated on any line of railroad in
the State of Texas when occupied by passengers holding the
proper transportation for the accommodation of such cars,
unless such cars are continuously in the charge of an em
ployee or an authorized agent of the firm or corporation
owning or operating the same having the rank and position
of Pullman conductor. ’ ’
367
5. The order is challenged on the grounds, among others
(a) that it is not within the authority delegated to the
Railroad Commission by any statute or law of the State
of Texas, and (b) that, in so far as it purports to relate
to transportation rates, it is void for the reason that it
was issued without notice of a hearing for such purpose,
and (c) that it is unjust, arbitrary, unsupported by any
basis in fact and, hence, confiscatory. Issue was joined
[fol. 528] on all these matters and evidence was introduced
at great length by both sides.
6. It appears without contradiction that there are seven
teen routes or lines in Texas where Pullman cars, in so far
as The Pullman Company is concerned, are in charge of
a porter. In most cases this occurs only where the distance
traversed is short, and in every instance it occurs only on
those trains that, as regularly operated, carry only one
Pullman car. These lines are described in Exhibit G at
tached to the Complaint. One of them, however, No. 3259,
was discontinued prior to the trial. On trains carrying
two or more Pullman cars a Pullman conductor accom
panies the train. In all instances, however, the general
control of the Pullman car or cars and passengers therein
is lodged in the railroad conductor. The entire train and
the railroad employees and Pullman employees are subject
to the jurisdiction of the train conductor.
7. All of the Pullman porters in Texas are negroes who
have been in the service of the company as porters for more
than ten years, and those acting as porters-in-charge for
longer terms, ranging from twenty years to thirty-four
years of continuous service. The men serving as porters-in-
charge on the lines in Texas described in Exhibit G have
demonstrated that they are substantial, reliable men of good
character and good intelligence. By training and experi
ence they are qualified and competent to discharge the
duties assigned to them as porters-in-charge; and the fact
that they are negroes and are called porters-in-charge does
not disqualify them or render them incompetent. The service
rendered to passengers in the Pullman cars on the trains
not accompanied by a Pullman conductor is in no way in
ferior to the service rendered on the trains accompanied
oy a Pullman conductor. The Pullman conductors and the
Porters-in-charge have had the same training, and they
receive regularly the same instructions. There is no need
368
[fol. 529] of a Pullman conductor in addition to the porters-
in-charge on the lines described in Exhibit G. In view of
the Pullman Company’s experience, extending over a long-
period of years, there is no reasonable basis for a finding-
contrary to the facts stated in this Finding No. 7.
Conclusions op L aw
1. While the challenged orders are directed in terms
against the railroads, The Pullman Company is directly
affected. The railroads cannot place a Pullman conductor
on the Pullman cars except by requiring The Pullman
Company to do so. Consequently, The Pullman Company
has the requisite interest to challenge the orders. The
matter in controversy as to The Pullman Company is the
right to carry on its business free of the prohibition of
the order. The value of such right is shown to be in ex
cess of $3,000.00, exclusive of interest and costs. Buck
v. Gallagher, 307 U. S. 95, 100; Packard v. Banton, 264
U. S. 140, 142; Western & Atlantic R. R. v. Railroad
Commission of Georgia, 261 U. S. 264.
2. Since the order is directed in terms against the rail
roads and not against The Pullman Company, the only way
in which The Pullman Company can obtain effective relief
is by means of an injunction prohibiting enforcement of
the challenged orders against the railroads. For this rea
son and for the further reason that the order undertakes
to determine, and interferes with, the rights of The Pull
man Company in its contracts with the railroads, the rail
roads are necessary and proper parties to this action.
Rule 19, Federal Rules of Civil Procedure; Niles-Bement
Co. v. Iron Moulders Union, 254 U. S. 77, 81-82; see also
Troy v. Whitehead, 222 U. S. 39, 41; Ducker v. Butler,
104 Fed. (2d) 236, 238 (App. D. C. 1939).
[fol. 530] 3. The motions to dismiss the action on the
ground of misjoinder are not well taken and should be
overruled. Rule 21, Federal Rules of Civil Procedure, and
authorities above cited.
4. The orders of the Railroad Commission are challenged
on substantial Federal constitutional grounds, and this
Court has jurisdiction to determine all questions at issue,
local and Federal.
369
5. The Railroad Commission of Texas is a creature of
statute, and it has such powers as have been validly con
ferred by the statutes of Texas. It derives no powers from
the common law or by implication. State v. Sugarland
Railway Co. (Tex. Civ. App.), 163 S. W. 1047, 1049 (writ
of error refused).
6. The challenged orders, Passenger Circular 164 of
August 8, 1939, and the amendment thereof, namely, the
order of November 4, 1939, are not within the powers dele
gated to the Railroad Commission of Texas by statute. Be
cause they are not sanctioned by law, they are void.
7. The power to issue the challenged orders is not de
rived from Article 6445, Revised Civil Statutes of Texas,
1925. The abuses, the correction of which is committed
to the Railroad Commission, are only those abuses that
have been denounced by statute as such or that have been
prohibited by the Legislature. Railroad Commission v.
H. & T. C. Ry. Co., 90 Tex. 340, 352; 38 S. W. 750, 754; State
v. St. L. S. TV. Ry. Co. (Tex. Civ. App.), 165 S. W. 491,
496 (writ of error dismissed).
8. No Texas statute has defined as an abuse, or pro
hibited, the operation of a sleeping car that is not con
tinuously in charge of a Pullman conductor in addition to
the train conductor.
9. The challenged orders are not within the authority
delegated to the Railroad Commission by Article 6474, Re
vised Civil Statutes of 1925. The operation of the sleep
ing car on such trains as those described in Exhibit G, in
charge of a Pullman porter, subject to the supervision,
direction and control of the train conductor, does not
[fol. 531] amount to unjust discrimination as defined in
said statute. The Railroad Commission has no authority
to add to the definition. The statute does not require that
every train he made the exact duplicate of every other train.
It is not unjust discrimination to adapt the service to the
varying traffic conditions.
10. Discrimination is not denounced by statute unless
it is unjust. The underlying provision of the Texas Con
stitution (Sec. 2, Art. X), upon which the statute, Article
6474 is based, does not forbid discrimination, even in re
spect to passenger fares, unless it is unjust discrimina-
24—283
370
tion. St. L. S. W. Ry. Co. v. State of Texas, 113 Tex. 570,
579.
11. The Texas Legislature having enacted a full crew
law prohibiting the operation of any passenger train with
less than a full crew consisting of four persons, one en
gineer, one fireman, one conductor and one brakeman, the
Railroad Commission of Texas has no authority to supple
ment or augment the full crew statute. The statute is a penal
one and cannot be extended by implication. Railroad Com
mission v. T. & 1ST. 0. Railroad Co. (Tex. Civ. App.), 42
S. W. (2d) 1091, 1093 (writ of error refused).
12. The order of November 4, 1939, cannot be sustained
as a rate order for several reasons: (a) It was not made
after notice as required by law. Art. 6449, R. C. 8. 1925,
requires ten days’ notice to each railroad to be affected
by an order fixing rates. No notice was issued indicating
that at the hearing of August 8, 1939, rate matters would
be considered, (b) The rate features of the order are
apparently predicated upon the Commission’s assumed
authority to construe and enforce the contracts between
the railroads and The Pullman Company, as to which the
Railroad Commission has no authority, (c) In so far as
the order attempts to regulate rates charged by The Pull
man Company, it is void, since the Railroad Commission
of Texas has no jurisdiction over The Pullman Company
[fol. 532] and no authority to regulate Pullman rates. This
question was expressly decided in the case of The Pullman
Company v. Railroad Commission, No. 1791, Equity, United
States District Court, Northern District of Texas; affirmed
without written opinion by Circuit Court of Appeals, Fifth
Circuit (1908). Since then the statutes have been re
adopted in the 1911 Code and in the 1925 Code without
change in that respect.
13. In their briefs filed after the evidence was concluded,
the Pullman conductors (intervenor defendants) raised on
their own account certain jurisdictional questions, predi
cated, in some instances, upon the assertion and assumption
that plaintiffs are operating their railroads in Texas in
violation of the law. If it be conceded that, as intervenors,
they have the right to question the propriety of the main
proceeding in this fashion, we are still of the opinion that
their contention is without merit and should be overruled.
14. Since the orders afe not within the Railroad Com
mission’s statutory powers, we find it unnecessary to dis
pose of the Federal constitutional questions. Siler v.
L. & N. R. R. Co., 213 U. S. 175, 193.
15. We conclude that defendants’ motions to dismiss the
action should be denied; and that plaintiffs are entitled to
judgment as prayed for.
This the 11th day of June, 1940.
(S.) Sami H. Sibley, United States Circuit Judge;
Robert J. McMillan, United States District Judge;
James V. Allred, United States District Judge.
[File endorsement omitted.]
[fol. 533] I n U nited S tates D istrict Court
[Title omitted]
P etition eor A ppeal—Filed June 18, 1940
To the Honorable Judges of the District Court of the United
States for the western district of Texas:
Your petitioners The Railroad Commission of Texas,
and the individual members thereof, namely Lon A. Smith,
Jerry Sadler and Ernest O. Thompson, the Attorney Gen
eral of Texas, Gerald C. Mann, together with M. B. Cunning
ham, W. M. Hadley and W. A. Worley, intervening defend
ants, respectfully show:
The plaintiffs The Pullman Company and fifteen rail
roads joined together as plaintiffs and filed a Bill of Com
plaint in the United States District Court, Western District
of Texas, on the 22 day of November, 1939, against The
Railroad Commission of Texas, the three members there
of, and the Attorney General of Texas, to restrain the en
forcement of a certain order made by the Commission on the
4th day of November 1939. Several grounds of attack were
made, including the unconstitutionality of the order. An
interlocutory order was applied for and granted. A copy
of the same has been attached hereto, marked Exhibit ‘ ‘ A ”
and made a part hereof. Accordingly, a case for three
fudges under Section 266 of the Judicial Code was presented
and the court was assembled and the case tried on its merits
372
by a 3-Judge Court on the 17th day of February 1940. Said
[fol. 534] 3-Judge Court caused to be entered a final judg
ment on the 23 day of April 1940, a copy of which final
judgment has been marked Exhibit “ B ” , attached hereto,
and made a part hereof, which permanently enjoined The
Railroad Commission of Texas, the individual members
thereof, and the Attorney General of Texas, their respective
successors, agents, representatives and employees from en
forcing the order of November 4, 1939, which said final
judgment further provided “ to all of which judgment the
defendants, including the intervening defendants, duly ex
cepted.” The court also rendered an opinion favorable to
the plaintiffs, a copy of which opinion has been marked
Exhibit “ C” , attached hereto, and made a part hereof.
The said final judgment is greatly to the prejudice and
injury of your petitioners and is erroneous and inequitable.
The errors upon which your petitioners claim to be en
titled to an appeal are more fully set out in the assignments
of error and prayer for reversal, filed with the clerk pur
suant to Rule 9 of the Rules of the United States Supreme
Court; and there has been likewise filed herewith a state
ment as to the jurisdiction of the Supreme Court of the
United States as provided by Rule 12 of the Rules of the
United States Supreme Court.
Wherefore, in order that your petitioners may obtain
relief in the premises and have opportunity to show the
errors complained of, your petitioners pray for the allow
ance of an appeal in said cause to the Supreme Court of
the United States agreeably to the statutes and rules of said
Court in such cases made and provided, and that a proper
order touching the security required of the petitioners may
be made.
Dated this the 18 day of June, 1940.
Gerald C. Mann, Attorney General of Texas, Cecil C.
Rotsch, Glenn R. Lewis, Lee Shoptaw, Attorneys
for The Railroad Commission of Texas, Lon A.
Smith, Jerry Sadler and Ernest 0. Thompson, and
Gerald C. Mann, Attorney General of Texas. By
Cecil C. Rotsch.
A. B. Culbertson and Cecil A. Morgan, Attorneys for
intervening defendants, M. B. Cunningham, W. M.
Hadley and W. A. Worley. By Cecil A. Morgan.
[fols. 535-548] [File endorsement omitted.]
373
[fol. 549] I n U nited S tates D istrict Court
[Title omitted]
A ssignments of E rror—Filed June 18, 1940
The appellants assign the following errors in the record
and proceedings in this case:
1
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code erred in over
ruling and in not sustaining the plea of the defendants to
the_ jurisdiction of the court, their motion to dismiss and
their motions relating to misjoinder of causes of action,
misjoinder of parties-plaintiff, and an unlawful delega
tion of chartered rights from the railroad companies to The
Pullman Company in that:
(a) The court had no jurisdiction to entertain a bill in
equity wherein the plaintiffs pleaded that they were en
gaged in an illegal and unlawful enterprise in that the rail
road companies by contract attempted to delegate a part
of their charter powers to a foreign corporation, namely,
The Pullman Company, in view of the mandatory provisions
of Article 6260 Revised Civil Statutes of Texas which re
quires that only corporations chartered under the laws of
the State of Texas to operate a railroad may operate rail
roads in this state and the damages as alleged by the plain
tiffs to sustain jurisdiction were based upon interfering
with the rights of the railroad companies and The Pullman
Company under such invalid contracts.
[fol. 550] ̂ (b) The court had no jurisdiction to entertain
the plaintiffs’ bill which pleaded that some of the plaintiffs
resided in the State of Texas and others resided without
the State of Texas and it was not alleged with certainty the
specific damage, if any, suffered by each of said plaintiffs.
2
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in hold
ing that the Railroad Commission was without authority to
promulgate the order complained of in that Article 6473
einon’s Annotated Statutes provides “ if any railroad
company * * # shall charge, collect, demand, or receive a
374
greater rate, charge or compensation than that fixed and
established by the Commission for the transportation of
freight, passengers or cars * * * or for any other services
performed or to be performed by it, such railroad company
# '* * shall be deemed guilty of extortion” . The plead
ings and proof of the plaintiffs clearly established that the
railroads of Texas by contract with The Pullman Company,
a foreign corporation, were charging rates, fares and tolls
for the transportation of passengers and sharing in them
that had not been fixed or promulgated by the Railroad
Commission, and in this manner the plaintiffs are clearly
violating the law, and should have no standing in a court
of equity seeking equitable relief to establish and protect
them in such violation.
3
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in not
sustaining the defendants’ motions to dismiss the plaintiffs’
Bill of Complaint because it was pleaded by the plaintiffs
that the railroad companies had delegated to The Pullman
Company a part of their charter powers, and in this in
direct way the railroad companies were charging fares,
tolls and rates for themselves in an amount in excess of the
maximum sum allowed by the statutes of the State of Texas
[fol. 551] and in this manner the railroad companies were
doing indirectly what they cannot do directly by engaging
in an ultra vires transaction and in a court of equity seek
refuge and protection.
4
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in hold
ing that the order complained of by the plaintiffs as pro
mulgated by the Railroad Commission of Texas was made
without statutory authority on the part of said Commission
in that the laws of the State of Texas are mandatory in re
quiring that said Commission make rules and regulations
governing railroads, namely Article 10, Section 2 of the
Constitution and Article 6445 Revised Civil Statutes, and
specifically provide that no railroad shall be operated in
the State of Texas, unless such company is chartered under
the laws of said state as set forth in Article 6260 Revised
Civil Statutes, and it is further made the duty of said Com
mission by Article 6474 which provides:
“ Unjust discrimination is hereby prohibited and the fol
lowing acts or either of them shall constitute unjust dis
crimination.
1. If any railroad subject hereto, directly or indirectly,
or by any special rate, rebate, drawback or other device,
shall charge, demand, collect or receive from any person,
firm or corporation a greater or less compensation for any
service rendered or to be rendered by it than it charges, de
mands, collects or receives from any other person, firm or
corporation for doing a like and contemporaneous service, or
shall give any undue or unreasonable preference or advan
tage to any particular person, firm or corporation, or locality,
or to subject any particular description of traffic to any un
due or unreasonable prejudice, delay or disadvantage in any
respect whatsoever.”
Article 6445 provides:
“ Power and authority are hereby conferred upon the
Railroad Commission of Texas over all railroads, and sub
urban, belt and terminal railroads, and over all public
wharves, docks, piers, elevators, warehouses, sheds, tracks
and other property used in connection therewith in this
State, and over all persons, associations and corporations,
private or municipal, owning or operating such railroad,
wharf, dock, pier, elevator, warehouse, shed, track or other
property to fix, and it is hereby made the duty of the said
Commission to adopt all necessary rates, charges and regu
lations, to govern and regulate such railroads, persons, as
sociations and corporations, and to correct abuses and pre
vent unjust discrimination in the rates, charges and tolls
[fol. 552] of such railroads, persons, associations and cor
porations, and to fix division of rates, charges and regula
tions between railroads and other utilities and common car
riers where a division is proper and correct, and to prevent
any and all other abuses in the conduct of their business
and to do and perform such other duties and details in con
nection therewith as may be provided by law. ’ ’
5
The said District Court, composed of three judges, as pro
vided by Section 266 of the Judicial Code, erred in issuing
375
376
a permanent injunction against the Railroad Commission of
Texas, and the Attorney General, enjoining such state de
partments from carrying into effect regulations promul
gated by the Railroad Commission for the safety, care, com
fort, convenience, proper accommodation, charges, fares
and transportation of passengers on sleeping cars and Pull
man cars within the State of Texas and to prevent unjust
abuses, discrimination and extortion in rates. By granting-
said permanent injunction the court substituted its own
opinion for that of the Railroad Commission of Texas.
6
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code erred in hold
ing that the Railroad Commission was without authority to
promulgate a rate order in that Article 6448 Revised Civil
Statutes imposes the duty upon the Railroad Commission
to fix the rates of all railroads for both freight and pas
sengers. Article 6449 Revised Civil Statutes provides that
ten days notice of such hearing shall be a sufficient notice.
In connection therewith it is to be noted that the “ chal
lenged order” recites on its face that notice was issued on
the 19th of August and the hearing held on the 31st of
August and further recites that “ the Commission thus finds
that all parties interested in the subject matter have been
duly notified for the time and in the manner provided by
law. ’ ’
The ruling of the court is in conflict with the decisions
of the State of Texas on the point of notice and hearing
of rates in that such an attack as made in the case at bar is a
[fol. 553] collateral attack on the question and the Supreme
Court of Texas announced the rule in Texas Steel Company
vs. Port Worth & Denver City Ry. Co. et al., 45 SWR (2nd)
794, that a collateral attack could not be made upon an order
fixing rates that were promulgated by the Railroad Com
mission of Texas.
7
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in
holding that the attempts of the Railroad Commission to
regulate the rates charged by The Pullman Company were
void and in stating that “ The Commission has no juris
diction over The Pullman Company” in that Title 71,
377
Chapter 4, Revised Civil Statutes 1925, Article 4477 im
poses the mandatory duty upon the Railroad Commission
of Texas to enforce the Public Health Sanitary Code, and
among other requirements is the one relating to:
“ Bach depot, railway coach, sleeping car, interurban
car and street car while in use for the accommodation of
the public shall be properly ventilated, and, if necessary,
heated, and a sufficient amount of heat shall be furnished
in time of need so, that fresh air can be supplied without
causing it to become unduly uncomfortably cold; and the
janitor, conductor or other person in charge shall see to
it that the air is replenished with fresh air from time to
time as needed to prevent the same from becoming foul,
unsanitary and oppressive.”
8
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in
holding that the Railroad Commission had no authority
to regulate the rates to be charged by The Pullman Com
pany for the reason that all railroads that do business
in Texas must be chartered under the laws of the State
of Texas and by virtue of Chapter 11, Title 112, Revised
Civil Statutes, such railroads are definitely under the
direct supervision and regulation of the Railroad Com
mission; thus by contract between the railroads and The
Pullman Company the railroads cannot delegate their
chartered powers derived from the state and by contract
grant authority to The Pullman Company powers not
[fol. 554] granted to the railroad companies by the state,
and thus create an agency free of regulation by the Rail
road Commission without boundaries or limitations as to
its rates, rules or regulations.
9
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in
entering judgment on April 23, 1940, permanently enjoin
ing the Railroad Commission of Texas and Lon A. Smith,
Ernest 0. Thompson, and Jerry Sadler, members of said
Commission, and Gerald C. Mann, Attorney General of
the State of Texas, their respective successors, agents,
representatives, and employees, from attempting to enforce
378
against the plaintiffs the order of the Railroad Commis
sion of Texas, dated November 4, 1939, (Railroad Com
mission Docket No. 3669-R, and “ Order Amending Pas
senger Circular No. 164, Issued by the Railroad Commis
sion of Texas on the 8tli day of August, 1939” ) and the
order of the Railroad Commission of Texas dated August
8, 1939, known as Passenger Circular 164, and from en
forcing said order, and from penalizing the plaintiffs for
violating said order; because the Railroad Commission
of Texas had the authority to pass and enforce said order
by virtue of the fact that the Constitution of Texas author
izes the Legislature of Texas to pass laws to correct abuses.
(Article X, Section 2, Constitution) and the Legislature
has passed such a law and has conferred authority on
the Railroad Commission of Texas “ to govern and regu
late * * * railroads” and “ to correct abuses” and “ to pre
vent * * * abuses in the conduct of their business” (Adopted
in 1911, and now codified as Article 6445 of the Revised Civil
Statutes of Texas) and the Legislature has not left it up
to the Railroad Commission to define the “ abuse” , but
the Legislature has defined the abuse involved in this case
[fol. 555] by saying that “ unjust discrimination is * * *
prohibited and” it shall constitute unjust discrimination
“ 1. If any railroad * * * shall give any undue * * * pref
erence or advantage to any particular person * * * or lo
cality, or subject any particular description of traffic to
any undue or unreasonable prejudice, delay or disadvantage
in any respect whatsoever.” (Article 6474 of the Revised
Civil Statutes of Texas) ; and therefore, the Railroad Com
mission of Texas had the authority to adopt said order
in question and enforce the same.
10
The said District Court, composed of three judges, as
provided by Section 299 of the Judicial Code, erred in
making any findings of fact of any kind, and particularly
the kind it did make, because it is not for the Federal
Courts to supplant the Commission’s judgment even in
the face of convincing proof that a different result would
have been better, and it is not proper for the Court to
determine which witnesses should be believed and which
ones should be disbelieved, but it is only a question of
whether or not there is any evidence on which the Com
mission’s judgment can be founded, and as there was
379
such evidence in this case the Federal Court cannot dis
turb or interfere with the Commission’s judgment or
orders.
11
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in
making the findings of fact set out in paragraph 7 of
the court’s findings of fact filed in this case, said findings
of fact in said paragraph 7 beginning with the words
“ All of the Pullman porters in Texas” , etc., and ending
with the words “ there is no reasonable basis for finding
contrary to the facts stated in this finding No. 7” ; be
cause said findings of fact so set forth in paragraph 7
of the court’s findings of fact are contrary to the evidence,
and are not supported by the testimony and the evidence
in this case.
[fol. 556] 12
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in
holding (as stated in paragraph 1 of the court’s conclu
sions of law) that the matter in controversy as to the
Pullman Company is in excess of $3,000, exclusive of
interest and costs; because such a conclusion is contrary
to the evidence and the testimony in this case and contrary
to the law.
13
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in
holding, (as stated in paragraph 2 of the court’s conclu
sions of law) that the railroads are necessary and proper
parties to this action; because such a conclusion is con
trary to the evidence and the testimony in this case, and con
trary to the law.
14
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in
holding (as stated in paragraph 6 of the court’s conclu
sions of law) that the challenged orders, Passenger Cir
cular 164 of August 8, 1939, and the amendment thereof,
namely the order of November 4, 1939, was not within
the powers delegated to the Railroad Commission, the
380
reason said court erred being as follows: The Railroad
Commission of Texas has authority under the laws of
Texas to make and enforce such orders, because the Con
stitution of Texas authorizes the Legislature of Texas to
pass laws to correct abuses (Article X, Section 2, Consti
tution), and the Legislature has passed such a law, and
has conferred authority upon the Railroad Commission of
Texas ‘ ‘ to govern and regulate * * * railroads ’ ’ and ‘ ‘ to
correct abuses” and “ to prevent * * * abuses in the con
duct of their business. ’ ’ (Adopted 1911, and now codified as
Article 6445, Revised Civil Statutes of Texas), and the
[fol. 557] Legislature has not left it up to the Railroad
Commission of Texas to define the “ abuse” , but the Legis
lature has defined the abuse involved in this case by saying
that “ unjust discrimination is * * * prohibited” and it
shall constitute unjust discrimination “ 1. If any railroad
* * * shall give any undue * * # preference or ad
vantage to any particular person * * * or locality, or to
subject any particular description of traffic to any undue or
unreasonable prejudice, delay or disadvantage in any re
spect whatsoever” , and because of said provision in the
Constitution and statutes of Texas, the Railroad Commis
sion of Texas has authority to make and enforce such order.
15
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in
holding (as stated in paragraph 7 of the court’s conclu
sions of law) that the power to issue the challenged orders
is not derived from Article 6445, Revised Civil Statutes
of Texas, the reason said court erred being as follows:
Said Article 6445 authorizes the Railroad Commission of
Texas “ to govern and regulate * * * railroads” and “ to
correct abuses” and “ to prevent * * * abuses in the con
duct of their business,” and the failure of the defendants
to comply with the order in question, that is, operate
sleeping cars on lines of railroads in Texas without said
cars being in the charge of a Pullman conductor, and
operate sleeping cars on other lines with Pullman con
ductors in charge, is an abuse under the facts in this
case, and has been defined as an abuse by the Legislature
of Texas under Article 6474 of the Revised Civil Statutes
of Texas; and therefore authority to issue the challenged
order is derived from said Article 6445.
381
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in
holding (as stated in paragraph 8 of the court’s conclu-
[fol. 558] sions of law) that no Texas statute has defined
as an abuse, or prohibited, the operation of a sleeping-
car that is not continuously in charge of a Pullman con
ductor in addition to the train conductor; the reason said
court erred being as follows: The Constitution of Texas
authorizes the Legislature of Texas to pass laws to cor
rect abuses, and the Legislature of Texas has passed said
law, to-wit, Article 6445, 6448 and 6474 of the Revised
Civil Statutes of Texas.
16
17
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in
holding (as stated in paragraph 9 of the court’s conclu
sions of law) that the challenged orders are not within
the authority delegated to the Railroad Commission of
Texas by Article 6474, Revised Civil Statutes of Texas,
the reason said court erred being as follows: Said Article
6474 provides that if any railroads shall give any undue
preference or advantage to any particular person or lo
cality it is an unjust discrimination, and under the facts
in this case the plaintiffs have been, and are now, oper
ating sleeping cars on some lines of railroad without said
cars being in charge of an employee of the rank and posi
tion of Pullman conductor, and at the same time have
operated other sleeping cars on other lines of railroad
with said cars being in charge of a Pullman conductor,
and the operation of sleeping cars on different lines in
different manners in such fashion constitutes a discrimi
nation and an abuse in violation of said Article 6474.
18
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in
lending (as stated in paragraph 11 of the court’s conclu
sions of law) that the Texas Legislature having enacted
I', u ̂crew law requiring a crew of four men on a train,
tne Railroad Commission of Texas thereby has no au-
lority to pass the order in question requiring Pullman
382
[fol. 559] conductors to be in charge of all sleeping cars'
the reason said Court erred being as follows: That said
full crew law is a separate act of the Legislature and does
not prevent the Railroad Commission of Texas from pre
venting abuses and discrimination as authorized by Ar
ticle X, Section 2, Constitution of Texas and Articles
6445, 6448 and 6474 of the Revised Civil Statutes of Texas.
19
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in
denying and overruling the defendants’ motion to dismiss,
and in holding (as stated in paragraph 15 of the court’s
conclusions of law) that the defendants’ motion to dis
miss should be denied, the reason said Court erred being
as follows: The plaintiffs’ complaint failed to state a
cause of action in favor of any plaintiff against any
defendant upon which relief could be granted, in this,
to-wit, the complaint failed to allege that there was in
sufficient evidence or no evidence before the Railroad Com
mission of Texas to support or justify the orders in
question, or that said Commission entered an order or
orders contrary to the evidence before it, or that in view
of the evidence before said Commission said orders were
arbitrary or unreasonable, or that said order or the en
forcement thereof constituted unlawful interference with
interstate commerce, or that said orders or the enforce
ment thereof constituted a taking of the plaintiffs’ prop
erty without due process of law.
20
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in
entering judgment on April 20, 1940, permanently en
joining the defendants from attempting to enforce against
the plaintiffs the order of the Railroad Commission of
Texas, dated November 4, 1939 (Railroad Commission
Docket No. 3669-R, and Order Amending Passenger Cir-
[fol. 560] cular No. 164, issued by the Railroad Commis
sion on the 8th day of August, 1939) and the order of
the Railroad Commission of Texas dated August 8, 1939,
known as Passenger Circular No. 164, and from enforcing
said orders, and from enforcing penalties for the violation
383
of said orders; the Court having erred for the following
reasons, to-wit: The jurisdiction of the United States Dis
trict Court for the Western District of Texas, where this
case was tried, did not rest on diversity of citizenship,
and therefore the only question open to said Court was
whether or not the State action complained of, to-wit, said
Railroad Commission action and order and the enforce
ment thereof, transgressed the Constitution of the United
States and whatever ‘ ‘ vague contours * # * the Due Proc
ess Clause may place upon the exercise of the State’s regu
latory power” ; and therefore the trial court did not have
authority or power to adjudge or decree that the Railroad
Commission was without statutory authority, that is, did
not have authority under the Texas Constitution and
statutes, to adopt and enforce said orders.
21
The said District Court, composed of three judges, as
provided by Section 266 of the Judicial Code, erred in
holding (as stated in the Court’s opinion and in its con
clusions of law and particularly in paragraph 6 of the
Court’s conclusions of law) that the challenged orders,
Passenger Circular 164 of August 8, 1939, and the amend
ment thereof, namely the order of November 4, 1939, are
not within the powers delegated to the Railroad Commis
sion of Texas by statute; the Court having erred for
the following reasons, to-wit: The jurisdiction of the
United States District Court for the Western District of
Texas, where this case was tried, did not rest on diversity
citizenship, and therefore the only question open to
said Court was whether or not the State action complained
of, to-wit, said Railroad Commission action and order
and the enforcement thereof, transgressed the Constitu
tion of the United States and whatever “ vague contours
[fol. 561] * * * the p ue p rocegg Clause may place upon
the exercise of the State’s regulatory power ’ ’ ; and there
fore the trial court did not have authority or power to
adjudge or decree that the Railroad Commission was
without statutory authority, that is, did not have authority
under the Texas Constitution and statutes, to adopt and
enforce said orders.
. Wherefore, on account of the errors hereinbefore as
signed, appellant prays that the said decree of the Dis-
384
trict Court of the United States for the Western District
of Texas, dated April 23, 1940, in the above entitled cause,
be reversed and a decree rendered in favor of these com
plainants.
Gerald C. Mann, Attorney General of Texas; Cecil
C. Rotsch, Glenn R. Lewis, and Lee Shoptaw, all
of Austin, Texas, Attorneys for The Railroad Com
mission of Texas, Lon A. Smith, Jerry Sadler and
Ernest 0. Thompson, and Gerald C. Mann, Attor
ney General of Texas. By Cecil C. Rotsch.
A. B. Culbertson and Cecil A. Morgan, of Fort
Worth, Texas, Attorneys for intervening defend
ants M. B. Cunningham, W. M. Hadley and W. A.
Worley. By Cecil A. Morgan.
[File endorsement omitted.]
[fol. 562] l x U nited S tates D istrict C ourt
[Title omitted]
Order A llow ing A ppeal—Filed June 18, 1940
The petition of The Railroad Commission of Texas, and
the individual members thereof, namely, Lon A. Smith,
Jerry Sadler and Ernest 0. Thompson; the Attorney Gen
eral of Texas, Gerald C. Mann; together with M. B. Cun
ningham, W. M. Hadley and W. A. Worley, intervening de
fendants, the complainants in the above entitled cause, for
an appeal in the above entitled cause to the Supreme Court
of the United States from the judgment of the District Court
of the United States for the Western District of Texas, hav
ing been filed herein, accompanied by an assignment of
errors and statement as to jurisdiction, all as provided by
Rules 9 and 12 of the Rules of the United States Supreme
Court, and the said papers having been presented to this
court and the record in this cause having been considered:
It is hereby Ordered that an appeal be and it is hereby
allowed to the Supreme Court of the United States from
the final decree of the District Court of the United States
for the Western District of Texas, entered in this cause
on the 23 day of April, 1940, and that the Clerk of the said
385
District Court of the United States for the Western Dis
trict of Texas shall, within 40 days from this date, make and
transmit to the Supreme Court of the United States, under
[fols. 563-565] his hand and the seal of the Court, a true copy
of the material parts of the record herein, which shall be des
ignated by praecipe or a stipulation of the parties or their
counsel herein, all in accordance with Rule 10 of the Rules
of the Supreme Court of the United States.
It is further Ordered that the said appellants shall give a
good and sufficient cost bond in the sum of $500.00 Dollars,
conditioned as required by law.
Done by the Court this 18th day of June 1940.
(S) Robert J. McMillan, District Judge.
Entered: Civ. O. B., 1, page 125.
(File endorsement omitted)
[fols. 566-567] Citation in usual form showing service on
Claude Pollard and Ireland Graves tiled June 18, 1940,
omitted in printing.
[fols. 568-570] Bond on Appeal for $500.00 approved and
filed June 18, 1940, omitted in printing.
[fol. 571] In U nited S tates D istrict C ourt
[Title omitted]
Order as to O rig in al P apers an d E x h ib it s on A ppeal—
Filed July 3, 1940
It is ordered that the following original papers and ex
hibits be transmitted by the clerk of this court to the Clerk
of the Supreme Court of the United States in lieu of copies
thereof, for the inspection of that Court, to wit:
Plaintiff’s Exhibits Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9,10,11,12,13,
o j ! 5’ 16’ 19> 20> 21> 22> 23> 24> 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, and 35.
Dated this 29 day of June, 1940.
(S) Sami. H. Sibley, Presiding Judge U. S.
Entered: Civ. O. B., Yol. 1, page 132.
(File endorsement omitted)
25—283
386
[fol. 572] In U n ited S tates D iste ict C ourt
[Title omitted]
S t ipu l a tio n as to R ecord on A ppea l— Filed July 3, 1940
Pursuant to the provisions of Section 2 of Rule 10 of the
Rules of the Supreme Court of the United States, it is stipu
lated by the parties to this action that the following parts of
the record, proceedings, and evidence shall be included in
the record on appeal:
1. Plaintiffs’ First Amended Complaint.
2. Temporary restraining order, dated November 28,1939.
2-a. Bond for Temporary Restraining order (omitting
power of attorney and copy of temporary restraining order
attached thereto).
3. Order constituting and assembling Three-Judge Court,
dated January 12, 1940.
4. Writ to serve copies of complaint, etc., on W. Lee
O’Daniel, Governor, dated January 13, 1940, and Marshal’s
return thereon.
5. Defendants’ First Amended Motion (to dismiss).
6. Defendants’ Original Answer.
7. Order of court allowing Warren J. West, et al., to in
tervene as plaintiffs.
8. Complaint of intervener plaintiffs.
9. Motion of M. B. Cunningham, et al., to be permitted to
intervene as defendants.
[fol. 573] 10. Pleadings of interveners M. B. Cunningham,
et al.
11. The reporter’s transcript of the evidence certified to
by H. P. Bidder and Roy J. McLean, court reporters.
12. Opinion of the court, after trial on the merits, filed
April 3, 1940.
13. Final judgment, dated April 23, 1940.
14. Findings of fact and conclusions of law, dated June
11,1940.
15. Petition for appeal, filed and dated June 18, 1940,—
Exhibits to be omitted.
16. Statement of jurisdiction as required by Supreme
Court Rule 12.
17. Assignments of error.
18. Order allowing appeal, dated June 18, 1940.
19. Notice of appeal, with date of filing, and acknowledge
ment of service thereof,—Exhibits to he omitted.
20. Citation on appeal, and acknowledgment of service
thereof.
21. Appeal bond, and approval thereof, dated Juno 18,
1940.
22. Order of the Presiding Judge directing the transmittal
to the Supreme Court of certain original papers and ex
hibits.
23. Stipulation of the parties as to the record on appeal.
It is further stipulated by the parties to this action that,
pursuant to the order of the Presiding Judge, the following
papers and exhibits may be transmitted to the Supreme
Court of the United States in lieu of copies thereof, to-wit:
Plaintiffs’ Exhibits Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9,10,11,12,13,
14,15,16,19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33,
34 and 35.
Entered into and dated this 3rd day of July, 1940.
(S) Ireland Graves, Attorney for the plaintiff, The
Pullman Company, and for the intervener plain
tiffs, Warren J. West, et al.
[fol. 574] (S) Claude Pollard, Attorney for all of the other
plaintiffs. Cecil C. Eotsch, Assistant Attorney
General, Attorney for defendants. Cecil C. Mor
gan, Attorney for intervener defendants, M. B.
Cunningham, et al.
(Pile endorsement omitted)
[fol. 575] Clerk’s Certificate to foregoing transcript
omitted in printing.
[fol. 576] In S u pre m e C ourt of t h e U n ited S tates
[Title omitted]
Statement of t h e P o in ts on W h ic h A p p e l la n ts I n ten d
to R ely , and of t h e P arts of t h e R ecord W h ic h A p
pellants T h in k N ecessary for t h e C onsideration
T hereof— Filed July 26, 1940
The appellants intend to rely upon the following points,
in which it is contended by appellants that the Three-
Judge District Court erred, to-wit:
387
388
1. The court erred in overruling and in not sustaining
the plea of the defendants to the jurisdiction of the court,
their motion to dismiss and their motions relating to mis
joinder of causes of action, misjoinder of parties plaintiff,
and an unlawful delegation of chartered rights from the
railroad companies to The Pullman Company, because
(a) The court had no jurisdiction to entertain a hill
in equity wherein the plaintiffs pleaded that they were
engaged in an illegal and unlawful enterprise in that the
railroad company by contract attempted to delegate a
part of their charter powers to a foreign coporation, namely,
The Pullman Company, in view of the mandatory pro
visions of Article 6260, Revised Civil Statutes of Texas,
[fol. 577] which requires that only corporations chartered
under the laws of the State of Texas may operate rail
roads in said state, and the damages as alleged by the
plaintiffs to sustain jurisdiction were based upon inter
fering with the rights of the railroad companies and The
Pullman Company under such invalid contracts, and
(b) The court had no jurisdiction to entertain the plain
tiffs’ bill which pleaded that some of the plaintiffs resided
in the State of Texas and others resided without the State
of Texas and it was not alleged with certainty the specific
damage, if any, suffered by each of the plaintiffs.
2. The court erred in holding that the Railroad Com
mission of Texas was without authority to promulgate the
order complained of in that Article 6473 of Vernon’s An
notated Revised Civil Statutes of Texas provides ‘ ‘ if any
railroad company * * * shall charge * * * or receive a
greater rate, charge, or compensation than that fixed and
established by the Commission * # * such railroad com
pany * * # shall be deemed guilty of extortion;” and the
pleadings and proof showed without contradiction that the
defendant railroads by contract with the defendant, The
Pullman Company, were charging rates, fares and tolls
for the transportation of passengers that had not been
fixed or promulgated by the Railroad Commission, and
therefore the plaintiffs had no standing in a court of equity
and no right to ask for equitable relief.
3. The court erred in not sustaining the defendants’ mo
tions to dismiss the plaintiffs’ bill of complaint because
it appeared in said bill that the railroad companies had
389
delegated to The Pullman Company a part of their charter
powers, and in this indirect way the railroad companies
were charging fares, tolls and rates for themselves in an
amount in excess of the maximum sum allowed by the
statutes of the State of Texas, and the railroad companies
were doing indirectly what they cannot do directly, and
therefore plaintiffs had no standing in a court of equity.
[fol. 578] 4. The court erred in holding that the order com
plained of by the Railroad Commission of Texas was made
without statutory authority, because the laws of the State
of Texas are mandatory in requiring that said Commis
sion make rules and regulations governing railroads,
namely, Article 10, Section 2, of the Constitution of Texas,
and Articles 6445 and 6474 of the Revised Civil Statutes
of Texas, which provisions of the law authorize the Com
mission to make the order in question.
5. The court erred in issuing a permanent injunction
against the Railroad Commission of Texas, the members
thereof, and the Attorney General of Texas, enjoining said
parties from carrying into effect the order in question, be
cause in doing so the court substituted its own opinion for
that of the Railroad Commission of Texas.
6. The court erred in holding that the Railroad Com
mission of Texas was without authority to promulgate a
rate order, because Article 6448 of the Revised Civil
Statutes of Texas imposes a duty upon the Railroad Com
mission to fix the rates of all railroads, and because Article
6449 of the Revised Civil Statutes of Texas provides that
ten days notice of such hearing shall be a sufficient notice,
and in this case the order in question recited on its face
that notice was issued on August 19, 1939, and hearing
held on August 31, 1939, and the order recited that “ the
Commission thus finds that all parties interested in the
subject matter have been duly notified for the time and
in the manner provided by law,” and said ruling of the
court was in conflict with the decisions of the Supreme
Court and the other courts of the State of Texas, and the
attack on said order in regard to said notice is a collateral
attack and a collateral attack cannot be maintained against
such an order.
7. The court erred in holding that the attempts of the
■Railroad Commission of Texas to regulate the rates charged
390
by The Pullman Company were void and that the Commis-
[fol. 579] sion had no jurisdiction over The Pullman Com
pany, because Title 71, Chapter 4, Revised Civil Statutes
of Texas, and particularly Article 4477 of said statutes,
imposes the mandatory duty upon the Railroad Commission
to enforce the Public Health Sanitary Code of the State
of Texas, and this was an order authorized by said code
and the statutes in regard to the enforcement thereof.
8. The court erred in holding that the Railroad Com
mission had no authority to regulate the rates to be charged
by The Pullman Company, because all railroads that do
business in the State of Texas must be chartered under the
laws of the State of Texas, and all such railroads are under
the direct supervision of the Railroad Commission, and the
railroads cannot delegate their chartered powers to The
Pullman Company by contract and thereby escape regu
lation of the Railroad Commission or create an agency free
from regulation by the Railroad Commission.
9. The court erred in entering a judgment enjoining the
Railroad Commission of Texas, the members thereof, and
the Attorney General of Texas, from enforcing the order
in question, because the Railroad Commission of Texas had
the authority to pass and enforce said order by virtue of
the fact that the Constitution of Texas authorizes the Leg
islature of Texas to pass laws to correct abuses (Article
10, Section 2, Constitution) and the Legislature has passed
such a law and has conferred authority on the Railroad
Commission of Texas “ to govern and regulate * * * rail
roads” and “ to correct abuses,” and “ to prevent # * *
abuses in the conduct of their business” (adopted 1911, and
now codified as Article 6445 of the Revised Civil Statutes
of Texas) and the Legislature has not left it up to the Rail
road Commission to define the “ abuse,” but the Legisla
ture has defined the abuse involved in this case by saying'
that “ unjust discrimination is # * * prohibited and” it
shall constitute unjust discrimination “ if any railroad
shall give any undue * * * preference or ad
vantage to any particular person * * * or locality, or
ffoh 580] subject any particular description of traffic to
any undue or unreasonable prejudice, delay or disadvan
tage in any respect whatsoever” (Article 6474 of the Re
vised Civil Statutes of Texas); and therefore, the Railroad
Commission of Texas had the authority to adopt said order
in question and enforce the same.
10. The court erred in making any findings of fact of any
kind because it is not for the Federal courts to supplant
the Commission’s judgment even in the face of convincing-
proof that a different result would have been better, and
it is not proper for the court to determine which witnesses
should be believed and which ones should be disbelieved,
but it is only a question of whether or not there is any evi
dence on which the Commission’s judgment can be founded,
and as there was such evidence in this case the Federal
Court cannot disturb or interfere with the Commission’s
judgments or orders.
11. The court erred in making the findings of fact set out
in paragraph 7 of the court’s findings of fact filed in this
case, said findings of fact in said paragraph 7 beginning
with the words “ All of the Pullman porters in Texas” and
ending with the words “ there is no reasonable basis for
finding contrary to the facts stated in this finding No. 7” ,
because said findings of fact so set forth in paragraph 7
of the court’s findings are contrary to the evidence and are
not supported by the testimony and the evidence in this
case.
12. The court erred in overruling and in not sustaining
the plea of the defendants to the jurisdiction of the court,
and their motions to dismiss, because the plaintiffs in this
case had no standing in a court of equity, for the reason
that they relied on contracts between the railroad com
panies in this case and The Pullman Company, and said
contracts between said railroad companies and The Pull
man Company are monopolistic and violate both the United
States and the State laws prohibiting trusts and monopolies
and contracts in restraint of trade, and said contracts so
relied on and pleaded and urged by the plaintiffs are void
and illegal.
[fol. 581] 13. The court erred in holding (as stated in
paragraph 2 of the court’s conclusions of law) that the
railroads are necessary and proper parties to this action,
because such a conclusion is contrary to the evidence and
testimony in this case and contrary to law.
14. The court erred in holding (as stated in paragraph 6
ot the court’s conclusions of law) that the challenged orders
391
392
in question were not within the powers delegated to the
Railroad Commission of Texas because the Railroad Com
mission has authority by virtue of the fact that the Consti
tution of Texas authorizes the Legislature of Texas to pass
laws to correct abuses (Article 10, Section 2, Constitution)
and the Legislature has passed such a law and has conferred
authority upon the Railroad Commission of Texas “ to gov
ern and regulate * * * railroads” and “ to correct abuses”
and “ to prevent * # * abuses in the conduct of their busi
ness” (Adopted 1911, and now codified as Article 6445, Re
vised Civil Statutes of Texas), and the Legislature has not
left it up to the Railroad Commission of Texas to define the
“ abuse” , but the legislature has defined the abuse involved
in this case by saying that “ unjust discrimination is * * *
prohibited” and it shall constitute unjust discrimination
“ if any railroad * * * shall give any undue * * *
preference or advantage to any particular person or locality
or subject any particular description of traffic to any undue
or unreasonable prejudice, delay or disadvantage in any
respect whatsoever” ; and because of said provisions of the
law of Texas, the Railroad Commission has authority to
make and enforce such order.
15. The court erred in holding (as stated in paragraph 7
of the court’s conclusions of law) that the power to issue
the challenged order in question is not derived from Article
6445 of the Revised Civil Statutes of Texas, because said
Article 6445 authorizes the Railroad Commission of Texas
“ to govern and regulate * * * railroads” and “ to correct
abuses” and “ to prevent * * * abuses in the conduct of
their business” , and the failure of the defendants to comply
[fol. 582] with the order in question, that is, operate sleep
ing cars on lines of railroads in Texas without said cars be
ing in the charge of a Pullman conductor, and operate sleep
ing cars on other lines with Pullman conductors in charge,
is an abuse under the facts in this case, and has been defined
as an abuse by the Legislature of Texas under Article 6474
of the Revised Civil Statutes of Texas; and therefore the
Railroad Commission of Texas had authority to make the
order in question.
16. The court erred in holding (as stated in paragraph 8
of the court’s conclusions of law) that no Texas Statute
has defined as an abuse, or prohibited, the operation of a
sleeping car that is not in charge of a Pullman conductor,
393
because the Constitution of Texas authorizes the Legisla
ture of Texas to pass laws to correct abuses and the Legis
lature of Texas has passed said law, to-wit Articles 6445,
6448 and 6474 of the Revised Civil Statutes of Texas.
17. The court erred in holding (as stated in paragraph
9 of the court’s conclusions of law) that the challenged
orders are not within the authority delegated to the Rail
road Commission of Texas by Article 6474 of the Revised
Civil Statutes, because said Article 6474 provides that if
any railroad shall give any undue preference or advantage
to any particular person or locality it is an unjust discrim
ination, and under the facts in this case plaintiffs have
been, and are now, operating sleeping cars on some lines of
railroads without said cars being in charge of Pullman
conductors, and at the same time have operated sleeping
cars on other lines with said cars being in charge of a Pull
man conductor, and the operation of sleeping cars on differ
ent lines in different manners in such fashion constitutes a
discrimination and an abuse in violation of Article 6474.
18. The court erred in holding (as stated in paragraph
11 of the court’s conclusions of law) that the Texas Legis
lature having enacted a full crew law requiring a crew of
four men on a train, the Railroad Commission thereby has
no authority to pass the order in question requiring Pull-
[fol. 583] man conductors to be in charge of all sleeping
cars, because said full crew law is a separate act of the Leg
islature and does not prevent the Railroad Commission of
Texas from preventing abuses and discrimination as author
ized by Article 10, Section 2, Constitution of Texas, and
Articles 6445, 6448 and 6474 of the Revised Civil Statutes
of Texas.
19. The court erred in denying and overruling the de
fendant’s motion to dismiss and in holding (as stated in
paragraph 15 of the court’s conclusions of law) that the de
fendant’s motion to dismiss should be denied, because the
plaintiffs’ complaint failed to state a cause of action in
favor of any plaintiff against any defendant upon which
relief could be granted, in this, to-wit, the complainant
failed to allege that there was insufficient evidence or that
ffiere was no evidence before the Railroad Commission of
Texas to support or justify the orders in question, or that
said Commission entered an order or orders contrary to
the evidence before it, or that in view of the evidence before
394
said Commission said orders were arbitrary and unreason
able, or that said order or the enforcement thereof con
stituted unlawful interference with interstate commerce,
or that said orders or the enforcement thereof constituted
a taking of the plaintiff’s property without due process of
law.
20. The court erred in permanently enjoining the de
fendants from attempting to enforce the orders in question,
because the jurisdiction of the United States District Court,
where this case was tried, did not rest on diversity of citizen
ship, and therefore the only question open to said Court
was whether or not the‘ state action complained of, to-wit,
said Railroad Commission action and order and the enforce
ment thereof, transgressed the Constitution of the United
States and whatever “ vague contours * * * the Due
Process Clause may place upon the exercise of the State’s
regulatory power” , and therefore the trial court did not
[fol. 584] have authority or power to adjudge or decree that
the Railroad Commission was without statutory authority,
that is, did not have authority under the Texas Constitu
tion and statutes, to adopt and enforce said orders.
21. The court erred in holding (as stated in the court’s
opinion and in its conclusions of law, and particularly in
paragraph 6 of the Court’s conclusions of law) that the
orders in question are not within the powers delegated to
the Railroad Commission, because the jurisdiction of the
United States District Court, where this case was tried, did
not rest on diversity of citizenship, and therefore the only
question open to said Court was whether or not the state ac
tion complained of, to-wit (said Railroad Commission ac
tion and order and enforcement thereof, transgressed the
Constitution of the United States and whatever “ vague con
tours * * * the Due Process Clause may place upon the
exercise of the State’s regulatory power” , and therefore,
the trial court did not have authority or power to adjudge
or decree that the Railroad Commission was without statu
tory authority, that is, did not have authority under the
Texas Constitution and statutes to adopt and enforce said
orders.
* * * * * * *
Appellants hereby designate the following parts of the
record which they think necessary to be printed for the
395
consideration of tlie foregoing points upon which appellants
intend to rely:
1. Plaintiffs ’ First Amended Complaint.
2. Temporary restraining order, dated November 28,
1939.
3. Bond for Temporary Restraining Order (omitting
Power of Attorney).
4. Order constituting and assembling Three-Judge Court,
dated January 12, 1940.
5. Writ to serve copies of complaint, etc., on W. Lee
O’Daniel, Governor, dated January 13, 1940, and Marshal’s
return thereon.
6. Defendants’ First Amended Motion (to dismiss).
7. Defendants’ Original Answer.
8. Order of court allowing Warren J. West, et al., to in
tervene as plaintiffs.
[fol. 585] 9. Complaint of intervener plaintiffs.
10. Motion of M. B. Cunningham, et al, to be permitted
to intervene as defendants.
11. Pleadings of interveners M. B. Cunningham, et al.
12. The reporter’s transcript of the evidence certified to
by H. P. Bickler and Roy J. McLean, court reporters.
13. Opinion of the court, after trial on the merits, filed
April 3, 1940.
14. Final judgment, dated April 23, 1940.
15. Findings of fact and conclusions of law, dated June
11, 1940.
16. Petition for appeal, filed and dated June 18, 1940,—
Exhibits to be omitted.
17. Statement of jurisdiction as required by Supreme
Court Rule 12 (including attached exhibits).
18. Assignments of error.
19. Order allowing appeal, dated June 18, 1940.
20. Notice of appeal, with date of filing, and acknowl
edgment of service thereof,—Exhibits to be omitted.
21. Citation on appeal, and acknowledgment of service
thereof.
22. Appeal bond, and approval thereof, dated June 18,
1940.
23. Stipulation of the parties as to the record on appeal.
24. This Statement of Points on which Appellants in
tend to rely and of parts of the record which Appellants
396
think necessary for the consideration thereof, and ac
knowledgment of service thereof.
Gerald C. Mann, Attorney General of Texas; Glenn
R. Lewis, Lee Shoptaw, and Cecil C. Rotsch, all
of Austin, Texas, Attorneys for The Railroad
Commission of Texas, Lon A. Smith, Jerry Sad
ler and Ernest 0. Thompson, and Gerald C. Mann,
Attorney General of Texas. By Cecil C. Rotsch.
A. B. Culbertson and Cecil A. Morgan, of Fort
Worth, Texas, Attorneys for intervening defend
ants M. B. Cunningham, W. M. Hadley and W. A.
Worley. By Cecil A. Morgan.
[fo l. 586] A cknowledgment of S ervice
Service of the foregoing statement of the points on
which appellants intended to rely and designation of the
parts of the record to be printed is acknowledged by the
undersigned attorneys for appellees this 24th day of July,
1940.
Ireland Graves, Attorney for the Appellee, The
Pullman Company, and for the Appellees, War
ren J. West, et al.
Claude Pollard, Attorney for all of the other Ap
pellees.
[fol. 586%] [File endorsement omitted.]
[fo l. 587] I n S upreme C ourt oe the U nited S tates
D esig n atio n b y A ppellees of A d dition al P arts of the
R ecord for P r in tin g — Filed August 1, 1940
Pursuant to paragraph 9 of Rule 13 of the rules of the
Supreme Court, the appellees hereby designate the addi
tional parts of the record which they think material:
1. Order of the Presiding Judge directing the transmittal
to the Supreme Court of certain original papers and ex
hibits.
397
2. This designation of additional parts of the record for
printing.
Lowell M. Greenlaw, Chicago, Illinois; Herbert S.
Anderson, Chicago, Illinois; Charles L. Black, Aus
tin, Texas; John W. Stayton, Austin, Texas; Ire
land Graves, Austin, Texas. Attorneys for the
appellee The Pullman Company and for the inter
vener plaintiff appellees Warren J. West, et al.
By Ireland Graves, Austin, Texas. Claude Pol
lard, Austin, Texas, Attorney for other appellees.
[fol. 588] Service of the foregoing designation by the ap
pellees of additional parts of the record to be printed is
acknowledged by the undersigned attorneys for appellants,
this 31 day of July, 1940.
Cecil C. Rotsch, Attorney for appellants the Rail
road Commission of Texas, Lon A. Smith, Jerry
Sadler and Ernest O. Thompson, and Gerald C.
Mann, Attorney General of Texas.
Cecil A. Morgan, Attorney for intervening defend
ants M. B. Cunningham, W. M. Hadley and W. A.
Worley.
[fol. 589] [File endorsement omitted]
Endorsed on cover: File No. 44,632 W. Texas, D. C. H. S.,
term No. 283. Railroad Commission of Texas, Lon A.
Smith, Ernest 0. Thompson, et al., Appellants, vs. The Pull
man Company, Guy A. Thompson, Trustee, The St. Louis,
Brownsville and Mexico Railway Company, Debtor, et al.,
Filed July 26, 1940. Term No. 283 0. T. 1940.
(860)
In the
/
Supreme Court of the United States
October Term, 1940
NO. 283
RAILROAD COMMISSION OF TEXAS, ET AL,
Appellants
v.
THE PULLMAN COMPANY, ET AL,
Appellees
BRIEF FOR APPELLANTS,
Railroad Commission of Texas, Lon A. Smith,
Ernest 0 . Thompson, Jerry Sadler,
and Gerald C. Mann
Appeal from the District Court of the United States
for the Western District of Texas
FIRM FOUNDATIO PUBLISHING HOUSE - AUSTIN
SUBJECT INDEX
Page
Opinion Below____________________________ ...__ 1
Statement of Grounds for Jurisdiction________ 2
Statement of the Case________________________ 2
(a) Plaintiffs’ Complaint and Nature of the
Suit________________________________ 2
(b) Temporary Restraining Order Granted „ 10
(c) Three-judge Court Organized___________ 10
(d) Other Parties Intervene_______________ 10
(e) Defendants’ Answer___________________ 10
(f) Evidence on Contracts and Reasonable
ness of Order_______________________ 12
(g) Trial Court’s Judgment_______________. 16
Specification of Errors to be Urged ( 1 - 21) _____ 17
Summary of Argument (I - V ) _______________ 29
Argument ___________________________________ 31
Conclusion _____________________ 83
Appendix ______________ 85
Exhibit “A” — Texas Constitutional Provi
sions Relevant to this Appeal 85
Exhibit “ B” — Texas Statutes Relevant to
this Appeal________________ 85
Exhibit “C” — Senate Bill 169, 32nd Leg.,
Acts 1911, p. 157_______ 101
T A B L E OF C A SE S A N D S T A T U T E S
Page
Atlantic Coast Line Railroad Co. v. Georgia,
234 U. S. 280 ______________________________ 80
A. T. & S. F. Ry. Co. v. Railroad Commission
of California, 283 U. S. 380 ________________ 80
Chesapeake & Ohio Ry. Co. v. Public Service
Commission of West Virginia, 242 U. S. 603 __ 73
City and County of San Francisco v. Market
Street Ry. Co., 98 F. (2d) 628 ______________ 74
City of Denison v. Municipal Gas Company,
117 Tex. 291 ___________________________ _ 46
Constitution of Texas,
Article X, Section 2 ________________________ 45
Constitution of United States,
Fourteenth Amendment__________________30, 70
C. M. & St. P. Ry. Co. v. Sloan, 169 U. S. 133____ 80
C. R. I. & P. Ry. Co. v. Arkansas, 219 U. S. 453
_________________________________________ 72, 77
G. C. & S. F. Ry. Co. v. Texas 169 S. W. 385
(affirmed by Sup. Ct. of U. S., 246 U. S. 5 8 )__ 57
Gulf Land Company v. Atlantic Refining Com
pany, 134 Tex. 5 9 _________________________ 67
H. & T. C. Ry. Co. v. J. L. & L. P. Smith, 63
Tex. 322 __________________________________ 57
Henderson v. Terrell, 24 Fed. Supp. 147____41, 81
I. & G. N. Railway Co. v. Railroad Commission
of Texas, 99 Tex. 332 ____________________59, 61
TABLE OF C A SE S A N D S T A T U T E S — Continued
Page
Manufacturers Ry. Co. v. United States, 246
U. S. 456 _________________________________ 68
Missouri Pacific Railroad Co. v. Norwood, 283
U. S. 249 _________________________________ 78
Nashville, C. & St. L. Ry. v. Tennessee, 262
U. S. 3 1 8 _________________________________ 69
Pennsylvania Railroad Co. v. St. L. A. &
T. H. R. Co., 118 U. S. 290 __________________ 37
Philip A. Ryan Lumber Co. v. Ball, 197 S. W.
1037 -------------------------------- 35
Railroad Commission of Texas v. Beaver Re
clamation Co., 132 Tex. 2 7 __________________ 40
Railroad Commission v. Galveston Chamber of
Commerce, 105 Tex. 101____________________ 50
Railroad Commission of Texas v. H. & T. C.
Ry. Co., 90 Tex. 345 _____________________ 59, 60
Railroad Commisison of Texas v. McDonald,
90 S. W. (2d) 581__________________________ 43
Railroad Commission of Texas v. Rowan &
Nichols Oil Company, 310 U. S. 573 ______ 70, 71
Revised Civil Statutes of Texas
Article 4562 ______________________________ 59
Article 6260 _______________________________ 35
Article 6416___________________________ 32
Article 6445 _______________________________ 48
Article 6448_______________________________ 49
T A B L E OF C ASES A N D S T A T U T E S — Continued
Page
Article 6450 _____________________________ 38, 66
Article 6453 _______________________________ 39
Article 6473 _______________________________ 32
Article 6474 ______________________ 51
Chapter XI, Title 112______________________ 46
Rochester Telephone Corp. v. United States,
307 U. S. 125______________________________ 71
Senate Bill 169, 32nd Leg., Acts 1911, p. 157---- 62
Smith v. Alabama, 124 U. S. 465 ---------------------- 78
Southern Pacific Company v. Patterson, 27
S. W. 194_________________________________ 34
State v. St. Louis Southwestern Ry. Co. of
Texas, 165 S. W. 4 9 1 ______________________ 52
St. L. I. M. & S. Ry. Co. v. Arkansas, 240
U. S. 518 ________________________________ 72
St. Louis Southwestern Ry. Co. v. State, 113
Tex. 570 __________________________________ 64
Texas Steel Company v. F. W. & D. C. Ry. Co.,
120 Tex. 597 ______________________________ 39
Thomas v. West Jersey Railroad Co., 101
U. S. 71 ___________________________________ 33
Trenton Horse Railroad Co. v. City of Tren
ton, 53 N. J. L. 132, 20 Atl. 1076_________
United States Code, Title 28, Sections 345 and
380 ____________________________________ 2
In the
Supreme Court o f the United States
October Term, 1940
NO. 283
RAILROAD COMMISSION OF TEXAS, ET AL,
Appellants
v.
THE PULLMAN COMPANY, ET AL,
Appellees
BRIEF FOR APPELLANTS,
Railroad Commission of Texas, Lon A. Smith,
Ernest O. Thompson, Jerry Sadler,
and Gerald C. Mann
OPINION BELOW
The opinion of the statutory three-judge court,
dated April 3, 1940, (R. 359) is reported in 33 Fed.
Supp. 675.
— 2—
STATEMENT OF GROUNDS FOR
JURISDICTION
The jurisdiction of the Supreme Court of the
United States is invoked under Sections 238 and 266
of the Judicial Code, as amended by the act of Feb
ruary 13, 1925 (United States Code, Title 28, Sec
tions 345 and 380). The judgment appealed from
in this case was dated and filed April 23, 1940. (R.
364) This appeal was allowed by an order of the
District Court entered on June 18, 1940. (R. 384)
The record was filed in this court on July 26, 1940;
and the order noting probable jurisdiction was en
tered on October 14, 1940.
STATEMENT OF THE CASE
(A) PLAINTIFFS’ COMPLAINT AND NATURE OF
THE SUIT
This suit was brought in the District Court of the
United States for the Western District of Texas by
The Pullman Company and twelve railroads as plain
tiffs, against the Railroad Commission of Texas, the
three members thereof, and the Attorney General
of Texas, as defendants, asking the court to restrain
by injunction the enforcement of an order of the
Railroad Commission of Texas whereby it was re
quired that all sleeping cars be in the charge and
care of a pullman conductor.
The pleadings and evidence showed that on Au
gust 8, 1939, the Railroad Commission of Texas en-
— 3—
tered an order on its own motion relating to the
operation of sleeping cars, and thereupon the Pull
man Company requested a hearing, and notices were
issued as provided by the rules of the Commission
for the time and in the manner provided by law; and
appearances were made by the Pullman Company,
the various railroads, and the Order of Sleeping Car
Conductors, each represented by their attorneys
and a hearing held beginning August 31, 1940. (R.
9, 37 and 65) Upon the conclusion of said hearing
an order, dated November 4, 1939, was entered by
the Commission, which provided in part as follows:
“ The Commission thus finds that all of the
parties interested in the subject matter have
been duly notified for the time and in the man
ner provided by law and that all of said parties
entered an appearance in this cause and, with
all parties having announced ready, the Com
mission proceeded to hear the oral testimony of
seventeen witnesses, some of whom were offered
by the railroad companies, the Pullman com
panies and the other parties at interest, as well
as documentary evidence, and after a full, final
and complete hearing of evidence, which lasted
for two days and after argument of counsel,
the Commission being fully advised in the
premises, FINDS:
“ (1) The Pullman Company has made ar
rangements with the railroads of Texas by the
terms of which it is obligated to furnish stand
ard sleeping and parlor cars, properly equipped
and acceptable to the railroad company, suffi
cient to meet the requirements of travel over
4
the lines of railroads operated by said com
panies in Texas and under such contract it has
the exclusive right to operate pullman cars and
sleepers over the railways in Texas, except that
the railroads should have the right to operate
their own parlor cars, either exclusively or in
addition to the parlor cars furnished by the
Pullman Company.
“ (2) The contracts between the Pullman
Company and the railroads provide that the
Pullman Company shall have the right to col
lect from the occupants of its cars for the use of
seats, berths and rooms therein such fares as
shall be charged on competing lines of rail
roads.
“ (3) While the various contracts differ as
to the compensation the railroads are to receive
from the Pullman Company for this exclusive
right to furnish such cars and services, they all
provide in substance that all receipts from
operations above a given sum per car per annum
shall be divided between the railway company
and the Pullman Company in various and
graduated proportions. The railroad com
panies are thus directly interested in the
charges made by the Pullman Company for the
use of its seats and services to the extent of
sharing in the profits over and above a given
amount per car per annum and this indirectly
amounts to a tariff charge or additional com
pensation to the railroads for the privilege of
riding in cars and obtaining services rendered
by the Pullman Company under such contracts.
All of this is in addition to the extra fare re
quired to be paid by a passenger before he can
have the privilege of purchasing a seat in and
the accommodations provided by the pullman
cars.
(i * * *
“ (7) The railroads of Texas are charging
the maximum sum allowed by the Statutes of
this state for passengers who desire to ride in
sleeping cars or pullman cars, namely, 3c per
mile. This charge is made and collected by the
railroad companies. In addition thereto, sleep
ing car companies or the Pullman Company col
lects an extra fare for the privilege of riding
in pullman cars. * * *
“ (8) The Commission finds from the evi
dence that there are seventeen separate and dis
tinct operations on the various railroads in
Texas without pullman conductors in charge of
pullman cars. The Commission further finds
that all other runs other than the seventeen
operations disclosed by the evidence, do have a
pullman conductor in charg e of the pullman
cars; that the failure to have 'pullman conduc
tors on the seventeen operations is a discrimina
tion against the passengers who ride on those
particular runs in that all other operations of
Pullman cars do have Pullman conductors; that
in every instance the same rates and fares are
exacted by the railroad companies and the Pull
man Company and in one instance the services
of a Pullman concudtor are offered and in the
other instances enumerated, namely, the seven
teen operations, such services are not rendered.
(Italics ours).
“ * * * the failure on the part of the railroad
— 6—
companies and that of the Pullman companies
to thus provide such service and protection to
such passengers is an abuse, a disadvantage and
an undue and unjust discrimination against all
passengers who ride on any one or more of said
seventeen operations where Pullman conductors
are not used. (Italics ours).
ii ^ # %
“ (13) Pullman conductors are especially
trained by the Pullman Company to render a
special type service to passengers riding in the
Pullman cars. * * *
a * * *
“ (25) That it is impossible for the train
conductor to perform all the duties required of
him in the operation of the train and likewise
perform the additional duties of a Pullman con
ductor. * * * (Italics ours).
U* * *
“ IT IS, THEREFORE, ORDERED, AD
JUDGED AND DECREED that it is necessary
in order to correct the abuses aforesaid and
eliminate the existing unreasonable and undue
disadvantage, prejudice and discrimination to
such described traffic that the services, safety,
convenience and comfort for which such extra
fare is paid and as contracted between the rail
roads and the Pullman Company be provided,
and that failure to provide it is to the unreas
onable and undue disadvantage and prejudice
to and a discrimination against the said pas-
sengers as described, and would be charging a
fare for which contracted services are not per
formed.
U He * He
“ IT IS FURTHER ORDERED, ADJUDG
ED AND DECREED that no sleeping car shall
be operated on any line of railroad in the State
of Texas * * * unless such cars are continuously
in the charge of an employee * * * of * * * the
rank and position of Pullman conductor.
“ IT IS FURTHER ORDERED by the Rail
road Commission of Texas that in any case
where it is the desire of any railroad company,
receiver or trustee to operate over its line of
railway a sleeping car or cars without fully
complying with the provision of the orders
above set out, the Commission shall be notified
and its consent secured before such change or
deviation from the terms of said orders is put
in force.
“ It is not the intention of the Commission to
place any burden on interstate commerce. If
any part of this order or the application and
the enforcement thereof when applied to any
one or more railroads or any operation thereof
be held to be an undue burden on interstate
commerce, then such holding shall not affect
this order as applied to other operations by rail
roads not amounting to an undue burden on in
terstate commerce.
The complaint of the Pullman Company and the
twelve railroads, as plaintiffs, alleged that the Pull
man Company is a private corporation organized
under the laws of the State of Illinois, that eight of
the plaintiff railroads are incorporated under the
laws of the State of Texas, and that the other plain
tiff railroads and trustees operating them are cor
porations and/or residents of other jurisdictions.
(R. 1)
The pleadings and evidence showed that the Pull
man Company is engaged in the sleeping car busi
ness in that it owns sleeping cars (known as Pull
man cars), that each of the other plaintiffs, separate
from each other, operate railroads and train service
thereon; and that the Pullman Company had en
tered into a contract with each of the other plaintiffs
whereby it furnishes sleeping cars with crew (con
ductors and porters) and equipment for use in the
trains operated on the railroad lines of each of the
other plaintiffs. (R. 6, 65) All of said contracts pro
vide that the Pullman Company shall have the right
to collect from the occupants of its cars for the use
of the seats and berths and other accommodations
therein such fares as are charged on lines of rail
roads competing with the lines of the contracting
railroad companies where similar accommodations
are furnished, and the Pullman Company shall pro
vide suitable employees for collecting such fares
and furnish the usual sleeping car service to the pas
sengers therein. (R. 6, 65)
— 9—
It appeared from the pleadings and evidence that
the only connection between any of the plaintiffs is
that the Pullman Company furnishes the sleeping
cars, with a crew (conductors and porters), to each
of the other plaintiffs for use on their railroad lines.
These other plaintiffs each operate their railroads
and their trains separate from each other. (R. 6)
The pleadings and the evidence showed that the
railroads and trains operated by some of the plain
tiffs are entirely within the State of Texas and are
therefore intrastate operations, but that in the case
of some of the other plaintiffs they operate inter
state trains between Texas and other states. In
other words, only a part of the plaintiffs operate
interstate trains. (R. 17 to 20, and 68)
The plaintiffs’ complaint prayed that a temporary
injunction be granted, and that on final hearing that
the same be made permanent, enjoining the defend
ants from enforcing said order of the Railroad Com
mission of Texas; and the principal grounds on
which it asked for such injunction were (1) that “ the
order is not within the authority delegated to the
Railroad Commission by any statute or law of the
State of Texas,” (2) that “it is violative of the due
process clause of the Fourteenth Amendment to the
Constitution of the United States in that it will de
prive the plaintiffs of their property without due
process of law,” and (3) that “ said order as applied
to the plaintiffs * * * constitutes an * * * interference
with interstate commerce in violation of the com-
— 10—
merce clause of the Constitution of the United
States.” (R. 30)
(B) TEMPORARY RESTRAINING ORDER GRANT
ED
A temporary restraining order was granted by a
District Judge of the United States District Court
for the Western District of Texas on November 28,
1939. (R. 56)
(C) THREE-JUDGE COURT ORGANIZED
After the temporary restraining order was grant
ed, a three-judge court was organized under Section
266 of the Judicial Code (United States Code, Title
28, Section 380); and said court tried the case on the
merits. (R. 58)
(D) OTHER PARTIES INTERVENE
Prior to the trial, leave was granted to three Pull
man porters to intervene as plaintiffs and to three
Pullman conductors to intervene as defendants, and
they participated in the trial in said capacities. (R.
73 to 77)
(E) DEFENDANTS’ ANSWER
The defendants filed and urged a motion to dis
miss in which it was contended, among other things,
(1) that the complaint failed to state a cause of ac
tion in favor of any plaintiff against any defendant
11—
upon which relief could be granted (Par. 1, Motion
to Dismiss), (2) that there was a misjoinder of plain
tiffs because the complaint alleged that when the
order was enforced against some of the plaintiffs
it constituted an interference with interstate com
merce but as to other plaintiffs it did not constitute
such an interference (Par. 2, Motion to Dismiss),
(3) that there was a misjoinder of plaintiffs and
causes of action because the causes of action alleged
by the various plaintiffs were separate from each
other (Par. 3, 4 and 6, Motion to Dismiss), (4) that
the Pullman Company had no cause of action be
cause it did not have sufficient interest (Par. 5, Mo
tion to Dismiss), (5) that no cause of action was
stated because the complaint did not allege that
there was “insufficient evidence or no evidence be
fore said Commission to support or justify said
order, or that said Commission entered an order
or orders contrary to the evidence before it, or that
in view of the evidence before said Commission said
orders were arbitrary or unreasonable,” (Par. 7,
10, 11, Motion to Dismiss), and (6) that it was im
proper to allege the total property rights that would
be destroyed exceeded $3,000.00 because “each of the
plaintiffs has an independent action, the value to
all of the plaintiffs jointly could not be considered
as determining the jurisdictional question.” (Par.
15, Motion to Dismiss.) (R. 60)
The defendants also filed an answer, subject to its
motion to dismiss, admitting that said order had
been passed by the Commission, but denied the al-
—12
legations in the plaintiffs’ complaint by which it was
sought to invalidate the order, and denied that the
enforcement of said order interfered with interstate
commerce or took property without due process of
law, and the defendants also pleaded specially that
“the Railroad Commission had before it ample and
sufficient evidence sustaining the facts therein (in
the order) found,” and that said order and the en
forcement thereof did not contravene the Federal
Constitution, and that the Commission was acting
within the authority of the Constitution and stat
utes of the State of Texas. (R. 65)
(F) EVIDENCE ON CONTRACTS AND REASON
ABLENESS OF ORDER
During the trial a large amount of evidence, both
oral and documentary, was introduced by both sides.
The plaintiffs offered proof to substantiate their al
legations with reference to the contracts that exist
between the Pullman Company and the various rail
roads and proved that the fares charged to ride in
the sleeping (Pullman) cars is one cent per mile in
addition to the three cents per mile per day coach
fare charged all passengers by the railroad com
pany, and in addition to said one cent, plus said three
cents (total 4c) charge, there is also a charge made
for the seat or berth in the Pullman car. (R. 79 to
359)
There was a large amount of testimony on the
question of whether or not as far as the safety and
welfare of the passengers is concerned, a Pullman
- 1 3 -
conductor in addition to a train conductor is needed
on the trains having sleeping cars.
The witness M. B. Cunningham, who had been a
sleeping car conductor in the employ of the Pullman
Company for thirty-five years, testified that as part
of his duties a Pullman conductor is responsible
for the operation of the Pullman cars in general,
that he looks after the air-conditioning (R. 269,
270, 293), cleanliness and condition of the porters
(R. 269, 272) sanitation of the cars and compliance
with the State Sanitary Code (R. 269, 270, 277), that
sometimes old people and children are placed in
his care (R. 269), that it was his duty to render
first-aid and take care of the passengers in case
of a wreck and that all Pullman conductors had
been given special training in that respect and he
said he had been in several wrecks (R. 278), he tes
tified to particular instances showing that the por
ters employed by the Pullman Company cannot
handle the passengers and that particularly during
convention crowds and extra heavy business some
passengers abuse the porters and consequently the
porters cannot properly control the passengers
without the aid of a Pullman conductor (R. 273),
he stated that one of the problems he had to deal
with was that of men and women misconducting
themselves together and he cited several instances
of immoral conduct (R. 273, 274, 275, 276), and ac
cording to his testimony the use of intoxicating
liquor is on the increase and both men and women
passengers become intoxicated quite often and he
•14—
indicated that a porter could not properly handle
such a person, particularly if it was a woman (R.
280, 281), and he testified that the train conductor
only comes through the sleeping cars once on some
trips and that sometimes when they are busy “they
can’t possibly come back through” the sleeping cars
on the entire trip (R. 291); and he said that the
porters make up the berths and have charge of
the linen (R. 270, 271).
The witness W. M. Hadley, who had been a con
ductor for the Pullman Company for fifteen years,
testified that one of his duties was to keep decorum
in the Pullman cars (R. 296 807), that durnig his
experience as a sleeping car conductor he had many
cases of parents placing their children in his care
on the Pullman cars for a trip without the parents
and he told of some such instances (R. 297), he
said that aged and infirm people were placed in his
care as Pullman conductor and he told of an occa
sion when an old blind lady was placed in his cus
tody and her condition was such that he had to help
her to the rest room (R. 297, 309), he also testified
that he had had a number of cases of men and wom
en attempting to become unduly intimate with each
other and he described specific instances and stated
that he always had stopped such conduct (R. 298,
308), he too testified that the drinking of intoxicat
ing liquor was very prevalent and that he had had
to take care of drunk people, including a man with
delirium tremens and a woman who became so in
toxicated she became almost helpless (R. 300, 305,
306), he testified that one of his tasks was the super-
- 15-
vision of the cleanliness of the cars and that some
porters were negligent in that respect and in some
instances they did not keep the floors clean of beer
bottles and cigarette stubs unless directed by the
Pullman conductors (R. 300, 301) , he explained that
porters had difficulty in controlling the ventilation
and the heating and cooling systems of the sleeping
cars and that the Pullman conductors usually at
tended those things. (R. 303)
The witness C. E. Lowery, who had been an em
ployee of the M. K. & T. Railroad Company con
tinuously since the year 1892 and who had served as
a train conductor the past twenty-three years, tes
tified to specific instances of the misconduct be
tween men and women passengers and to other mis
conduct, including student pranks, on the Pullman
cars (R. 326, 327, 329), and his testimony shows
that porters alone cannot control or properly han
dle passengers on trains in Texas and he stated
that people in general do not have the respect for
Pullman porters that they do for the train conduc
tors and the Pullman conductors (R. 326, 327), and
he testified positively that “ it would be much bet
ter” for a Pullman conductor to be in charge of the
Pullman cars, “ that the situation ivould be better
taken care of,” and that the safety of the passen
gers and the train would be better taken care of in
his opinion if a Pullman conductor was in charge
of the sleeping cars (R. 330); and it was his testi
mony that sometimes when he was acting as train
conductor he was so busy with his other duties that
16—
he could not go back to the sleeping cars more than
once during his regular 109 mile run and that he
left the care of the sleeping cars to the Pullman
employees. (R. 328, 329)
Many other witnesses testified in support of the
defendants’ contention that a Pullman conductor
contributed to the safety and comfort of the passen
gers. Among these witnesses was W. L. Beamer,
who had served as a train conductor most of the time
since 1907 (R. 316 to 323), and Mrs. H. B. Shank, a
mother of two children, who testified that she was
so fearful of Pullman porters that she would not
ride in a Pullman car if it had no Pullman conductor
and had only a porter in charge (R. 335).
(G) TRIAL COURT’S JUDGMENT
After hearing the evidence the court took the case
under advisement, and on April 23, 1940, entered
judgment overruling the defendant’s motion to dis
miss and permanently enjoining the defendants from
enforcing said orders of the Railroad Commission
of Texas or from penalizing the plaintiffs for vio
lating said orders. (R. 364)
All of the defendants, including the intervening
defendants, excepted to the judgment of the court.
This appeal is from said judgment.
- 1 7 -
SPECIFICATION OF ERRORS TO BE
URGED
1.
The court erred in overruling and in not sustain
ing the plea of the defendants to the jurisdiction of
the court, their motion to dismiss and their motions
relating to misjoinder of causes of action, misjoinder
of parties plaintiff, and an unlawful delegation of
chartered rights from the railroad companies to The
Pullman Company because
(a) The court had no jurisdiction to entertain a
bill in equity wherein the plaintiffs pleaded that they
were engaged in an illegal and unlawful enterprise
in that the railroad company by contract attempted
to delegate a part of their charter powers to a for
eign corporation, namely, The Pullman Company,
in view of the mandatory provisions of Article 6260,
Revised Civil Statutes of Texas, which requires that
only corporations chartered under the laws of the
State of Texas may operate railroads in said state,
and the damages as alleged by the plaintiffs to sus
tain jurisdiction were based upon interfering with
the rights of the railroad companies and The Pull
man Company under such invalid contracts, and
(b) The court had no jurisdiction to entertain
the plaintiffs’ bill which pleaded that some of the
plaintiffs resided in the State of Texas and others
resided without the State of Texas and it was not
— 18—
alleged with certainty the specific damage, if any,
suffered by each of the plaintiffs.
2.
The court erred in holding that the Railroad Com
mission of Texas was without authority to promul
gate the order complained of in that Article 6473 of
Vernon’s Annotated Revised Civil Statutes of Texas
provides “if any railroad company * * * shall charge
* * * or receive a greater rate, charge, or compen
sation than that fixed and established by the Com
mission * * * such railroad company * * * shall be
deemed guilty of ex tor t i onand the pleadings and
proof showed without contradiction that the defend
ant railroads by contract with the defendant, The
Pullman Company, were charging rates, fares and
tolls for the transportation of passengers that had
not been fixed or promulgated by the Railroad Com
mission, and therefore the plaintiffs had no standing
in a court of equity and no right to ask for equitable
relief.
3.
The court erred in not sustaining the defendants’
motions to dismiss the plaintiffs’ bill of complaint
because it appeared in said bill that the railroad
companies had delegated to The Pullman Company
a part of their charter powers, and in this indirect
way the railroad companies were charging fares,
tolls and rates for themselves in an amount in ex-
- 1 9 -
cess of the maximum sum allowed by the statutes of
the State of Texas, and the railroad companies were
doing indirectly what they cannot do directly, and
therefore plaintiffs had no standing in a court of
equity.
4.
The court erred in holding that the order com
plained of by the Railroad Commission of Texas was
made without statutory authority, because the laws
of the State of Texas are mandatory in requiring
that said Commission make rules and regulations
governing railroads, namely, Article 10, Section 2
of the Constitution of Texas, and Articles 6445 and
6474 of the Revised Civil Statutes of Texas, which
provisions of the law authorize the Commission to
make the order in question.
5.
The court erred in issuing a permanent injunction
against the Railroad Commission of Texas, the mem
bers thereof, and the Attorney General of Texas,
enjoining said parties from carrying into effect the
order in question, because in doing so the court sub
stituted its own opinion for that of the Railroad
Commission of Texas.
6.
The court erred in holding that the Railroad Com
mission of Texas was without authority to promul-
- 2 0 -
gate a rate order, because Article 6448 of the Re
vised Civil Statutes of Texas imposes a duty upon
the Railroad Commission to fix the rates of all rail
roads and because Article 6449 of the Revised Civil
Statutes of Texas provides that ten days notice
of such hearing shall be a sufficient notice, and
in this case the order in question recited on its face
that notice was issued on August 19,1939, and hear
ing held on August 31, 1939, and the order recited
that “the Commission thus finds that all parties in
terested in the subject matter have been duly notified
for the time and in the manner provided by law,”
and said ruling of the court was in conflict with the
decisions of the Supreme Court and the other courts
of the State of Texas, and the attack on said order
in regard to said notice is a collateral attack and
a collateral attack cannot be maintained against
such an order.
7.
The court erred in holding that the attempts of
the Railroad Commission of Texas to regulate the
rates charged by the Pullman Company were void
and that the Commission had no jurisdiction over
the Pullman Company, because Title 71, Chapter 4,
Revised Civil Statutes of Texas, and particularly
Article 4477 of said statutes, imposes the mandatory
duty upon the Railroad Commission to enforce the
Public Health Sanitary Code of the State of Texas,
and this was an order authorized by said code and
the statutes in regard to the enforcement thereof.
— 21-
8.
The court erred in holding that the Railroad Com
mission had no authority to regulate the rates to be
charged by The Pullman Company, because all rail
roads that do business in the State of Texas must
be chartered under the laws of the State of Texas
and all such railroads are under the direct supervi
sion of the Railroad Commission, and the railroads
cannot delegate their chartered powers to The Pull
man Company by contract and thereby escape reg
ulation of the Railroad Commission or create an
agency free from regulation by the Railroad Com
mission.
9.
The court erred in entering a judgment enjoining
the Railroad Commission of Texas, the members
thereof, and the Attorney General of Texas, from
enforcing the order in question, because the Rail
road Commission of Texas had the authority to pass
and enforce said order by virtue of the fact that the
Constitution of Texas authorizes the Legislature of
Texas to pass laws to correct abuses (Article 10,
Section 2, Constitution) and the Legislature has
passed such a law and has conferred authority on
the Railroad Commission of Texas “to govern and
regulate * * * railroads” and “to correct abuses,”
and to prevent * * * abuses in the conduct of their
business” (adopted 1911 and now codified as Article
445 of the Revised Civil Statutes of Texas) and
— 22—
the Legislature has not left it up to the Railroad
Commission to define the “abuse,” but the Legisla
ture has defined the abuse involved in this case by
saying that “unjust discrimination is * * * prohibited
and” it shall constitute unjust discrimination “if any
railroad * * * shall give any undue * * * preference
or advantage to any particular person * * * or local
ity, or subject any particular description of traffic
to any undue or unreasonable prejudice, delay or dis
advantage in any respect whatsoever” (Article 6474
of the Revised Civil Statutes of Texas); and there
fore, the Railroad Commission of Texas had the au
thority to adopt said order in question and enforce
the same.
10.
The court erred in making any findings of fact of
any kind because it is not for the Federal Courts to
supplant the Commission’s judgment even in the
face of convincing proof that a different result
would have been better, and it is not proper for the
court to determine which witnesses should be be
lieved and which ones should be disbelieved, but it is
only a question of whether or not there is any evi
dence on which the Commission’s judgment can be
founded, and as there was such evidence in this case
the Federal Court cannot disturb or interfere with
the Commission’s judgments or orders.
11.
The court erred in making the findings of fact set
- 23-
OUt in paragraph 7 of the court’s findings of fact
filed in this case, said findings of fact in said para
graph 7 beginning with the words “All of the Pull
man porters in Texas” and ending with the words
“there is no reasonable basis for finding contrary
to the facts stated in this finding No. 7,” because
said findings of fact so set forth in paragraph 7 of
the court’s findings are contrary to the evidence and
are not supported by the testimony and the evidence
in this case.
12.
The court erred in overruling and in not sustain
ing the plea of the defendants to the jurisdic
tion of the court, and their motions to dismiss, be
cause the plaintiffs in this case had no standing in
a court of equity, for the reason that they relied on
contracts between the railroad companies in this
case and The Pullman Company, and said contracts
between said railroad companies and The Pullman
Company are monopolistic and violate both the
United States and the State laws prohibiting trusts
and monopolies and contracts in restraint of trade,
and said contracts so relied on and pleaded and
urged by the plaintiffs are void and illegal.
13.
The court erred in holding (as stated in paragraph
2 of the court’s conclusions of law) that the rail
roads are necessary and proper parties to this ac-
— 24—
tion, because such a conclusion is contrary to the
evidence and testimony in this case and contrary to
law.
14.
The court erred in holding (as stated in paragraph
6 of the court’s conclusions of law) that the chal
lenged orders in question were not within the pow
ers delegated to the Railroad Commission of Texas
because the Railroad Commission has authority by
virtue of the fact that the Constitution of Texas au
thorizes the Legislature of Texas to pass laws to
correct abuses (Article 10, Section 2, Constitution)
and the Legislature has passed such a law and has
conferred authority upon the Railroad Commission
of Texas “to govern and regulate * * * railroads”
and “to correct abuses,” and “to prevent * * * abuses
in the conduct of their business” (Adopted 1911, and
now codified as Article 6445, Revised Civil Statutes
of Texas), and the Legislature has not left it up to
the Railroad Commission of Texas to define the
“abuse,” but the Legislature has defined the abuse
involved in this case by saying that “unjust discrim
ination is * * * prohibited” and it shall constitute
unjust discrimination “if any railroad * * * shall
give any undue * * * preference or advantage to any
particular person or locality or subject any partic
ular description of traffic to any undue or unreason
able prejudice, delay or disadvantage in any respect
whatsoever;” and because of said provisions of the
law of Texas, the Railroad Commission has author
ity to make and enforce such order.
— 25—
15.
The court erred in holding (as stated in paragraph
7 of the court’s conclusions of law) that the power
to issue the challenged order in question is not de
rived from Article 6445 of the Revised Civil Statutes
of Texas, because said Article 6445 authorizes the
Railroad Commission of Texas “to govern and reg
ulate * * * railroads” and “to correct abuses” and
“to prevent * * * abuses in the conduct of their busi
ness,” and the failure of the defendants to comply
with the order in question, that is, operate sleep
ing cars on lines of railroads in Texas without said
cars being in the charge of a Pullman conductor, and
operate sleeping cars on other lines with Pullman
conductors in charge, is an abuse under the facts in
this case, and has been defined as an abuse by the
Legislature of Texas under Article 6474 of the Re
vised Civil Statutes of Texas; and therefore the Rail
road Commission of Texas had authority to make
the order in question.
16.
The court erred in holding (as stated in para
graph 8 of the court’s conclusions of law) that no
Texas Statute has defined as an abuse, or prohibited,
the operation of a sleeping car that is not in charge
of a Pullman conductor, because the Constitution of
Texas authorizes the Legislature of Texas to pass
laws to correct abuses and the Legislature of Texas
has passed said law, to-wit: Articles 6445, 6448 and
6474 of the Revised Civil Statutes of Texas.
— 26—
17.
The court erred in holding (as stated in paragraph
9 of the court’s conclusions of law) that the chal
lenged orders are not within the authority delegated
to the Railroad Commission of Texas by Article 6474
of the Revised Civil Statutes, because said Article
6474 provides that if any railroad shall give any
undue preference or advantage to any particular
person or locality it is an unjust discrimination, and
under the facts in this case plaintiffs have been, and
are now, operating sleeping cars on some lines of
railroads without said cars being in charge of Pull
man conductors, and at the same time have operated
sleeping cars on other lines with said cars being in
charge of a Pullman conductor and the operation of
sleeping cars on different lines in different manners
in such fashion constitutes a discrimination and an
abuse in violation of Article 6474.
18.
The court erred in holding (as stated in para
graph 11 of the court’s conclusions of law) that the
Texas Legislature having enacted a full crew law
requiring a crew of four men on a train, the Railroad
Commission thereby has no authority to pass the
order in question requiring Pullman conductors to
be in charge of all sleeping cars, because said full
crew law is a separate act of the Legislature and
does not prevent the Railroad Commission of Texas
from preventing abuses and discrimination as au
thorized by Article 10, Section 2, Constitution of
— 27-
Texas, and Articles 6445, 6448 and 6474 of the Re
vised Civil Statutes of Texas.
19.
The court erred in denying and overruling the
defendant’s motion to dismiss and in holding (as
stated in paragraph 15 of the court’s conclusions of
law) that the defendant’s motion to dismiss should
be denied, because the plaintiffs’ complaint failed to
state a cause of action in favor of any plaintiff
against any defendant upon which relief could be
granted, in this, to-wit, the complainant failed to
allege that there was insufficient evidence or that
there was no evidence before the Railroad Commis
sion of Texas to support or justify the orders in
question, or that said commission entered an order
or orders contrary to the evidence before it, or that
in view of the evidence before said Commission said
orders were arbitrary and unreasonable, or that said
order or the enforcement thereof constituted unlaw
ful interference with interstate commerce, or that
said orders of the enforcement thereof constituted a
taking of the plaintiff’s property without due pro
cess of law.
20.
The court erred in permanently enjoining the de
fendants from attempting to enforce the orders in
question, because the jurisdiction of the United
States District Court, where this case was tried,
— 28—
did not rest on diversity of citizenship, and there
fore the only question open to said Court was
whether or not the state action complained of, to-
wit: said Railroad Commission action and order and
the enforcement thereof, transgressed the Consti
tution of the United States and whatever “vague
contours * * * the Due Process Clause may place
upon the exercise of the State’s regulatory power,”
and therefore the trial court did not have authority
or power to adjudge or decree that the Railroad
Commission was without statutory authority, that
is, did not have authority under the Texas Constitu
tion and statutes, to adopt and enforce the said
orders.
21.
The court erred in holding (as stated in the court’s
opinion and in its conclusions of law, and particu
larly in paragraph 6 of the Court’s conclusions of
law) that the orders in question are not within the
powers delegated to the Railroad Commission, be
cause the jurisdiction of the United States District
Court, where this case was tried, did not rest on
diversity of citizenship, and therefore the only ques
tion open to said Court was whether or not the state
action complained of, to-wit, said Railroad Commis
sion action and order and enforcement thereof,
transgressed the Constitution of the United States
and whatever “vague contours * * * the Due Process
Clause may place upon the exercise of the State s
regulatory power,” and therefore, the trial court
did not have authority or power to adjudge or de-
- 29-
cree that the Railroad Commission was without
statutory authority, that is, did not have authority
under the Texas Constitution and statutes to adopt
and enforce said orders.
SUMMARY OF ARGUMENT
I
The trial court should have entered judgment for
the defendants (appellants) in this case for the rea
son that the plaintiffs (appellees) clid not allege or
prove a cause of action, because (a) the plaintiffs’
claim is based upon the contracts between the Pull
man Company and the railroad companies and said
contracts are illegal and void by virtue of the fact
that they call for charging passenger fares of more
than three cents per mile in violation of the statutes
of the State of Texas, (b) the plaintiffs’ claim is
based upon said contracts and said contracts are
illegal and void because they contemplate that the
Pullman Company will engage in operating a rail
way in this State, which is a violation of the law of
the State of Texas because said company is not in
corporated for such purpose under the laws of this
State, and (c) this suit has not been properly
hi ought under Article 6453 of the Revised Civil
Statutes of Texas, which is the only law under which
it can be maintained.
—so
il
The Railroad Commission of Texas has authority
under the Constitution and the statutes of the State
of Texas to make and enforce the order in question,
to-wit, the order requiring that all sleeping cars be
in the charge of a Pullman conductor. Therefore,
the trial court erred in holding that the order was
not sustained by the provisions of the statutes.
Ill
The order in question, to-wit, the order requiring
that all sleeping cars be in the charge of a Pullman
conductor, is reasonable and contributes to the safe
ty and welfare of the passengers, and therefore, does
not violate the Fourteenth Amendment to the Con
stitution of the United States.
f IV
The order in question, to-wit, the order requiring
that all sleeping cars be in the charge of a Pullman
conductor, and the enforcement thereof, does not
unlawfully interfere with interstate commerce and
it does not violate the interstate commerce provi
sion of the Constitution of the United States.
V
As there was statutory authority for the making
of the order in question, and as said order was rea-
— 31—
sonable and did not violate the Fourteenth Amend
ment, the trial court erred in granting a “blanket”
injunction in behalf of all of the plaintiffs covering
all lines, because the facts showed that the situation
of each plaintiff and each line was different and that
possibly some of the plaintiffs were entitled to an
injunction but that the other plaintiffs were not en
titled to such relief, and because the facts further
showed that the plaintiffs who possibly had a cause
of action had not applied to the Commission, as pro
vided in the order, for a modification of the order
as applied to them. The evidence showed that some
of the lines and runs were entirely within the State
of Texas, but that a few of the other lines and runs
crossed over into other states; and the evidence
showed that the traffic was heavier and required a
Pullman conductor more in the case of some lines
and runs than in the case of other lines and runs.
ARGUMENT
I
The trial court should have entered judgment for
the defendants (appellants) in this case for the rea
son that the plaintiffs (appellees) did not allege or
prove a cause of action, because (a) the plaintiffs’
claim is based upon the contracts between the Pull-
wan Company and the railroad companies and said
contracts are illegal and void by virtue of the fact
that they call for charging passenger fares of more
ban 3 cents per mile in violation of the statutes of
— 32—
the State of Texas, (b) the plaintiffs’ claim is based
upon said contracts and said contracts are illegal
and void because they contemplate that the Pullman
Company will engage in operating a railway in this
State, which is a violation of the law of the State of
Texas because said company is not incorporated for
such purpose under the laws of this State, and (e)
this suit has not been properly brought under Arti
cle 6453 of the Revised Civil Statutes of Texas, which
is the only law under which it can be maintained.
(a)
Article 6416, Revised Civil Statutes of Texas,
reads in part as follows:
“ The passenger fare on all railroads in this
State shall be three cents per mile. . . . ”
Article 6473, Revised Civil Statutes of Texas, reads
in part as follows:
“ If any railroad company, subject to the
provisions of this title, or its agent or officer,
shall charge, collect, demand, or receive a
greater rate, charge or compensation than that
fixed and established by the Commission for the
transportation of freight, passengers or cars,
. . . on the line of its railroad, or any line oper
ated by it, . . . or for any other service per
formed or to be performed by it, such railroad
company and its agent and officer shall be
deemed guilty of extortion, and shall fortea
and pay to the State of Texas a sum not less
— 3 3 —
than one hundred nor more than five thousand
dollars.”
Thus, we see that by virtue of said Article 6416 the
maximum fare that a railroad company can charge
is 3 cents per mile, and that by virtue of said Article
6473 if a railroad charges a greater compensation
for the transportation of passengers than the amount
allowed by the Commission it is guilty of “ extor
tion.”
If a railroad company makes a contract to violate
said above quoted statutes, that is, makes a contract
to charge fares in excess of the amount allowed by
law, such a contract would undoubtedly be void.
Such appears to be the law according to the case of
Thomas V. West Jersey Railroad Company, 101 U.
S. 71, in which this court said:
“ . . . it is a contract forbidden by public pol
icy and beyond the power of the defendants to
make. Having entered into the agreement, it
was the duty of the company to rescind or
abandon it at the earliest moment. . . . Can they
found such a right on an agreement void for
want of corporate authority and forbidden by
the policy of the law? To hold that they can,
is, in our opinion, to hold that any act per
formed in executing a void contract makes all
its parts valid, and that the more is done under
a contract forbidden by law, the stronger the
claim to its enforcement by the courts.”
The plaintiffs’ cause of action was based upon the
contracts between the Pullman Company and the
54
various railroads. In fact the plaintiffs alleged
that “ the action of the Commission . . . constitutes,
in effect, an impairment of the obligation of said
contracts in violation of that provision of the Con
stitution of the United States denying any State the
power to pass any law impairing the obligation of
contracts.” (R. 28) However, the proof shows con
clusively that the contracts provide that passengers
who ride on sleeping cars are to be charged one cent
per mile in addition to the three cents per mile col
lected by the operating railroad company, a total of
four cents per mile, and also are to be charged an
additional sum for the use of berths and seats (R.
6) ; and the evidence shows that said terms of the
contracts are actually carried out (R. 79 to 180). We
submit that this amounts to charging a passenger
fare of more than three cents per mile, and is a
direct violation of Article 6416 and Article 6473,
quoted above. The plaintiffs have no right to main
tain a cause of action based upon an illegal contract
and unlawful acts.
A case construing said Article 6416 that we think
supports our contention is the case of Southern Pa
cific Company v. Patterson, 27 S. W. 194, by the
Texas Court of Civil Appeals, in which it was held
that said statute prohibited an extra fifty cents
charge per person being made (so as to cost the pas
senger a total of more than three cents per mile)
for crossing a bridge belonging to another company
that was used by the railroad hauling the passenger.
The court said:
— 35—
“ . . . We are of opinion that it was not in
the power of the defendant. . . to make, or au
thorize to be made upon its right of way, an
improvement, and thereby create the right to
demand more than the lawful rate per mile for
travel over it. . . . ”
We believe that in this case the plaintiffs’ cause
of action, if any, depends upon a state of facts
whereby the plaintiffs are charging more than the
maximum lawful rate of three cents per mile for
passenger fares. The plaintiffs should not be al
lowed to maintain such a suit.
(b)
Article 6260, Revised Civil Statutes of Texas,
reads as follows:
“No corporation, except one chartered under
the laws of Texas, shall be authorized or per
mitted to construct, build, operate, acquire,
own or maintain any railways within State.”
(Italics ours)
In the case of Philip A. Ryan Lumber Co. v. Ball,
197 S. W. 1037, by the Texas Court of Civil Appeals,
First District, the Philip A. Ryan Lumber Company
was a Tennessee corporation, and it made a contract
to buy timber from Ball to be used in the lumber
company’s sawmill, and the contract provided that
the lumber company would transport the timber
from the forest for a distance of six miles by means
°f a logging railroad. In the contract it was agreed
that Ball would build the railroad and that the lum
ber company would furnish the engines and cars.
Ball refused to carry out the contract, and in a suit
by the lumber company for damages because of
breach of contract the court held that the contract
was illegal in that it contravened Article 6260
(then 6406), and the court said:
“ . . . we can see no reason why appellant,
under the agreement it here undertook, would
not have been under the bar of article 6406, Re
vised Statutes of Texas, passed by the Legisla
ture in 1903 (Acts 1903, p. 90), and in effect
ever since. . . . ”
In this case the Pullman Company’s rights and
cause of action, if any, exist by virtue of the con
tracts by which it furnishes cars, with an operating
crew, to be operated on railway lines in Texas, al
though the company is not chartered under the laws
of Texas. This suit has been brought to enjoin the
Railroad Commission of Texas and the other de
fendants from interfering with said contracts. (R.
28, 29, 30) In the Philip A. Ryan Lumber Company
case the lumber company only furnished and oper
ated cars and engines on a logging railroad, and in
this case the Pullman Company furnishes and oper
ates sleeping cars on main line passenger railroads.
The Pullman Company is clearly violating said
Article 6260, and its suit cannot be maintained.
It might be contended that the Pullman Company
is not operating a railroad in this case, but that it
— 37—
has turned its cars and operating employees over to
the various Texas railroad companies, and said com
panies are really doing the operating, but such argu
ment is not tenable in view of the language in the
case of Pennsylvania Railroad Co. v. St. L. A. & T.
H. R. Co., 118 U. S. 290, which reads as follows:
“We think it may be stated, . . ., that unless
specially authorized by its charter, or aided by
some other legislative action, a railroad com
pany cannot, by lease or any other contract,
turn over to another company, for a long period
of time,_ its road and all its appurtenances, the
use of its franchises, and the exercise of its
powers, nor can any other railroad company
without similar authority make a contract to
receive and operate such road, franchise, and
property of the first corporation, and that such
a contract is not among the ordinary powers of
a railroad company, and is not to be presumed
from the usual grant of powers in a rai road
charter.
“ v . A contract to perform for the India
napolis and St, Louis Railroad Company obli
gations which it was forbidden to assume, and
which it had no authority to assume, must it
self be void. There is no power shown in any
these companies to accept a lease of the com
plainant such ̂as the one in the present case,
and perform its conditions, and they cannot,
therefore, become parties to such a contract
with a road outside the State which chartered
thein any more than the principal company.
— 38—
We sincerely submit that the Pullman Company
is engaged in operating a railroad in Texas, and as
it is not chartered under the laws of Texas it is per
forming said operations illegally, and it and the
other plaintiffs have no right to enjoin the Railroad
Commission of Texas from doing anything that
would interfere with said illegal operations.
(c)
We are submitting the hereinafter argument only
in the event this Honorable Court does not see fit to
sustain the foregoing contentions and argument.
As pointed out in the “ statement of the case”
above, the Railroad Commission of Texas held a
hearing at which the parties to this suit appeared,
in which it considered evidence, and thereupon made
the order in question (quoted above). The Com
mission clearly had a right to hold such a hearing
by virtue of Article 6450, Revised Civil Statutes of
Texas, which says:
“ The Commission may adopt rules to govern
its proceedings and to regulate the mode and
manner of all investigations and hearings of
rajilroad companies and other parties before
it, in the establishment of rates, orders, charges,
and other acts required of it under this law;
and no person shall be denied admission at such
investigation.”
If the Pullman Company or any other party was
dissatisfied with said order, said party is limited to
— 39—
a direct appeal “ to a court of competent jurisdic
tion in Travis County, Texas” as provided in Article
6453, Revised Civil Statutes of Texas. The Commis
sion’s orders are final if not appealed from in the
manner prescribed in said Article 6453, and said
orders cannot be questioned in a collateral attack.
Said Article 6453 provides, in part, as follows:
“ If any railroad company or other party at
interest be dissatisfied with the decision of any
rate, classification, rule, charge, order, act or
regulation adopted by the Commission, such
dissatisfied company or party may file a peti
tion setting forth the particular cause or causes
of objection to such decision, act, rate, rule,
charge, classification, or order, or to either or
all of them, in a court of competent jurisdic
tion in Travis County, Texas, against said
Commission as defendant. . . . ”
We sincerely believe that the Pullman Company
and the other plaintiffs are confined to the procedure
prescribed in said above quoted statute. Any other
piocedure or method of attack on the Commission’s
order would be a collateral attack. We state, with
out fear of contradiction, that unless a Railroad Com
mission order is void it cannot be questioned in a
collateral attack. In the case of Texas Steel Co. v.
■ W. & D. C. Ry. Co., 120 Tex. 597, in a Commission
0 Appeals opinion adopted by the Supreme Court
of Texas, the court said:
It is the settled law of this state that the
Railroad Commission is a quasi judicial body.
— 40-
Producers Refining Co. et al v. M. K. & T. Ry.
Co. of Texas (Tex. Com. App.), 13 S. W. (2d)
“ Since the Railroad Commission is a quasi
judicial body it follows that an order regular
upon its face made by the commission is not
subject to collateral attack. Article 6452-6453,
R. C. S. of Texas, 1925; West Texas Compress
Co. v. Railway Co. (Texas Com. App.), 15 S.
W. (2) 558; Producers Refining Co. v. M. K.
& T. Ry. Co., 13 S. W. (2d) 679; Id., 680;
Railroad Commission v. Weld, 95 Texas 278,
66 S. W. 1095; M. K. & T. Ry. Co. of Texas v.
Railroad Commission, 3 S. W. (2d) 489; Em
pire Gas & Fuel Co. v. E. L. Noble et al. (Tex.
Com. App.), 36 S. W. (2d) 451.”
In the case of Railroad Commission of Texas v. Bear
ver Reclamation Oil Co., 132 Tex. 27, in a Commis
sion of Appeals opinion adopted by the Supreme
Court of Texas, the court said:
“ It is of course definitely settled that the
general orders of the Railroad Commission are
presumed to be reasonable and valid until at
tacked in a direct suit for that purpose, as pro
vided by statute. It is also definitely settled
that the validity and reasonableness of a gen
eral order cannot be attacked in a collateral
proceeding such as is this suit. Railroad Com
mission v. Marathon Oil Co., 89 S. W. (2d) 517
(writ r e f .) ; Turnbow v. Barnsdall Oil Co., 99
S. W. (2d) 1096 (writ ref.).” (Italics ours)
The plaintiffs never made it clear in the trial, to
— 41—
our way of thinking, as to whether they were bring
ing a direct attack on the order as prescribed by said
Article 6453, or were bringing a collateral attack.
We think they intended for their suit to be a direct
attack, that is, “ a statutory suit against the Com
mission” under said Article 6453. But, the only case
directly in point that we have found holds that such
a suit cannot be maintained in a United States Dis
trict Court, and that is the case of Henderson v. Ter
rell, 24 Fed. Supp. 147, which was a three-judge Dis
trict Court case in which Judge Hutcheson of the
Circuit Court of Appeals wrote the opinion and said:
# “ Though plaintiffs and defendants are both
citizens of Texas, plaintiffs bring their suit
as though in addition to being one arising un
der the Constitution and laws of the United
States it is also one under the Texas statutes
authorizing a review of the Commission’s or
ders by suits filed against the Commission in
the State District Court of Travis County. Au
thorized as plaintiff would be, if the requisite
diversity existed, to bring their suit under the
statute in the Federal District Court of Travis
County, McMillan v. Railroad Comm, of Tex
as, D. C. 51 F. 2d 400; Reagan v. Farmers’
Loan & Trust Co., 154 U. S. 362,14 S. Ct. 1047,
38 L. Ed. 1014, we think it plain that, residents
of Texas as they and defendants are, plaintiffs
cannot maintain their suit as a statutory suit
against the Commission in this cou rt ........... ”
(Italics ours)
It is our belief that the only way the plaintiffs
(appellees) can escape the rule stated by Judge
Hutcheson in the Henderson V. Terrell case, supra,
is to shift their position and say that this is a collat
eral attack and not a direct attack in the form of a
“ statutory suit” under Article 6453. We now and
hereby call on the appellees (plaintiffs) to advise
the court and the appellants whether they are bring
ing a direct or a collateral attack in this case.
If the plaintiffs (appellees) have brought a col
lateral attack then they are limited to the contention
that the order is void, that is, that the Railroad Com
mission of Texas had no authority to make it. We
think the Commission had authority to make and
enforce the order, which we will explain later in this
brief. If it had such authority, and this suit of the
plaintiffs’ (appellees’ ) is a collateral attack, the
plaintiffs have no right to maintain their suit.
At this point we wish to call the court’s attention
to the fact that the defendants contended by motion
to dismiss at the trial (R. 62), and now contend,
that the plaintiffs’ complaint did not state a cause
of action because it did not allege that there was “in
sufficient evidence or no evidence before said Com
mission to support or justify said order, or that said
Commission entered an order or orders contrary to
the evidence before it, or that in view of the evidence
before said Commission said orders were arbitrary
or unreasonable.” There is not a word in the plain
tiffs’ complaint alleging there was insufficient evi
dence before the Commission, and in view of the
failure to make such an allegation we do not believe
the plaintiffs were entitled to complain about a lack
of evidence.
In the case of Railroad Commission of Texas V.
McDonald, 90 S. W. (2d) 581, by the Texas Court
of Civil Appeals, Third District, a suit had been
brought to review an order concerning motor carrier
regulations, and the court said:
“ The test is, not what the court’s indepen
dent judgment might be, but ivhether there was
substantial evidence before the Commission to
sustain its order.” (Italics ours)
As there were no pleadings raising the question
of whether or not there was substantial evidence
before the Commission in this case, the plaintiffs
were not entitled to urge that as an issue or offer
proof on that question.
II
The Railroad Commission of Texas has authority
under the Constitution and the statutes of the State
of Texas to make and enforce the order in question,
to-wit, the order requiring that all sleeping cars be
in the charge of a Pullman conductor. Therefore,
the trial court erred in holding that the order was
not sustained by the provisions of the statutes.
The three-judge District Court decided this case
on the theory that the Railroad Commission of Tex
as did not have the authority under the Constitu-
tion and statutes of Texas to make and enforce the
order in question. We think the court was clearly
in error in so holding. We will show that the Com
mission had unquestionable authority to pass and
enforce this order, and in showing this we will prove
the following:
(a) The Constitution of Texas authorizes the
Legislature of Texas to pass laws to correct abuses.
(Article X, Section 2, Constitution of Texas.)
(b) The Legislature has passed such a law, and
has created the Railroad Commission and conferred
on it the authority “to govern and regulate . . . rail
roads” and “to correct abuses . . . and to prevent. . .
abuses in the conduct of their business.” (Articles
6445 and 6448, Revised Civil Statutes of Texas)
(c) The Legislature has defined an abuse by say
ing that “unjust discrimination is . . . prohibited
and the following acts . . . shall constitute unjust
discrimination. 1. If any railroad . . . shall charge
. . . any person . . . a greater or less compensation
for any service rendered . . . by it than it charges.. .
other persons . . . for doing a like and contemporane
ous service, or shall give any undue or unreasonable
preference or advantage to any particular person
. . . or locality, or to subject any particular des
cription of traffic to any undue or unreasonable
prejudice, delay or disadvantage in any respect
whatsoever,” (Article 6474, Revised Civil Statutes
of Texas)
— 45—
(d) The order in question is the correction of an
abuse of the kind defined by the Legislature (de
scribed in paragraph (c) above) and, the Legisla
ture having authorized the Railroad Commission
to correct such abuses, said order of the Railroad
Commission is valid.
Stated briefly in other words, we will show that
by a provision of the Constitution of the State and
an act of the Legislature the Railroad Commission
of Texas has authority to regulate railroads and
correct abuses, and that this is an order regulating
railroads and correcting an abuse, and that the
abuse it corrects has already been defined by the
Legislature.
Article X, Section 2, of the Constitution of Texas,
was adopted by a vote of the people in 1890, and it is
still in effect, and reads as follows:
“Railroads heretofore constructed or which
may hereafter be constructed in this state are
hereby declared public highways, and railroad
companies, common carriers. The Legislature
shall pass laws to regulate railroad, freight and,
passenger tariffs, to correct abuses and prevent
unjust -discrimination and extortion in the
rates of freight and passenger tariffs on the
different railroads in this state, and enforce
the same by adequate penalties; and to the fur
ther accomplishment of these objects and pur
poses, may provide and establish all requisite
means and agencies invested with such powers
as may be deemed adequate and advisable.”
(Italics ours.)
In 1891, the Legislature of Texas created the Rail
road Commission of Texas consisting of three men
(General Laws of Texas, 22nd Legislature, 1891, p.
55. Now Chapter Eleven, Title 112, Revised Civil
Statutes of Texas.) However, it has been held by
the Supreme Court of Texas that the powers of the
Railroad Commission are not derived from Article
X, Section 2, of the State Constitution, but that the
Railroad Commission is a creature of statute and
does not derive its power from the Constitution, and
that the Legislature could confer on it “governmen
tal duties and functions” not mentioned in said Arti
cle X, Section 2. In fact, the Legislature has passed
statutes giving the Railroad Commission authority
over matters not mentioned in the Constitution of
Texas, and not even connected with railroads; and
the Supreme Court of Texas held these statutes valid.
In the case of City of Denison V. Municipal Gas Com
pany, 117 Tex. 291 (Supreme Court of Texas, 1928),
the act of the Legislature authorizing the Railroad
Commission to regulate gas production (known as
the Cox Act) was attacked as not being authorized
by Article X, Section 2, or by any other provision of
the State Constitution, and the court held that the
Legislature had authority to permit the Railroad
Commission to regulate utilities in regard to mat
ters other than those mentioned in the State Con
stitution, and the court said:
“ In view of the wording of section 2, art.
* 10, the amendment definitely provided a con
stitutional grant and authority for these pow
ers to be exercised by a body or agency othei
— 47—
than the Legislature itself, and solved the vex
ing question which had agitated the minds of
the statesmen of the Legislature and the state,
that the Legislature was required to do and
perform these duties by its own actions.
“ The fact that it makes certain that means
and agencies of government with powers to fix
and regulate rail rates and prevent abuses, etc.,
may be created by law, does not create a body
over which the jurisdiction of the law-making
body is limited to the making of rates and mat
ters pertaining to railroads. It was made cer
tain that the Legislature could create agencies
with such powers, and that the agencies so cre
ated could exercise those powers; but there is
nothing in the amendment to section 2, art. 10,
that even remotely indicates that a body known
as a Railroad Commission is created thereby,
or that such agencies as may be created by the
Legislature shall be limited in jurisdiction to
powers pertaining only to railroads. (Italics
theirs)
“ If it be admitted and assumed that the
amendment to section 2, art. 10, is mandatory
—that is, that it is made the imperative duty
of the Legislature to create means and agencies
which should exercise the powers and functions
granted, it cannot be said with any reason that
it thereby itself created such agencies, or that
it created _what was called, and is now known
as, the Railroad Commission of Texas, or that
this provision even directed or commanded the
Legislature to create this particular body. Even
if we construe the words used, ‘May provide
and establish,’ as mandatory, yet we are bound
to construe their clear meaning to be that the
Legislature ‘may provide and establish . . . .
means and agencies . . . as may be deemed ade
quate and advisable’ by it. (Italics theirs) We
ivill not strain them to mean a limitation upon
the Legislature to limit such agency or any
agency to the exercise of powers pertaining on
ly to railroads. (These italics ours.)
“ . . . . The Constitution gives such broad lati
tude to the Legislature as to how it shall effect
and accomplish the objects and purposes named
that we are constrained to hold that these pro
visions do not so limit these means and agencies
to exclusively railroad matters as to prohibit
the Legislature from referring to them other
governmental duties and, functions.” (Italics
ours)
There can be no question that the Legislature of
Texas has the power to authorize the Railroad Com
mission to regulate the operation of sleeping cars in
the manner it has endeavored to regulate them in
this case. The remaining question is whether or not
it has so authorized the Railroad Commission.
The Legislature of Texas has authorized the Rail
road Commission to correct abuses and to prevent
abuses in the conduct of their (railroad’s) business.
Article 6445, Revised Civil Statutes of Texas, was
originally passed by the Legislature in 1911 (Sen
ate Bill 169, 32nd Legislature, 1911, p. 157), and
changed slightly in wording in the recodification of
1925 (adopted by 39th Legislature, 1925), and now
reads as follows:
— 49—
“ Power and authority are hereby conferred
upon the Railroad Commission of Texas over
all railroads, and suburban, belt and terminal
railroads, and over all public wharves, docks,
piers, elevators, warehouses, sheds, tracks and
other property used in connection therewith in
this State, and over all persons, associations
and corporations, private or municipal, own
ing or operating such railroad, wharf, dock,
pier, elevator, warehouse, shed, track or other
property to fix, and it is hereby made the duty
of the said Commission to adopt all necessary
rates, charges and regulations, to govern and
regulate such railroads, persons, associations
and corporations, and to correct abuses and
prevent unjust discrimination in the rates,
charges and tolls of such railroads, persons, as
sociations and corporations, and to fix divisions
of rates, charges and regulations between rail
roads and other utilities and common carriers
where a division is proper and correct, and to
prevent any and all other abuses in the conduct
of their business and to do and perform such
other duties and details in connection therewith
as may be provided by law.” (Italics ours)
Article 6448, Revised Civil Statutes of Texas, was
originally passed as a part of the act creating the
Railroad Commission in 1891 (General Laws of
Texas, 22nd Legislature, 1891, p. 55), and changed
slightly in wording in the re-codification of 1925
(adopted by 39th Legislature, 1925) and now reads
in part as follows:
“The Commission shall:
— 50-
“ 1. Adopt all necessary rates, charges and
regulations, to govern and regulate freight and
passenger traffic, to correct abuses and pre
vent unjust discrimination and extortion in
rates of freight and passenger freight on the
different railroads in this State.”
Thus, we see that the two above quoted statutes, to
wit, Articles 6445 and 6448, authorize the Railroad
Commission to correct abuses in the conduct of their
(railroad’s) business. In commenting upon said
Article 6448 (which was formerly numbered 4562)
the Supreme Court of Texas in the case of Railroad
Commission v. Galveston Chamber of Commerce, 105
Tex. 101, said:
“ It is apparent that it was the purpose of
the Legislature to confer upon the Railroad
Commission ample powers and a liberal discre
tion over this important matter. Indeed, the
character and importance of the business of
transportation of freight and passengers in the
extensive and varied territory placed under the
control of the Commission could not be success
fully handled by fixed rules of law. The varied
interests to be served and the many difficulties
to be overcome, as well as conflicting interests
to be properly adjusted demanded flexible rules.
The Railroad Commission was constituted an
independent department of the government
which should represent the interests of the peo
ple and the railroads, and to the accomplish
ment of that purpose the courts will contribute
a just and liberal interpretation of the law.”
We will now take up the question of whether or
—51
not the order in question deals with an abuse (of the
kind the Railroad Commission is authorized to cor
rect), and whether or not said order is a correction
of said abuse. We submit that said order corrects
an abuse that has already been declared an abuse by
the State Legislature in Article 6474, Revised Civil
Statutes of Texas, which reads in part as follows:
“ Unjust discrimination is hereby prohibited
and the following acts or either of them shall
constitute unjust discrimination.
“ 1. If any railroad subject hereto . . . shall
charge, demand, collect or receive from any
person, firm or corporation a greater or less
compensation for any service rendered or to be
rendered by it than it charges, demands, col
lects or receives from other persons, firms or
corporations for doing a like and contemporan
eous service, or shall give any undue or unrea
sonable preference or advantage to any parti
cular person, firm or corporation, or locality,
or to subject any particular description of traf
fic to any undue or unreasonable prejudice, de
lay or disadvantage in any respect whatsoever.
“4. Penalty.— Any railroad company guilty
of unjust discrimination as hereinbefore de
fined shall for each offense pay to the State of
Texas a penalty of not less than five hundred
dollars nor more than five thousand dollars.”
It is true that said Article 6474 does not use the word
abuse” , but it imposes a duty on the railroads and
— 52—
that duty is that they shall not charge any person a
greater or less compensation for any service render
ed by it than it charges other persons for doing a like
service, or “give any undue or unreasonable prefer
ence or advantage to any particular person . . . or
locality” ; and it provides a penalty for failing to dis
charge such duty. The imposition of such a duty on
the railroads with a provision for a penalty in case
of violation constitutes a sufficient definition of an
abuse according to the only Texas appellate court
case we can find on the question, to wit, the case of
State V. St. Louis Southwestern Ry. Co. of Texas,
165 S. W. 491, by the Texas Court of Civil Appeals,
Third District. That was a case in regard to the
providing of depot facilities, and the court said:
“ The Constitution empowers the Legislature
to correct abuses, and this power may be dele
gated to the Railroad Commission. Section 2,
art. 10. But the commission is not authorized
to enact a law declaring what shall constitute
an abuse. This can be done only by the Legis
lature . . . ‘a disregard of a duty’ imposed by
legislative enactment is an abuse. This is ad
mitted by appellees, as will appear from the
following excerpt from their brief: ‘It is clear
that, if the Legislature should, by express en
actment require a thing to be done, and then
provide that failure to do it should constitute
an abuse, there could be no question of the suf
ficiency of the definition.’ It is not necessary
that the Legislature should use the word
‘abuse’. It is sufficient that it has by law im
posed, a certain duty on railroads, and provided
a penalty for failing to discharge such duty.”
—53
(Italics ours)
The foregoing discussion shows (a) that the Leg
islature has the power to correct abuses, (b) that it
has created the Railroad Commission and author
ized it to correct abuses, and (c) that it has defined
in Article 6474 as an abuse an act whereby a rail
road “shall charge . . . any person . . . a greater or
less compensation for any service rendered . . . by
it than it charges . . . other persons . . . for doing a
like . . . service, or shall give any undue or unrea
sonable preference or advantage to any particular
person . . . or locality.” Now, if the order in ques
tion is designed to correct the kind of “abuses” that
are defined in said Article 6U7U then the order is au-
torized by the statutes of the State of Texas. We
will now discuss whether or not the order in ques
tion is designed or intended to correct the “ abuses”
designated in said Article 6474.
Article 6474 says that a railroad shall not “give
any undue or unreasonable preference or advan
tage to any particular person . . . or locality.” The
order in question recites that the Commission heard
evidence and found that seventeen operations
(runs) operate Pullman cars without Pullman con
ductors and that all other runs have Pullman con
ductors in charge of the Pullman cars, and “that the
failure to have Pullman conductors on the seven
teen operations is a discrimination against the pas
sengers who ride on those particular runs in that
all other operations of Pullman cars do have Pull-
■54-
man conductors; that in every instance the same
rates and fares are exacted by the Railroad Com
panies and the Pullman Company and in one in
stance the services of a Pullman conductor are of
fered and in the other instances, namely, the seven
teen operations, such services are not rendered” ;
and the order further recites “ the failure on the part
of the railroad companies and that of the Pullman
Company to thus provide such service and protec
tion to such passengers is an abuse, a disadvantage
and an undue and unjust discrimination against all
passengers who ride on any one or more of said
seventeen operations where Pullman conductors are
not used.” Thus, we see that the order is designed
and intended to correct one of the abuses defined in
Article 6474. We cannot conceive how it would
have been possible to have come any closer to mak
ing a finding of facts that constitute an abuse with
in the meaning of Article 6474 than was done in this
order.
When a railroad company operates a Pullman car
that is in the charge of a Pullman conductor on some
of its lines, and operates Pullman cars without a
Pullman conductor on other lines, that is clearly
giving a “preference” and an “advantage” to the
passengers who ride on the Pullman car on which
there is a Pullman conductor, and it is likewise giv
ing a “preference” to the localities through which
the lines operate that have Pullman cars with Pull
man conductors. In other words, the passengers
who ride on the different lines pay the same fare,
but some of them receive the services of a conduc-
- 65-
tor and are given the comfort and safety that is
assured by the presence of a conductor, but the per
sons riding on the other lines do not receive such
benefits or safety or comfort. It is clearly an “un
just discrimination” as defied in said Article 6474,
and therefore it constitutes an “abuse” and can be
prohibited by the Railroad Commission.
Suppose, for example, that a railroad operated
passenger coaches over some of its lines without
heating them in cold weather, but on other lines it
properly heated them. As another example, sup
pose that a railroad operated its sleeping cars on
some lines without wash-room facilities, but oper
ated those on its other lines with proper wash-room
facilities. Both of said examples clearly constitute
a discrimination, and therefore an abuse, just the
same as the facts as found by the Commission in
this case constitutes a discrimination and an abuse
under Article 6474.
We must not overlook that part of Article 6474
which says that it is an unjust discrimination “ if
any railroad . . . , directly or indirectly, . . . , shall
charge, demand, collect or receive from any person,
firm or corporation a greater or less compensation
for any service rendered or to be rendered by it than
it charges, demands, collects or receives from other
persons, firm or corporation for doing a like and
contemporaneous service.” Transportation obvi
ously involves more than the mere hauling of a per
son from one place to another. The arrangements
uiade ̂ or a passenger’s comfort compose a large part
56—
of the consideration for the fare which he has paid.
Compare the situation of a man riding in a flat car
unattended by a conductor or a porter with that of
the passenger on an ordinary passenger train. If he
has been charged $6.00 for riding from Austin to
Dallas it is obvious that he is paying more for what
he is getting, i. e., bare transportation, than is the
man who pays $6.00 to go from Austin to Dallas, but
who sits in a plush seat and is attended by a porter
and a conductor. The extent that one gets more
service and comforts than the other is the exact ex
tent that the other receives less for his money, and
and therefore pays more for what he gets. Trans
lating it to the facts in this case: one man gets a
Pullman seat and berths, and he is attended by both
a porter and a Pullman conductor, while another
man paying the same mileage or compensation gets
the Pullman seat and berth, and is attended by a
porter, but is minus the services of the Pullman con
ductor. He receives less for his money than does the
other. Correspondingly, the railroad has collected
from him a greater compensation for the services
rendered him than it has collected from the other
person. We submit that this falls squarely within
the “unjust discrimination” defined in sub-division
1 of said Article 6474.
There are no Texas appellate court cases involv
ing this statute that have the same facts that we
have in this case, but we are not without some au
thority. In the case of G. C. & S. F. Ry. Co. V. State,
169, S. W. 385, by the Texas Court of Civil Appeals,
- 57-
Third District, (which was affirmed by the Supreme
Court of the United States in the case of G. C. & S. F.
Ry. Co. v. Texas, 246 U. S. 58) the Railroad Com
mission of Texas had ordered that two particular
trains stop at the town of Meridian, Texas, each day.
The facts showed that the railroad company stopped
other trains at this town, but these two trains were
the only trains with sleeping (Pullman) cars in
them, and one of the reasons on which the order
was based was that the people of that town did not
have sleeping car service like other towns through
which this company operated, such as the town of
Clifton; and in upholding the Railroad Commis
sion’s order the court said:
“ It is no answer to this to say that the com
panies are not required to furnish sleeping car
accommodations. This may be conceded; yet,
when they do furnish such accommodations to
a part of the public, then we think they are re
quired to furnish the same to all others, . . . .
We think the court was justified in finding that
adequate facilities were not afforded by appel
lant to the citizens of Meridian, when it failed
to stop the only two trains furnishing sleeping
car accommodations in and out of said town.”
The Supreme Court of Texas had previously made
a similar holding in the case of H. & T. C. Ry. Co. V.
J- L. & L. P. Smith, 63 Tex. 322, decided in 1885. At
that time, Article X, Section 2 of the State Consti
tution provided as follows:
“Railroads heretofore constructed, or that
- 5 8 -
may hereafter be constructed in this state, are
hereby declared public highways, and railroad
companies common carriers. The Legislature
shall pass laws to correct abuses and prevent
unjust discrimination and extortion in the rates
of freight and passenger tariffs on the different
railroads in this state; and shall from time to
time pass laws establishing reasonable maxi
mum rates of charges for the transportation of
passengers and freight on said railroads, and
enforce all such laws by adequate penalties.”
(Italics ours)
In construing that provision the Supreme Court
of Texas said:
“ The leading idea, and the one that seems
most prominent in our legislation upon the sub
ject under consideration, is that of equality.
Railroads are declared public highways, and
railroad companies common carriers, by the
constitution. It is also declared by the consti
tution that the legislation shall pass laws to_cor
rect abuses and prevent unjust discriminations,
etc. Art. X, sec. 2, Constitution.
“ These railroad companies derive their char
tered rights from the state; and they owe an
equal duty to each citizen. Having secured from
the state extraordinary rights and privileges,
they ought not to be permitted to exercise them
in such manner as to benefit one individual,
town or community to the detriment of anoth
er. In the exercise of the duties which relate
to the public, these companies must, upon gener
al pHnciples, deal alike with all customers.
(Italics ours)
— 59—
That case shows clearly that as early as 1885 the
Supreme Court of Texas construed the words “cor
rect abuses and prevent unjust discrimination” to
mean that the railroads could be compelled to “deal
alike with all customers.”
Some light is shed on this question by the cases of
Railroad Commission of Texas v. H. & T. C. Ry., 90
Tex. 345, and I. & G. N. Ry. Co. v. Railroad Commis
sion of Texas, 99 Tex. 332, both by the Supreme
Court of Texas, and the legislation that followed as
a result of those cases. The H. & T. C. Ry. Co. case
was decided in 1897, prior to the passage of the
present Article 6445 and Article 6448. In that case
the Railroad Commission of Texas had made an or
der requiring all railroad companies to compress
at the nearest compressing plant all cotton deliver
ed for shipment, and the H. & T. C. Ry. Co. sought
to enjoin the enforcement of the order on the ground
that the Commission had no authority to pass it. The
Supreme Court of Texas found that this matter was
an abuse defined by statute, to-wit, Article 6474
(which was then Article 4574) in that it was an
abuse for a railroad to haul one man’s cotton com
pressed and to haul another man’s cotton uncom
pressed; and, although Articles 6445 and 6448 were
not in existence in their present words at that time,
the court found that the Commission was author
e d to prevent abuses by virtue of Article 4562,
which at that time read:
The power and authority is hereby vested
m the Railway Commission of Texas . . . to
— 60—
adopt all necessary rates, charges and regula
tions, govern and regulate freight and passen
ger tariffs, the power to correct abuses and pre
vent unjust discrimination and extortion in
rates of freight and passenger tariffs . . . ” (Ital
ics ours)
Basing its opinion on the then existing Article
4562 (quoted above), and on Article 6474 (which
was then Article 4574), the court said:
“ . . . we hold that the power here conferred
by the Legislature upon the commission empow
ers it to correct abuses other than those which
may be corrected with the rates of freight and
passenger tariffs. The question, then, arises,
what abuses can the railroad commission cor
rect? We think that it must be some abuse
which has been defined by the law, and that the
commission would not, by this power, be au
thorized to enact a law defining what is an
abuse or a disregard of duty on the part of a
railroad corporation. Has the legislature of
Texas defined any act or acts as an abuse on
the part of the railroad companies under which
the commission would have power, in the sup
pression or correction thereof, to adopt the reg
ulations in question? Article 4574, subd. 1,
Rev. St., is in this language: ‘It shall also be
an unjust discrimination for any such railroad
to make or give any undue or unreasonable
preference or advantage to any particular per
son, company, firm, corporation or locality, or
to subject any particular description of traffic
to any undue or unreasonable prejudice, delay
or disadvantage in any respect whatsoever.’ We
think that the railroad companies, in transport
— 61-
ing cotton, might give undue and unreasonable
preference or advantage to some particular per
son, company, firm, corporation, or locality, or
might subject the cotton to undue and unrea
sonable delay, and that the regulations pre
scribed by the commission would be necessary
to correct and prevent such abuses.” (Italics
ours)
The I. & G. N. Ry. Co. case (I. & G. N. Ry Co. v.
Railroad Commission of Texas, supra) was decided
in 1905. In that case the Supreme Court of Texas
discovered for the first time that the title (caption)
to the act of the Legislature embodying said Arti
cle 4562 (quoted above) was defective in that it did
not refer to anything but rates; and as the Constitu
tion of Texas requires that the title of an act refer
to everything covered by the body of the act it was
incumbent upon the court to hold that said Article
4562 did not include any abuses except rate matters.
The court did not set aside its reasoning in the H.
& T. C. Ry. Co. case (90 Tex. 345), but only revised
its construction of said Article 4562 and limited it
to abuses on rate matters; and the court said:
“ If this provision (Art. 4562) was intended
to confer upon the commission the independent
power to correct any abuse ‘which has been de
fined by law,’ then as we think, we should be
constrained to hold the enactment, so far as it
attempted to confer that power, invalid, be
cause it was not expressed in the title of the
original act. . . . The matter of correcting abus
es is nowhere mentioned. . . . The question of
the constitutionality of the part of the act then
— 62—
under consideration was not certified to us in
that case, nor was it alluded to in the argument.
Hence, it was not considered. . . .
. . We have not without difficulty reached
the conclusion, that since the correction of abus
es is not mentioned in the title of the act, if the
provision admitted only of the broad construc
tion that it applied to every abuse we should
hold that in so far it was void. But it is a fa
miliar rule of the construction of statutes, that
if an act be capable of two constructions—one
of which is not consistent with the Constitution
and the other of which is not in conflict with
that instrument, the latter must prevail . . .
Under this restricted construction, the provi
sion is constitutional. . . ”
Shortly after the I. & G. N. Ry. Co. case, which
limited the correction of abuses by the Railroad
Commission of Texas to rate matters, because of the
defective title of the original act, the Legislature
passed a new act, which was Senate Bill 169, 32nd
Legislature, Acts 1911, p. 157 (which is copied in full
and marked Exhibit “C” in the appendix of this
brief); and we contend that it passed said Senate
Bill 169 as a result of the crippling of the right of
the Railroad Commission to correct abuses, and that
the Legislature passed it for the direct purpose of
giving the Railroad Commission statutory author
ity to correct abuses other than rate abuses, to-wit,
abuses like the one in question in the case now be
fore the court. We call the court’s attention to the
fact that Section 1 of the bill (which is the present
Article 6445) enumerated the abuses the Railroad
— 63—
Commission could correct, and then it concluded
with an all-inclusive clause as follows:
. . and to correct and prevent any and all
other abuses in the conduct of their business.”
We also call to the court’s attention that Section
7 of the bill said:
“ That the fact that there is no adequate law
for the regulation of such . . . corporation, and
the urgent necessity for such law, creates an
emergency. . .”
We submit that said Senate Bill 169 (which in
cluded the present Article 6445) was specifically
passed to give the Railroad Commission authority
to correct abuses like the one in question, and that
it did give such authority.
Another significant change that we wish to call
to the court’s attention is that in 1925, when the Leg
islature of Texas adopted a new recodification of
the civil statutes, Article 6448 came into existence
in its present words for the first time. Prior to that
time, Section 1 of the article similar to the present
Article 6448, used the word “ tariff,” and now Article
6448 uses the word “traffic.” We believe this is a
significant change in the wording of that article.
We believe that Article 6448 authorizes the Rail-
road Commission to correct abuses other than rate
a uses, and that Article 6445 likewise authorizes the
ailroad Commission to correct abuses other than
ra e abuses. Both articles, so far as their present
- 64-
wording is concerned, have been passed by the Leg
islature since the authority of the Railroad Com
mission to correct abuses other than rate abuses was
crippled by the opinion in the I. & G. N. Ry. Co. case
(99 Tex. 332); and it is our contention that these
two articles were adopted for the prime purpose of
curing the defects in the Commission’s authority
that were raised in that opinion.
We see that Articles 6445 and 6448 authorizes the
Railroad Commission of Texas to correct abuses.
Article 6474 was merely intended to define as an
abuse an act whereby a railroad “shall give any un
due or unreasonable preference or advantage to
any particular person . . . or locality.” We sincerely
submit that the Honorable three-judge trial court
was in error when it said in its opinion: “There is
no Texas statute which forbids the operation of a
train, carrying a Pullman car without a Pullman
conductor, nor is there any statute that defines such
action as an abuse.” (R. 362) The court also erred
when it said: “ . . . it (the order) cannot stand as a
correction of an abuse, because the so-called abuse
has not been defined or prohiibted by law.” (R. 363)
The three-judge trial court apparently decided
this case on the theory that only an “ unjust discrim
ination” could be prohibited or corrected. It said.
“ It will be noted that the statute denounces unjust
discrimination” ; and it then quoted from the case
of St. Louis Southwestern Ry. Co. v. State, 113 Tex.
570, wherein it construes the meaning of the word
— 65—
“unjust” . It is true that an “unjust discrimination”
is prohibited, but the trial court fell into error, as
we view it, when it sought to define and construe
the term “unjust discrimination” as it understood
the term in common usage, because in Article 6474
the term “unjust discrimination” is defined as be
ing a case in which a railroad gives “any undue or
unreasonable preference or advantage to any par
ticular person . . . or locality.” Therefore, the term
having been defined, the court should not have con
cerned itself with the ordinary meaning of the
term, but it should have looked at the definition and
determined if the acts that the order seeks to cor
rect come within that definition.
The ultimate question that the court should have
decided was this: Does the operation by a railroad
of sleeping cars with Pullman conductors on one line
and the operation of sleeping cars without Pullman
conductors on another line constitute an “undue or
unreasonable preference” to the persons who ride
the line where there is a Pullman conductor on the
sleeping cars, or to the localities through which said
line runs, over the persons who ride the line where
there is no Pullman conductor on the sleeping cars,
or to the localities through which that line runs?
The three-judge trial court apparently did not de
cide that question.
That question calls for deciding whether or not
the preference shown between persons and localities
hy having Pullman conductors on some lines and not
— 66—
on others was an undue or unreasonable preference.
What is meant by undue or unreasonable?
Whether or not the preference shown between per
sons and localities by operating sleeping cars in a
different manner (with and without Pullman con
ductors) on the various lines was undue or unreason
able is a question of fact to be decided by the Railroad
Commission of Texas. Article 6450, Revised Civil
Statutes of Texas, reads as follows:
“ The Commission may adopt rules to govern
its proceedings and to regulate the mode and
manner of all investigations and hearings of
railroad companies and other parties before it,
in the establishment of rates, orders, charges,
and other acts required of it under this law; and
no person shall be denied admission at such in
vestigation.”
A hearing was held and evidence considered, and
after said hearing the Commission made findings of
fact and entered the order in question. It found
from the evidence that having Pullman conductors
on some runs and not having them on other runs
constituted an undue discrimination in favor of those
lines that had the Pullman conductors. Such a find
ing cannot be disturbed by a court unless it is un
supported by any evidence. Perhaps the three-judge
trial court in this case would have held differently,
that is, that the discrimination was not undue or un
reasonable, if it had had the privilege of deciding on
the conflict of evidence in the original hearing, but
- 67-
it did not have that privilege as that was a matter
for the Commission to decide. We submit that
there was substantial evidence to support the Com
mission’s finding, and therefore it cannot be set
aside. We have outlined said evidence in the “state
ment of the case” above in this brief.
In the case of Gulf Land Co. v. Atlantic Refining
Co., 134 Tex. 59 (Supreme Court of Texas, 1939),
suit was brought against the Railroad Commission
of Texas and others to set aside one of its orders
granting a permit to drill an oil well, and in com
menting on the findings of fact by the Commission
the court said :
. . To our minds, the law contemplates that
the fact findings made by the Commission in
passing upon such applications are subject to
review and correction by the courts only to the
limited extent hereinafter stated. The court,
on appeal from the Commission’s order, should
not set aside an order of the Commission either
granting or refusing to grant a well permit
unless such order is illegal, unreasonable, or ar
bitrary. In so far as the fact findings upon
which the order is based are concerned, the or
der is not illegal, unreasonable, or arbitrary if
it is reasonably supported by substantial evi
dence. Stated in another way, the court does
not act as an administrative body to determine
whether or not it would have reached the same
±act conclusion that the Commission reached,
but will consider only whether the action of the
Commission in its determination of the facts
is reasonably supported by substantial evi-
- 6 8 -
dence. 34 Tex. Jur., p. 712, sec. 11, and author
ities there cited. To permit the court to sub
stitute its fact findings on controverted issues
of fact in such instances would add nothing of
value to the administration of the law or the
rule under discussion, but, to the contrary,
would destroy all uniformity of Commission
administration thereunder. . . .”
A similar holding was made by this Honorable
court in the case of Manufacturers Railway Co. V.
United States, 246 U. S. 456, which was an appeal
in a suit to enjoin the enforcement of an Interstate
Commerce Commission order. In that case the
court said:
“ Whether a preference or advantage or dis
crimination is undue or unreasonable or unjust
is one of those questions of fact that have been
confided by Congress to the judgment and dis
cretion of the Commission (Inter-state Com
merce Commission v. Alabama Midland Ry. Co.,
168 U. S. 144, 170), and upon which its deci
sions, made the basis of administrative orders
operating in futuro, are not to be disturbed by
the courts except upon a showing that they are
unsupported by evidence, were made ivithout a
hearing, exceed constitutional limits, or for
some other reason amount to an abuse of power.
“ . . . The conclusions were reached after full
hearing, are not without support in the evi
dence, and we are unable to say that they show
an abuse of discretion. It may be conceded that
the evidence would have warranted a different
- 69-
finding; indeed the first report of the Commis
sion was to the contrary; but to annul the Com
mission's order on this ground would be to sub
stitute the judgment of a court for the judg
ment of the Commission upon a matter purely
administrative, and this cannot be done. .
The same holding was made in the case of Nash
ville, C. & St. L. Ry. v. Tennessee, 262 U. S. 318, in
which the court, speaking through Mr. Justice
Brandeis, said:
“ Every rate which gives preference or ad
vantage to certain persons, commodities, lo
calities or traffic is discriminatory. For such
preference prevents absolute equality of treat
ment among all shippers or all travelers. But
discrimination is not necessarily unlawful. The
Act to Regulate Commerce prohibits (by §2 and
§3) only that discrimination which is unreason
able, undue, or unjust. Texas & Pacific Ry. Co.
v. Interstate Commerce Commission, 162 U. S.
197, 219, 220; Manufacturers Ry. Co. v. Unit
ed States, 264 U. S. 457, 481. Whether a pref
erence or discrimination is undue, unreasonable
or unjust is ordinarily left to the Commission
for decision; and the determination is to be
made as a question of fact, on the matters
proved in the particular case. . . ” (Italics
ours)
Thus, we see that under the Federal Act to Regu
late Commerce, the question of whether or not “ a
preference or discrimination is undue, unreasonable
°r unjust” is “ a question of fact” to be decided by
the Interstate Commerce Commission. We sincerely
— 70—
submit that the same rule applies in the case of the
Railroad Commission of Texas in this case. In the
very recent case of Railroad Commission of Texas v.
Rowan & Nichols Oil Co., 310 U. S. 573, this Court
held that the findings of fact by the Railroad Com
mission of Texas in a hearing on the regulation of
oil production should not be disturbed by a Federal
court, where there was evidence on which to base
the Commission’s findings and order thereon, and
this Court said:
. . It is not for the federal courts to sup
plant the Commission’s judgment even in the
face of convincing proof that a different result
would have been better.”
Ill
The order in question, to-wit, the order requiring
that all sleeping cars be in the charge of a Pullman
conductor, is reasonable and contributes to the
safety and welfare of the passengers, and therefore,
does not violate the Fourteenth Amendment to the
Constitution of the United States.
Although the testimony from the witnesses in
this case was conflicting, there was ample testimony
to the effect that a Pullman conductor on sleeping
cars contributes to the safety and welfare of the
passengers. We will not repeat that testimony here,
but we call it to the court’s attention as narrated in
the “ statement of the case” (infra p. 12) in this
brief. There being substantial evidence to support
the Railroad Commission’s findings in the order, the
United States District Court has no right to find to
the contrary. In the case of Railroad Commision of
Texas v. Rowan & Nichols Oil Co., 310 U. S. 573
(heretofore referred to in this brief), this Court, in
discussing an oil proration order of the Railroad
Commission of Texas, said:
. . For all we know, the judgment of these
two lower courts may have been wiser than that
of the Commission, and their standard of fair
ness a better one. But whether a system of pro
ration based upon hourly potential is as fair as
one based upon estimated recoverable reserves
or some other factor or combination of factors,
is m itself a question for administrative and
not judicial judgment. . . .”
((
. . . . Whether the respondent may still have
a remedy in the state courts is for the Texas
courts to determine, and is not foreclosed by
the denial, on the grounds we have indicated, of
the extraordinary relief of an injunction in the
federal courts.”
Our view is well expressed by the language of
this Court in the case of Rochester Telephone Corp.
^ United States, 307 U. S. 125, involving an order
0 the Communications Commission, in which this
court said:
having found that the records permitted
the Commission to draw the conclusion that it
- 72—
did, a court travels beyond its province to ex
press concurrence therewith as an original
question. ‘The judicial function is exhausted
when there is found to be a rational basis for
the conclusions approved by the administrative
body.’ ”
The earliest decision we have found that deals
with a problem similar to the one we have here is
the case of Trenton Horse Railroad Co. v. City of
Trenton, 53 N. J. L. 132, 20 Atl. 1076, decided in
1890 by the Supreme Court of New Jersey, in which
it was held that a city ordinance which required
that there be a second man, in addition to the team
driver, on every horse car, was reasonable and valid.
In the cases of C. R. I. & P. Ry. Co. V. Arkansas,
219 U. S. 453 and St. L. I. M. & S. Ry. Co. v. Ark
ansas, 240 U. S. 518, this court upheld the validity
of the Arkansas statute which required a crew of an
engineer, a fireman, a conductor and three brake-
men on all freight trains of more than twenty-five
cars operating on railroads fifty miles or more in
length. In the C. R. I. & P. Ry. Co. case this Court
said:
“ . . . Under the evidence, there is admitted
ly some room for controversy as to whether the
statute is or was necessary; but it cannot be
said that it is so unreasonable as to justify the
court in adjudging that it is merely an arbi
trary exercise of power and not germane to the
objects which evidently the state legislature had
in view. It is a means employed by the State
•73—
to accomplish an object which it is entitled to
accomplish, and such means, even if deemed un
wise, are not to be condemned or disregarded
by the courts, if they have a real relation to
that object. . .
The appellees (plaintiffs) in this case contend
that it will work a financial hardship on them if they
are required to have Pullman conductors in charge
of their sleeping cars, but our answer to that argu
ment is stated in the language of this court in the
case of Chespeake & Ohio Ry. Co. v. Public Service
Commission of West Virginia, 242 U. S. 603, as fol
lows:
“ One of the duties of a railroad company
doing business as a common carrier is that of
providing reasonably adequate facilities for
serving the public. This duty arises out of the
acceptance and enjoyment of the powers and
privileges granted by the State and endures so
long as they are retained. It represents a part
of what the company undertakes to do in return
for them, and its performance cannot be avoid
ed merely because it will be attended by some
pecuniary loss. . . . That there will be such a
loss is, of course, a circumstance to be consid
ered in passing upon the reasonableness of the
order, but it is not the only one. The nature
and extent of the carrier’s business, its produc
tiveness, the character of service required, the
public need for it, and its effect upon the serv
ice already being rendered, are also to be con
sidered. . . . ”
Instead of using our own language as argument
— 74—
we will use the language of the United States Cir
cuit Court of Appeals, Ninth Circuit, in the case of
City and County of San Francisco v. Market Street
Ry. Co., 98 F. (2d) 628, as follows:
“ The constitutionality of an ordinance of the
City and County of San Francisco, requiring
street cars while carrying passengers in that
city to ‘be in charge of a motorman and a con
ductor’ is here involved.
. . there was substantial evidence to show
that ‘one-man’ cars are not as safe as the ‘two-
man’ cars. Notwithstanding the strong evi
dence to the contrary, it was for the legislative
body to determine which side it wishes to be
lieve. Our function is ended upon determina
tion that the question was fairly debatable. . .
Further, we may not ‘set aside the ordinance be
cause compliance with it is burdensome’ . . . or
that it may lead to bankruptcy.
“ No one can question that the City and
County of San Francisco was acting within
the scope of its authority when it attempted
to make safer the human beings in its cars
and on its streets from death or injury due to
the management and running of its street cars.
No one knows better than the Board of Super
visors or the citizens themselves voting upon
safety ordinances and dangers to be met and
avoided in the crowded areas, the heavy grades,
the fog, and the increased automotive traffic.
The Supreme Court has repeatedly held that
the same rule applies to those seeking to prove
the unconstitutionality of municipal safety
- 75-
ordinances as applies to acts of the Congress
or the state legislatures when legislating in
their broader areas of responsibility.
“cJudicial notice is taken that the duties of the
street car conductor require conducting the pas
sengers into the car, including his assistance of
the aged and young children, and crippled and
infirm, in safely mounting the steep steps and
reaching their seats in the moving vehicle. . . .
The conductor also must keep from entering the
car intoxicated or violently acting persons who
may do injury to other passengers. If such per
sons have gained entry and cause disorder, it is
the conductor’s duty to restore order and, if nec
essary, eject the offender.
“ It therefore appears that not only has the
Railway not shown that the ordinance of 1935
is based on no fact from which may be drawn
a rational inference that it contributes to the
safety of street car traffic, but that the two-man
requirement affirmatively appears to be reason
able.” (Italics ours)
There was substantial evidence in this case show
ing that the presence of Pullman conductors on
sleeping cars contributed to the safety of the pas
sengers, that they kept order on the cars, including
the handling of intoxicated persons and the preven
tion of misconduct by passengers, that they super
vised the sanitation of the sleeping cars and oper
ated the heating and cooling systems and cared for
the aged and infirm persons and children placed in
their care, that the porters were occupied with other
- 76-
matters such as the making up of the beds, the
sweeping of the floors and the care of the baggage,
and that the train conductor was usually so occu
pied in the front part of the train that he could not
devote any time or attention to the care or super
vision of the Pullman cars. We sincerely contend
that because of said facts the order in question does
not violate the Fourteenth Amendment.
IV
The order in question, to-wit, the order requiring
that all sleeping cars be in the charge of a Pullman
conductor, and the enforcement thereof, does not
unlawfully interfere with interstate commerce and
it does not violate the interstate commerce provision
of the Constitution of the United States.
Under the holdings of this court the enforcement
of this order does not unlawfully interfere with in
terstate commerce. A state in the exercise of its
police power for the protection of the people has a
right to adopt laws and regulations requiring that
railroads and other public utilities comply with cer
tain requirements, if those requirements contribute
to the safety and welfare of the people, even though
laws and regulations apply in some instances to
commerce between the states. Just because the mat
ter regulated is a part of an interstate commerce
transaction is no reason why the business can be
conducted haphazardly and in disregard of the
- 77-
state’s laws that have been passed to make that
business safe for the people concerned.
In the case of C. R. I. & P. Ry. Co. v. Arkansas,
219 U. S. 453, (heretofore referred to in this brief)
the Arkansas statute that required a freight train
crew of six men in certain cases was attacked as
being unconstitutional on the ground that its en
forcement interferred with interstate commerce.
This court overruled such contention and said:
“ It is not too much to say that the state was
under an obligation to establish such regula
tions as were necessarily reasonable for the
safety of all engaged in the business or domi
ciled within its limits. Beyond doubt, passen
gers on interstate carriers while within Arkan
sas are as fully entitled to the benefits of valid
local laws enacted for the public safety as are
citizens of the state. Local statutes directed
to such an end have their sources in the power
of the state, never surrendered, of caring for
the public safety of all within its jurisdiction;
and the validity under the Constitution of the
United _ States of such statutes is not to be ques
tioned in a federal court unless they are clearly
inconsistent with some power granted to the
general government, or with some rights se
cured by that instrument, or unless they are
purely arbitrary in their nature. The statutes
here involved is not in a proper sense a regula
tion of interstate commerce nor does it deny
the full protection of the law. Upon its face,
it must be taken as not directed against inter
state commerce, but as having been enacted
in aid, not in obstruction of such commerce,
— 78—
and for the protection of those engaged in such
commerce.”
We submit that that case is directly in point with
the case under submission.
In the case of Missouri Pacific Railroad Com
pany v. Norwood, 283 U. S. 249, this court again
held that the Arkansas statute requiring a six man
crew on freight trains in certain cases was valid
and that the enforcement thereof did not interfere
with interstate commerce.
In the case of Smith V. Alabama, 124 U. S. 465,
this court held that the enforcemnt of a state law
requiring all locomotive engineers to be examined
and licensed by a board did not constitute an unlaw
ful interference with interstate commerce in the
case of a railroad operating between states, and it
said:
“ It is to be remembered that railroads are
not natural highways of trade and commerce.
They are artificial creations; they are con
structed within the territorial limits of a state,
and by the authority of its laws, that ordinarily
by means of corporations exercising their fran
chises by limited grants from the state. The
places where they may be located, and the plans
according to which they must be constructed,
are prescribed by the iegislation of the state.
Their operation requires the use of _ instru
ments and agencies attended with special risks
and dangers, proper management of which in
volves peculiar knowledge, training, skill, and
- 79-
care. The safety of the public in person and
property demands the use of specific guards
and caution. * * * The rules prescribed for
their construction and for their management
and operation, designed to protect person and
property, otherwise endangered by their use,
are strictly within the limits of the local law.
They are not per se regulations of commerce;
it is only when they operate as such in the cir
cumstances of their application, and conflict
with the expressed or presumed will of Con
gress exerted on the same subject, that they
can be required to give way to the supreme au
thority of the Constitution.
“ In conclusion, we find, therefore, first, that
the statutes of Alabama, the validity of which
is under consideration, is not, considered in
its own nature, a regulation of interstate com
merce, even when applied as in the case under
consideration; secondly, that it is properly an
act of legislation within the scope of the ad
mitted power reserved to the states to regulate
the relative rights and duties of persons being
and acting within its territorial jurisdiction,
intended to operate so as to secure for the pub
lic, safety of person and property; and, third
ly, that, so far as it affects transactions of
commerce among the states, it does so only in
directly, incidentally, and remotely, and not so
as to burden or impede them, and, in the par
ticular interest in which it touches those
transactions at all, it is not in conflict with any
expressed enactment of Congress on the sub
ject, nor contrary to any intention of Congress
to be presumed from its silence.”
- 80-
Other cases dealing with the interstate com
merce question and that support our contention are
the following: C. M. & St. P. Ry. Co. v. Sloan, 169
U. S. 133; Atlantic Coast Line Railroad Co. v.
Georgia, 234 U. S. 280; and .4. T. & S. F. Ry. Co. v.
Railroad Commission of California, 283 U. S. 380.
We sincerely submit that the enforcement of the
Railroad Commission’s order in this case does not
constitute an unlawful interference with interstate
commerce.
V
As there was statutory authority for the making
of the order in question, and as said order was rea
sonable and did not violate the Fourteenth Amend
ment, the trial court erred in granting a “blanket”
injunction in behalf of all of the plaintiffs covering
all lines, because the facts showed that the situation
of each plaintiff and each line was different and that
possibly some of the plaintiffs were entitled to an
injunction but that the other plaintiffs were not en
titled to such relief, and because the facts further
showed that the plaintiffs who possibly had a cause
of action had not applied to the Commission, as pro
vided in the order, for a modification of the order
as applied to them. The evidence showed that some
of the lines and runs were entirely within the State
of Texas, but that a few of the other lines and runs
crossed over into other states; and the evidence
showed that the traffic was heavier and required a
Pullman conductor more in the case of some lines
— 81—
and runs than in the case of other lines and runs.
The order provided specifically that if “it be the
desire of any railroad company, receiver or trustee
to operate over its line of railway a sleeping car or
cars without fully complying with the provisions of
the orders, * * * the Commission shall be notified
and its consent secured before such change or devia
tion from the terms of said orders is put in force.”
The record in this case shows that no such consent
was received by any of the plaintiffs (appellees).
We have not found any appellate court case deal
ing with a situation of this kind, except the case of
Henderson v. Terrell, 24 Fed. Sup. 147, (heretofore
referred to in this brief) in which Circuit Judge
Hutcheson wrote the opinion of the court. That
was a case in which an attack was made on the
validity of an order of the Railroad Commission of
Texas limiting the production of gas in an area
known as the “panhandle field.” As argument in
this case we will quote from the language of that
opinion as follows:
“Plaintiffs made no showing that they had
applied to the Commission for relief, either
general or as to the particular wells they claim
ed water damage to. Not only is it in general
their right to apply to the Commission for re
lief from particular inequities in any of the
orders, but the orders in question make provis
ion for their doing so.
“We can but assume that if they applied
— 82—
to the Commission for relief as to these partic
ular wells, such exception will be made as to
them, if their proof shows it necessary, as will
prevent their being injured. Before us the evi
dence on the point is greatly conflicting. Plain
tiffs’ evidence, if believed, shows that the reduc
tion as applied to these wells, is too great for
safety. The defendant’s evidence is equally
positive that it is not. Indeed, the showing we
make here is that actual operations under the
reduction have shown that no injury has oc
curred or will occur. Plaintiffs not having ap
plied to the Commission for relief as to these
wells, we do not find it necessary to make a
determination as to this question. We must
assume that the relief will not be denied upon
plaintiffs’ application, if they can show the
existence of the conditions claimed.”
An examination of the record in this case shows
that there were seventeen different lines of railroads
involved in this law suit; that some of them were in
the dry western part of the State and others were in
the wet coastal plain region; that some of them
served the thickly populated sections of the State
and others were operated in sparsely populated
areas; that some of the railroads in question crossed
the State line while others were operated entirely
within the State, and that the traffic on some of said
lines was heavy while that on other lines was com
paratively light. The conditions of each line were
different. Each plaintiff that thought that its line
should not be subject to the terms of the order should
have made application for an exemption. Having
failed to do so, they were not entitled to come into a
— 83—
Federal Court eu Tuasse and obtain a blanket injunc-
tion enjoining the enforcement of the order in re
spect to everybody in every place at every time.
CONCLUSION
For the reasons stated it is sincerely contended,
and these appellants respectfully pray, that the
judgment of the District Court for the Western Dis
trict of Texas be reversed.
Respectfully submitted,
Gerald C. Mann
Attorney General of Texas
Glenn R. Lewis
Assistant Attorney General
Lee Shoptaw
Assistant Attorney General
Cecil C. Rotsch
Assistant Attorney General
All of Austin, Texas.
Attorneys for Appellants,
Railroad Commission of Tex
as, Lon A. Smith, Ernest 0.
Thompson, Jerry Sadler and
Gerald C. Mann.
The attorneys for the original plaintiffs (appel-
- 8 4 -
lees) in this case are Ireland Graves, Lowell M.
Greenlaw, Herbert S. Anderson and Claude Pollard.
The attorney for the intervening plaintiffs (also ap
pellees) is Ireland Graves. The attorneys for the in
tervening defendants (also appellants) are Cecil A.
Morgan and A. B. Culbertson. A copy of this brief
has been delivered to each of said attorneys.
- 85-
APPENDIX
Exhibit “A”
TEXAS CONSTITUTIONAL PROVISIONS
RELEVANT TO THIS APPEAL
Article X, Section 2, Constitution of the State of
Texas:
“ Railroads heretofore constructed or which
may hereafter be constructed in this state are
hereby declared public highways, and railroad
companies, common carriers. The Legislature
shall pass laws to regulate railroad, freight and
passenger tariffs, to correct abuses and prevent
unjust discrimination and extortion in the rates
of freight and passenger tariffs on the different
railroads in this state, and enforce the same by
adequate penalties; and to the further accom
plishment of these objects and purposes, may
provide and establish all requisite means and
agencies invested with such powers as may be
deemed adequate and advisable.”
Exhibit “B”
TEXAS STATUTES RELEVANT TO THIS
APPEAL
(All statutes listed below are included in Texas
Revised Civil Statutes, 1925, or amendments there
to, and are compiled in Vernon’s Annotated Civil
Statutes of Texas.)
- 86-
Article 6260:
“Art. 6260. Who may build
“ No corporation, except one chartered under
the laws of Texas, shall be authorized or per
mitted to construct, build, operate, acquire,
own or maintain any railways within State.”
Article 6416:
“Art. 6416. Passenger fare
“ The passenger fare upon all railroads in
this State shall be three cents per mile, with
an allowance of baggage to each passenger not
to exceed one hundred pounds in weight; pro
vided, however, that, where the fare is paid
to the conductor, the rate shall be four cents
per mile, except from stations where no tickets
are sold, and that the minimum charges in no
case shall be less than twenty-five cents; and
provided, further that when the passenger fare
does not end in five or naught, the nearest sum
so ending shall be the fare; provided, that in
no case shall children under ten years of age
be charged a higher rate of fare than two cents
per mile. Railroads shall be required to keep
their ticket offices open for half an hour prior
to the departure of trains, and upon failure
to do so they shall not charge more than three
cents per mile.”
Article 6444:
“Art. 6444. Terms defined
— 87—
“ The term ‘Commission’ as used in this title
means the Railroad Commission of Texas, and
the term ‘Commissioners’ means the members
of the Railroad Commission of Texas.”
Article 6445:
“Art. 6445. Power and authority
“Power and authority are hereby conferred
upon the Railroad Commission of Texas over all
railroads, and suburban, belt and terminal rail
roads, and over all public wharves, docks, piers,
elevators, warehouses, sheds, tracks and other
property used in connection therewith in this
State, and over all persons, associations and
corporations, private or municipal, owning or
operating such railroad, wharf, dock, pier, ele
vator, warehouse, shed, track or other property
to fix, and it is hereby made the duty of the said
Commission to adopt all necessary rates,
charges and regulations, to govern and regu
late such railroads, persons, associations and
corporations, and to correct abuses and prevent
unjust discrimination in the rates, charges and
tolls of such railroads, persons, associations and
corporations, and to fix division of rates,
charges and regulations between railroads and
other utilities and common carriers where a di
vision is proper and correct, and to prevent any
and all other abuses in the conduct of their
business and to do and perform such other
duties and details in connection therewith as
may be provided by law.”
- 88-
Article 6446:
“Art. 6446. Power to enforce rules, etc.
“ The Railroad Commission of Texas is
hereby vested with full power and authority
to do and perform each act and duty author
ized, directed or imposed upon it by the pro
visions of this title, and all railroads, per
sons, corporations, and associations subject to
the control of the Commission shall be subject
to the penalties prescribed by law for failure to
comply with the rules, orders, directions or re
quirements of said Commission as severally
provided in this title.”
Article 6447:
“Art. 6447. The Commission
“ Election.— The Railroad Commission of
Texas shall be composed of three members, one
of whom shall be elected biennially at each gen
eral election for a term of six years.
“ Qualifications.— The members shall be resi
dent citizens of this State, and qualified voters
under the Constitution and laws, and not less
than twenty-five years of age. No member
shall be directly or indirectly interested in any
railroad, or in any stock, bond, mortgage,
security or earnings of any railroad, and should
a member voluntarily become so interested his
office shall become vacant; or should he become
so interested otherwise than voluntarily, he
shall within a reasonable time divest himself of
such interest; failing to do this, his office shall
become vacant.
— 89—
“ Shall hold no other office, etc.— No railroad
commissioner shall hold any other office of any
character, while such commissioner, nor engage
in any occupation or business inconsistent with
his duties as such commissioner.
“ Oath, etc.— Before entering upon the duties
of his office, each commissioner shall take and
subscribe to the official oath and shall in addi
tion thereto, swear that he is not directly or
indirectly interested in any railroad, nor in the
bonds, stock, mortgages, securities, contracts
or earnings of any railroad, and that he will to
the best of his ability faithfully and justly exe
cute and enforce the provisions of this title,
and all laws of this State concerning railroads,
which oath shall be filed with the Secretary of
State.
“ Organization.— The commissioners shall
elect one of their number chairman. They
may make all rules necessary for their govern
ment and proceedings. They may appoint a
secretary at a salary not exceeding $2,000.00
per annum, and not more than two clerks
at salaries' not exceeding $1,500.00 per
annum each, and such other experts as may be
necessary. They shall be known collectively as
the ‘Railroad Commission of Texas,’ and shall
have a seal, a star of five points with the words
‘Railroad Commission of Texas’ engraved
thereon. They shall be furnished with an office
at the Capitol, and with necessary furniture,
stationery, ,supplies and all necessary expenses,
to be paid for on the order of the Governor.
“Secretary’s duties.— The secretary shall
-90-
keep full and correct minutes of all the trans
actions and proceedings of the Commission, and
perform such duties as the Commission may re
quire of him.
“ Expenses.— The Commissioners and their
employes shall receive from the State their
actual necessary traveling expenses while
traveling on the business of the Commission,
which shall include the cost only of transporta
tion while traveling on business for the Com
mission, upon an itemized statement thereof,
sworn to by the party who incurred the expense,
and approved by the Commission.
“ Sessions.— The Commission may hold its
sessions at any place in this State when deemed
necessary.”
Article 6448:
“ Art. 6448. Duties
“ The Commission shall:
“ 1. Adopt all necessary rates, charges and
regulations, to govern and regulate freight and
passenger traffic, to correct abuses and prevent
unjust discrimination and extortion in rates of
freight and passenger traffic on the different
railroads in this State.
“ 2. Fairly and justly classify and subdivide
all freight and property of whatsoever charac
ter that may be transported over the railroads
of this State into such general and special class
es or subdivisions as may be found necessary
— 91—
and expedient.
“ 3. Fix to each class or subdivision of
freight a reasonable rate for each railroad sub
ject to this title for the transportation of each
of said classes and subdivisions. Such classifi
cations shall apply to and be the same for all
railroads subject to the provisions of this chap
ter. It may fix different rates for different
railroads and for different lines under the same
management, or for different parts of the same
lines if found necessary to do justice, and may
make rates for express companies different
from the rates fixed by railroads.
“4. Fix and establish for all or any connect
ing lines of railroads of this State reasonable
joint rates of freight charges for the various
classes of freight and cars that may pass over
two or more such lines of such railroads.
“ 5. When two or more connecting railroads
shall fail to agree upon a fair and just divi
sion of the charges arising from the transporta
tion of freights, passengers or cars over their
lines, fix the pro rata part of the charges to be
received by each connecting line.
“6. From time to time, alter, change, amend
or abolish any classification or rate established
by it when deemed necessary. Such amended,
altered or new classifications or rates shall be
put into effect in the same manner as the orig
inals.
_ “ 7. Adopt and enforce such rules, regula
tions and modes of procedure as it may deem
— 92-
proper to hear and determine complaints
against the classifications or the rates, the rules,
regulations and the determinations of the Com
mission.
“ 8. Make reasonable and just rates of
charges for each railroad subject hereto for
the use or transportation of loaded or empty
cars on its road and may establish for each rail
road or for all railroads alike, reasonable rates
for the storing and handling of freight and for
the use of cars not unloaded after forty-eight
hours’ notice to the consignee, not to include
Sundays and legal holidays.
“ 9. Make and establish reasonable rates
for the transportation of passengers over each
railroad subject hereto, which rates shall not
exceed the rates fixed by law. The Commission
shall have power to prescribe reasonable rates,
tolls or charges for all other services performed
by any railroad subject hereto.
“ 10. Require each railroad subject to this
title to provide and maintain adequate, comfort
able and clean depots and depot buildings at its
several stations for the accommodation of pas
sengers; and to keep them well-lighted and
warmed for the comfort and accommodation of
the traveling public; and keep and maintain
adequate and suitable freight depots and build
ings for the receiving, handling, storing and de
livering of all freight handled by such roads
and such railways, and to obey the requirements
of the Commission in respect thereto.
“ 11. See that all laws of this State concern-
— 93—
ing railroads are enforced and that violations
thereof are promptly prosecuted and penalties
due the State therefor are recovered and col
lected; and report all such violations with the
facts in its possession to the Attorney General
or other officer charged with the enforcement
of the law. It shall investigate all complaints
against all railroad companies. Suits between
the State and a railroad shall have precedence
in the courts.”
Article 6449:
“Art. 6449. Notice
“ Before any rates shall be established, the
Commission shall give each railroad company
to be affected thereby ten days’ notice of the
time and place when and where the rates shall
be fixed; and said railroad company shall be
entitled to be heard at such time and place; and
it shall have process to enforce the attendance
of its witnesses, which shall be served as in
civil cases.”
Article 6450:
“Art. 6450. Rules for hearing, etc.
“ The Commission may adopt rules to govern
its proceedings and to regulate the mode and
manner of all investigations and hearings of
railroad companies, and other parties before
it, in the establishment of rates, orders,
charges, and other acts required of it under this
law; and no person shall be denied admission at
such investigation.”
-94-
Article 6451:
“Art. 6451. May administer oaths, etc.
“ Each Commissioner, for the purposes men
tioned in this chapter, shall have power to ad
minister oaths, certify to all official acts, and
to compel the attendance of witnesses, and the
production of papers, waybills, books, accounts,
documents and testimony, and to punish for
contempt as fully as is provided by law for the
district court.”
Article 6452:
“Art. 6452. Rates conclusive
“ In all actions between private parties and
railway companies brought under this law, the
rates, charges, orders, rules, regulations and
classifications prescribed by the Commission
before the institution of such action shall be
held conclusive, and deemed and accepted to he
reasonable, fair, and just, and in such respects
shall not be controverted therein until finally
found otherwise in a direct action brought for
the purpose in the manner prescribed by the two
succeeding articles.”
Article 6453:
“Art. 6453. Appeal
“ If any railroad company or other party ^
interest be dissatisfied with the decision ot a y
rate, classification, rule, charge, order, ae
- 95-
regulation adopted by the Commission, such
dissatisfied company or party may file a peti
tion setting forth the particular cause or causes
of objection to such decision, act, rate, rule,
charge, classification, or order, or to either or
all of them, in a court of competent jurisdic
tion in Travis County, Texas, against said
Commission as defendant. Said action shall
have precedence over all other causes on the
docket of a different nature, and shall be tried
and determined as other civil causes in said
court. Either party to said action may appeal
to the Appellate Court having jurisdiction of
said cause; and said appeal shall be at once re
turnable to said Appellate Court at either of its
terms; and said action so appealed shall have
precedence in said Appellate Court of all causes
of a different character therein pending; pro
vided, that, if the court be in session at the time
such right of action accrues, the suit may be
filed during such term and stand ready for trial
after ten days’ notice. Provided further that
no preliminary injunction shall be issued with
out notice to the opposite party and that no
temporary restraining order shall be granted
without notice to the opposite party unless it
shall clearly appear from specific facts shown
by affidavit or by the verified petition that im
mediate and irreparable injury, loss, or damage
will result to the applicant before notice can be
served and a hearing had thereon. Every
such temporary restraining order shall be en-
iorced with the date and hour of issuance,
shall be forthwith filed in the clerk’s office and
entered of record, shall define the injury and
S n 6 T^y ^ is irreparably (irreparable) and
why the order was granted without notice, and
shall by its terms expire within such time after
- 9 6 -
entry, not to exceed ten days, as the court or
judge may fix, unless within the time so fixed
the order is extended for a like period for good
cause shown, and the reasons for such exten
sion shall be entered of record. In case a tem
porary restraining order shall be granted
without notice in the contingency specified, the
matter of the issuance of a preliminary injunc
tion shall be set down for a hearing at the
earliest possible time and shall take precedence
of all matters except older matters of the same
character; and when the same comes up for
hearing the party obtaining the temporary re
straining order shall proceed with the applica
tion for a preliminary injunction, and if he
does not do so the court shall dissolve the tem
porary restraining order. Upon two days’
notice to the party obtaining such temporary
restraining order the opposite party may ap
pear and move the dissolution or modification
of the order, and in that event the court or
judge shall proceed to hear and determine the
motion as expeditiously as the ends of justice
may require.”
Article 6454:
“Art. 6454. Burden of proof
“The burden of proof shall rest upon the
plaintiff to show the rates, regulations, orders,
classifications, acts or charges complained ̂ of
are unreasonable and unjust to it or them.’
Article 6471:
“Art. 6471. Witnesses
— 97—
“In any examination or investigation pro
vided in this chapter, the Commission is author
ized and empowered to compel the attendance
of witnesses, and may issue subpoenas for wit
nesses by such rules as they may prescribe, and
such process shall be served by the officer to
whom it may be directed. Each witness who
shall appear before the Commission by order
of the Commission, at a place outside the county
of his residence, shall receive for his attend
ance one dollar per day and three cents per
mile traveled by the nearest practical route, in
going to and returning from the place of meet
ing of the Commission, which shall be paid by
the Comptroller upon the presentation of
proper vouchers, sworn to by the witness, and
approved by the Commission. No witness shall
be entitled to fees or mileage who is directly
or indirectly interested in a railroad, or who
is in anywise interested in any stock, bond,
mortgage, security or earnings of such road,
or was an officer, agent or employe of such
road when summoned at the instance of such
railroad. No witness furnished with free
transportation shall receive pay for the dis
tance he may travel on such free transporta
tion. The Commission may issue an attach
ment as in civil cases, for a witness who fails
or refuses to obey a subpoena, and compel him
to attend before the Commission and give his
testimony _ upon such matter as shall be law
fully required by them. If a witness, after be
ing duly summoned, shall fail or refuse to at
tend or to answer any question propounded
to him, and which he would be required to an
swer if in court, the Commission may fine and
imprison such witness for contempt, in the
same manner that a judge of the district court
— 9& —
might do under similar circumstances. The
claim that any such testimony might tend to
criminate the person giving it shall not excuse
a witness from testifying, but such evidence or
testimony shall not be used against such person
on the trial of any criminal proceeding.”
Article 6473:
“Art. 6473. Extortion
“If any railroad company, subject to the
provisions of this title, or its agent or officer,
shall charge, collect, demand or receive a great
er rate, charge or compensation than that
fixed and established by the Commission for
the transportation of freight, passengers or
ears, or for the use of any car on the line of its
railroad, or any line operated by it, or for re
ceiving, forwarding, handling or storing any
such freight or cars, or for any other service
performed or to be performed by it, such rail
road company and its agent and officer shall
be deemed guilty of extortion, and shall forfeit
and pay to the State of Texas a sum not less
than one hundred nor more than five thousand
dollars.”
Article 6474:
“Art. 6474. ‘Unjust discrimination’
“Unjust discrimination is hereby prohibited
and the following acts or either of them shall
constitute unjust discrimination.
•99—
“1. If any railroad subject hereto, directly
or indirectly, or by any special rate, rebate,
drawback o,r other device, shall charge, de
mand, collect or receive from any person, firm
or corporation a greater or less compensation
for any service rendered or to be rendered by
it than its charges, demands, collects or re
ceives from any other person, firm or corpora
tion for doing a like and contemporaneous
service, or shall give any undue or unreason
able preference or advantage to any particular
person, firm or corporation, or locality, or to
subject any particular description of traffic to
any undue or unreasonable prejudice, delay or
disadvantage in any respect whatsoever.
“2. If any railroad company shall fail or
refuse, under regulations prescribed by the
Commission, to receive and transport without
delay or discrimination the passengers, ton
nage and cars, loaded or empty, of any con
necting line of railroad, and every railroad
which shall, under such regulations as the Com
mission may prescribe, fail or refuse to trans
port and deliver without delay or discrimina
tion any passengers, tonnage or cars, loaded or
empty, destined to any point on or over the line
of any connecting line of railroad; provided
perishable freights of all kinds and live stock
shall have precedence of shipment.
“3. If any railroad company shall charge
or receive any greater compensation in the
aggregate for the transportation of like kind
of property or passengers for the shorter line
than for a longer distance over the .same line;
provided, that upon application to the Commis-
— 100—
sion any railroad may in special cases, to pre
vent manifest injury, be authoriezd by the
Commission to charge less for longer than for
shorter distances for transporting persons and
property, and the Commission shall, from time
to time, prescribe the extent to which such
designated railroad may be relieved from the
operation of this provision. No injustice shall
be imposed upon any citizen at intermediate
points. Nothing herein shall be so construed
as to prevent the commission from making
what are known as ‘group rates’ on any line or
lines of railroad in this State.
“4. Penalty.—Any railroad company guilty
of unjust discrimination as hereinbefore de
fined shall for each offense pay to the State of
Texas a penalty of not less than five hundred
dollars nor more than five thousand dollars.
“5. Exceptions.—Nothing herein shall pre
vent the carriage, storage or handling of
freight free or at reduced rates, or to prevent
railroads from giving free transportation or
reduced transportation under such • circum
stances and to such persons as the law of this
State may permit or allow.”
Article 6476:
“Art. 6476. Penalty not otherwise provided
“If any railway company doing business m
this State shall violate any provision of this
title, or shall do any act herein prohibited, oi
shall fail or refuse to perform any duty en
joined upon it for which a penalty has not bee
101—
provided by law or shall fail, neglect or refuse
to obey any lawful requirement, order, judg
ment or decree made by the Commission, for
every such act of violation it shall pay to the
State of Texas a penalty of not more than five
thousand dollars.”
Exhibit “C”
SENATE BILL 169, 32ND LEGISLATURE,
ACTS 1911, p. 157
S. B. No. 109 Chapter 86.
An Act conferring authority upon the Railroad
Commission, and making it its duty to adopt all
necessary rates, charges and regulations to gov
ern and regulate persons, associations, and cor
porations, private or municipal, owning or op
erating public wharves, docks, or piers, and all
property used in connection therewith, or sub
urban, belt or terminal railroads in .Texas, and
to fix divisions of rates, charges and regulations
between the same and railroads and all other
common carriers under the control of the Rail
road Commission where a deversion (division)
is proper; providing that all laws made and pre
scribed for the government and control of rail
roads, shall, as far as applicable, be of equal
iorce against such persons, associations and
corporations; authorizing the Commission to
require reports of such persons, associations,,
and corporations, and giving to said Commis
sion power to correct abuses and prevent un-.
just discrimination and extortion in rates or
102-
charges, of such persons, associations and cor
porations or apy abuse by same; providing pen
alties for the violations of this Act, and declar
ing an emergency.
BE IT ENACTED BY THE LEGISLATURE OF
THE STATE OF TEXAS:
SECTION 1. Power and authority are hereby
conferred upon the Railroad Commission of Texas
over all public wharves, docks and piers and all ele
vators, warehouses, sheds, tracks and other prop
erty used in connection therewith in the State of
Texas, and over all suburban, belt and terminal rail
roads in said State, and over all persons, associations
and corporations, private or municipal, owning or
operating any such railroad, wharf, dock, pier, ele
vator, warehouse, shed, track, or other property,
and it is hereby made the duty of the said Railroad
Commission to fix and adopt all necessary rates,
charges and regulations, to govern and regulate
said persons, associations and corporations, and to
correct abuses and prevent unjust discriminations
in the rates, charges and tolls of said persons, as
sociations and corporations, and to fix divisions of
rates, charges and regulations between same and
railroads and all other common carriers, under the
control of the Railroad Commission where a divi
sion is proper, and to correct and prevent any and
all other abuses in the conduct of their business.
SEC. 2. If any person, association or corporation
subject to the provisions of this Act, shall demand or
receive a greater compensation for any service ren
dered or to be rendered than that fixed and estab
lished by the said Railroad Commission then, and m
every such case, such person, association or corpor-
— 103—
ation shall be deemed guilty of extortion and shall
forfeit and pay to the State of Texas, a sum not to
exceed five hundred dollars for each offense; pro
vided, that if it shall appear that such violation was
not wilful, said person, association or corporation
shall have ten days to refund such over-charges or
damages, in which case the penalty shall not be in
curred, and the said Commission shall have author
ity and it shall be its duty to sue for and recover the
same in the manner as may be prescribed by law
for like suits against railroad companies.
SEC. 3. If any person, association or corporation
subject to the provisions of this Act shall by any
special rate, rebate, drawback or other device, or in
any manner directly or indirectly charge, demand,
collect or receive from any other person, associa
tion or corporation a greater or less compensation
for any service rendered, or to be rendered, by it
then it charges, demands, collects or receives from
any other person, association or corporation for do
ing a like and contemporaneous service, or if any
such person, association or corporation shall make
or give any undue or unreasonable preference or
advantage to any other person, association or cor
poration, or to any locality, or shall subject any par
ticular description of traffic to any undue or unrea
sonable prejudice, delay or disadvantage, then and
m any such case the person, association or corpora-
“1.0Tlt^us offending shall forfeit and pay to the State
/L aa aa\ ̂ sum not excee(3 five hundred dollars ($oULl.OO) for each and every offense.
SEC. 4. Said Railroad Commission shall have the
same power to make and prescribe rules and regu
lations for the government and control of all such
persons, associations and corporations as is or may
— 104—
be conferred upon said Commission for the regula
tion of railroad companies, and such persons, asso
ciations and corporations shall issue no stock or
bonds, except such as are authorized by the Rail
road Commission under the provisions of the rail
road stock and bond law of this State.
SEC. 5. The said Railroad Commission shall have
the authority, and it shall be its duty to call upon
such persons, associations and corporations for re
ports, and to investigate their books in the same
manner as is or may be prescribed by law for the
regulation of railroad companies; and said Commis
sion shall have power and authority to institute suits
and sue out such writs and process as may be applic
able and authorized for the regulation of railroad
companies. All laws made and prescribed for the
government and control of railroad companies, and
the valuation of their properties, in so far as they
are applicable, shall be of equal force and effect
against all such persons, associations and corpora
tions.
SEC. 6. If any such person, association or cor
poration or other party at interest, be dissatisfied
with any decision, rate, charge, toll, rule, order, act
or regulation adopted by the Commission, such dis
satisfied person, association, corporation or party
may file a petition setting forth the particular cause
or causes of objection to such decision, rate, charge,
toll, rule, order, act or regulation, or to either or all
of them, in a court of competent jurisdiction in
Travis county, Texas, against such Commission as
defendant, said action shall have precedence over
all other causes on the docket of a different nature,
and shall be tried and determined as other civil
causes in said court, either paty (party) to said ac-
— 105—
tion may appeal to the appellate court having juris
diction of said cause, and said appeal shall be at once
returnable to said appellate court of all causes of a
different character therein pending; provided, that
if the court be in session at the time of such right
of action accruing, the suit may be filed during such
term and stand ready for trial after ten days’ notice.
SEC. 7. The fact that there is now no adequate
law for the regulation of such persons, associations
and corporations, and the urgent necessity for such
a law, create an emergency and an imperative pub
lic necessity that the rule requiring bills to be read
on three several days be suspended, and the same is
hereby suspended, and this Act shall take effect and
be in force from and after its passage, and it is so
enacted.
Approved March 20, 1911.
Becomes a law ninety days after adjournment.
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1940
No. 283
RAILROAD COMMISSION OF TEXAS, LON A. SMITH,
ERNEST 0. THOMPSON, e t a l „,
Appellants,
vs.
THE PULLMAN COMPANY, GUY A. THOMPSON,
Trustee, THE ST. LOUIS, BROWNSVILLE AND
MEXICO RAILWAY COMPANY, D ebtor , et a l .
APPEAL PROM THE DISTRICT COURT OP THE UNITED STATES FOR
THE WESTERN DISTRICT OE TEXAS
STATEMENT AS TO JURISDICTION.
*
G erald C. M a n n , .
Attorney General of Texas,
C e c il C. R o tsch ,
G l e n n R . L e w is ,
L ee S h o p t a w ,
A. B. C u lbe rtso n ,
C e c il A. M organ ,
Counsel for Appellants.
S u b je c t I n d e x .
Page
Statement as to jurisdiction ..................................... 1
Statutory provisions sustaining jurisdiction ... 2
State statute the validity of which is involved . . 2
Nature of the case and rulings below .............. 4
Date of the judgment and application for ap
peal ................................................................... 4
Cases believed to sustain jurisdiction............... 5
Exhibit “ A ” —Interlocutory order of the District
Court ....................................................................... 7
Exhibit “ B” —Final judgment of the District Court 9
Exhibit “ C” —Opinion of the District Court ......... 10
T able of C ases C ited .
Atlantic, etc., v. State of Georgia, 234 U. S. 280, 58
L. Ed. 1313 ............................................................ 5
Chicago, R. I. & P. R. Co. v. Arkansas, 55 Sup. Ct.
Rep........................................... 5
G. C. & S. F. Ry. Co. v. Texas, 169 S. W. R. 385, 246
U. S. 58, 62 L. Ed. 574 .......................................... 5
South Carolina, etc., v. Barnwell Bros., Inc., 82 L Ed
734 ......................................................... ................ ' 5
S ta tu tes C ited .
Statutes of Texas, Article 6445................................... 2
Article 6448................................... 3
Article 6473................................... 3
. Article 6474................................... 4
united States Code, Title 28, Chapter 10, Section 380
(Judicial Code, Section 266, amended) .. . 1
vernon’s Annotated Statutes of Texas, Chapter 11,
title 112, Article 6444 to Article 6494 .................... 4
—9043
IN D E X .
IN THE DISTRICT COURT OE THE UNITED STATES
FOR THE WESTERN DISTRICT OF TEXAS,
AUSTIN DIVISION
Civil Action No. 38
THE PULLMAN COMPANY, e t a l .,
vs.
Plaintiffs,
THE RAILROAD COMMISSION OF TEXAS, e t a l .,
Defendants.
STATEMENT OF JURISDICTION AS REQUIRED BY
SUPREME COURT RULE 12.
Your petitioners respectfully submit that the Supreme
Court of the United States has jurisdiction on appeal to
review the judgment in question in that Section 380, Title
28, Chapter 10, United States Code (Judicial Code, Section
266, Amended) provides:
No interlocutory injunction suspending or restrain
ing the enforcement, operation or execution of any
statute of a State by restraining the action of any officer
of such State in the enforcement or execution of such
statute, or in the enforcement or execution of an order
made by any administrative board or commission act
ing under and pursuant to the statutes of such State,
shall be issued or granted by any justice of the Supreme
2
Court, or by the district court of the United States, or
by any judge thereof, or by any circuit judge acting as
district judge, upon the ground of the unconstitution
ality of such statute, unless the application for the same
shall be presented to a justice of the Supreme Court of
the United States, or to a circuit or district judge, and
shall be heard and determined by three judges, of whom
at least one shall be a justice of the Supreme Court or
a circuit judge * * * An appeal may be taken direct to
the Supreme Court of the United States from the order
granting or denying, after notice and hearing, an inter
locutory injunction in such case * * * The require
ment respecting the presence of three judges shall also
apply to the final hearing in such suit in the district
court; and a direct appeal to the Supreme Court may be
taken from a final decree granting or denying a perma
nent injunction in such suit.”
In connection with the above statute your petitioners
further show that an interlocutory injunction was issued in
this case on the 28th day of November, 1939; that a 3-Judge
Court was assembled, consisting of a Circuit Judge and two
District Judges; that the case was heard before the three
judges on its merits on the 17th day of February 1940, and
that a final decree granting a permanent injunction in said
suit was entered on the 23 day of April 1940.
The validity of the statutes of the State of Texas are
involved, particularly Article 6445, which reads:
“ Power and authority are hereby conferred upon the
Railroad Commission of Texas over all railroads, and
suburban, belt and terminal railroads, and over all
public wharves, docks, piers, elevators, warehouses,
sheds, tracks and other property used in connection
therewith in this State, and over all persons, associa
tions and corporations, private or municipal, owning oi
operating such railroad, wharf, dock, pier, elevatoi,
warehouse, shed, track or other property to fix, and l
is hereby made the duty of the said Commission o
3
adopt all necessary rates, charges and regulations, to
govern and regulate such railroads, persons, associa
tions and corporations, and to correct abuses and pre
vent unjust discrimination in the rates, charges and
tolls of such railroads, persons, associations and corpo
rations, and to fix division of rates, charges and regu
lations between railroads and other utilities and com
mon carriers where a division is proper and correct,
and to prevent any and all other abuses in the conduct
of their business and to do and perform such other
duties and details in connection therewith as may be
provided by law. ’ ’
Article 6448 reads:
“ 1. Adopt all necessary rates, charges and regula
tions, to govern and regulate freight and passenger
traffic, to correct abuses and prevent unjust discrimina
tion and extortion in rates of freight and passenger
traffic on the different railroads in this State.
“ 9. Make and establish reasonable rates for the
transportation of passengers over each railroad sub
ject hereto, which rates shall not exceed the rates fixed
by law. The Commission shall have power to pre
scribe reasonable rates, tolls or charges for all other
services performed by any railroad subject hereto.”
Article 6473 reads:
‘ ‘ If any railroad company, subject to the provisions
of this title, or its agent or officer, shall charge, collect,
demand, or receive a greater rate, charge or compensa
tion than that fixed and established by the Commission
for the transportation of freight, passengers or cars, or
for the use of any car on the line of its railroad, or any
line operated by it, or for receiving, forwarding, hand
ling or storing any such freight or cars, or for any other
service performed or to be performed by it, such rail
road company and its agent and officer shall be deemed
guilty of extortion, and shall forfeit and pay to the
State of Texas a sum not less than one hundred nor
more than five thousand dollars.”
4
Article 6474 reads:
“ Unjust discrimination is hereby prohibited and the
following acts or either of them shall constitute unjust
discrimination.
1. If any railroad subject hereto, directly or indi
rectly, or by any special rate, rebate, drawback or other
device, shall charge, demand, collect or receive from any
person, firm or corporation a greater or less compensa
tion for any service rendered or to be rendered by it
than it charges, demands, collects or receives from any
other person, firm or corporation for doing a like and
contemporaneous service, or shall give any undue or
unreasonable preference or advantage to any particular
person, firm or corporation, or locality, or to subject
any particular description of traffic to any undue or
unreasonable prejudice, delay or disadvantage in any
respect whatsoever.”
The date of the final judgment sought to be reviewed is
April 23, 1940. The day upon which the application for
appeal is presented is 18 day of June, 1940. There is at
tached hereto a copy of the interlocutory order marked Ex
hibit “ A ” , together with a copy of the final judgment
marked Exhibit “ B ” , together with a copy of the court’s
opinion marked Exhibit “ C ” , all of which are incorporated
herein by reference.
The Railroad Commission is the administrative depart
ment of the State Government of Texas and duly organized
pursuant to Chapter 11, Title 112, Article 6444 to Article
6494 Vernon’s Annotated Statutes of Texas. The Railroad
Commission of Texas promulgated an order on November
4,1939 regarding the operation by the railroad companies of
sleeping cars, making certain findings that the manner in
which the said railroad companies were now operating their
sleeping cars was an abuse and an unjust discrimination as
5
to the passengers and making certain requirements of such
companies. The railroad companies, together with The
Pullman Company, have joined together as plaintiffs and
challenged said order of the Railroad Commission on many
grounds and asked for an injunction restraining the enforce
ment of such order.
The 3-Judge court entered its final decree or final judg
ment herein on the 23 day of April, 1940, and permanently
enjoined the Railroad Commission of Texas, its members,
officers and agents, as well as the Attorney General of Texas,
from enforcing said order, which order related to the safety,
care, comfort, convenience, proper accommodation, charges,
fares and transportation of passengers on sleeping cars and
Pullman cars within the State of Texas, and to prevent
abuses, unjust discrimination and extortion in rates. The
petitioners herein (defendants in the trial of this case) con
tend that said order was valid, just and reasonable and that
the 3-Judge court abused its discretion in issuing a perma
nent injunction against the same in that the court substituted
its own opinion for that of the findings and order of the Rail
road Commission. The court’s investigation and its con
clusions were not limited to the constitutional questions in
volved, but the court invaded the province of the Commis
sion, usurped its authority and substituted its own opinion
and findings for that of an administrative body of the State.
See:
Chicago, R. I. & P. R. Co. v. Arkansas, 55 U. S. Sup. Ct.
Reps.;
Atlantic, etc. v. State of Georgia, 234 U. S. 280, 58 L. Ed.
1313;
G. C. & S. F. Ry Co. v. Texas, 169 S. W. R. 385, affirmed
by the Supreme Court, 62 L. Ed. 574, 246 IT. S. 58;
South Carolina, etc. v. Barnwell Bros., Inc., 82 L. Ed.
734.
6
W h e r e f o r e , we respectfully submit that the Supreme
Court of the United States has jurisdiction of this appeal.
Gerald C. Mann,
Attorney General of Texas;
Cecil C. R otsch,
Glenn R. Lewis, and
Lee Shoptaw,
Attorneys for The Railroad Commission of
Texas, Lon A. Smith, Jerry Sadler and
Ernest 0. Thompson, and Gerald C. Mann,
Attorney General of Texas,
By Cecil C. R otsch ;
A. B. Culbertson,
Cecil A. Morgan,
Attorneys for Intervening Defendants
M. B. Cunningham, W. M. Hadley and
W. A. Worley,
By Cecil A. Morgan.
7
EXHIBIT “A”.
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF TEXAS, AUS
TIN DIVISION.
Civil Action No. 38.
The Pullman Company et al., Plaintiffs,
vs.
The Railboad Commission of Texas et al., Defendants.
Hearing of the application of the plaintiffs in the above
cause for temporary restraining order having been set for
this date, came the plaintiffs by their attorneys, and pur
suant to due notice came also the defendants by their attor
ney, the Attorney General of the State of Texas; and the
parties announced ready for said hearing, and after hear
ing and considering the verified amended complaint, and
the argument of counsel; and it appearing that in the com
plaint the plaintiffs challenge the validity of certain orders
of the Railroad Commission of Texas on Federal constitu
tional grounds and that substantial Federal questions are
presented in the complaint and that this Court has juris
diction of the parties and the subject-matter; and it having
been made clearly to appear from specific facts shown by
the verified complaint that, unless a temporary restraining
order is granted, plaintiffs will suffer immediate and irrep
arable injury, loss and damage, in that the order of the
Railroad Commission dated August 8, 1939 (Exhibit A in
the complaint) and the order of the Railroad Commission
dated November 4, 1939 (Exhibit F in complaint), impose
heavy burdens upon the plaintiffs beginning December 1,
19o9 ; and the plaintiffs are entitled by the laws of the State
of Texas to have said orders reviewed in a court of com
petent jurisdiction in Travis County, Texas, and that there
is no provision in the State law or in the challenged orders
suspending their enforcement pending such review, and
Jat, in the absence of a temporary restraining order or
8
injunction, plaintiffs will be subjected to prosecution for
heavy, daily recurring, penalties for failing and refusing
to obey said orders on and after December 1, 1939;
Wherefore, it is ordered that upon the filing by the plain
tiffs of a good and sufficient bond in the sum of $10,000.00
to be approved by the clerk of this Court, payable to the
defendants named in the complaint, and conditioned that
plaintiffs will answer for all damages and costs which the
defendants may sustain in consequence of the issuance of
this temporary restraining order, or of any extensions
thereof, the clerk of the United States District Court for
the Western District of Texas issue a temporary restrain
ing order enjoining and restraining the defendants Rail
road Commission of Texas and the members thereof and
the Attorney General of the State of Texas, their respec
tive representatives, agents, servants and employees, from
attempting to enforce against the plaintiffs, or any of them,
the aforesaid orders of the Railroad Commission of Texas
(Exhibits A and F attached to the complaint), and from
instituting or prosecuting any suit or suits against the
plaintiffs, or any of them, for penalties, or otherwise, for
violation of said orders, or any part thereof. And it is
further ordered only until the hearing and determination
of the application for interlocutory injunction upon notice.
And it is further ordered that a statutory three judge court
be convened a t ------, Texas, on the — day o f ------, 19—, at
---------- . M., for the purpose of hearing plaintiffs’ applica
tion for interlocutory injunction; and that the defendants
and the Governor of Texas be given notice of said hearing
as required by Section 380, Title 28, United States Code,
and the clerk is directed to issue for service on said inter
ested parties copies of this order.
Done at Waco, Texas, this the 28th day of November,
A. D. 1939.
Charles A. Boyxton,
United States District Judge,
9
EXHIBIT “B”.
THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF TEXAS, AUS
TIN DIVISION.
Civil Action No. 38.
The Pullman Company et al., Plaintiffs,
vs.
The Raileoad Commission of Texas et al., Defendants.
Judgment.
This action came on to be heard on February 17, 1940,
at this term on the plaintiffs’ motion for preliminary in
junction, and at the same time on final trial on the merits,
before a statutory court of three judges consisting of Sibley,
Circuit Judge, and McMillan and Allred, District Judges;
and, upon conclusion of the evidence, was argued by coun
sel, and thereupon, upon consideration thereof, it was Or
dered, Adjudged and Decreed as follows, viz:
1. That the defendants ’ motions to dismiss the action be
and are hereby overruled.
2. That the defendants, the Railroad Commission of
Texas and Lon A. Smith, Ernest 0. Thompson and Jerry
Sadler, members of said commission, and Gerald C. Mann,
Attorney General of the State of Texas, their respective
successors, agents, representatives and employees, be and
they are, each and all, hereby permanently enjoined from
attempting to enforce against the plaintiffs, or any of them,
the order of the Railroad Commission of Texas dated
November 4,1939 (Railroad Commission Docket No. 3669-R,
an “ Order amending passenger circular No. 164, issued by
the Railroad Commission of Texas on the 8th day of Au
gust, 1939” ) and the order of the Railroad Commission
of Texas dated the 8th day of August, 1939, known as Pas
senger Circular 164, copies of which are attached to the
Amended Complaint as Exhibit F and Exhibit A, respec
tively ; and from instituting or prosecuting any suit or suits
against the plaintiffs, or any of them, for penalties, or
10
otherwise, for the violation of said orders, or any part
thereof; and from taking* any steps whatsoever looking to
the enforcement of said orders, and from seeking in any
way to penalize plaintiffs, or any of them, for violating or
not obeying said orders, or any part thereof.
3. All costs incurred by the intervening defendants, or
occasioned by their intervention, are taxed against said
intervening defendants, M. B. Cunningham, W. A. Worley
and W. M. Hadley. All other costs are taxed against the
defendant the Railroad Commission of Texas.
To all of which judgment the defendants, including the
intervening defendants, duly excepted.
Done this 23 day of April, 1940.
Samuel H. Sibley,
Circuit Judge;
Robert J. McMillan,
District Judge;
James Y. Allred.
District Judge.
Approved as to form:
Cecil C. Rotsch.
Cecil A. Morgan.
EXHIBIT “C”.
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF TEXAS, AUS
TIN DIVISION.
Civil Action No. 38.
The Pullman Company et al., Plaintiffs,
vs.
The Railroad Commission of Texas et al., Defendants.
Before Sibley, Circuit Judge, and McMillan and Allred,
District Judges.
Per Curiam :
The Pullman Company and a large number of Railway
Companies operating in Texas and Trustees m c al&e
11
Railways operating in Texas bring this suit against the
Railroad Commission of Texas, the various members
thereof and the Attorney General, to restrain the enforce
ment of a certain order made by the Commission on the
4th day of November, 1939.
The order purports to be made pursuant to the statutes
of the State of Texas and a sum in excess of the jurisdic
tional amount is shown to be involved. The ground of at
tack is the unconstitutionality of the order. A temporary
restraining order was applied for and granted. Accord
ingly, a case for three judges, under Section 266 of the
Judicial Code, is presented. The case has been tried on its
merits by a court so organized.
Upon the trial, without objection on the part of anyone,
leave was granted to three Pullman porters and to three
Pullman conductors to intervene. The Pullman porters
made common cause with the plaintiffs and the Pullman
conductors aligned themselves with the defendants.
The order complained of is long and contains some
twenty-nine very extensive findings of fact. These are fol
lowed by certain recitals labeled as orders and certain de
crees with regard to rates which may be charged under
certain circumstances by the Bailroads and the Pullman
Company. However, the gist of the order and the provi
sion which is particularly assailed and which it is mani
fest it was the prime purpose of the order to put into effect,
is as follows:
“ It is further ordered, adjudged and decreed that no
sleeping car shall be operated on any line of railroad in
the State of Texas when occupied by passengers holding
the proper transportation for the accommodation of such
cars, unless such cars are continuously in the charge of an
employee or an authorized agent of the firm or corporation
owning or operating the same having the rank and position
of Pullman conductor.”
Plaintiffs make their attack upon a great many grounds.
It is unnecessary to mention more than two or three of
iem. It is first asserted that the order is not within the
authority delegated to the Bailroad Commission by any
8 a™e or law of the State of Texas. It is said, second,
12
that in so far as it purports to relate to transportation
rates, it is void for the reason that it was issued without
notice of a hearing for such purpose. It is further con
tended that the order is unjust, arbitrary, unsupported by
any basis in fact and, accordingly, confiscatory. Defend
ants joined issue with plaintiffs upon these matters and
evidence was introduced at great length by both sides.
It appears without contradiction that there are some
sixteen or seventeen routes in Texas where the Pullman
cars, so far as the Pullman Company is concerned, are in
charge of a porter. In most cases, this occurs only where
the distance traversed is short, and it is invariably true
that it occurs only in instances where there is only one
Pullman car on the train. The general control of the Pull
man car and the passengers therein is lodged in the Rail
road conductor. On trains where two or more Pullman
cars are being carried contemporaneously, a Pullman con
ductor is in charge, subject, however, to the train conductor,
We are confronted at the outset by the question as to
what authority the Railroad Commission has to make the
challenged order. The Railroad Commission is a creature
of statute. It gets no authority by implication or from the
common law. It is given the authority by statute to correct
abuses, but the Texas courts have been uniform in holding
that the abuse must be one defined by law. In Railrod
Commission v. H. & T. C. Ry. Co., 90 Texas, at Page 352,
the Supreme Court says:
“ The question then arises, What abuses can the Rail
road Commission correct? We think that it must be some
abuse which has been defined by the law, and that the Com
mission would not by this power be authorized to enact a
law defining what is an abuse or a disregard of duty on the
part of a railroad corporation.”
In State v. Sugarland Ry. Co., 163 S. W. 1047 (writ re
fused), the Court said:
“ The Commission is a creature of the statute, based upon
constitutional provision for the establishment of an agency
in this state, with such powers as may be deemed adequate
and advisable. Section 2, Art. 10, Const, of Texas. Being
13
a creature of statute, with such powers only as the Legis
lature deemed adequate and advisable, it could deraign no
authority by implication or from the common law. See
Railroad Commission v. G., H. <& S. A. By. Co., 51 Tex.
Civ. App. 447, 112 S. W. 353. An order of the Commission,
to be valid, must be based upon some express provision or
delegation of power made by statute. R. R. Com. v. G., H.
& 8. A. By., supra; I. & G. N. R. R. Co. v. R. R. Com., 99
Tex. 332, 89 S. W. 961. We think that, before the appellee
could claim the protection of such order, it must be able
to put its finger upon the statute conferring upon the Com
mission the authority to make the same, which has not been
done.”
See also State v. St. L. S. W. Ry. Co., 165 S. W. 491.
There is no Texas statute which forbids the operation
of a train carrying a Pullman car without a Pullman con
ductor, nor is there any statute that defines such action as
an abuse. The Legislature has fixed the necessary mem
bers of a train crew and a Pullman conductor is not in
cluded. Article 6380, Vernon’s Annotated Texas Statutes,
1925. Defendants do not deny the correctness of the law as
set out in the decisions quoted from. In fact they state,
upon page 13 of their brief, that they concur in those views.
Being called upon to put their finger upon the statute
which authorizes the making of an order of this kind, they
point to Article 6474. That Article does not denounce the
transportation of a Pullman car without a Pullman con
ductor as an abuse, but relates to the matter of unjust dis
crimination and defines certain things which shall, under its
terms, constitute unjust discrimination. It is summarized
by defendants in their brief as follows:
A duty is imposed on the railroads not to give any undue
or unreasonable preference to any person or locality or
subject any traffic to any disadvantage whatsoever, and a
penalty is prescribed for failing to observe such duty.”
We are not of the opinion that the order is sustained by
e provisions of this statute. It will be noted that the
statute denounces unjust discrimination. The Supreme
Bourt of Texas, in construing Section 2 of Article 10 of the
14
Constitution, upon which the statute is based, said, in St.
Louis Southwestern Railway Co. v. State of Texas, 113 Tex.
at page 579:
“ But, whatever meaning should be ascribed to the word
unjust, two things seem perfectly plain in construing Section
2 of Article X, of the Constitution, to-wit: first, that all
discrimination in passenger fares was not forbidden, but
only such as would operate unjustly.”
It is certainly not an unjust discrimination to adapt the
service to different conditions of traffic. Every train is not
required to be the duplicate of every other train in order to
avoid unjust discrimination. The record in the case fails to
support the contention that there is any unjust discrimin
ation as against the public generally by reason of the fact
that on certain trains where only one Pullman car is being
handled, the operation, so far as the Pullman Company is
concerned, is in charge of a porter, who is subject to the
direction and control of the train conductor. However,
without regard to these matters, the order cannot be upheld
as a correction of an unjust discrimination, because it is not
within the Legislative definition of that term and the Com
mission is without power to make one of its own.
As we have heretofore noted, it cannot stand as a cor
rection of an abuse, because the so-called abuse has not been
defined or prohibited by law.
The regulation cannot be sustained as a rate order for the
reasons, first, it was not made after notice given as required
by law, and second, it is apparently predicated upon an at
tempt upon the part of the Commission to construe and en
force certain contracts between the Railroads and the Pull
man Company, which it is without any statutory authority
to do. Furthermore, in so far as it attempts to regulate the
rates charged by the Pullman Company, it is void, as the
Commission has no jurisdiction over the Pullman Company.
The intervenors Pullman conductors have raised on then
own account certain jurisdictional questions, predicate
upon the assertion and assumption in some instances, tha
plaintiffs are operating their railroads in Texas in viola non
of the law. If it be conceded that, as intervenors, they have
15
the right to question the propriety of the main proceeding
in this fashion, we are still of the opinion that their conten
tion is without merit and should be overruled.
The views which have been expressed make it unnecessary
to rule on the question as to whether the order is arbitrary.
The Commission being without statutory authority to make
an order of this character, the question as to its reason
ableness is immaterial.
It accordingly follows from what has been said that a
decree should be entered for the plaintiffs, and its terms
may be settled after notice.
Samuel H. Sibley,
Circuit Judge;
James V. Allred,
District Judge;
Robert J. McMillan,
District Judge.
(CA No. 38, The Pullman Company et al. v. The Railroad
Commission of Texas et al.; page 6, Opinion of the Court.)
Endorsed: Civil Action No. 38. In the District Court of
the United States for the Western District of Texas, Austin
Division, The Pullman Company, et al., Plaintiffs v. Rail
road Commission of Texas, et al., Defendants Statement of
Jurisdiction as Required by Supreme Court Rule 12. Filed:
18th Day of June, 1940. Maxey Hart, Clerk, by Joe Steiner,
Deputy.
(9043)
IN THE
Supreme Court of the United States
OCTOBER TERM, 1940
No. 283
RAILROAD COMMISSION OF TEXAS, ET AL
VS.
THE PULLMAN COMPANY, ET AL
APPEAL FROM THE DISTRICT COURT OF
THE UNITED STATES FOR THE
WESTERN DISTRICT OF TEXAS
Brief of the Interveners, M. B. Cunningham,
W. A. Worley, W . M. Hadley and Order of
Sleeping Car Conductors.
A. B. CULBERTSON
and
CECIL A. MORGAN
First National Bank Building
Fort Worth, Texas
Reimers-Taylor Company—Fort Worth, Texas—Phone 3-1521
<%>
I N D E X
Page
Caption...................................................................... 1
Summary of Argument:
Point No. 1 .................................................. 2
Argument and Authorities .........................2-10
Point No. 2 ................................................
Argument and Authorities.........................11-20
Point No. 3 ....................................................... 21
Argument and Authorities ...................... 21-23
Point No. 4 .............. 24
Argument and Authorities.........................24-26
Point No. 5 ............................. 27
Argument and Authorities.........................27-29
Point No. 6 ............................ 30
Argument and Authorities.........................30-31
Conclusion .............. Qi
INDEX TO AUTHORITIES
(ii)
Authorities Page
Constitution of Texas
Article 10, Section 2 .......................................27
Revised Civil Statutes of Texas
Article 6416 ......................................................... 6
Article 6473 ..................... ...................... -........6,8
Article 6445 .................................................. 7, 29
Article 6448 ........................................ 7,8,11,27
Article 6449 ........................................................15
Article 6453 ........................................................19
Article 6260 ....................................................... 21
Article 4477 .................................. 28
Atchison, T. & S. F. Ry. Co. V. Stevens, 109
Texas 262, 206 SWR 92 1 ................................ 12
A. L. R. Vol. 15, page 190........................................ 31
Groesbeck V. Duluth S. S. & A. R. Co., 250
U. S. 607 ........................................................... 31
Pennsylvania R. R. Company v. St. Louis,
etc. R. R. Co., 118 U. S. 290 ............................. 21
Railroad Com. of Texas et al. v. Houston
Chamber of Commerce, 19 S. W. R. (2)
583, affirmed by Com. of Appeals 78 S. W.
R. (2) 591 ................................... -..............
(H i)
INDEX TO AUTHORITIES (Continued)
Authorities Page
Roco Refining Co. et al v. State, et al, 94
SWR (2nd) 1214 ............................................. 16
Railroad Commission v. Rowan & Nichols
Oil Co., 310 U. S. 573, 84 L. Ed. 16,
page 1368 ......................................................._..25
Railroad Commission v. McDonald, 90
SWR (2nd) 581 ................................................. 25
Southern Pacific Company v. Campbell,
230 U. S. 538 ......................................................19
Texas Steel Co. V. Fort Worth & Denver
City Ry. Co., et al, 120 Tex. 597, 40
SWR (2nd) 78 ..................................................16
NOTE: All of the references to the Con
stitution and Statutes above cited have
been copied in full in the Appendix to the
Brief filed by the Attorney General with
exception of Article UU77, which is quoted
in this Brief.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1940
No. 283
RAILROAD COMMISSION OF TEXAS, ET AL
VS.
THE PULLMAN COMPANY, ET AL
APPEAL FROM THE DISTRICT COURT OF
THE UNITED STATES FOR THE
WESTERN DISTRICT OF TEXAS
Brief of the Interveners, M. B. Cunningham,
W. A. Worley, W . M. Hadley and Order of
Sleeping Car Conductors.
(Opinion of Court Below is Reported in
33 Fed. Supp. 675)
Upon motion leave was granted by the Trial Court
for the interveners to align themselves with the
defendants in the Trial Court, appellants herein
— 2 —
(Tr. 76, 77). The petition for appeal included said
interveners (Tr. 371). The brief as filed by the
Attorney General in this case has stated the grounds
for jurisdiction, has made a comprehensive state
ment of the case, including specification of errors,
together with a summary of argument and authori
ties, all of which is adopted by these interveners.
Therefore, this brief will supplement the able brief
of the Attorney General by enlarging upon certain
points.
SUMMARY OF ARGUMENT
Point No. 1
THE PLAINTIFFS DID NOT ALLEGE OR
PROVE ANY FACTS TO SHOW THAT THEY
WOULD BE DAMAGED IF THE ORDER OF
THE RAILROAD COMMISSION WAS PERMIT
TED TO STAND, THE ONLY DAMAGE ALLEG
ED OR PROVED BEING THAT THEY WOULD
BE PREVENTED FROM COLLECTING ILLE
GAL, UNAUTHORIZED AND EXTORTIONATE
TOLLS AND FARES.
ARGUMENT AND AUTHORITIES
For the purpose of clearness the order of the
Commission shall be herein referred to as it was
considered in the Trial Court as the “ challenged
order” . The challenged order was directed to, and
made requirements of, only the railroads. It made
— 3 —
no requirement whatever of the plaintiff, The Pull
man Company. It is fundamental that before a
party can resort to a Federal Court of Equity to
restrain and prevent an order of enforcement such
as the one in this case he must show that he would
be injured by its enforcement. Heard v. Denman,
29 SWR (2nd) 824.
The very basis of the plaintiffs’ cause of action
is the contracts between The Pullman Company
and the railroads as stated in the plaintiffs’ Bill of
Complaint wherein it was pleaded:
“Each of the plaintiffs, excepting The
Pullman Company, operates trains in or
through portions of the State of Texas
including Pullman cars furnished by The
Pullman Company pursuant to contracts
between The Pullman Company and the
respective plaintiffs.” (Tr. page 6, para.
The contracts between the various railroads and
The Pullman Company were offered in evidence
by the plaintiffs and identified as Exhibits 2 to 14
inclusive. (Tr. 146).
In support of this pleading the plaintiff, The
Pullman Company offered the witness Champ
Carry, Vice President of The Pullman Company
(Tr. 79) who testified concerning the contracts be
tween the railroad companies and The Pullman Com
pany as follows:
“Q. All of these operations are under
contracts between the Railroad—the par
ticular Railroad and the Pullman Com
pany?
A. Yes, sir, all of them.
Q. Is there an arrangement in general
between the Railroad and the Pullman
Company whereby the Pullman Company
and the Railroad share a part of the rev
enues from the Pullman fares on these
cars?
A. All of our contracts provide for the
Railroads to share in the earnings if they
reach a certain level. The general provi
sions of the contracts are that the Pullman
Company first takes out the cost of the
operation and then what we term as an in
itial return or profit for doing the busi
ness, and after that we divide any surplus
that may be there. The contracts are gen
erally—there are some little differences in
the way that the division is made, but they
are generally to the effect that there will
be a division if the revenue is there.” (Tr.
83).
The plaintiffs further offered the witness V. H.
Vroman, an employe of The Pullman Company serv
ing in the capacity as assistant to the Vice-President
in charge of operations who testified:
“ Q. All right. Then, for the privilege of
riding in the Pullman car the Railroad
— 5—
Company does charge an extra fare, you
know that, don’t you?
A. Yes, sir.
Q. That is one cent a mile, isn’t it, in
Texas?
A. I believe it is.
Q. Then in addition to paying that extra
railroad fare to ride in the Pullman car,
the Pullman Company then charges an ad
ditional fare?
A. They charge for their accommoda
tions.
Q. Well, that is an additional charge,
though, in addition to the railroad fare, and
then the extra fare to ride in the Pullman?
A. It is an additional expense to the pas
sengers. You can’t go to the theater with
out paying for it, and if you ride in a Pull
man car you must pay for a seat or berth;
that applies on both roads and on all roads.
Q. I understand and your charges are
identical in every instance, whether there
is a Pullman porter in charge or wheth
er there is a Pullman conductor in
charge?
A. That is right.
Q. All right; and the same—the same
charges are made whether there are 10
Pullman cars or one Pullman car?
— 6 —
A. that is right.” (Tr. 139,140).
Therefore, the plaintiffs alleged and proved by
their own witnesses that the fares and charges were
in excess of the maximum sum allowed by the stat
utes of the State of Texas as provided in Article
6416 Revised Civil Statutes of Texas which provides:
“The passenger fare upon all railroads of
this State shall be three cents per mile.”
etc.
Article 6473 Revised Civil Statutes of Texas, Ex
tortion, provides in part:
“ If any railroad company, subject to the
provisions of this title, or its agent or offi
cer, shall charge, collect, demand, or receive
a greater rate, charge or compensation
than that fixed and established by the Com
mission for the transportation of freight,
passengers or cars, . . . or for any other
service performed or to be performed by it,
such railroad company and its agent and
officer shall be deemed guilty of extortion.”
The only damage alleged or attempted to be
proved was that the order, if in force, would pre
vent the plaintiff railroads and The Pullman Com
pany from collecting additional fares and charges
for the use of Pullman accommodations to those
which the railroads charged; and that this would
deprive them of the profits derived from the Pull
■7-
man operations, which profits they had contracted
between themselves to share.
Now if those extra charges and fares of which
they would be deprived are themselves unauthor
ized and illegal and extortionate then they will not
be injured by the enforcement of the order.
Article 6445 Revised Civil Statutes of Texas places
all railroads “and other property used in connection
therewith” under the supervision of the Railroad
Commission. Likewise, it has power over all per
sons owning or operating such railroads “and other
property to fix . . . all necessary rates, charges and
regulations.” While we believe this article gives
jurisdiction over The Pullman Company it is not
necessary so to contend. It unquestionably has jur
isdiction over the railroads and that is enough for
this case.
Article 6448 Revised Civil Statutes of Texas pro
vides:
“The Commission shall:
(9) Make and establish reasonable rates
for the transportation of passengers over
each railroad subject hereto, which rates
shall not exceed "the rates fixed by law.
The Commission shall have power to pre
scribe reasonable rates, tolls or charges for
all other services performed by any rail
road subject hereto.”
— 8—
It is certain that the railroads could not provide
their own sleeping car and other accommodations
which they contracted with The Pullman Company
to provide, and make the same charge therefor
that it makes, without authority of the Railroad
Commission. It would clearly be governed by the
language of Article 6448 (9) “ for all other services
performed by any railroad”, but the legislature
left no doubt of its intention in this regard, and
as if anticipating some subterfuge might be used
it enacted Article 6473 Revised Civil Statutes of
Texas which reads as follows:
“ If any railroad company, subject to the
provisions of this title, or its agent or offi
cer, shall charge, collect, demand, or receive
a greater rate, charge or compensation
than that fixed and established by the Com
mission for the transportation of freight,
passengers or cars, or for the use of any
car on the line of its railroad, or any line
operated by it, or for receiving, forward
ing, handling or storing any such freight
or cars, or for any other service performed
or to be performed by it, such railroad com
pany and its agent and officer shall be
deemed guilty of extortion,..
The testimony is without contradiction that the
charges made by The Pullman Company and the
railroad company to passengers riding in the P u ll
man cars is a sum in excess of the maximum sum
as fixed by the statutes. Likewise, the testimony
i
9—
is uncontradicted that the various railroads will
participate in such profits. It is this loss that the
plaintiffs are complaining of. The plaintiffs alleged
and proved that the contracts between The Pullman
Company and the railroad company provided that
The Pullman Company would have the exclusive
right to provide sleeping car accommodations and
to fix their charges therefor. The charges and fares
thus collected were divided between the railroads
and The Pullman Company and none of such
charges or fares were ever fixed by the Railroad
Commission. Thus, the plaintiffs plead and proved
that they were engaging in an enterprise unau
thorized by the Railroad Commission; that charges
were being made in excess of the maximum sum al
lowed by law, and yet in a court of equity they
complain that the Railroad Commission is attempt
ing to deprive them of the fruits of these unau
thorized and extortionate charges. We concur with
the Attorney General of Texas that the Railroad
Commission did have statutory authority to pro
mulgate the challenged order. However, if it should
be agreed, as urged by the plaintiffs, that the Com
mission was without authority to promulgate the
challenged order, it is to be noted that the chal
lenged order does not attempt to regulate The Pull
man Company. It does not attempt to change or
alter the fares and charges which are being made
m excess of the statutory limitation. It simply pro
vides that no extra charge shall be made to any
- 10-
passenger for these extra accommodations wherein
the railroads shall participate directly or indirectly,
unless the standard of service as set out in the order
be maintained.
The interest of the interveners in this case can
be found from the testimony of the witness B. H.
Vroman, who testified that he was an assistant
to the Vice President of The Pullman Company, and
his testimony in part was:
“A. Well, we have employed no con
ductors for ten years, and they are all of
them in the higher wage brackets.
Q. You haven’t hired any new conduc
tors?
A. I say not any. I know we took up
one man at Cincinnati, but we haven’t em
ployed very many, two or three at some
places. (Tr. 116).”
Therefore, by this process it is only a question
of time until the Pullman Conductors will be com
pletely eliminated.
11-
Point No. 2
SPECIAL APPEARANCE IS UNKNOWN TO
TEXAS PRACTICE AND WHEN PARTIES VOL
UNTARILY SUBMIT TO THE JURISDICTION
OF THE RAILROAD COMMISSION THEY
CANNOT BE LATER HEARD TO COMPLAIN
THAT THEY WERE NOT GIVEN PROPER NO
TICE OF SUCH HEARING.
ARGUMENT AND AUTHORITIES
Article 6448 Revised Civil Statutes of Texas pro
vides:
“The Commission shall:
1. Adopt all necessary rates, charges and
regulations, to govern and regulate freight
and passenger traffic, to correct abuses
and prevent unjust discrimination and ex
tortion in rates of freight and passenger
traffic on the different railroads in this
State.
a
“6. From time to time, alter, change,
amend or abolish any classification or rate
established by it when deemed necessary.
Such amended, altered or new classification
or rates shall be put into effect in the same
manner as the originals.
“7. Adopt and enforce such rules, regu
lations and modes of procedure as it may
■12-
deem proper to hear and determine com
plaints against the classifications or the
rates, the rules, regulations and the determ
inations of the Commission.
U
“ 9. Make and establish reasonable rates
for the transportation of passengers over
each railroad subject hereto, which rates
shall not exceed the rates fixed by law.
The Commission shall have the power to
prescribe reasonable rates, tolls or charges
for all other services performed by any
railroad subject hereto.” (Italics Ours).
The Supreme Court of Texas settled this point
of special appearances in the case of Atchison, T.
& S. F. Ry. Co. v. Stevens, 109 Tex. 262, 206 SWR
921, when Mr. Chief Justice Phillips, speaking for
the Court, said:
“ (1) An extended argument has been
presented by the Railway Company upon
the question of the Trial Court’s jurisdic
tion under the service shown. In the state
of the record, that is an immaterial ques
tion. A special appearance is unknown to
our practice. The filing by a defendant of
any defensive pleading, though it be only
for the purpose of challenging the juris
diction of the Court, constitutes an appear
ance and a submission to the jurisdiction
of the forum. York v. State, 73 Tex. 651,
11 S. W. 869. The filing by the Railway
13
Company of its plea of privilege and later
its answer was an appearance, and elimi
nates from the case any question of juris
diction.”
In this connection we respectfully submit that
only railroads chartered under the laws of Texas
are entitled to any notice, and in the case at bar
they were given such notice, and in addition there
to we cite from the challenged order which is regu
lar on its face, and recites:
“ (2) That upon request of the Pullman
Company, through its attorney, a notice
was issued in the manner and form provid
ed by law, notifying all parties at interest
that a full and complete hearing would be
held in Austin, Texas, in the Hearing Room
of the Railroad Commission on the 31st day
of August, 1939, at which time all parties in
terested would be permitted to offer such
evidence and present such facts as they may
deem material to the issues involved.
(3) That the effective date of passen
ger circular No. 164 was extended until the
15th day of September, 1939, and upon re
quest of counsel for the parties at interest,
the effective date of said order has been
postponed from time to time, the last ex
tension thereof being until the 15th day
of November, 1939.
(4) The Commission further finds that
— 14
on the 31st day of August, 1939, at 10
o’clock A. M. in the Hearing Room of the
Commission in Austin, Texas, the follow
ing appearances were made:
Mr. Ireland Graves, of the law firm of
Black, Graves & Stayton, of Austin, Texas,
Mr. L. M. Greenlaw, general counsel of
the Pullman Company, Chicago, Illinois,
Mr. H. S. Anderson, assistant general
solicitor of the Pullman Company, of Chi
cago, Illinois,
All on behalf of the Pullman Company.
Mr. Claude Pollard, Austin, Texas, rep
resenting all Texas railroads.
Culbertson & Morgan, attorneys, Fort
Worth, Texas, appearing for the Order of
Sleeping Car Conductors.
The Commission thus finds that all of
the parties interested in the subject matter
have been duly notified for the time and
in the manner provided by law and that all
of said parties entered an appearance in
this cause and, with all parties having an
nounced ready, the Commission proceeded
to hear the oral testimony of seventeen
witnesses, some of whom were offered by
the railroad companies, the Pullman com
panies and the other parties at interest, as
— 15
well as documentary evidence, and after
a full, final and complete hearing of evi
dence, which lasted for two days, and after
argument of counsel, the Commission be
ing fully advised in the premises Finds.”
(Tr. 38-39). (italics ours.)
In this connection it is interesting to observe the
pronouncement of the learned Trial Court in the
case at bar:
“The regulation cannot be sustained as a
rate order for the reasons, first, it was
not made after notice given as required by
law, and second, it is apparently predicated
upon an attempt upon the part of the Com
mission to construe and enforce certain
contracts between the Railroads and the
Pullman Company, which it is without any
statutory authority to do. Furthermore, in
so far as it attempts to regulate the rates
charged by the Pullman Company it is
void, as the Commission has no jurisdiction
over the Pullman Company.” (Tr. 363).
We respectfully submit that this pronouncement
on the part of the Court is contrary to the express
provisions of the statutes of this state and the de
cisions, namely Article 6449 Revised Civil Statutes
of Texas, which provides:
“Before any rates shall be established,
the Commission shall give each railroad
company to be affected thereby ten days’
notice of the time and place when and
— 16—
where the rates shall be fixed;” (italics
ours).
The Texas Courts likewise have had occasion to
finally determine the issue as set forth in the case
of Roco Refining Co. et al V. State et al, 94 SWR
(2d) 1214 when the Court said:
“There is another reason why appellants’
attack upon the validity of the orders, for
their alleged failure to be based upon notice
and hearing, cannot be sustained. The at
tack is a collateral one. Want, if any, of
notice and hearing does not affirmatively
appear upon the face of either of the orders.
If it be true that the orders were issued
without notice and hearing, it would re
quire evidence to establish such facts. The
District Court of Travis County alone has
jurisdiction to determine that issue. Alpha
Petroleum Co. v. Terrell, 122 Tex. 257, 59
S. W. (2d) 364, 72; Johnson Refinery v.
State (Tex. Civ. App.) 85 S. W. (2d) 948;
and authorities there cited; Texas Steel Co.
v. Ft. W. & D. C. R. Co., 120 Tex. 597, 40
S. W. (2d) 78, 81.”
We think the exact question has been determined
in the case of Texas Steel Co. v. Fort W orth &
Denver City Ry. Co., et al, 120 Tex. 597, 40 SWR
(2nd) 78. In that case the Court of Civil Appeals
certified the question to the Supreme Court for an
swer in the following form:
17-
“Question 1: Is the said Circular No.
5548 adopting said rates, void and subject
to collateral attack for any of the following
reasons, to w it:
‘ (1) Because no notice was given to the
railroads as provided by article 6449 of said
Statutes of 1925, prior to the issuance of
said circular? ***
‘ (3) Because there appears to have
been no evidence of the docketing of the
cause, or hearing, or evidence, as provided
by the rules of the Railroad Commission of
Texas?’ ”
The opinion of the Supreme Court says:
“The suit, in so far as it involves the
above orders of the Texas Railroad Com
mission, is based upon the theory and con
tention that the above orders are absolutely
and totally void for the several reasons set
out in ‘Question No. 1’ propounded in the
certificate from the Court of Civil Appeals.
We overrule these contentions.
“It is the settled law of this state that
the Railroad Commission is a quasi judicial
body. Producers’ Refining Co. et al. v. M.
K. & T. Ry. Co. of Texas (Tex. Com. App.)
13 S. W. (2) 679.
Since ̂the Railroad Commission is a
quasi judicial body, it follows that an order
- 18-
regular upon its face, made by the com
mission, is not subject to collateral attack.
Articles 6452, 6453 R. C. S. of Texas 1925;
West Texas Compress Co. v. Railway Co.
(Tex. Com. App.) 15 S. W. (2d) 558; Pro
ducers’ Refining Co. v. M. K. & T. Ry. Co.,
13 S. W. (2d) 679; Id. (Tex. Com. App.) 13
S. W. (2d) 680; Railroad Commission v.
Wald, 95 Tex. 278, 66 S. W. 1095; M. K. & T.
Ry. Co. of Texas v. Railroad Commission
(Tex. Civ. App.) 3 S. W. (2d) 489; Empire
Gas & Fuel Co. v. E. L. Noble et al. (Tex.
Com. App) 36 S. W. (2nd) 451.”
Therefore, we submit (1) that The Pullman Com
pany was not entitled to notice; (2) that notwith
standing the law The Pullman Company voluntarily
made its appearance before the Railroad Commis
sion and spent twro days participating in the hearing
before such Commission, being represented by law
yers of its own choice, which said lawyers requested
of the Commission a re-hearing in the case, and it
was upon the motion of The Pullman Company
lawyers that such rehearing was granted to The
Pullman Company and the railroads; and (3) since
the case at bar in the Trial Court was a collateral
attack upon an order issued by the Railroad Com
mission which was valid upon its face, plaintiffs
could not complain of lack of notice. We submit the
law is so well settled on this point that no one can
disagree.
— 19—
If the plaintiffs were desirous of complaining of
the question of ‘lack of notice’ as the learned Trial
Court held that they were entitled to, then their
remedy would be found not in a Federal Court of
Equity, but only in Article 6453 of the Revised
Civil Statutes of Texas, which reads:
“ If any railroad company or other party
at interest be dissatisfied with the decision
of any rate, classification, rule, charge, or
der, act or regulation adopted by the Com
mission, such dissatisfied company or
party may file a petition setting forth the
particular cause or causes of objection to
such decision, act, rate, rule, charge, classi
fication, or order, or to either or all of
them, in a court of competent jurisdiction
in Travis County, Texas, against said
Commission as defendant.”
The Supreme Court of the United States has had
occasion to pass on a similar statute in the case of
Southern Pacific Company v. Campbell, 230 U. S.
537, in which case Mr. Justice Hughes delivered the
opinion of the Court, and held that such procedure
was consistent with the due process clause guaran
teed by the 14th Amendment, and in discussing the
matter, the Court said:
“The provision of the Statute that suit
might be brought in the State Court to set
aside orders of the Commission upon the
ground that the rates fixed were unlawful,
— 20—
or that the regulation or practice pre
scribed was unreasonable, did not infringe
the rights of the complainants. The proce
dure permitted by the Statute is consistent
with the 14th Amendment. Portland Light
& R. Co. v. Railroad Commission, 229 U. S.
397, 57 Law Edition 1248.”
In support of our contention that only Texas rail
roads affected by the challenged order are entitled
to notice and that The Pullman Company was not
entitled under the laws of Texas to any notice we
cite the case of Railroad Commission of Texas et al.
v. Houston Chamber of Commerce, et al, 19 S. W.
R. (2nd) 583, affirmed by Commission of Appeals
78 S. W. R. (2nd) 591, which opinion was adopted
by the Supreme Court of Texas.
■21-
Point No. 3
RAILROADS ARE ARTIFICIAL CREATIONS
EXISTING AND LIMITED BY CHARTERS
GRANTED BY THE STATE AND THE RIGHTS
THUS ACQUIRED CANNOT BE DELEGATED
BY CONTRACT TO A THIRD PERSON.
ARGUMENT AND AUTHORITIES
Article 6260 Revised Civil Statutes of Texas pro
vides :
“No corporation, except one chartered
under the laws of Texas, shall be author
ized or permitted to construct, build, oper
ate, acquire, own or maintain any railways
within State.”
In the case at bar the Texas railroads have, ac
cording to the allegations and proof of the plaintiffs,
contracted away certain of their chartered rights
to The Pullman Company, a foreign corporation
chartered under the laws of the State of Illinois,
namely—the Sleeping Car or Pullman Car accomo
dations. The United States Supreme Court settled
the law on this question in an early decision of Penn
sylvania R. R. Company v. St. Louis, etc. R. R. Co.
118 U. S. 290 when it said:
“We think it may be stated . . . that,
unless specially authorized by its charter,
or aided by some other legislative action,
— 22—
a railroad company cannot, by lease or any
other contract, turn over to another com
pany, for a long period of time, its road
and all its appurtenances, the use of its
franchises, and the e x e r c i s e of its
powers . . . ”
The pronouncement of the Trial Court to the
effect:
“ The regulation . . . is apparently predi
cated upon an attempt upon the part of
the Commission to construe and enforce
certain contracts between the Railroads
and The Pullman Company, which it is
without any statutory authority to do.”
(Tr. 363).
is indeed a strange and new innovation in Texas
jurisprudence. Even a cursory analysis of the
Court’s pronouncement of the law leads to the in
evitable conclusion that notwithstanding the stat
utes of Texas railroads may by contract place their
operations beyond the reach of the Railroad Com
mission and delegate their original chartered rights
to some foreign corporation and together share in
the profits. Thus the railroads could do indirectly
what they cannot do directly. The railroads could
thus by contract with foreign corporations collect
rates and charges they would not be allowed to col
lect if the railroad itself were operating the same
equipment. This same reasoning would allow the
— 23-
railroads to contract away the cattle cars that haul
the cattle of Texas to market, without any regula
tion on the part of the Railroad Commission. It
would allow the railroad companies by contract to
delegate their chartered rights to foreign corpora
tion for grain cars to haul the grain from the wheat
fields of Texas to the market. It would allow the
railroad companies to contract with another com
pany to furnish the engines, another the freight
cars, another the passenger cars, and on and on in
definitely and by this method the Railroad Com
mission would have no regulation whatever over
the railroads or any part of the equipment used
thereon. We respectfully urge that the reasoning
of the Trial Court on this point is without precedent
or logic and contrary to the express statutes of the
State of Texas hereinabove cited in this brief.
- 2 4 -
Point No. 4
A COURT, IN REVIEWING THE ACTION OF
AN ADMINISTRATIVE AGENCY TO WHICH
THE FORMULATION AND EXECUTION OF A
STATE POLICY HAS BEEN INTRUSTED,
MUST NOT SUBSTITUTE ITS NOTION OF EX
PEDIENCY AND FAIRNESS FOR THOSE
WHICH HAVE GUIDED SUCH AGENCIES.
ARGUMENT AND AUTHORITIES
An examination of the challenged order discloses
that the findings of the Railroad Commission upon
which the order is finally based (Tr. 39-52) set
forth in detail the facts as were presented before
the Commission showing that the investigation be
fore such Commission was thorough, exhaustive and
comprehensive. Based upon these findings the Com
mission entered the order complained of. A com
parison of the Commission’s findings of fact is found
with that of the learned Trial Court as set forth on
pages 365, 366, 367 Transcript, but the same are not
as detailed, exhaustive or comprehensive as that of
the Commission. It is suggested that many of the
same witnesses who appeared before the Railroad
Commission likewise appeared before the Trial
Court and thus substantially the same testimony
was heard. Based upon such testimony the Trial
Court arrived at a different conclusion to the ad
ministrative body and simply reversed the con-
- 25-
elusions of the Railroad Commission. We submit
that the position of the Trial Court is contrary to the
rule as announced by Mr. Justice Frankfurter of
this Court in the case of Railroad, Commission v.
Rowan & Nichols Oil Co., 310 U. S. 573, 84 L. Ed.
16, page 1368, wherein the Court said:
A controversy like this always calls for
fresh reminder that courts must not sub
stitute their notions of expediency and
fairness for those which have guided the
agencies to whom the formulation and ex
ecution of policy have been entrusted.
“General as these considerations may
be, they are decisive of the present case.
Both the District Court and the Circuit
Court of Appeals appear to have been
dominated by their own conception of the
fairness and reasonableness of the chal
lenged order. For all we know, the judg
ment of these two lower courts may have
been wiser than that of the Commission,
and their standard of fairness a better one.
But whether a system of proration based
upon hourly potential is as fair as one
based upon estimated recoverable reserves
or some other factor or combination of fac
tors, is in itself a question for administra
tive and not judicial judgment.”
To like effect the rule in Texas has been an
nounced in the case of Railroad Commission v. Mc
Donald, 90 SWR (2d) 581, wherein the Court an
nounced the rule:
-26-
“ The test is, not what the Court’s inde
pendent judgment might be, but whether
there was substantial evidence before the
Commission to sustain its order.”
It is interesting to observe that the challenged
order provides:
“ It is Further Ordered by the Railroad
Commission of Texas that in any case
where it is the desire of any railroad com
pany, receiver or trustee to operate over
its line of railway a sleeping car or cars
without fully complying with the provision
of the orders above set out, the Commission
shall be notified and its consent secured
before such change or deviation from the
terms of said orders is put in force.
“ It is not the intention of the Commis
sion to place any burden on interstate com
merce. If any part of this order or the
application and the enforcement thereof
when applied to any one or more rail
roads or any operation thereof be
held to be an undue burden on interstate
commerce, then such holding shall not af
fect this order as applied to other opera
tions by railroads not amounting to an un
due burden on interstate commerce.” (Tr.
54).
The testimony affirmatively disclosed that not
a single one of the plaintiffs in this case have made
application to the Railroad Commission of Texas
seeking an exemption from the operation of the chal
lenged order. (Tr. 128-129-265).
- 27 -
Point No. 5
THE CHALLENGED ORDER WAS A VALID
EXERCISE OF THE POLICE POWER OF THE
STATE AND A REASONABLE AND NECES
SARY ENFORCEMENT OF THE SANITARY
CODE AS APPLIED TO RAILROADS AND
SLEEPING CARS.
ARGUMENT AND AUTHORITIES
Article 10, Section 2 of the Constitution of Texas
provides:
“Railroads heretofore constructed or
which may hereafter be constructed in this
state are hereby declared public highways,
and railroad companies, common carriers.
The Legislature shall pass laws to regulate
railroad, freight and passenger tariffs, to
correct abuses and prevent unjust discrimi
nation and extortion in the rates of freight
and passenger tariffs on the different rail
roads in this state, . . . and to the
further accomplishment of these objects
and purposes, may provide and establish
all requisite means and agencies invested
with such powers as may be deemed ade
quate and advisable.”
Article 6448 Revised Civil Statutes of Texas re
lating to the duties of the Railroad Commission pro
vides that the Railroad Commission of Texas shall:
- 28-
“ See that all laws in this state concern
ing railroads are in force . . . ”
To like effect Article 6445 Revised Civil Statutes
of Texas provides:
“ Power and authority are hereby con
ferred upon the Railroad Commission of
Texas over all railroads. . . ”
Article 4477 Revised Civil Statutes of Texas is a
statute in this state commonly known as the Public
Health Sanitary Code. Rule 58 provides for the
health regulations as applied to depots, coaches and
sleepers. Rule 59 on ventilation and heat provides:
“Each depot, railway coach, sleeping car,
interurban car and street car while in use
for the accommodation of the public shall
be properly ventilated, and, if necessary,
heated, and a sufficient amount of heat
shall be furnished in time of need so that
fresh air can be supplied without causing
it to become unduly uncomfortably cold;
and the janitor, conductor or other person
in charge shall see to it that the air is re
plenished with fresh air from time to time
as needed to prevent the same from becom
ing foul, unsanitary and oppressive.”
Finding 13 of the challenged order provides:
“ (a) See that the Pullman cars are
properly cooled or properly heated for the
- 2 9 -
reception of passengers prior to the time
that the cars may be opened to receive pas
sengers.”
“ (c) To regulate the temperature, both
of the air-conditioning device and the heat
equipment, and the Commission finds in
connection with the air-conditioning that
such equipment is relatively new, having
been in use only a few years on the railroads
in Texas; that the proper regulation thereof
is a matter of grave concern to the health,
comfort and convenience of the passengers
on Pullman cars; that the Pullman conduc
tor is specifically charged with the respon
sibility of regulating the same and that he
receives special instructions in the opera
tion of same.” (Tr. 43).
Thus, it will be observed that the findings of the
Commission are almost identical with the require
ments of the statute relating to the Sanitary Code
and it is the duty of the Railroad Commission under
its police powers to enforce such regulation. It has
simply attempted to do so under the challenged
order.
- 3 0 -
Point No. 6
IN CONSIDERING WHETHER THE ORDER
IS UNREASONABLE AS TO COSTS THE EN
TIRE REVENUES OF THE RAILROAD SYSTEM
AND THE PULLMAN SYSTEM MUST BE CON
SIDERED, AND NOT MERELY THE DIRECT
RETURN FROM SOME BRANCH LINE OR
FROM ONE STATE.
ARGUMENT AND AUTHORITIES
The witness L. M. Bradish, Assistant Comptroller
of the Pullman Company testified in the trial court
concerning the above question as follows:
“ And when you are including the ex
pense of each car, then the profits, if any,
over and above the expenses, you figure
that on the entire system, don’t you, of a
railroad?
A. Of a railroad, yes, the entire system
of cars.
Q. In other words, your contracts with
the Missouri Pacific are not limited to earn
ings made in Texas, or any other State, but
are taken of the entire system of the Mis
souri Pacific lines?
A. That is right.
Q. Well, that same thing is true of all
other railroads, isn’t it?
A. Yes.
— 31—
Q. And this expense item, if this order
goes into effect, and you say it would cost
you so much money, that likewise would be
spread all over the entire system of a rail
road, wouldn’t it?
A. Yes, it would.
Q. And would not be limited, of course,
to any one State?
A. No. (Tr. 150).
This pronouncement of the law we think to be
supported by the United States Supreme Court in
the case of Groesbeck v. Duluth S.S. & A.R. Co., 250
U.S. 607. A general statement of the law is found
in 15 A.L.R. 190 as follows:
“The weight of the decisions, both court
and commission, is to the effect that, in con
sidering the question whether or not a rail-
» road company should be compelled to con
tinue the operation of a branch line, the en
tire revenues of the system are to be con
sidered, and not merely the direct return
from the branch line itself; in other words,
the branch line is not to be considered as an
independent enterprise, but rather in the
nature of a feeder to the system. In addi
tion to the authorities already cited, this
doctrine finds support in the following,
among possibly others, cases: . . . ”
Supreme Court of the United States
OCTOBER TERM, 1940
N o. 28 3
RAILROAD COMMISSION OF TEXAS, LON A. SMITH,
ERNEST 0. THOMPSON, ET AL, APPELLANTS'
vs.
THE PULLMAN COMPANY, GUY A. THOMPSON, TRUS
TEE, THE ST. LOUIS, BROWNSVILLE AND MEXICO
RAILWAY COMPANY, DEBTOR, ET AL.
appeal f r o m t h e d is t r ic t c o u r t o f t h e u n it e d s t a t e s
FOR THE WESTERN DISTRICT OF TEXAS
BRIEF FOR THE APPELLEES
INDEX
Pages
Introductory Statement ____________________________ 1
Jurisdiction of the Statutory District Court, not chal
lenged ______________________________________ 1
(a) Findings of Fact __________________________:__ 1
(b) Conclusions of Law __________________________ 3
Statement of the Case______________________ 4
1. Railroad Commission Orders and Findings______ 4
2. Facts Touching Rate Features of Order _______ 10
3. Facts Touching Controlling Issues _____________ 13
District Court Findings Nos. 6 and 7________ 13
Finding No. 7 Supported by Record__________ 15
(a) Porters-in-charge have long service rec
ords _________________________________ 15
(b) They are men of good character and in
telligence ___________________________ 16
(c) Service on porter-in-charge lines is equal
to that on other lines______________ 17
Porters Receive Same Training as Conductors 19
Testimony of Disinterested Members of Travel
ing Public ------------------------------------------ 21
Testimony of Intervener-Defendants, Pullman
Conductors---------------- 26
Porter and Air Conditioning ______________ 31
Bach Train Affected by Order is Short Train — 32
One Pullman Employee Fills Need __________ 33
Skill, Tact and Competency of Porters-in-
Charge------------------------------------------------ 34
(d) Order is Found to be Without Rational
Basis ________________________________ 41
Summary of Argument
L Appellants’ Point I not properly raised and is un
substantial _________________________________ 42
2. The State Question ____________________________ 43
3- The Constitutional Question ___ 44
4. Minor Questions— Appellants’ Point V _________ 46
11 Index
Brief of Argument
I.
A . Appellants’ Point 1(a) is devoid of merit_______ 47
B. Pullman Company does not operate a railroad in
Texas----------------------------------------------------------------- 51
C. Present action, challenging Commission’s order
on substantial constitutional grounds:
1. Is direct attack ___________________________ 58
2. Trial is judicial, and is not limited to review
ing the Commission record ______________ 61
The Two Controlling Questions are Points
II and III, Below
II.
No statutory basis for challenged order_____________ 66
III.
The order is without rational basis, and contravenes
due process and equal protection clauses of 14th
Amendment ______________________________________ 76
A. From standpoint of Pullman Company and Rail
roads _______________________________ H_______ 76
B. Neither the Legislature nor its agent can dis
qualify porters-in-ch urge on account of race— 80
IV.
The “deviation” provision does not save the order— 87
V.
Answer to errors specified but not briefed---------------
VI.
Additional reply to Conductors’ Brief ______________ ^
Conclusion and Signatures____________________________ V̂ R
Appendix ________________________ _____________________—
AUTHORITIES
Pages
Texas Revised Civil Statutes of 1925:
Article 6378 ________________ ,____________________ 30
Article 6380 ______________________________________ 106
Article 6445 (See Appellants’ Brief, p. 87)______
Article 6448 (See Appellants’ Brief, p. 90)______
Article 6453 (See Appellants’ Brief, p. 94)______
Article 6454 ______________________________________ 107
Article 6474 ______________________________________ 107
Article 6476 ______________________ 109
Article 6477 ______________________________________ 109
Article 7063 ______________________________________ 110
Article 7098 ______________________________________ 110
Article 7105 _________________________ 111
Other Railroad Statutes _________________________ 112
Table of Cases:
Alston v. School Board of City of Norfolk, 112 Fed.
(2d) 992 (C.C.A. 4th, 1940) ; certiorari denied,
Oct. 28, 1940, No. 429_________________ _________ 86
Atlantic Coast Line v. Wharton, 207 U. S. 328, 335„ _ 85
Atlantic & Pacific Tea Co. v. Grosjean, 301 U. S. 412,
420 _____________________________________________ 15
Board of Water Engineers v. McKnight, 111 Texas
82, 229 S. W. 301 ______________________________ 62
Borden’s Co. v. Ten Eyck, 297 U. S. 251, 261 15
Boxrollium Oil Co. v. Smith, 4 Fed. Supp. 624 (So. D.
Tex.) _____________ 59
Brimmer v. Rebman, 138 U. S. 78, 83-84 (1891) . . 78
Ohaires v. Atlanta, 164 Ga. 755, 139 S. E. 559, 55
R. 240 ------------------------------------------------------ 86
chastleton Corp. v. Sinclair, 264 U. S. 543, 547______ 83
Bhy Lung v. Freeman, 92 U. S. 275 ________________ 79
onsolidated Gas Corp. v. Thompson, 14 Fed. Supp.
318 (affirmed 300 U. S. 55)_______ 62
consolidated Water Co. of Utica v. Maltbie, 3 N.Y.S.
799, 167 Misc. 269 ______________________________ 83
Bamel, Ins. Comm’r, v. Tyrrell & Garth Inv. Co., 127
Tex. 213, 220, 93 S. W. (2d) 372 (1936)______ 62
IV Authorities
Table o f C ases— Continued Pages
Detroit and Mackinac Ry. Co. v. Commission, 235
U. S. 402 ______________________________________ 62
Duval v. Pullman Palace Car Co., 62 Fed. 265 (C.C.A.
5th, 1894) __________________________________ 54-55
Empire Gas & Fuel Co. v. Railroad Commission, 94
S. W. (2d) 1240, 1244 ________________________ 64
Ft. Worth & Denver City Railway Co. v. State, 99
Texas 34, 87 S. W. 336 (1905) _______________ 56-57
Gorieb v. Fox, 274 U. S. 603 ________ _ 95
G. C. & S. F. Ry. Co. v. State, 120 S. W. 1034________ 62
G. H. & S. A. Ry. Co. v. Texas, 210 U. S. 217, 227____ 79
G. C. & S. F. R. Co. v. Railroad Commission, 102 Tex.
338, 353 (1909) ________________________________ 63
G. C. & S. F. Ry. Co. v. State, 246 U. S. 58, 62.___.___ 60
Henderson v. Terrell, 24 Fed. Supp. 147 __________ 58-59
Henderson v. Mayor of New York, 92 U.. S. 259______ 79
Home Telephone Co. v. Los Angeles, 211 U. S. 265,
278 ____________________________________________ 61
Laurel Hill Cemetery v. San Francisco, 216 U. S. 358,
365 ____________________________________________ 84
L. & N. R. R. Co. v. Garrett, 231 U. S. 298, 311 _ 6 1 , 102
Los Angeles Gas, etc. Co. v. Railroad Commission,
289 U. S. 287, 305 _____________________________ 83
McMillan v. Railroad Commission, 51 Fed. (2d) 400,
405 ____________________________________________ 78
Malloy v. New York Life Ins. Co., 103 Fed. (2d) 439,
443 (C.C.A. 1st, 1939), certiorari denied 308 U.
S. 572 ________________________________________15, 16
Minnesota v. Barber, 136 U. S. 3 1 3 _________________ 79
M. P. R. Co. v. Groesbeck (Tex. Civ. App. 1894), 24
S. W. 702 _____________________________________ 56
Municipal Gas Co. v. Commission, 225 N. Y. 89, 121
N. E. 772 (1919) ___________________________ 66, 83
Nashville, C. & St. L. Ry. v. Walters, 294 U. S. 405,
433 _______________I ___________ ____________ 84-85
Pacific States Box Co. v. White, 296 U. S. 176, 183____
Pennsylvania R. R. Co. v. S. T. L. A. & T. H. R. Co.,
118 U. S. 290 __________________________________
People v. Atwell, 232 N. Y. 96, 133 N. E. 364, 367
(1921) _____________ ___________________________
People v. Ringe, 197 N. Y. 143, 90 N. E. 451, 454------
Phillip A. Ryan Lumber Co. v. Ball, 197 S. W. 1037—
62
57
81
86
57
Authorities v
Table o f C ases— Continued Pages
Porter v. Investors Syndicate, 286 U. S. 461, 287 U. S.
346 ____________________________________________ 62
Prentis v. Atlantic Coast Line, 211 U. S. 210________ 62
Pullman Company v. Hays, et ux, 257 S. W. 686 (Tex.
Civ. App., 1924) _____________________________ 55-56
Pullman Company v. Moise (Tex. Civ. App. 1916), 187
S. W. 249 ______________________________________ 56
Pullman Company, et al. v. Railroad Commission, 33
Fed. Supp. 675 ________________________________ 43
Pullman Palace Car Co. v. State, 64 Texas 274, 277
(1885) _______________________________________ 53-54
Pullman Co. v. Railroad Commission, No. 1791, Equity,
United States Dist. Ct., Northern Dist. of Texas,
reported in Biennial Reports of Attorney General
of Texas, 1906-1908, p. 36 ________________ 56, 114
Railroad Commission v. Beaver Reclamation Co., 132
Tex. 27 ________________________________________ 59
Railroad Commission v. Duluth Street Ry. Co., 273
U. S. 625 ______ ________________________________ 62
Railroad Commission v. Galveston Chamber o f Com
merce, 105 Tex. 101 _____________________________ 63
Railroad Commission v. H. & T. C. Ry. Co., 90 Tex. 340,
353, 354 (1897) _____________________________ 62, 63
Railroad Commission v. McDonald, 90 S. W. (2d) 581__ 65
Railroad Commission v. Railway Co., 90 Tex. 340, 38
S. W. 750 ______________________________________ 67
Railroad Commission v. Rau, 45 S. W. (2d) 413____ 64-65
Railroad Commission of Texas v. Rowan & Nichols
Oil Co., 310 U. S. 573 (s. c. below, 24 Fed. Supp.
131, and 107 Fed. (2d) 70) ______________________ 59
Railroad Commission of Texas v. Rowan & Nichols
Oil Co., No. 218, October Term, 1940, decided
January 6, 1941 _________________ 58
Railroad Commission v. T. & N. O. Railroad Co., 42
S. W. (2d) 1091, 1093 (1931) ; writ of error re-
_ fused ______________________________________ 72
Railroad Commission v. Weld & Neville, 96 Tex. 394,
403-405 (1903) ___________________ _ 63
Reagan v. Farmers’ Loan & Trust Co., 154 U. S.
362 _________________ __________________ gg gĝ 03
%an Lumber Co. v. Ball, 197 S. W. 1037Z"LJL ’__ ’ 57
Louis> I- Mt. & So. R. Co. v. Williams, 251 U. S.
63, 65 _______________________________ 60
VI Authorities
St. L. S. W. Ry. Co. v. State, 113 Texas 570, 261 S. W.
996 ____________________________________________ 69
Siler v. L. & N. R. R. Co., 213 U. S. 175___________60, 102
Smith v. St. L. S. W. Ry. Co., 181 U. S. 248, 257
(1900) _______________________________________— 79
Southern Pacific Co. v. Interstate Commerce Commis
sion, 219 U. S. 433 ___________________________ 79
Stanolind Oil & Gas Co. v. Midas Oil Co., 123 S. W.
(2d) 911, 913 _______-_________________________ 64
State v. St. L. S. W. Ry. Co., 165 S. W. 491 (1914) _62, 64
State v. Texas Brewing Company, 106 Tex. 121, 126— 53
Tagg Bros. v. United States, 280 U. S. 420, 442
(1930) ______________________________________ 66
Texas Steel Co. v. F. W. & D. C. Ry. Co., 120 Tex.
597 ____________________________________________ 59
Thompson v. Consolidated Gas Utilities Corp., 300 U. S.
55 ______________ ___________-____________________ 59
Tyson v. Banton, 273 U. S. 418, 443 ------------------------ 86
United Gas Co. v. Texas, 303 U. S. 123------------------- 64
Van Dyke v. Geary, 244 U. S. 39, 48 (1917)---------------- 83
Wadley Southern v. Georgia, 235 U. S. 651, 662--------- 60
Waggoner Estate v. Wichita County, 273 U. S. 113,
116 (1926) __________________________________-----
West Ohio Gas Co. v. Commission, 294 U. S. 79, 82—83-84
Yick Wo v. Hopkins, 118 U. S. 356 (1886)--------------- 81
Other Authorities:
Rule 52(a) of the Rules of Civil Procedure
Table o f C ases— Continued Pages
16
Supreme Court of the United States
OCTOBER TERM, 1940
No. 283
RAILROAD COMMISSION OF TEXAS, LON A. SMITH,
ERNEST 0. THOMPSON, ET AL, APPELLANTS
vs.
THE PULLMAN COMPANY, GUY A. THOMPSON, TRUS
TEE, THE ST. LOUIS, BROWNSVILLE AND MEXICO
RAILWAY COMPANY, DEBTOR, ET AL.
APPEAL PROM TH E D ISTR ICT COURT OP TH E UNITED STATES
FOR TH E W E S T E R N D ISTR ICT OP TE XA S
BRIEF FOR THE APPELLEES
This brief is filed in behalf of all appellees, the
Railroads affected, The Pullman Company, and the
Intervener-Porters; and is in reply to the brief for
appellants, The Railroad Commission and others,
and the brief of the Intervener-Conductors.
Facts Showing Jurisdiction of the District Court—
Not Challenged on Appeal
(a) Findings of Fact.—The district court found:
“1- The Pullman Company and a number of
railway companies operating in Texas and trustees
— 2.
in charge of railways operating in Texas bring this
suit against the Railroad Commission of Texas, the
members thereof and the Attorney General of
Texas, to restrain the enforcement of a certain order
made by the Commission on November 4, 1939. In
issuing the order the Commission purported to act
pursuant to Texas statutes, and a sum in excess of
the jurisdictional amount is shown to be involved.
The order is challenged on constitutional grounds.
A temporary restraining order was applied for and
granted, and the plaintiffs continued to press for
preliminary injunction. Accordingly, a case for three
judges, under Section 266 of the Judicial Code, is
presented. The case has been tried on its merits by
a court so organized.
“ 2. The complaint charged, and the proof shows,
that the amount in controversy exceeds $3,000.00,
exclusive of interest and costs. Compliance with the
challenged orders would devolve upon The Pullman
Company an annual gross expense of approximately
$41,000.00, or an annual net expense of approxi
mately $36,000.00; and by virtue of certain con
tracts between The Pullman Company and the rail
road companies, a portion of this expense would be
passed on to the railroads, but The Pullman Com
pany would ultimately suffer a net annual expense
of approximately $25,000.00.
“ 3. Upon the trial, without objection, leave was
granted to three Pullman porters to intervene as
plaintiffs, and to three Pullman conductors to inter
vene as defendants. Each of the porters receives
extra compensation of $13.50 per month if on any
part of his run he acts as porter-in-charge. If the
order of the Railroad Commission, complained of
herein, is enforced, the intervening plaintiffs and
other porters operating in Texas as porters-in-
charge will lose such extra compensation; and their
retirement pay will in consequence be reduced.
(R. 365-866.)
— 3
(b) Conclusions of Law.— The district court con
cluded :
“1. While the challenged orders are directed in
terms against the railroads, The Pullman Company
is directly affected. The railroads cannot place a
Pullman conductor on the Pullman cars except by
requiring The Pullman Company to do so. Conse
quently, The Pullman Company has the requisite
interest to challenge the orders. The matter in con
troversy as to The Pullman Company is the right to
carry on its business free of the prohibition of the
order. The value of such right is shown to be in ex
cess of $3,000.00, exclusive of interest and costs.
Buck v. Gallagher, 307 U. S. 95, 100; Packard v.
Banton, 264 U. S. 140, 142; Western & Atlantic R.
R. Co. v. Railroad Commission of Georgia, 261 U. S.
264.
“2. Since the order is directed in terms against
the railroads and not against The Pullman Com
pany, the only way in which The Pullman Company
can obtain effective relief is by means of an injunc
tion prohibiting enforcement of the challenged
orders against the railroads. For this reason and
for the further reason that the order undertakes to
determine, and interferes with, the rights of The
Pullman Company in its contracts with the rail
roads, the railroads are necessary and proper parties
to this action. Rule 19, Federal Rules of Civil Pro
cedure; Niles-Bement Co. v. Iron Moulders Union,
254 U. S. 77, 81-82; see also Troy v. Whitehead, 222
U. S. 39, 41; Ducker v. Butler, 104 Fed. (2d) 236,
238 App. D.C. 1939).
« * * *
“4. The orders of the Railroad Commission are
challenged on substantial Federal constitutional
grounds, and this Court has jurisdiction to deter
mine all questions at issue, local and Federal.”
(R. 368.)
4
The foregoing findings of fact have not been chal
lenged at all. Conclusion No. 1 as to the value of
the right in controversy was formally challenged by
Assignment No. 12 (R. 379), but the assigned error
has not been specified, or otherwise brought for
ward. Conclusion No. 2 is formally assailed by the
13th specification (Appellants’ Brief, p. 23) but
otherwise it has not been noticed in Appellants’
Brief. Misjoinder of the railroads was complained of
at the trial by motions to dismiss the action. These
were disposed of by the 3rd conclusion of law (un
challenged) as follows: “ 3. The motions to dismiss
the action on the ground of misjoinder are not well
taken and should be overruled. Rule 21, Federal
Rules of Civil Procedure, and authorities above
cited.” (R. 368.)
STATEMENT OF THE CASE
Considering the nature of the case and the power
of this Court to review the facts, we regard Ap
pellants’ Statement as inadequate. We now under
take to make an appropriate, additional statement.
1. Railroad Commission Orders and Findings
At the request of the Order of Sleeping Car Con
ductors (R. 289), and without notice or hearing, the
Railroad Commission o f Texas, on August 8, 1939,
with certain preliminary recitals, (showing that the
professed basis for the order was different (R. 33)
■5—
from the basis now espoused by appellants for the
order now under review), promulgated this order:
“ I t is , t h e r e f o r e , o r d e r e d , a d j u d g e d a n d d e
creed that from and after the effective date of this
order no sleeping car shall be operated on any line
of railroad in the State of Texas when occupied by
passengers holding the proper transportation for the
accommodation of such cars, unless such cars are
continuously in the charge of an employee or an au
thorized agent of the firm or corporation owning or
operating the same having the rank and position of
Pullman conductor.” (R. 34.)
The Pullman Company promptly applied to the
Commission for a hearing for the purpose of show
ing that the Commission had no authority to issue
such an order. Pursuant to the request, the Com
mission suspended the order and set the matter for
hearing on August 31, 1939. Notice of the hearing
stated that the Commission would “ take up and con
sider the matter of operating sleeping cars on any
line of railroad in the State of Texas when occupied
by passengers holding the proper transportation for
the accommodation of such cars, unless such cars
are continuously in the charge of an employee or an
authorized agent of the firm or corporation owning
or operating the same having the rank and position
of Pullman conductor.” (Complaint, Par. 5, R. 8;
admitted in Answer, R. 65.)
The hearing was conducted by an examiner (no
Commissioner present) and on November 4, 1939,
the Commission issued the order complained of in
this suit, amending the original order. The new or
der contains 29 so-called findings, followed by ad-
— 6-
judications and decrees, including repetition of the
provisions of the original order requiring a Pullman
conductor on all trains carrying a sleeping car.*
(R. 54.)
In addition to those quoted in appellants’ brief,
the order contains the following findings not men
tioned by appellants:
“ (16) The Commission further finds from the
evidence that the porters on Pullman cars are negro
men. (R. 46.)
“ (17) The Commission further finds that if ne
gro porters are placed in charge of the Pullman cars
when the service of a conductor is dispensed with
that there is imminent danger of insults to the lady
passengers on the Pullman cars and that such condi
tion exists in the seventeen operations by the Pull-
man_ Company where they do not use conductors, as
hereinabove referred to, and that the same consti
tutes an abuse and an undue and unjust disadvan
tage and discrimination; that from the evidence of
the lady passengers who testified before this Com
mission, the womanhood of Texas entertains a fear
of serious bodily injury or personal attack from _ a
negro man and that to subject them as passengers in
Pullman cars to the service where there is only a
negro porter in charge would be to such passengers,
as well as all other passengers, an undue and unjust
discrimination, prejudice and abuse. (R. 46.)
“ (18) The Commission further finds that the dis
orderly conduct among passengers which sometimes
occurs on Pullman cars in Texas can not properly
be met or handled by a Pullman porter; that every
Texan, both man and woman, resents any interfer-
*Admittedly correct copies of the order, original and
amended, notice of hearing, and the intervening orders are
appended as exhibits to the complaint. (R. 33-54.)
ence or instructions from a negro man or from a
negro porter, and the Commission finds that a negro
porter would not attempt to and could not discipline
a passenger on a car nor would he attempt to pre
vent any misconduct in such car and if the same
should be indulged in to the humiliation of the other
passengers on such car, that the same could not be
prevented nor quieted by a Pullman porter, while the
same could be properly handled and quieted by a
Pullman conductor and therefore the same would
be an abuse and an undue and unjust prejudice, dis
crimination and disadvantage. (R. 46-47.)
“ (22) (c) The Commission finds that the experi
ence of such passengers with the porter in charge
has been unsatisfactory; that the construction of the
Pullman cars is such that only little curtains protect
the passengers one from another, and that there is
a long aisle down the center of the Pullman cars,
and the seats and berths are constructed alongside
of the aisle, and each berth is separated from the
other berths only by these small curtains, and that
the lady passengers who occupy such expect and are
entitled to the protection, care and service of a Pull
man conductor while they are thus traveling, and
that to deny them such protection, care and service
is an unjust discrimination on the part of the rail
roads and the Pullman Company.
“ (d) The Commission further finds that women
prefer not to ride in Pullman cars unless there is a
Pullman conductor in charge; that they are unwil
ling to subject themselves to the supervision of a
negro porter and that the practice on the part of the
railroad companies and that of the Pullman com
panies in having the porter in charge is unfair, un
just and unreasonable, so far as these women pas
sengers are concerned.
“ (e) The Commission further finds from the tes
timony that the mothers of small children in Texas
are unwilling to permit their children to ride in
Pullman cars where only negro porters are in
charge; that they entertain a fear that the children
would not be cared for nor protected; that the chil
dren of Texas are entitled to the comfort, conveni
ence and service of Pullman cars and that to deny
them of this service by failing to provide the neces
sary employees over and above that of a porter
would be an unjust discrimination. (R. 49-50.)
“ (27) The Commission further finds from the
testimony offered that on different occasions Pull
man porters while on duty proceeded to drink ex
cessively and become intoxicated, thereby rendering
themselves unable to perform the janitor work re
quired of a Pullman porter, and certainly unable to
perform the duties of a Pullman conductor. (R. 51.)
“ (29) The foregoing acts and things done and
performed by the railroads of Texas and the Pull
man Company are unjust and unreasonable and
amount to unjust and unreasonable charges for the
services rendered by a colored porter alone in charge
of a sleeping car. And such service is inadequate
to provide for the proper comfort, safety and con
venience of the passengers therein and does not meet
the requirements of the traveling public and the
agreement between the railroads and the Pullman
Company.” (R. 52.)
The above findings and others, including those
appearing in Appellants’ Brief (pp. 3-6), are fol
lowed in the challenged order by twelve unnumbered
paragraphs, purporting to operate as “orders, judg
ments and decrees.” The original order of August
8, 1939, (ante, p. 5) directed the railroads to do
one thing only, namely, to have a Pullman conductor
on every train carrying a sleeping car. The new
order, now assailed, repeats this requirement in sub-
— 9—
stantially the language of the old one, and it “ orders,
adjudges and decrees” several other things not men
tioned in the first order. In this way the Commis
sion has undertaken (a) to enforce the operating
agreements between The Pullman Company and the
railroads, as construed by the Commission, by re
quiring the railroads to compel The Pullman Com
pany to perform the operating agreements by fur
nishing a Pullman conductor on each train; and (b)
to amend, or abrogate in part, without specifically
mentioning, the existing railroad passenger tariffs.
By statute the intrastate passenger fares are fixed
at 3 cents per mile. On December 1, 1933, the rail
roads filed interstate tariffs reducing passenger
fares in western territory to 3 cents per mile for
transportation in parlor and sleeping cars and to 2
cents per mile in coaches. They obtained from the
Texas Commission a conforming order. (R. 240.)
The present order, without mentioning existing
tariffs or orders relating to them, undertakes to
abolish this differential “ unless the facilities and
employees and supervision of the work of employees
and cleanliness of cars is provided while cars are
enroute, all as provided by the terms of the respec
tive contracts with the Pullman Company, are fully
provided.” (R. 52.) Elsewhere in the order the
Commission finds that the way to satisfy such con
tract provisions is to furnish a Pullman conductor.
It does this by saying in various ways that when
the Pullman car is operated in charge of a colored
Pullman porter alone, without a Pullman conductor,
this does not constitute a compliance with the oper
ating contracts (R. 40), and that if the sleeping car
— 10—
is operated in charge of a Pullman conductor, this
will constitute such compliance. (R. 52-53.) The
order further decrees that unless the operating con
tracts are so complied with, no extra fare shall be
charged by the railroads or by The Pullman Com
pany in which the railroads will have any share.
(R. 52-53.)
Thus the assailed order purportedly deals with
three subjects: (a) It requires Pullman conductors
on all trains carrying a sleeping car; (b) it un
dertakes to construe the operating contracts and
to enforce them as so construed; (c) it attempts to
change existing railroad passenger fare tariffs.
Other “ decrees” seem to be incidental. The points
of argument in Appellants’ Brief are confined ap
parently to the first subject, but the specifications of
error are not so limited.
2. Facts Touching the Rate Features of the
Challenged Order
The district court concluded: “ 12. The order of
November 4, 1939, cannot be sustained as a rate
order for several reasons: (a) It was not made
after notice as required by law. Art. 6449, R. C. S.
1925, requires ten days’ notice to each railroad to
be affected by an order fixing rates. No notice was
issued indicating that at the hearing of August 8,*
1939, rate matters would be considered, (b) The
rate features of the order are apparently predicated
upon the Commission’s assumed authority to con
strue and enforce the contracts between the rail-
*Meaning August 31st, the only hearing date.
— 11-
roads and The Pullman Company, as to which the
Railroad Commission has no authority, (c) In so
far as the order attempts to regulate rates charged
by The Pullman Company, it is void, since the Rail
road Commission of Texas has no jurisdiction over
The Pullman Company and no authority to regulate
Pullman rates. This question was expressly decided
in the case of The Pullman Company v. Railroad
Commission, No. 1791, Equity, United States Dis
trict Co|urt, Northern District of Texas; affirmed
without written opinion .by Circuit Court of Ap
peals, Fifth Circuit (1908). Since then the statutes
have been readopted in the 1911 Code and in the
1925 Code without change in that respect.” (R. 370.)
The above conclusion is replied to by appellants
(Error No. 6, Brief, pp. 19-20) by saying that the
Commission’s order recited and the Commission
therein found that all parties interested in the sub
ject-matter had been duly notified for the time and
in the manner provided by law. Appellees admit, in
deed, in the complaint it was alleged, that 10 days’
notice of the Commission hearing was given. But
this does not meet the issue. The complaint further
charged, and the district court has found, that no
notice was issued indicating that rate matters would
be considered at the hearing. In the complaint, par.
5, it is alleged (R. 8), and in the answer admitted
(2nd defense, R. 65) that Exhibit B attached to the
complaint (R. 34-35) is a copy of the notice issued
by the Commission. The notice says nothing about
rate matters and gives no intimation that rates will
be considered at the hearing. It refers to the original
order known as Passenger Circular No. 164 and
- 12-
bears a caption identical with that of the original
order, stating that it relates to the “ Safety, Care,
Comfort, Convenience, Proper Accommodation and
Transportation of Passengers on Pullman Cars
within the State of Texas.” (R. 33; 34.) It apprises
interested parties that the Commission will “ take up
and consider the matter of operating sleeping cars
on any line of railroad in the State of Texas when
occupied by passengers holding the proper trans
portation for the accommodation of such cars, un
less such cars are continuously in charge of an em
ployee or an authorized agent of the firm or corpor
ation owning or operating the same having the rank
and position of Pullman conductor.” (R. 35.)
Between the date of the hearing on August 31,
1939, and the date of the order, November 4, 1939,
the Commission issued three orders, Exhibits C, D
and E (R. 35,36) postponing the effective date of the
original order, reciting that such action was taken
“ in order to provide more time for examination of
the record in the above numbered and entitled
cause.” Each of those orders was captioned as was
the original order. When the final order was issued
on November 4, 1939, the caption was enlarged, and
for the first time the Commission stated in the cap
tion that the order related (in addition to matters
originally described) to “ Charges, Fares . . . . and
to Prevent Abuses, Unjust Discrimination and Ex
tortion in Rates.” (R. 37.)
When the railroads and The Pullman Company
appeared at the hearing they did so in response to
the notice, and they did not thereby enter an appear
ance for a rate hearing. (We make this statement w
— 1 3 -
answer to Point No. 2 in the Conductors’ Brief, p.
11.) The Commission has not argued the point and
has in no way undertaken to challenge the District
Court’s finding and conclusion that the notice was
not a sufficient predicate for a rate hearing.
3. Facts Touching the Controlling Issues
District Court Findings Nos. 6 and 7:
“ 6. It appears without contradiction that there
are seventeen routes or lines in Texas where Pull
man cars, in so far as The Pullman Company is con
cerned, are in charge of a porter. In most cases this
occurs only where the distance traversed is short,
and in every instance it occurs only on those trains
that, as regularly operated, carry only one Pullman
car. These lines are described in Exhibit G* attached
to the Complaint. One of them, however, No. 3259,
was discontinued prior to the trial. On trains carry
ing two or more Pullman cars a Pullman conductor
accompanies the train. In all instances, however,
the general control of the Pullman car or cars and
passengers therein is lodged in the railroad con
ductor. The entire train and the railroad employees
and Pullman employees are subject to the jurisdic
tion of the train conductor.
“7. All of the Pullman porters in ,Texas are
negroes who have been in the service of the company
as porters for more than ten years, and those acting
as porters-in-charge for longer terms, ranging from
twenty years to thirty-four years of continuous
service. The men serving as porters-in-charge on the
unes in Texas described in Exhibit G have demon
strated that they are substantial, reliable men of
good character and good intelligence. By training
4The description in Exhibit G of the 17 lines affected
y the order (R. 55-56) is admitted in the answer to be
orrect. (R. 16, 68.) Graphic descriptions appear in Ap
pellees Original Map Exhibits 19-35, inch, of which addi-
wnal photostatic copies are with the record.
— 14—
and experience they are qualified and competent to
discharge the duties assigned to them as porters-in-
charge; and the fact that they are negroes and are
called porters-in-charge does not disqualify them spr
render them incompetent. The service rendered to
passengers in the Pullman cars on the trains not ac
companied by a Pullman conductor is in no way in
ferior to the service rendered on the trains accom
panied by a Pullman conductor. The Pullman con
ductors and the porters-in-charge have had the same
training, and they receive regularly the same in
structions. There is no need of a Pullman conductor
in addition to the porters-in-charge on the lines de
scribed in Exhibit G. In view of the Pullman Com
pany’s experience, extending over a long period of
years, there is no reasonable basis for a finding
contrary to the facts stated in this Finding No. 7.”
(R. 367-368.)
Finding No. 6 is unchallenged. Appellants have
formally challenged No. 7 by saying that the Court’s
findings therein “are contrary to the evidence and
are not supported by the testimony and the evidence
in this case.” (Error No. 11, Appellants’ Brief, pp.
22-23.) Under Appellants’ Point III (Brief, p. 70),
it is apparently their contention that there was sub
stantial evidence at the trial in conflict with some
of the findings in the Court’s Finding No. 7. No
where has the finding been assailed as being “clear
ly erroneous.” Indeed, no attempt has been made by
appellants to show, nor have they even asserted,
that, giving due regard to the opportunity of the
trial court to judge of the credibility of the wit
nesses, the Court’s Finding No. 7, or any part of it,
is clearly erroneous. (Rule 52 (a) of the Rules of
Civil Procedure.) No attempt has been made by
appellants to show that the Court’s findings are not
— 15—
substantially supported. We take it that they will
be accepted by this Court. Atlantic & Pacific Tea
Co. vs. Grosjean, 301 U. S. 412, 420; Borden's Co. v.
Ten Eyck, 297 U. S. 251, 261; Malloy v. New York
Life Ins. Co., 103 Fed. (2d) 439, 443 (C.C.A. 1st,
1939), certiorari denied 308 U. S. 572.
And yet since this is an equity case, we now show
affirmatively that the Findings of the Court are
supported. The quoted, italicized language below is
taken from Finding No. 7, and is followed by rele
vant statements from the record:
Finding No. 7 Supported by Record
(a) “All of the Pullman porters in Texas are
negroes” (Champ Carry, R. 91), “ who have been in
the service of the company as porters for more than
ten years” (Vroman, R. 127), “and those acting as
porters-in-charge for longer terms, ranging from
20 years to 3j years of continuous service.” — Inter
vener-plaintiff Allen Harvey has been in the contin
uous service of the company as porter for 30 years
(R. 181), 20 years as porter-in-charge (R. 183-
184); intervener-plaintiffs McBay and West for 20
years each (R. 190, 196); Sample, 21 years (R.
209); Sinclair, with company 33 years, as porter 30
years (R. 216), in-charge 8 years (R. 216); Palmer
20 years (R. 220); Charley Thurmond 34 years (R.
222); Leroy Brown as porter 31 years (R. 203),
8 years on 4 lines as porter-in-charge (R. 203-205);
li Morgan, many years as porter-in-charge in
Texas on 5 different lines (R. 212-213); Noah Lane,
many years, including continuous service on one
hne in-charge for past 9 years (R. 225).
— 16—
(b) “ The men serving as ,porters-in-charge on
the lines in Texas described in Exhibit G have dem
onstrated that they are substantial, reliable men of
good character and good in te l l ig e n c e — They are
not young men; their ages range from 51 years,
Leroy Brown (R. 203), to 60 years, Sinclair (R.
215). They are married men; nearly all of them
have grandchildren. All are native Texans, except
ing Brown, born in Arkansas, in service of the com
pany in Texas 31 years (R. 203). In main, they
own their homes, some unencumbered, as Harvey
(R. 182) and Thurmond (R. 222); and others not
completely paid for, as McBay (R. 193), Sinclair
(R. 216) and Palmer (R. 220). So far as inquired
about,f they are church members: West (R. 196),
McBay (R. 191), Harvey (R. 186), Sinclair (R.
218), Lane (R. 226). With a few exceptions, they
began while young men working for The Pullman
Company. Those who have not worked continuously
for The Pullman Company have held other respon
sible positions. For example, West 10 years in office
building at San Antonio; 9 years in army and a
*This finding, descriptive of men who testified at the
trial, should be ascribed in part to observation of them by
the Court. Their character, intelligence and competence
to discharge the duties of porter-in-charge was established,
not merely by their records and by what was said about
them, but by their demeanor as witnesses, particularly on
cross examination; not merely by what they said but by
the manner of saying it and by their deportment through
out. This is implicit in the findings. Rule 52 of the Rules
of Civ. Proc.; Malloy v. New York Life Ins. Co., (C.C.A.
1st, 1939), 103 Fed. (2d) 439, 443; cert, denied 308 U.
572.
fThe porter testimony, after the first 3, was abridged, in
deference to intimations from the bench. (R. 203.)
- 17-
short while in San Antonio post office (R. 200-201);
Palmer, army Y. M. C. A. secretary during World
War (R. 220).
Great care is exercised by The Pullman Company
in selecting only men of good character as porters.
They are employed, not by officials at Chicago, but
by the district superintendent in Texas and at New
Orleans, under whose direct supervision they work
(R. 87). And those deemed fit, the top rank porters,
after long years of service, are promoted to the po
sition of porter-in-charge. (R. 88-89).
Further support for the above finding appears in
what is stated below in connection with remaining
portions of Finding No. 7, closely related to above.
(c) “By training and experience they are quali
fied and competent to discharge the duties assigned
to them as porters-imcharge; and the fact that they
are negroes and are called porters-in-charge does
not disqualify them or render them incompetent.
The service rendered to passengers in the Pullman
cars on the trains not accompanied by a Pullman
conductor is in no way inferior to the service ren
dered on the trains accompanied by a Pullman con
ductor. The Pullman conductors and the porters-in-
charge have had the same training, and they receive
regularly the same instructions. There is no need
of a Pullman conductor in addition to the porters-in-
charge on the lines described in Exhibit G.”
The operating department of The Pullman Com
pany is in charge of a vice president at the home
office in Chicago, under whom are two assistants at
Chicago. The territory is divided into six geograph-
lcal zones, each in charge of a zone superintendent.
- 18-
Zones are divided into districts and agencies, each in
charge of a district superintendent or agent. Under
them are assistants, inspectors, instructors and an
organization sufficient to carry on the business. (R.
80- 81.) Porters are employed by the district super
intendents. (R. 87.) For example, porters on trains
operating out of Dallas are employed by the super
intendent at Dallas; others by the superintendents
at Houston, San Antonio, Fort Worth, New Orleans
and at Shreveport. (Two of the interstate trains
operate out of New Orleans and Shreveport.) Vice
president Carry, his assistant, B. H. Vroman, and
the district superintendents at New Orleans, Dallas
and Houston, and the agent at Shreveport, a former
traveling inspector in Texas, testified at the trial.
The company has in its employ between 9,000 and
10,000 porters. (R. 82.) As a general rule, the
trains that carry several Pullman cars are accompa
nied by a Pullman conductor (R. 82). Where condi
tions of travel warrant, the company has operated
Pullman cars in charge o f porters, not accompanied
by Pullman conductors, for 60 years or more. (R-
81, 93.) The method of operating in Texas is similar
to that employed in other parts of the country (R.
81- 82), and the service in Texas is equal to that else
where. (R. 96.) Some of the porter-in-charge op
erations have been in effect in Texas for 21 years,
and a number of them for 15 or 20 years. (R. 93.)
As elsewhere specifically shown {ante, p. 17)
the porters entrusted with the in-charge opera
tions had previously had long service as porters.
Before a porter is employed he is interviewed by the
district superintendent and if he appears to be quail-
— 19—
fied he is allowed to make an application, in which he
is required to account for his time for the preceding
5 years. The district superintendent or assistant
personally interviews his previous employers, and
an agent personally checks up his home surround
ings. If after such investigation the district super
intendent approves his application it is sent to the
zone superintendent for his approval. (Irwin, dist.
supt. at Houston; with company 28 years; at Hous
ton 20 years as chief clerk, 2nd assistant, 1st assist
ant, and supt.; R. 174-175; Carry, R. 86-87; Olney,
R. 157.) The porter is then given ten days’ trial.
The porters, and the conductors, are constantly su
pervised by the district superintendent, his assist
ants, agents, traveling inspectors, the yard inspec
tors, the safety supervisors, and the passenger trav
eling agents, all of whom travel the trains prac
tically all of the time, and while so traveling it is
their duty to supervise the service and make reports
thereon, same as service inspectors who do nothing
else. (Irwin, R. 175-176; Olney, R. 157-158). And
the men on every line are inspected at stations on
every trip. (Irwin, R. 178; Carry, R. 86.)
Porters Receive Same Training as Conductors
While porters perform services that are not per
formed by Pullman conductors, the latter have no
duties that are not also performed by porters, with
the single exception that porters are not placed in
charge of more than one car on a train. Conductors
receive no special training that is not also given to
the porters-in-charge. (R. 132.) They are required
to obey the same rules, except that when a Pullman
- 2 0 -
conductor is on the train he outranks the porters
and has general supervision over them. (R. 186,
135, 140.) Schools of instruction or quarterly serv
ice and safety meetings are conducted by superin
tendents and are attended by conductors and porters
jointly or in separate meetings. (R. 133-134.) The
instructions at all such meetings are identical for
porters and conductors. (Vroman, R. 132; Irwin,
R. 176-177; Cunningham, R. 283; Olney, R. 159.)
Porters and conductors receive regularly identical
bulletins of instructors. Conductors and porters-in-
charge, as distinguished from other porters, receive
identical special instructions. (Olney, R. 158; Vro
man, R. 140.) In addition, a superintendent or his
assistant or an agent of The Pullman Company,
known as a platform man, is at the station and
inspects every train originating or passing through
such points as San Antonio, Houston, Dallas, Fort
Worth, New Orleans, Shreveport, El Paso, etc. This
includes an inspection of the Pullman cars, the em
ployees on the cars and the equipment. (Irwin, R.
178; Carry, R. 85-86; Olney, R. 159.)
The company’s records have been examined for
the purpose of determining whether the service ren
dered by the porters-in-charge is inferior or equal
to the service rendered by the conductors. Vroman,
assistant to vice president in charge of operations,
testified: “ Our reports indicate that the service is
just as good on the porter-in-charge lines as it is on
lines where we have the supervision of conductors.’
(R. 98.) The passenger receives identical service
on both lines. (R. 133.) Vallett, superintendent at
Dallas (30 years with company), said: “ I have
— 21—
found it to be equally satisfactory.” (R. 179.) To
the same effect is the testimony of Champ Carry,
vice president. (R. 84.) Olney (32 years dist. supt.,
R. 156) testified: “ . . . . my experience has been that
not only is the in-charge work handled as well, but
then both work is done better by a man who runs in
charge than a man who doesn’t run in charge. He
feels his responsibility.” (R. 158.)
Testimony of Disinterested Members of Traveling- Public
Seven disinterested witnesses, frequent Pullman
travelers, familiar with the porter-in-charge service,
residents of Dallas, Amarillo, Waco, Houston and
San Antonio, testified that the service on porter-in
charge lines is as good as that on the conductor lines.
Here, in part, is the testimony of C. A. Goeth,* a na
tive Texan, resident of San Antonio for 50 years,
an attorney, whose family consists, among others, of
a granddaughter:
“Q. Mix Goeth, have you had occasion to travel
frequently in recent years on trains and on Pull
man cars?
“A. I have.
*Mr. Goeth was the last of the members of the traveling
public offered as a witness by plaintiffs. Others referred
to had preceded him. A t the conclusion of his testimony the
Court suggested:
“Judge Sibley: Is there any need of multiplying these
witnesses, gentlemen? We have all ridden on Pullmans,
and we know that no number of witnesses is going to
change our ideas of what is going to happen, unless there
might be some extraordinary circumstance.
“Mr. Graves: We will defer to the Court’s wishes, then,
four Honor.” (R. 262.)
— 22—
“ Q. Have you observed the quality of service
rendered by the porters on the Pullman cars?
“A. Yes, sir, I have.
“ Q. Will you state whether it has been satis
factory or unsatisfactory from the standpoint of the
passenger?
“A. Very satisfactory.
“ Q. Do you recall whether you have ridden on
Pullman cars that were in charge of a Pullman
porter and where there was no conductor present?
“A. Yes, sir.
“ Q. Have you noticed any difference in the qual
ity of service rendered by the Pullman Company?
“A. I have not.
“ Q. To the passengers under those circum-
a f'o ■nppa ?
“A . I have not.” (R. 260-261.)
On cross examination:
“ Q. In the case of a trip of say eight or ten hours
and you were going to place your granddaughter or
your other two grandchildren on the Pullman car,
would you feel better about it if that car was in
charge of a Pullman conductor rather than merely
of a porter?
“A. I would not have the slightest concern if it
were only in charge of a porter.
“ Q. Would you depend somewhat on the train
conductor in that feeling?
“A. I would not.” (R. 262.)
The testimony of other disinterested witnesses
(excepting Clegg) was of like import: Caldwell (R-
161); Mitchell (R. 165); Fish (R. 167); Marsh (K.
168); Shepardson (R. 171); Underwood (R. 202);
Strickland (R. 256-257). Clegg, a young man, com
mended the porter service generally but had no recol-
- 23-
lection of traveling on porter-in-charge lines. On
cross-examination, after saying that he had never
given any thought to the matter, he testified:
“Q. You would feel just a little bit safer with
your family in there with a white man conductor in
charge of that car rather than in charge of a man
who does those menial tasks, wouldn’t you?
“A. Yes, sir.” (R. 260.)
In behalf of defendants: 7 ladies and 4 young
men testified as members of the traveling public.
Some of them did not claim to have traveled on a
Pullman car, and not one spoke from experience on
a porter-in-charge line. The substance of their
testimony was that, if given the choice between
traveling (or, as to the men, of having the female
members of their family travel) on a Pullman car
(or train) in charge of a negro porter or one with
a porter and in charge of a Pullman conductor, they
would prefer the latter. Three were married wom
en, who said that they would “ feel safer,” for them
selves or for their children, in a Pullman car in
charge of a Pullman conductor. The others (6 of
them University students) opined that women
passengers would be safer in a Pullman car (or
train) in charge of a conductor; and that “ on ex
cursions” the students would be less apt to obey a
porter than they would a conductor. Elliott Roberts,
student, said:
,, Q- If your mother were going away do you feel
wia,t she would be safer if she were in charge of a
unman conductor than she would be if only in
charge of a Pullman porter?
— 24—
“A. Well, just from what you have said, yes,
sir.” (R. 348-349.)
Miss Matala testified:
“Q. Have you had occasion to ride on Pullman
trains ?
“A. Yes, sir.
“Q. Miss_ Matala, when you are riding on the
Pullman trains do you think you are safer if there is
a Pullman conductor in charge of that train than
you would be if only a negro porter was in charge?
“A. Yes.” (R. 344.)
Miss Muse, an associate social director at one of
the dormitories for girl students at the University
of Texas, testified:
“Q. Miss Muse, if you were riding in a Pullman
car would you feel that you were safer if you had
a conductor in charge than you would feel if you
had only a porter in charge?
“A. I would.
(6 * * *
_ “Q. I understand, but I am asking you this ques
tion, do you think the girls—it would be safer for
their protection for them to be under the care of a
conductor than it would be for them to be only un
der the care of a negro porter?
“A. Yes, sir, I think so with the conductor.
“Q. Miss Muse, in your travels do you remem
ber seeing a train conductor back in the Pullman
cars?
“A. I don’t recall.
“Q. You seldom, if ever, see the conductor, do
you?
“A. Yes, Id o .” (R. 345-346.)
- 2 5 -
Bob Coquat, a University student, testified in be
half of defendants that he and his mother and sis
ter had made an extended trip by train from San
Antonio to New York and return on the Pullman,
in connection with a trip to Europe. Further:
“Q. Now, Bob, do you think that your mother
or your sister would be safer on a train if they
were under the supervision of a Pullman conductor
than they would be if they were only under the su
pervision of a Pullman porter?
“A. Yes, sir, I do.” (R. 351.)
John Roberts, a University student, testified:
“Q. Do you think the women folks would be safer
on the train if there was a Pullman conductor in
charge than they would if there was only a Pullman
porter?
“A. I believe so.” (R. 342.)
Miss Dorman, a University student, testified that
she had had occasion to ride on the Pullman cars;
and,
“Q. When you were riding on the Pullman trains,
do you think that you are safer if there is a conduc
tor in charge than you are if there is only a negro
porter in charge ?
“A. I think so.” (R. 343.)
The Court will observe that the above witnesses
were not called upon to distinguish between the
function of having charge of the train and of hav
ing charge of the Pullman car, under the supervi
sion of the train conductor. Much of the question
ing was of that kind. But that point aside, we
■26—
submit that such testimony is devoid of legal sig
nificance.
On cross examination Miss Hill, Assistant Uni
versity Librarian, testified:
“ Q. Now, you draw a distinction, do you not,
between a colored man who has put in long years of
experience in the employ of a company like the Pull
man Company, acted as a porter and has proved to
be trustworthy and faithful and a man of good
character, and another man that you don’t know
anything about?
“A. Well, I think there would be, of course, a
difference—
“Q. You would attach—pardon me—
“A. But I think that I would always feel safer
if I knew there was a Pullman conductor—a white
Pullman conductor on my coach. I have that feel
ing.
“ Q. Do you mean to say that you don’t think
there are any colored people that are faithful and
trustworthy and reliable?
“A. Not at all, no; I don’t have that feeling; I
think there are.
“ Q. As a matter of fact, you know some of them
are, don’t you, Miss Annie?
“A. Why, certainly; certainly I do.” (R. 347-
348.)
Testimony of Intervener-Def'eiidiants, Pullman Conductors
For the defendants, appellants, the remaining
testimony was supplied by two Pullman conductors,
intervener-defendants, and two railroad conductors.
Cunningham, vice president of the Order of Sleeping
Car Conductors, has served as a Pullman conductor
for 35 years and Hadley for 15 years. From their
experience they related instances of carelessness and
dereliction of duty on the part of Pullman porters
serving under them. Cunningham told of an oc
casion, 11 or 12 years ago, when he was assaulted
and injured by an intoxicated porter (not a porter-
in-charge); the porter was arrested and afterwards
convicted and imprisoned (R. 272). And of another
occasion about 15 years ago, when on his train
carrying extra cars crowded with cowboys return
ing from a cattlemen’s convention the porter was
attacked and injured by some cowboys who claimed
that the porter had been impudent to them. (R.
273.) He described one occasion on which a porter
had been guilty of neglect of duty because of drink
ing. (R. 274.) None of these infractions were by
porters then or now serving in-charge. In fact, it
was admitted that they were exceptional instances
rather than typical. There was no testimony of any
such conduct on the part of a porter serving as a
porter-in-charge. The Pullman conductors admitted
that as a rule porters are competent, reliable and of
good character. Said Cunningham on direct exam
ination :
“Q. In the main, do you find the Pullman porter
to be pretty high-classed colored men?
“A. We do.
“Q. Rut you do find these exceptions which you
have outlined here?
“A. We do find exceptions, yes.” (R. 276-277.)
On cross examination:
. Q- You, of course, draw a distinction, Mr. Cun-
nmgham, between these colored men that have good
-28-
characters and the others that do not have good
characters?
“A. Oh, yes, sir; we have got plenty o f porters
that are good porters, all right. (R. 282.)
* *
“ Q. You don’t pretend, Mr. Cunningham, to
say to the Court that conductors are all perfect, and
the porters are, in the main, not perfect?
“A. No, sir.
“Q. These frailties are human frailties, are they
not?
“A. Yes, sir.
“ Q. And these matters that you have mentioned
are matters o f character, and the conductors, if they
are not the right kind of men, are subject to those
criticisms too.
“A. Yes, sir, we have some conductors that are
not 100% perfect.
“ Q. In the main, though, they are good men, are
they not?
“A. I think so.
“ Q. Just as in the main the porters are good
men.
“A. Yes, sir, or anyone else.
“ Q. Well, now, they are better than the average,
because the company makes an effort to get good
men in both capacities, doesn’t it?
“ A. Yes, sir.
“ Q. In the beginning?
“A. Yes, sir, they investigate very thoroughly
to find out whether they have got good men before
they employ them.
“ Q. And keep on supervising them to find out
whether they have made any mistakes?
“ A. From time to time, yes, sir.” (R. 290-291.)
Hadley described a number of incidents involving
misbehavior o f passengers and carelessness of por-
■29—
ters, and special services rendered by him to elderly
and frail persons. In all such instances he seemed
to be of the opinion that he was capable of rendering
better service than could be rendered by a porter,
but neither he nor Cunningham had any first-hand
information about the way in which porters-in-
charge acted in similar situations.
W. L. Beamer has been a train conductor since
1907 but between 1923 and 1935 he devoted his time
exclusively to his work as Chairman of the Order of
Railway Conductors for the Katy lines. During that
time he was not on duty as a conductor. (R. 317.)
He told of an occasion when a lady, finding that she
was the only passenger in a Pullman car in charge
of a porter, stated that it was lonesome in the car
and that she preferred to ride in the chair car, to
which she moved (R. 319) ; and of another, in Okla
homa City, where a lady stated that she did not like
to go to bed on the Pullman car when there was no
body there but a negro porter. (R. 320.) He said
that as conductor he allowed the Pullman employees
to look after the Pullman cars but he recognized that
the train conductor is captain o f the train and he
said that if anything unbecoming or any trouble
arose on any part of the train, he would try to handle
it. (R. 321.)
The remaining witness, Lowery, an M. K. & T.
conductor, related an incident that occurred 7 or 8
months ago, reported to him by the Pullman con
ductor, involving misconduct of passengers, and he
handled the matter at the request of the Pullman
conductor. (R. 326.) While he claimed that he and
the brakeman and the train porter spend most of
— 30—
their time ahead of the Pullman car, he said: “En
route I would go back and check with him (the Pull
man porter) to see if our lists corresponded...........
Our instructions are to check frequently to see that
we are together on the number of passengers in the
Pullman.” (R. 334.)
He said he was lenient about enforcing the rail
road rules but that he endeavored to live up to the
rules in the way that the company would approve
(R. 333); that he would prefer to have a Pullman
conductor for the reason that he would feel less re
sponsibility if a Pullman conductor were back there.
(R. 330.) He did not testify to any fact showing
incompetency of a porter-in-charge. He stated that
in his opinion people in general do not have the re
spect for the Pullman porter that they do for the
train conductor and Pullman conductor. (R. 326-
327.) When called upon to relate instances indicat
ing disrespect for porters, he stated that a porter
was chased by a drunken passenger through six
sleepers into the chair car where he, the conductor,
was and appealed for help. He said that this same
passenger had also attacked the brakeman and that
the Pullman conductor and the porter had previously
pulled the passenger off of the brakeman. (R. 327.)
By the standard railroad operating rules (R.
232)* and by Texas statutes,f the brakeman or flag
man is required to ride in the rear car of the train
*The rule reads: “Passenger brakeman or flagman will,
so far as practicable, ride near rear of passenger trains to
observe and acknowledge signals, and may, when necessary,
ride in lounge cars and observation sleepers, when it can
be done without inconvenience to passengers.”
fArt. 6378, R.C.S. 1925.
- 31-
while the train is in motion. On each of the trains in
volved in this suit the single Pullman car is the rear
car in the train, and the brakeman or flagman cus
tomarily rides in that car. (Harvey, R. 189; West,
R. 200; Brown, R. 206.) Plaintiffs deemed it unnec
essary to make further proof of this fact in view of
the following suggestion from the bench at that
point: “ Unless the other people are going to contro
vert it, do you think you ought to accumulate that
evidence? If they are going to controvert it, all
right. You have already proved it by four wit
nesses.” (R. 206.) The appellants at that point
made no statement, but Pullman Conductors Cun
ningham and Hadley later said that some of the
brakemen follow the rules in this respect and others
do not. They did not attempt to say what happens
on the porter-in-charge lines. Cunningham said that
the brakeman rides at the back of the train on which
he operates out of Kansas City but he said he prob
ably rides there for the reason that it is a flat track.
(R. 292.)
Porter and Air Conditioning
While it would seem to be a trivial point, an effort
was made to show that porters are incompetent to
handle air conditioning equipment. Appellant Cun
ningham testified:
“Q. What have you found about the porters?
Have they caught on to the operation of this air
conditioning very well ?
(A. Some of them haven’t, no.
Q- Some of them haven’t?
(R 293 seems Dutch to some of them.”
— 32—>
He said further that as a rule porters like the
temperature warmer than any one else. (R. 293.)
On cross examination he testified:
“ Q. Just what is it now that you do in respect
to this air conditioning equipment on the train, that
a man of ordinary intelligence and a little training
can’t also do?
“A. Well, there isn’t anything.” (R. 283.)
Vroman testified that porters and conductors re
ceive identical instructions as to air conditioning
(R. 135); and that on all trains the Pullman porter
more often than the Pullman conductor actually at
tends to the air conditioning. (R. 136.)
Each of the Trains Affected hy the Order Is a Short Train
They carry one or two, and in one instance
three, day coaches or passenger coaches in addition
to one Pullman car. (R. 356-357.) Traffic on the
porter-in-charge lines is relatively light. For ex
ample, Line 3748, San Antonio-Corpus Christi,
carries an average of 2 Pullman passengers south
bound and 3 northbound. (R. 106); Line 3309, Gal-
veston-Houston, 3 or 4 passengers (R. 217); Line
3128, Ft. Worth-Ennis, 5 or 6 passengers (R. 183);
on Line 3265, San Antonio-Ft. Worth northbound
and Waco-San Antonio southbound, the traffic is
heavier. But it is a daytime operation (R. 108), and
the train carries only two day coaches in addition to
the Pullman car. (R. 357.) In any emergency the
train conductor and the brakeman are of necessity
more readily accessible to the passengers on any part
of the train.
— 33—
The train conductor is in charge of the entire
train, and he alone has power to eject passengers.
(Trainmaster Poole, R. 230.) The railroad company
makes no distinction between Pullman passengers
and coach passengers. They are all railroad pas
sengers and are treated accordingly. (R. 232.)
Rules require railroad conductor and trainmen to
protect passengers from violence, actual or threat
ened, and from insults. (R. 230.) Conductors are
required to pass through cars occupied by passengers
at least once every hour. (R. 231.) Poole testified
that the rules are enforced and it is his business to
see that they are enforced. Otherwise, he would be
replaced. (R. 232.)
> “Q. What does the railroad company do with the
view of seeing to it that the rules are actually car
ried out?
“A. _ Well, there is various things that we do,
depending entirely on the case. We continually
make checks, that is part of my job, and several
others do the same thing, to see that the rules are
complied with; and if they are not, to make neces
sary arrangements to get them complied with.
“Q. Do you actually ride the trains for that
purpose?
“A. Almost continuously.” (R. 229.)
Rules referred to are standard operating rules,
substantially identical on all railroads. (Poole, R.
232-233; Santa Fe Div. Supt. McKee, R. 236.)
One Pullman Employee Fills Need.
As already shown (ante, pp. 20-22), there is no
work to be done on these one-car lines that is not
-34-
now efficiently done by the porter-in-charge. Pas
sengers receive same attention on these lines that
they do on other lines. Cunningham on cross-exam
ination said it takes him about 15 or 20 minutes to
lift the transportation in the two cars on his regular
run carrying an average of 15 to 20 passengers in
the two cars (R. 287); and about 10 minutes more to
complete his diagram, already started before depar
ture. (R. 288.) On a one-car train, with half the
number of passengers, he said he could complete his
diagram and take up the tickets in 10 or 15 minutes.
He was unable to give a clear account of what he
would be doing other than sitting down after com
pleting that process.
“ Q. How much of the time would you be sitting
down in a seat?
“A. Oh, probably I would be sitting down more
than I would on a heavy car, because on a heavy car
you have more duties to perform and more to
look out after.” (R. 288.)
Skill, Tact and Competency of Porters-in-Charge
The Court will understand that the experienced
porter's talent for adapting himself to the exi
gencies of travel, including the handling of in
toxicated passengers, will not be revealed by the
record to the extent that it was made evident
at the trial. Here, again, the district court’s
findings are to be ascribed, in part, to what the three
Judges observed, and not merely to what they heard.
Indeed, the findings accord with the common knowl
edge of all who have traveled considerably on Pull
man cars. The resourcefulness of the porters is per-
— 35—
haps best illustrated in the testimony of Allen Har
vey, the whole of it (R. 181-189), and of Noah Lane
(R. 225-228). Harvey testified in part:
“Q. Have you ever had any experience with
drunk passengers on the train?
“A. Well, I have seen them drinking, but I have
never had no trouble, never did have no serious
trouble, no sir.
“Q. Have you ever had an experience with a
drunk passenger that you couldn’t handle by your
self?
“A. No. sir, I never did. I have always pacified
them and got them to bed or got them quiet some
way or another, you know.
“Q. Well, how do you go about handling that?
Do you order them around?
“A. Oh, no, sir, you couldn’t do that, you know.
Q. What?
A. You couldn’t do that and get no where with
that, Judge, no, sir. You have to handle them with
gloves. Even if you had a conductor he couldn’t do
that, just order them around, because it wouldn’t go.
You would sure have trouble then.
‘Q. Have you ever had any experience on the
tram where a drunk passenger insulted another pas
senger? *
“A. No, sir, I never have, no sir.” (R. 185.)
On cross examination:
“Q. What does it take to be trouble?
, .A* Well, somebody that is interfering or wants
to tight or disturbing other passengers, that is what
I would call trouble.
f How long has it been since you asked a man
“ a ?r to c^anSe his conduct in any way?
A. Well, to change his conduct— well, I have
— 36—
had them probably in the smoker would get a little
loud. They would be bothering nobody, but among
themselves, three or four men, they would be a little
loud, talking, and the way I would get that quiet is
I would go in and ring a false bell myself and I
would say, ‘That man say he can’t sleep,’ and that
is the way I would work that.” (R. 187.)
Noah Lane, native Texan, age 53, resident of
Dallas 35 years, has been continuously operating for
9 years on the Dallas-Austin car (Line 3259) on the
M. K. & T. railroad, member of a church, total ab
stainer from liquor, knows most of passengers who
travel between Dallas and Austin. He receives the
in-charge compensation, since southbound the car
sets out at Austin at 4:30 A. M. and is in his
charge until 7 :30 A. M., and northbound it is in his
charge while waiting at the station at Austin from
11:30 P. M. to 1 :00 A. M., when it is picked up by
the train from San Antonio. (R. 225-226.) When
asked to explain how he got along with drunk pas
sengers, he said:
“ I humor them.............Yes, sir, and coax them
along. I get along with them all right.
“ Q. Get along with them all right?
“ A. Yes, sir, I have at times when they was
drunk, and one occasion— it has been a good long
time ago, about 13 or 14, if I make no mistake, I had
a man that was drunk, and the conductor didnt
want to let him on because he was drunk.
“ Q. You mean the Pullman conductor?
“ A. The Pullman conductor, yes, sir. I knew the
man very well and I said, ‘I f you will let me have
him’, he was kinda bad, and I said, ‘if you will let
me handle him we will save trouble for all con-
— 37—
cerned.’ Well, he went along and let me alone, and
I got him on the car and he wouldn’t give up the
tickets to the conductor and I said, ‘if you will just
leave him to me I will take care of him’ ; I said, ‘I
know him and I will take care of him,’ but I was
afraid to let him go to bed because he had two guns
on, and I was afraid to let him go to bed with those
guns on because he might wake up in his sleep and
take a shot at somebody, just for fun in his sleep, or
something, and I coaxed and begged him to let me
have his guns, and put them away, and said I would
keep them for him until in the morning, and after
I persuaded with him for a long time ‘if you will
wear them I will let you have them’, he said, and
well, you can see my size; he was small, and the belt
wouldn’t go around me with the two guns on it, and
I wanted to put them in my locker, and he said, ‘no,
you have got to wear them’. I said, ‘well, they won’t
meet, the belt won’t meet on me, that’s all’ . He said,
‘get a string and tie it on’, and so I taken a string
off of a linen bag, and I made the belt meet, and fast
ened the guns on me that way, and he still wouldn’t
give his tickets up to the conductor; the conductor
was Charlie Dannish,* if I make no mistake, that
was his name; I said, ‘if you will just leave him to
me I will get his tickets from him; just leave him
alone and leave him to me’, which he did, because he
said if he had to come back in the car again, he
would have some fun with him. So the conductor
stayed outside and so the next morning we were go
ing into Hillsboro and he got up, he just waked up
and got up, and I met him and I says, ‘Mr. Lee’, I
says, are you getting along all right’ ? He says, ‘Yes,
yes, fine’. I says, ‘now, when you have got time I will
take your tickets’. I said, ‘you didn’t give up your
*This was the railroad conductor, evidently on the train
that had arrived from San Antonio, en route at that time
from Austin to Dallas.
- 3 8 -
tickets last night’ . He said, ‘didn’t I? ’ I says, ‘No,
sir’ . ‘ I didn’t, he says, ‘why, I don’t know why I
didn’t’ . I says, ‘you told me you had done give them
to me’, and then he said ‘come on help me find them’
and so he and I looked through his clothes and we
found them in his watch-pocket in his vest and he
had the Pullman and Railroad tickets, and gave
them to the conductor; and, of course, from that time
he was all right. You call that trouble, but I call it
fun. On Friday night, I had a man here that was
down here and he didn’t have his clothes on, and he
was unusually loud and I told him, I says, ‘please,
be quiet’, I says, ‘there is a lady here’ ; he used some
pretty bad language and I said ‘please be quiet, a
lady will hear you’ and he said, ‘all right, I won’t say
any more’ ; and I got him to bed; I was about an hour
late getting him there; of course, I was fixing to go
to bed and I was about an hour late getting him in
bed but I finally got him in bed and I seen that every
thing was all right and he was asleep and he had his
pants lying down spreading out in the middle of the
floor and I was afraid that his purse might drop out,
so that was why I stayed up to see if he was asleep,
and after he was asleep I went to bed, and the next
morning he woke up and was all right and didn’t
know anything about it. Those are the most serious
cases I have had with drunks.
“Q. Well, you have never had any trouble, then,
with drunk passengers that you couldn’t handle?
“A. No, sir.
“ 0. Along those lines?
“A. No, sir.” (R. 226-228.)
He was not cross examined. (R. 228.)
Intervener McBay testified:
“ Q. How do you go about handling a drunk pas
senger?
— 39—
“A. If a man is drunk on the car, the first thing
I try to do is to get him to bed. If you can get him
to bed, pretty soon he will go to sleep.
“Q. Do you give him any instructions or orders?
“A. ̂ No, sir, I don’t give him any orders; I just
coax him along. I give him service and try to get
him to bed. If you can get him to bed, he is not into
trouble.
“Q. What are your instructions in case you
should have a passenger on your car that you could
not handle?
“ A . I would f i r s t n o tify the tra in conductor.”
(K. 192.)
“ Q- H ave you had an y trouble o f an y kind?
“A. No, sir; never in my life.
“Q. Ever let a passenger make you mad?
“A. No, sir.
“Q- Suppose a passenger were to abuse you?
A. Well, that is my job; I am supposed to take
^ I am not supposed to get angry.
“Judge Allred: You mean if you get angry, you
don t let him know anything about it?
“A. I am not so easily made angry.” (R. 193.)
On cross examination:
"Q* Does the Pullman conductor ever have any
thing to do with disorderly passengers?
A. You mean like a drunk man or something
like that?
“Q. Yes.
. “A- The porter has that mostly to do. It is the
job he has to worry with.” (R. 194.)
Intervener W. J. West, after stating that he had
neyer had any personal trouble with passengers,
said that in two instances he had called on the train
- 4 0 -
conductor in connection with drunk passengers and
that the train conductor had handled both situations.
(R. 198-199.) Further:
“ Q. Have you ever had any experience on these
cars where one passenger was mistreating another
passenger?
“A. Well, one experience, where it would have
been a mistreatment if probably I had not been right
there and prevented it from being a mistreatment.
“ Q. Did you have any trouble handling it?
“A. No, sir; I did not have any trouble handling
it.” (R. 199.) As to this he was not cross examined.
Their competency is further reflected in the
testimony of Brown (R. 206-208); Morgan (E.
213); Palmer (R. 220); Sample (R. 210); Sinclair
(R. 215-218); Charley Thurmond, when asked
whether he thought he was qualified to handle drunk
passengers, said: “ Well, I can only cite my past
record in handling them; from that standpoint I feel
that I am.” (R. 224.)
The testimony of the Pullman conductors showing
a few exceptional instances (out of many years) of
breaches of discipline and dereliction on the part of
incompetent porters proves nothing against porters
who have been competent, faithful, and whose con
duct has been above reproach. The record is devoid
of evidence reflecting discredit of any kind upon the
porters operating in charge. There is no evidence
that a porter, trusted with the responsibility of oper
ating in charge, has ever been guilty of being in
toxicated or of drinking liquor on duty. Indeed, in
so far as it was inquired about, it was affirmatively
— 41-
shown that the porters-in-charge are total ab
stainers. (R. 186, 191, 226.)
By the testimony of the 10 porters it was estab
lished that during their entire experience as porters-
in-charge they had had no serious trouble with pas
sengers, and that Pullman passengers on their cars
had been adequately protected and properly served.
Appellees deemed it unnecessary to accumulate
further testimony of porters, especially in view of
suggestions from the bench after the Court had
heard three of the porters that we should stipulate
as to the others. The Court intimated that addi
tional porter witnesses would be heard to afford the
defendants the opportunity of cross examining them.
(R. 203.) After nine of them had testified, oppos
ing counsel indicated that they did not desire to
cross examine further. (R. 225.)
The Order Is Found to Be Without Rational Basis
(cl) “In view of The Pullman Company’s expe
rience, extending over a long period of years, there
is no reasonable basis for a finding contrary to the
facts stated in this Finding No. 7.” (R. 368.)— The
effect of this concluding sentence of the Court’s find
ings is that there is no rational basis for the chal
lenged order, since the findings made by the Court in
Finding No. 7 conclusively negative the existence of
any facts that would support the order. By this final
statement the Court has said, in effect, that the facts
as found in Finding No. 7 do not rest upon a mere
preponderance of the evidence. They rest upon
evidence so conclusive as to leave no room for reason
able minds to differ about it. This is equivalent to
- 4 2 -
saying that there is no conceivable state of facts by
which the order can be supported.
The combined experience of the 10 porters who
testified is equivalent to an experience record of the
typical porter-in-charge of more than 226 man-
years. Four of the 10 have a combined service
record of more than 125 man-years, (Ante, p.
15). By the undisputed evidence it appears
that this record of the porters-in-charge is one
of faithful, competent service. The railroads
with whom the company is under contract to furnish
the service are satisfied with it. No complaint is
shown to have come from the members of the travel
ing public who have been served by the porters-in-
charge. The Pullman Company and the porters
themselves warrantably take pride in it. Only the
Pullman conductors have complained, and they have
furnished no evidence reflecting discredit upon the
service rendered by the porters-in-charge. The rare
instances of dereliction of duty by a few of the other
porters (not in charge) proves nothing. It furnishes
no more ground for outlawing these top-grade
porters than would occasional lapses of some of the
conductors constitute valid support for a penal order
forbidding the operating of the cars in charge of
conductors.
Summary of Argument
1. In response to Appellants’ Point of Argument
I (Appellants’ Brief, p. 31) we will show that sub
divisions (a) and (b) present questions that were
not raised at or before trial; that they are unsub
stantial ; that factually the statement that the rail-
— 43
roads charge, or that the contracts between them
and The Pullman Company require the charging of,
fares in excess of the statutory maximum of 3 ̂ per
mile is contrary to the record; is contrary to the
Commission’s own finding (R. 41); and that The
Pullman Company is not engaging in the railroad
business. As to subdivision (c) of Appellants’ Point
I, we will show that, jurisdiction having attached on
substantial Federal questions, the issues of fact
and of law, State and Federal, have been properly
tried on the facts adduced at the trial. Such an
attack on the order is not collateral, and the trial
is not confined to a mere review of the Commission
record.
2. The State Question— The challenged order
cannot be sustained by referring it to any power
delegated to the Commission to prevent “ unjust dis
crimination” as defined by Article 6474. The opera
tion of the single Pullman car trains (without a
Pullman Conductor) in charge of a porter under the
supervision of a train Conductor is not unjust dis
crimination as defined by statute. The Commission
cannot supplement the definition; and the Commis
sion has no power to prevent “ unjust discrimination”
by issuing the order complained of. Our refer
ences, throughout, to the challenged order, unless
otherwise indicated, are to the part of it that
forms the basis of appellants’ brief and is quoted in
the district court’s opinion, 33 Fed. Supp. 675 (R.
360), ante, p. 5. This prohibitory feature of the
order was at first promulgated by the Commission
without notice or hearing. When so issued the Com
mission did not pretend that it was designed to pre-
44 -
vent “ unjust discrimination.” On its face it pro
fessed to be a regulation designed to promote “the
safety, care, comfort, convenience, proper accommo
dation and transportation of passengers on Pullman
cars within the State of Texas,” (R. 33.) When
notice was thereafter issued for a hearing to con
sider whether the order would be set aside, the no
tice stated that the Commission would consider the
above mentioned order, so entitled, and for such
purposes. Nothing was said about unjust discrim
ination. After the hearing when the order was re
issued with the same prohibitory clause (R. 53),
and a great deal more, the Commission for the first
time made reference to the matter of unjust dis
crimination. It is now sought to be upheld, but can
not be sustained, upon that basis.*
3. The Constitutional Question— The order is
without rational basis, and contravenes the 14th
Amendment, the due process and the equal pro
tection clauses. Findings of the district court
(Nos. 6 and 7, ante, p. 13) (the former un
challenged and the latter ineffectively challenged)
♦Whether the Commission has acted within its statutory
powers is a question of State law. It has been decided by
a district court of three judges. The two district judges
are Texas judges, and the circuit judge, Judge Sibley,
has been a United States Judge in the Fifth Circuit since
1919, District Judge from 1919 until 1931, and United States
Circuit Judge since January 30, 1931. Judge McMillan is
a Texas lawyer of wide experience; he appeared in this
Court 20 years ago as attorney for the then largest city
in the State in C ity o f S an A n to n io v. S an Antonio Public
S erv ice Co. 255 U. S. 547 (1921). Judge Allred, after
representing the Railroad Commission for four years as
Attorney General of the State, served for four years as
Governor.
- 4 5 -
are supported by the facts showing: that there is
no need of a Pullman conductor on the single Pull
man car trains; that the required service is compe
tently rendered by the porters acting in the capacity
of porter-in-charge under the direction of the train
conductor. The trains are short trains, carrying
only one sleeping car. To require the railroads to
compel The Pullman Company to furnish a white
Pullman conductor on such trains is an arbitrary
requirement. The porters, condemned in the order
as incompetent to perform this function because
they are negroes and not white men, are shown to
be competent—men of good character, good intel
ligence, and proper training. The experience of the
company over a long period of years of operating
these single car trains under that method has dem
onstrated that it is a successful and satisfactory
method of operation. Porters receive extra com
pensation for serving in that capacity; and the
order, if sustained, will deprive them of it, and
hence denies to them due process and equal pro
tection of the laws as guaranteed by the 14th
Amendment. No effective effort has been made by
the appellants in their brief to show that the court’s
findings establishing the competency of the porters
to serve in that capacity are erroneous. Appellants
contend that the question has been foreclosed by the
Commission’s findings; and that, since jurisdiction
does not rest upon diversity of citizenship, the dis
trict court had no right to inquire into the facts,
but had the power only to review the Commission’s
record for the purpose of determining whether there
were any facts at the Commission hearing, or suf-
- 46 -
ficient facts at that hearing, to sustain the order.
Such contention being plainly erroneous, there has
been no effective attack made in appellants’ brief
on the findings and conclusions of the district court.
Other points of argument are subordinate and in
cidental. The two controlling questions are those
referred to under 2 and 3—that is, the one State
question and the Constitutional question. Unless we
are wrong on both of those questions, the judgment
below must be affirmed.
4. Appellants have contended (Point V, Brief,
p. 80) that the court below erred in granting a blan
ket injunction, in the face of the provision in the
Commission’s order authorizing interested parties
to apply to the Commission for permission to “devi
ate” from the order. The meaning of this exemp
tion clause was inquired about by the court at an
early stage of the trial and the Commission was re
quested to state its position. The question was evad
ed. Counsel for the Commission attempted to state
his personal opinion, viewing the order in an objec
tive sense. In view of the Commission’s answer to
the complaint and in view of the findings contained
in the order itself, the court properly concluded that
the plaintiffs were entitled to a trial. The order re
cites, and the court has found, that there are 17
lines in the State of Texas in which the single Pull
man car is in charge of a porter without a Pullman
conductor, but under the supervision of the tram
conductor; that all of these porters are negroes.
The Commission has found in its order that it is a
discrimination and an abuse to operate the trams
in that way. It maintained this position at the tna
— 47—
and it so contends now. It has not intimated or sug
gested that, so long as the trains are operated in
that way, any exemption from the portion of the
order above referred to will be allowed. But aside
from that, the Pullman Company and the porters
are adversely affected by the order and they and the
railroad company involved would be entitled to com
plain if only one line were involved. Again, if the
failure to provide a Pullman conductor amounts to
“unjust discrimination” within the meaning of the
penal statute now relied upon by the Commission,
Art. 6474, the Commission has no power to permit
a deviation that would amount to a suspending of
the penal statute. The suggestion that it might be
willing to suspend the statute is tantamount to an
admission that the alleged gravamen of the offense
is innocuous.
ARGUMENT
I.
A. Appellants’ Point of Argument 1(a) (Brief,
p. 31) is devoid of merit since:
(a) By the undisputed evidence it appears that
the maximum railroad fare charged by the railroads
for passengers riding in the Pullman cars is 3 cents
and not 4 cents, as stated by appellants, infra, p.
(b) The contracts between The Pullman Com
pany and the railroads do not “ call for charging pas
senger fares of more than 3 cents per mile.”
(e) The challenged order commands the railroads
to act through The Pullman Company. It requires
— 48—
the railroads to effect an arrangement whereby
every train carrying a sleeping car shall be in charge
of an employee or an authorized agent of the firm
or corporation owning or operating the same “hav
ing the rank and position of Pullman conductor.”
(R. 53.)
(d) The point was not mentioned or suggested
before or at trial. Indeed, it has not been assigned
as error unless it is within the purview of Error No.
2 (Brief, 18) or No. 3 (Brief, 18), not precisely
this point. The points presented in Errors 2 and 3
were not seasonably raised. Plaintiffs were in no
manner apprised at or before trial that they would
be relied upon as a defense.
(e) The challenged order does not proscribe exist
ing rates on the ground that they are not authorized
by a tariff approved by the Railroad Commission,
as asserted in Error No. 2.
(f ) In so far as the order requires a Pullman
conductor on each train carrying a sleeping car, the
prescribed remedy bears no reasonable relation to
the so-called evil of charging extortionate rates.
(g) No hearing has been called or conducted by
the Commission to determine whether existing rates
are extortionate.
(h) The order expressly commands the railroads
to observe and perform contracts with the Pullman
Company, as construed by the Commission. (R. 42,
52, 53.) Hence the order cannot be supported on
the ground, presented after trial and judgment, that
the contracts are illegal and void.
(i) Error No. 3 complains of the Court’s failing
to sustain motions to dismiss the complaint for de-
— 49-
fects said to be apparent on the face of the com
plaint. Such objection to the complaint was hot
raised in the motions or in the answer. And the
complaint discloses no such vice. Nothing is quoted
from the complaint or in substance stated in appel
lants’ brief in support of the assigned error.
(j) The suit was not instituted to enforce any
provision of an operating contract, or to recover
damages for its breach. As stated in the Court’s 1st
Conclusion (R. 368), unchallenged, the action was
brought to vindicate the right of the plaintiffs to
carry on their business unmolested by the prohibi
tions imposed by the challenged order. Such rights
are in no way conditioned upon any so-called illegal
provisions of the contracts.
(k) The contracts contain no provision purport
ing to regulate railroad passenger fares; and, as
to sleeping car fares, they merely provide that such
fares shall be on a parity with whatever fares are
charged on a competing line. (R. 6.)
(l) While by the terms of the operating contracts
the railroads, under stated conditions, are required
to make payments to The Pullman Company; and
in other contingencies The Pullman Company is to
make payments to the railroads; it does not appear
in the record that, pursuant to such provisions, the
railroads have received or have been entitled to re
ceive, any money from The Pullman Company; much
less does it appear that such payments have been
made or have been due by The Pullman Company to
the railroads by reason of operations on the porter-
in-charge lines. Nor does it appear that any rail
road has collected anything from The Pullman Com-
■50.
pany arising directly or indirectly from the payment
of sleeping car fares by intrastate passengers in
Texas.
(m) Even if it be assumed that the railroads
have received payments from The Pullman Com
pany pursuant to the operating contracts, the as
sumed fact would not show that intrastate sleeping
car fares paid by Texas passengers constitute rail
road passenger fares within the meaning of the 3
cent fare statute.
In stating (Appellant’s Brief, pp. 12, 34) that
the railroads exact a railroad fare of more than 3
cents per mile for passengers riding in the Pullman
cars, appellants have misconceived the record. Not
only is there nothing in the record to support the
assertion, but the undisputed record is to the con
trary. W. J. Rogers, Chairman of the Southwestern
Passengers Association, and publishing agent under
power of attorney on file with the Interstate Com
merce Commission, testified:
“ Q. What are the maximum fares prescribed by
the Interstate Commerce Commission?
“A. For transportation in sleeping or parlor
cars, three cents per mile. For transportation in
coaches or chair cars in western territory, it is two
cents per mile. (R. 239.)
< ( * * *
“ Q. Has permission been granted by the Inter
state Commerce Commission to charge a higher fare
in sleeping cars than day coaches?
“ A. The Interstate Commerce Commission, as
I say, set the three cents per mile as the maximum
charge for transportation in parlor and sleeping
cars, and a lower charge for coaches.
- 5 1 -
“Q. And that applies with regard to interstate
business in Texas as well as any other place?
“A. Yes, sir; we voluntarily reduced the pas
senger fares in western territory on December 1,
1933, to three cents for transportation, parlor and
sleeping cars, and two cents coaches, we went to the
Railroad Commission for the necessary authority to
put in the same rate in Texas, and that authority
was granted us.” (R. 240.)
He testified on cross examination:
“Q. Mr. Rogers, to ride in a chair car in Texas,
a passenger is required to pay two cents a mile?
“A. That is the coach rate.
“Q. Then if that same passenger desires to ride
on the Pullman, he is required to pay to the railroad
company an additional one cent per mile?
“A. He pays three cents per mile. The differ
ence happens to be one cent, yes, sir.
“Q. He pays three cents a mile, then?
“A. Well, in Texas, of course, the statute rate
is three cents a mile. The Railroad Commission, on
their own initiative, reduced the coach fare to two
cents a mile.” (R. 243.)
The Commission made an express finding (R. 41)
in accord with the foregoing testimony, and in ir
reconcilable conflict with the contention now made
by it.
B. The Pullman Company does not operate a
railroad in Texas, and the contracts between it and
the railroads do not contemplate or require such
operation by it.
(In reply to Point 1(b), Appellants’ Brief, stated,
P- 32, argued, p. 35.)
— 52
Appellants contend that appellees’ claim is based
upon certain contracts and that these contracts
are illegal and void because they contemplate
that The Pullman Company will engage in operating
a railway in the State o f Texas without being in
corporated as such as a Texas corporation. The
Pullman Company does not operate a railroad in
Texas and the contracts between it and the railroads
do not contemplate or require such operation by it.
The Pullman Company is a sleeping car company,
distinctively taxed as such by the State.
The State of Texas in many ways differentiates
between railroad corporations and sleeping car cor
porations. Texas imposes an occupation tax, mea
sured by gross receipts, on “ every sleeping car
company . . . doing business in this State . . . . ”
Article 7063, R. C. S. 1925, as amended. (Appendix,
p. 110.) Railroad companies, however, are required
to pay an intangible tax. Articles 7098 and 7105,
R. C. S. 1925, as amended (Appendix, pp. 110-111.)
Railroad corporations are not subject to the gross
receipts tax on their railroad operations, and sleep
ing car companies are not subject to the intangible
tax.
The challenged order attempts to regulate the
manner in which The Pullman Company may con
duct its business within the State of Texas. The
order obviously proceeds upon the factu al assump
tion that the business conducted by The Pullman
Company is one that it is lawfully entitled to con
duct in Texas; otherwise, why tell the Company
that it must conduct that business in a particu ar
way; why attempt to subject the Com pany in e
- 53-
conduct of its business to the standards set up in the
order? It is a contradiction in terms to say that
the Company must conduct its business in the man
ner pointed out in the order and then to say, as
does the Commission by way of defending the or
der, that the Company has no lawful right to con
duct its business in any manner within the State
of Texas. Moreover, the fact that the State has
subjected the Company in the conduct of its busi
ness to an occupation tax levied on those lawfully
engaged in the sleeping car business establishes
conclusively that the Company has the lawful right
to engage in the business that is being taxed. State
of Texas v. Texas Brewing Company, 106 Tex. 121,
126. The State having subjected the Company to
the regulatory and tax burdens applicable to law
fully conducted businesses, the Commission cannot
defeat this suit by contending that the business thus
regulated and taxed is an unlawful business. A
somewhat similar, facing both ways attitude in re
spect to the conduct of a business was condemned
in Smith v. Illinois Bell Telephone Company, 282
U. S. 133,143-144.
In Pullman Palace Car Co. v. State of Texas, 64
Texas 274 (1885), the Court recognized that a rail
road company may legitimately operate its own
sleeping cars and charge extra compensation there
for, in addition to the fares charged for transport
ing passengers. The Court said that whether such
business is carried on by the railway company or by
a sleeping car company, it is a distinct occupation.
Such is the predicate for sustaining the occupation
tax to which The Pullman Company is now sub-
■54—
jected. In the case cited the tax was avoided because
the statute exempted railroad companies and there
by was held to be in contravention of the uniformity
provision of the State Constitution. The exemption
has been removed from the statute and the occupa
tion is now validly taxed, without regard to whether
it is pursued by a railroad company or by a separate
corporation not engaged in the railroad business.
The Court said:
“ The business or occupation taxed under the act
in question is certainly nothing more than the run
ning of cars of a certain kind on railways for the
purposes for which such cars are ordinarily used.
This is the business or occupation of a railway com
pany, in so far as it runs its own cars of the same
kind on its own road for the same purposes, making
a charge for the use of such cars other than is made
for the ordinary transportation of passengers, on
account of the increased comfort and convenience to
passengers afforded by the use of such cars. A busi
ness or occupation separate and apart from its or
dinary business of transporting passengers; and
on this ground only can be defended the demand or
receipt of any sum whatever in excess of the rate
fixed by law for the transportation of passengers.”*
164 Texas 277.)
In Duval v. Pullman Palace Car Co., 62 Fed. 265
(C.C.A. 5th, 1894), plaintiffs in two consolidated
cases sued The Pullman Company for damages for
failing to transport them in the drawing room from
’The passenger fare statute of 3 cents per mile, enacted
in 1883, then stood as it does now. 9 Gammel’s Laws, p.
376; Gen. Laws 17th Leg. (1883), p. 70. See present stat
ute, Art. 6416, Appellants’ Brief, p. 86.
— 55—
Denver, Colorado, to Fort Worth, Texas. The car
had been turned back by the Union Pacific Railroad
at Texline because of a washout ahead. The Court
held at p. 269:
“The defendant company is not liable as a carrier.
It made no contract to carry. The plaintiffs had paid
their fare to the railroad company, and were pro
vided with first-class tickets entitling them to be
carried from Denver to Ft. Worth by it. It was the
duty of the railroad company to convey them over
its line, and they were being carried by it. The de
fendant’s sleeping car constituted a part of the
carrier’s train. The plaintiffs secured the privilege
of riding in this car by paying an additional sum to
the defendant. The obligation of the defendant, un
der its contract with the plaintiffs, was to accommo
date them with the drawing-room in its car, consti
tuting a part of the carrier’s train, as long as the
carrier would convey it. If the carrier refused to
convey it beyond Texline, and turned the car back
to Denver, these were not the acts of the defendant
company, and they would form no basis for the com
plaint against it in this suit. Railroad Co. v. Roy,
102 U. S. 451.”
There are no Texas decisions contra.
In Pullman Company v. Hays, et ux (Tex. Civ.
App. 1924), 257 S. W. 686, the court held that The
Pullman Company was not a common carrier. The
case involved the theft of a passenger’s personal ef
fects and the Court held that The Pullman Company
was only bound to exercise reasonable care to guard
against such theft. The Court said, at page 687:
A Pullman Company is not liable as a common
carrier or as an innkeeper, yet it is its duty to use
— 56—
reasonable care to guard the passengers from theft,
* * In accord are Pullman Company v. Moise
(Tex. Civ. App. 1916), 187 S. W. 249; M. P. R. Co.
v. Groesbeck (Tex. Civ. App. 1894), 24 S. W. 702.
In 1907 the Railroad Commission attempted to
prescribe Pullman fares and was enjoined by the
United States District Court, which held that the
Commission’s statutory power to fix railroad rates
does not embrace the power to fix Pullman fares.
The judgment was affirmed by the Circuit Court of
Appeals without written opinion. Pullman Co. v.
Railroad Commission, No. 1791, Equity, United
States District Court, Northern District of Texas.
This is reported in the Biennial Reports of the At
torney General of Texas, 1906-1908, p. 36, infra, p.
114. The statute in this respect has not been
changed (but has been re-adopted twice, Codes of
1911 and 1925) and since then the Railroad Commis
sion has not attempted to regulate Pullman fares.
In Ft. Worth & Denver City Railway Co. v. State,
99 Texas 34, 87 S. W. 336 (1905), the Court had
occasion to pass upon the relationship between The
Pullman Company and the railroads under the con
tracts then in existence. Since then the contracts
have been changed in details but the relation be
tween The Pullman Company and the railroad com
panies, and their respective functions under the
contracts, have undergone no substantial change.
The Court in that case, on page 341, said:
“ * * * the railroad company would be benefited
by the increased revenue of the other company by
reduction or release from mileage, but it had no
power over the charges of The Pullman Company-
— 57—
It is manifest that the contract did not in any way
affect, or tend to affect, transportation, or charges
therefor.”
The significance of that decision here is that the
Court again recognized the distinction between the
business of operating a railroad and the business of
operating a sleeping car company.
Appellants have cited the case of Philip A. Ryan
Lumber Co. v. Ball, 197 S. W. 1037, and the case of
Pennsylvania RR. Co. v. S. T. L. A. & T. H. R. Co.,
118 U. S. 290, in support of their position. The
Pennsylvania Railroad case has to do with the char
ter powers of railroads under the laws of Illinois
and Indiana. It clearly has no application to the
present case. The Ryan Lumber Company case is
not in point, for under the facts stated by Appellants
in their brief, the Ryan Lumber Company, a Ten
nessee corporation, made a contract to transport
logs by railroad. The Court held that it was neces
sary that the Lumber Company obtain a charter
under the Texas law and it not having obtained such
charter, the contract for the transportation of the
logs was invalid. The contracts between the rail
roads and The Pullman Company contain no such
provision. The record in this case does not show that
ihe Pullman Company undertakes to transport pas
sengers, or that it has any motive power for trans
porting passengers, and by the express terms of the
contracts between The Pullman Company and the
several railroad companies, the obligation of trans
porting the cars is devolved exclusively upon the
railroad companies (Original Exhibits 2-14).
— 58-
C. The present action, challenging the Commis
sion’s order on substantial federal constitutional
grounds, is a direct attack, and is cognizable in the
United States courts.
(In reply to Appellants’ Point 1(c), Brief, stated,
p. 29; argued p. 38.)
1. The attack is direct.— This attack is no less
direct than was the first federal court action of
Reagan v. Farmers’ Loan & Trust Co., 154 U. S.
362. True, that suit was held to be a combined statu
tory-equity action, but in both aspects the attack
was direct, as it is here. If, as ruled by Judge
Hutcheson in Henderson v. Terrell, 24 Fed. Supp.
147, the suit authorized by the Texas statute, Art.
6453, (grounded upon the claim that the order is
“unjust and unreasonable” ) is not available except
where jurisdiction is predicated (at least in part)
on diversity of citizenship,* the consequence is that
the present action is purely equitable, and the stat
utory grounds above mentioned are not involved.
But, this being an action against the Commission
and its members, challenging the validity of the
order, and seeking to enjoin its enforcement, there
is no ground for appellants’ notion that the attack is
a collateral one. In support of their contention ap
pellants (Brief, p. 41) have quoted a portion of
Judge Hutcheson’s opinion in Henderson v. Terrell,
24 Fed. Supp. 147, but they failed to note the im
mediately succeeding portion of the opinion, answer-
*The Court needs no suggestion from us as to whether
such ruling has now been approved by this Court in
road Commission of Texas v. Rowan & Nichols Ou C°>>
No. 218, October Term, 1940, decided January 6, 1941.
— 59—
ing the point against them, as follows: “ Their bill,
however, does sufficiently make out a case arising
under the Constitution and laws of Texas of which
this Court has jurisdiction, one requiring three
judges.” (24 Fed. Supp. 149.) See, accord: Box-
rollium Oil Co. v. Smith, 4 Fed. Supp. 624 (So.
D. Tex.), Railroad Commission of Texas v. Rowan
& Nichols Oil Co., 310 U. S. 573 (s. c. below,
24 Fed. Supp. 131, and 107 Fed. (2d) 70), where
diversity was absent. This is also true of the many
cases, from Reagan v. Farmers’ Loan & Trust
Co., 154 U. S. 362, to Thompson v. Consolidated Gas
Utilities Corp., 300 U. S. 55, where constitutional
questions were decided, even though jurisdiction at
tached on the concurrent ground of diversity. Ap
pellants’ contention involves the obviously untenable
proposition that the jurisdiction of the federal courts
in cases arising under the Constitution is condi
tioned upon diversity of citizenship.
The other two cases relied upon by appellants,
Texas Steel Co. v. F. W. & D. C. Ry. Co., 120 Tex.
597 (Brief, p. 39) and Railroad Commission v.
Beaver Reclamation Co., 132 Tex. 27, (Brief, p. 40)
are cases brought for other purposes, in which an
unsuccessful effort was made to assail Commission
orders incidentally and collaterally. In the former,
the Steel Company sued the railroad company for
overcharges in rates and for penalties. The Com
mission was not a party, and the court held that in
such action the Commission tariffs, apparently valid,
could not be assailed. In the second case, the Beaver
eclamation Company brought suit against the Com
mission to set aside an order of its tender board
- 60-
refusing to issue a tender as applied for. The Com
mission defended by interposing a general regula
tion which provided that tenders were available only
to those holding a permit to pick up what was known
as wash-in, or salvage, oil. The plaintiff had neither
acquired nor applied for such permit, and had filed
no suit attacking the Commission’s general rule re
quiring the permit as a condition to the right to re
ceive tenders. The court held that such general rule
was not subject to collateral attack in the suit com
plaining of the refusing of the tender.
The two Texas cases are in this respect analogous
to such cases as Wadley Southern v. Georgia, 235
U. S. 662; St. Louis, I. Mt. So. R. Co. v. Williams,
251 U. S. 65; and G. C. & S. F. Ry. Co. v. State, 246
U. S. 58, 62, affirming 169 S. W. 385; cases apply
ing the familiar rule of the Wadley Southern case,
where the affected railroads, having failed to in
voke the aid of a court of equity in a direct attack,
were held liable for penalties accruing during
pendency of the actions for penalties for violating
orders that on their face were valid.
In Siler v. L. & N. R. R. Co., 213 U. S. 175, as
of course the Court is aware, the Kentucky Com
mission’s general rate order, and the statute under
lying it, were attacked on local and on Federal con
stitutional grounds. There was no diverse citizen
ship and jurisdiction rested alone upon the presence
of a Federal question. (213 U. S. 190.) There was
a typical case of a direct attack. The right to a
judicial review of the Commission’s order is in no
wise dependent upon the existence of the Texas stat
ute. The State district court, being a court of gen
eral equity jurisdiction, would be open, as are the
— 61
Federal courts, to test the constitutional questions
and any other questions appropriately raised. Home
Telephone Co. v. Los Angeles, 211 U. S. 265, 278;
L. & N. R. R. Co. v. Garrett, 231 U. S. 298, 311.
2. The ground of attack that the order is with
out rational basis, and therefore contravenes the
lUh Amendment, is not properly tested by review
ing merely the transcript of the evidence heard by
the Commission.
The above proposition is submitted in response to
the contention (Appellants’ Brief, p. 42, final par.)
that the complaint stated no cause of action in that
it did not challenge the order on the ground that it
was supported by no evidence, or insufficient evi
dence, at the Commission hearing. The conductors
so contend also. (Conductors’ Brief, p. 24.)
It is true that a motion to dismiss (Motion 10, R.
62) was made on the ground stated. But the action
of the Court in overruling the motion has not been
assigned as error. And it will be observed that the
contention is not within the Point I (c), (Brief, p.
32) under which it is advanced.
No Texas case has held that in reviewing an order
of the Railroad Commission relating to railroads the
trial in the State court is limited to a review of the
Commission record.*
We have examined the original record in a large num-
er ol Railroad Commission cases—nearly all of them relat
es to rate orders—and we have found no case in which the
ground of attack was that the Commission’s order was not
ased upon substantial evidence.” In every such case the
ourt was called upon to decide, and decided, the effect of
of the order> as shown by facts adduced
u tpal; and wholly without regard to what was heard
t>y the Commission.
— 62-
The review articles now relied upon by appellants
(6453, 6454) as precluding consideration of evidence
by the district court, as distinguished from a mere
review of the Commission record, have not been
so applied or construed in any case by the Supreme
Court of Texas. In all such cases, whether the order
of the Commission has been challenged on the statu
tory ground as being “ unreasonable and unjust” as
to plaintiff, or also on constitutional grounds, the
case has been “ tried and determined as other civil
causes in said court.” * This is true of such cases as
*The Court no doubt understands that the process,
whether legislative or administrative, is finally concluded in
the Railroad Commission, and that the review of the Com
mission’s orders in the Texas courts is purely judicial. In
deed, considering the separation of powers under the Texas
Constitution, it could not be otherwise. D aniel, Ins. Comm’r,
v. T y rre ll & G arth In v . C o., 127 Tex. 213, 220, 93 S. W. (2d)
372 (1936). For like reason the Railroad Commission can
not be given the power to enact a law, that is, to exercise
a function that is purely legislative; a valid standard ̂has
to be prescribed by the legislature itself. B oard o f Water
E n g in eers v. M cK n ig h t, 111 Texas 82, 229 S. W. 301, and
cases cited in C onsolidated Gas C orp . v. Thom pson, 14 Fed.
Supp. 318 (affirmed 300 U. S. 55) ; see, also, Railroad Com
m ission v . H . & T. C. R y . Co., 90 Tex. 340; S ta te v. St. Louis
S o u th w estern R y . Co., 165 S. W. 491, 496; G. C. & S. F. Ry-
Co. v . S ta te , 120 S. W. 1034. In view of the limitations of
the Texas Constitution and of the statutes enacted there
under, all reviews in court of administrative or legislative
agencies are purely judicial, similar to the review noted
by Justice Holmes in R ailroad C om m ission v. Duluth Street
R y . Co., 273 U. S. 625; and like that of Michigan, as recog
nized in D etro it and M ackinac R y . Co. v . Com m ission, 235
U. S. 402. The Texas Constitution in this respect differs
from State constitutions like that of Virginia (P ren tis v.
A tla n tic C oast L in e, 211 U. S. 210), and of Montana (Por
te r v. In v es to r s S yn d ica te, 286 U. S. 461, 287 U. S. 346);
and differs from what the State constitution was assumed
to be in P acific S ta tes B o x Co. v. W h ite , 296 U. S. 176, 183.
— 63—
Railroad Commission v. H. & T. C. Ry. Co., 90 Tex.
340, 353, 354 (1897); Railroad Commission v. Weld
& Neville, 96 Tex. 394, 403-405 (1903); G. C. &
S. F. R. Co. v. Railroad Commission, 102 Tex. 338,
353 (1909); Railroad Commission v. Galveston
Chamber of Commerce, 105 Tex. 101 (1912).* At
the trial of the case last cited twenty-six witnesses
testified, and the trial was de novo in every sense.
From such evidence the trial judge made comprehen
sive Judicial findings of fact, and the Supreme Court
explicitly rested its conclusion upon the unassailed
findings thus made. No issue was raised or decided
concerning what had taken place at the Commission
hearing.
If an example is needed of cases arising in the
Federal courts, we refer to Reagan v. Farmers’
Loan & Trust Co., 154 U. S. 362 (1894), where the
case apparently turned on the showing of confisca
tion under the threatened application of the rates as
made in the bills of complaint, as distinguished from
the insufficiency of the evidence heard by the Com
mission. (154 U. S. 362, 367-368, 400-413.) Since
by the complaints the sufficiency of the evidence
heard by the Commission was not challenged, the
demurrers should have been sustained if the rule
now contended for by appellants is correct.
i ln that case the court expounded the meaning of the
, , .en . Pro°t statute, requiring that as a condition to
f slde order should be shown “ by clear and
evidence” to be unreasonable and unjust. (Art.
TV ’k Sec. 7 of original Commission Act.)
IfF ^ d(Ln has been removed by the present statute, Art.
W54, R.C.S. 1925. (In fra , p. 107.)
- 64-
In United Gas Co. v. Texas, 303 U. S. 123, the
case was tried upon a statute imposing upon the
plaintiff the burden of establishing by “ clear and
satisfactory evidence” that the orders complained of
were unjust and unreasonable. Even so, the Court
recognized (p. 132) that “ the trial was essentially
de novo ,” saying, at pp. 139-140: “ The proceeding
in the State court undoubtedly purported to afford
an independent judicial review. As the Court of
Civil Appeals said in the instant case, the trial of
the issues whether the rate was unreasonable or con
fiscatory was ‘de novo.’ Appellant itself recognizes
that the trial ‘was essentially de novo, new and full
testimony being introduced as to property value,
depreciation, reserve accrual, revenues, expenses,
rates of return, etc.’ ”
The State courts have held that the validity of the
Commission’s orders is to be tested by the evidence
adduced in the State trial court, and that the Com
mission record is not admissible “ except by way of
impeaching a witness.” State v. St. Louis Southwest
ern Ry. Co., 165 S. W. 491, 499 (1914). To the
same effect are: Empire Gas & Fuel Co. v. Railroad
Commission, 94 S. W. (2d) 1240, 1244; Stanolind
Oil & Gas Co. v. Midas Oil Co., 123 S. W. (2d) 911,
913; and Railroad Commission v. Ran, 45 S. W. (2d)
413. The case last cited was tried under the motor
carrier review statute (Sec. 17, Art. 911a, Vernon’s
Ann. Civ. Stats.), which at that time expressly pro
vided for a trial de novo. In consequence, the Court
said:
“ Similar provisions appear in R. S. arts. 6059 and
6453, giving the right of appeal to the courts from
•65-
orders of the railroad commission in other matters;
and the holding has been, wherever the question has
arisen, that the proceeding in the district court is a
trial de novo, and not merely a review of the railroad
commission’s action upon the record made before
the commission.” (45 S. W. (2d) 415.)
The apparent conflict between that holding and
the rule announced in the McDonald case (Railroad
Commission of Texas v. MpDonald, 90 S. W. (2d)
581, relied upon by appellants, Brief, p. 43) is ex
plained by the circumstance that between the dates
of the two decisions the motor carrier review statute
was amended, expressly providing that the Commis
sion opinion should be admissible in evidence at the
trial and it was under the amended statute, Art.
911b, Sec. 14(b), that the McDonald case was de
cided.*
We deem it unnecessary to accumulate the cases
except to observe that in cases arising under the
motor carrier statutes applicable to certificates of
convenience for truck or bus carriers, the applicants
are mere licensees on the highways, and the reasons
for affording a more limited review are obvious.
_ Commission’s action here brought under ju
dicial review is legislative in nature and not merely
administrative. In reviewing administrative ac
tion, the inquiry is concerned with the facts as they
existed at the time the agency acted, as distinguished
rom the facts existing at a later time; whereas, in
testing the validity of an act of a legislative nature,
e inquiry relates to the way in which the legisla-
A/.+P1'*aJ??5ded statute has since then been amended again,
of 1937, p. 651, Sec. 911b, Vernon’s 1939 Supp.
— 66—
tion affects the plaintiffs at the time of the trial.
The nature of the inquiry therefore necessarily al
lows proof of facts subsequently arising—facts re
lating to the application of the legislative act. In
all such legislation, as Judge Cardozo has said,
“ from the hour of its enactment, there thus inheres
the seed of an infirmity which the future may de
velop. It is the infirmity that always waits upon
prophecy.” * If it is invalid at all, the invalidity
must be grounded upon the facts existing at the
time it is assailed in court. And if the court can
not ascertain these facts, then the court cannot de
termine whether the order bears upon the plaintiffs
in a way forbidden by the Constitution.
Even if it should be conceded that the order is
properly tested by reviewing the Commission rec
ord alone, the order could not stand, since the find
ings clearly import that the Commission was gov
erned by wholly untenable standards and criteria.
No amount or kind of evidence would sustain an
order that affirmatively exhibits, as this one does,
its extra-legal purpose and its utter want of a law
ful foundation. Tagg Bros. v. United States, 280
U. S. 420, 442 (1930).
II.
There Is No Statutory Basis for the Challenged
Order
(In reply to Appellants’ Point II, Brief, p. 43.)
Appellants, called upon to find a statutory basis
for the order “requiring that all sleeping cars be in
*Mvmici/pal Gas Co. v. Commission, 225 N. Y. 89, 121
N. E. 772, 774 (1919).
- 67-
charge of a Pullman conductor” (Appellants’ Brief,
p. 43), place their reliance in a combination of Ar
ticles 6445, 6448, authorizing the Commission to
“correct abuses,” and 6474, defining and prohibiting
“unjust discrimination.” Apparently they concede
that, as announced in Railroad Commission v. Rail
way Co., 90 Tex. 340, 38 S. W. 750, the Commission
has no roving discretion to define abuses. In the case
cited Judge Brown* for ahe Coura said at page 354:
“What abuses can the Railroad Commission correct?
We think that it must be some abuse which has been
defined by the law, and that the Commission would
not by this power be authorized to enact a law de
fining what is an abuse or a disregard of duty on
the part of a railroad corporation.”
Appellants say (Brief, p. 53) that the failure to
provide a Pullman conductor on the single-Pullman-
car trains, while such conductors are furnished on
the longer trains carrying several Pullman cars
gives an “ undue or unreasonable preference or ad
vantage to a particular person or locality,” and that
the order is “designed and intended” to prevent such
unjust discrimination, as defined by Article 6474.
If the order is so “ designed and intended,” why is
it not limited to removing the so-called discrimina
tion?
The gravamen of the offense of unjust discrimina-
10n is inequality— unreasonable inequality of treat
ment arbitrarily preferring some among a group
w o occupy a common ground. The power to remove
Justice, later Chief Justice, Brown, formerly
chiV em^er the Texas Legislature, was the author and
sponsor of the Railroad Commission Act.
— 68—
the unjust discrimination does not include the power
to say that this result shall be achieved by contrib
uting more to those who are being disadvantaged,
rather than less to those who are being preferred.
This statutory limitation is implicit in the delega
tion.
Assuming that the furnishing of Pullman con
ductors on the longer trains carrying several Pull
man cars, without furnishing Pullman conductors
on the single-car trains, amounts to unjust discrim
ination, the inequality can be eradicated as effectively
by taking the conductors from the longer trains as
by supplying them on the shorter ones. The Com
mission has plainly exceeded its powers even if it
be assumed that unjust discrimination is involved
in the present method of operation.
The unjust discrimination statute, Article 6474
(appended, infra, p. 107), is a complete statute
dealing comprehensively with the subject. The Leg
islature has thereby (a) prohibited; (b) defined,
unjust discrimination; (c) devolved duties upon the
Railroad Commission in respect of certain portions
thereof; and (d) provided a penalty as a means of
enforcing obedience. The acts denounced in Sec
tions 1, 2 and 3 constitute unjust discrimination.
Section 4 prescribes the penalty; Sections 2 and 3
define the Commission’s duties in respect of the sub
ject of unjust discrimination.
By Section 2 the Commission is authorized to
prescribe regulations designed to facilitate and re
quire proper handling by connecting carriers. Sec
tion 3 deals with the subject of comparative ia
as between long and short hauls and confers upon e
- 6 9 -
Commission the power to authorize proper differen
tials relating thereto, and also to authorize “group
rates.”
Obviously the challenged order does not, and is
not claimed by appellants to, fall within Sections
2 or 3 of the statute. It is said to be within the latter
portion of Section 1. As above indicated, it is sig
nificant that in respect of Section 1 no duties are
imposed upon the Commission, whereas by the ar
ticle specific duties are devolved as to Sections 2
and 3, and it seems plain that if the present method
of operating the single Pullman car lines without
a Pullman conductor is violative of Article 6474, the
statute contemplates that it shall be vindicated by
resorting to the penalty provision, without calling
upon the Railroad Commission to adopt a definitive
order.
We submit that there is no warrant for the ap
pellants’ criticism of the trial court’s action (Brief,
p. 64, last par.) in applying the rule announced in
St. L. S. W. Ry. Co. v. State, 113 Texas 570, 261
S. W. 996. The statute there involved, Article 6670,
R. C. S. 1911, was reenacted (without change other
than arrangement, not here material) as Article
6474, R. C. S. 1925. The case referred to was decided
on April 30, 1924, and the 1925 Code was finally
passed on March 18, 1925. To such extent as the
former statute was construed by the State Supreme
Court, the construction was approved by the Legis
lature.
We have no desire to quibble, however, over the
difference between a discrimination that is unjust,
as is connoted by that term in its ordinary sense, and
•70—
a discrimination that works an undue or unreason
able preference. In either case it is plain that the
discrimination does not offend the statute unless it is
unjust, and that the preference is not denounced un
less it is undue or unreasonable. What the trial
court decided was that such difference, if any,
as is involved in leaving the Pullman conductors off
the single Pullman car trains, is not an unjust
discrimination within the meaning of Article 6474;
and that such preference, if any, as is so involved, is
not an undue or an unreasonable preference. Ap
pellants formally challenged the Court’s finding, but
we submit that they have not succeeded in overturn
ing it by resorting to the record. The trial court
found:
“ 9. The challenged orders are not within the
authority delegated to the Railroad Commission by
Article 6474, Revised Civil Statutes of 1925. The
operation of the sleeping car on such trains as those
described in Exhibit G, in charge of a Pullman
porter, subject to the supervision, direction and con
trol of the train conductor, does not amount to un
just discrimination as defined in said statute. The
Railroad Commission has no authority to add to the
definition. The statute does not require that every
train be made the exact duplicate of every other
train. It is not unjust discrimination to adapt the
service to the varying traffic conditions.” (R. 369.)
The above finding is said by appellants to be
erroneous in that “under the facts in this case plain
tiffs have been, and are now, operating sleeping cars
on some lines of railroads without said cars being
in charge of Pullman conductors, and at the same
- 71-
time have operated sleeping cars on other lines with
said cars being in charge of a Pullman conductor
and the operation of sleeping cars on different lines
in different manners in such fashion constitutes a
discrimination and an abuse in violation of Article
6474.” (Error No. 17, Appellants’ Brief, p. 26.)
The question is whether the Commission’s action
falls within the scope of its delegated powers. The
action is sought to be justified by saying that to op
erate trains without Pullman conductors while other
trains are operated with Pullman conductors
amounts to discrimination within the meaning of
the statute. If the presence of the conductor on one
train mandatorily requires the furnishing of con
ductors on all trains, how can it be true that, as
stated in Point V (Brief, p. 80) “possibly some of
the plaintiffs were entitled to an injunction” while
others were not? The test of unjust discrimination
is made the difference between furnishing the con
ductor and not furnishing the conductor. It is said
that the statutory offense is committed if the con
ductor is furnished in one case and is not furnished
in all cases. And, yet, at the same time it is said
that traffic conditions may warrant an exemption.
The unjust discrimination statute is thus relied upon
to sustain the mandatory provisions of the order;
and then the criterion by which discrimination vel
non is to be determined is repudiated as being un
reliable.
Thê violation of a valid order of the Railroad
ommission is made punishable by heavy penalties
( rticles 6476, 6477, infra, p. 109). Consequently,
— 72—
the applicable rule of construction is the one an
nounced in Railroad Commission v. T. & N. 0. Rail
road Co., 42 S. W. (2d) 1091, 1093 (1931), writ of
error refused, as follows: . . . the statute under
construction is not only remedial in its nature, but
penal as well and must be construed with at least
a reasonable degree of strictness with respect to in
cluding anything beyond the immediate scope and
object of the statute, even though within the spirit,
and nothing can be added to the act by inference or
intendment.”
The Commission has made it plain in its findings
that the basis for the order is the difference between
having the Pullman car in charge of a white Pull
man conductor and having it in charge of a negro
porter. (See Findings Nos. 16, 17, 18, 22, 27, 29,
ante, pp. 6-8.) What the Commission has under
taken to do is to enact a police regulation, which it
now seeks to sustain by resorting to the unjust dis
crimination statute. The findings upon which the
order is made to rest leave no room for doubting that
the Commission deems it improper in any circum
stances to have the Pullman car in charge of a negro.
They undertake to condemn as an abuse the operate
ing of a train with a Pullman car unless the car is
in charge of a white Pullman conductor. These find
ings are in no sense conditioned upon the fact that
other trains are operated with Pullman cars in
charge o f Pullman conductors. The findings, if true,
would condemn the withdrawing of the Pullman con
ductors from the trains on which they now operate.
And yet it is plain that by withdrawing the conduc-
- 7 3 -
tors from these trains the so-called discrimination
would be completely removed.*
Typical is the part of the Commission’s Finding
No. 17 that “ the womanhood of Texas entertains
a fear of serious bodily injury or personal at
tack from a negro man and that to subject
them as passengers in Pullman cars to the serv
ice where there is only a negro porter in charge
would be to such passengers, as well as all other
passengers, an undue and unjust discrimination,
prejudice and abuse.” (R. 46.) If so, the evil
is not remediable by removing the discrimination—
the inequality of service. Within the meaning of the
anti-discrimination statute it could not be an offense
to place all Pullman cars on all trains in charge of
the Pullman porters. But according to the finding
this would still be a prejudice and an abuse, and is
positively forbidden by the order.
This exposes the order for what it is, a police reg
ulation resting upon supposed considerations of
public policy. The resort to the descrimination stat
ute is a subterfuge.
Appellees submit that to remedy such supposed
evils the Legislature has committed no such discre-
lon̂ to the Railroad Commission. If the Commis
sion’s findings—the overwhelming record to the con-
s u s o 3 t]ljnS the ^ate features (not now attempted to be
c o m S ? kyaPPehants) the challenged order cannot be
questing I ? ĥ by ma]^mS new rate differentials, and the
not here i differentials should be allowed is
requirint+v,V° V6d' 1116 Prollibitory feature of the order,
c a S hp l ® ?f a conductor on all trains,
mplxed with by setting up rate differentials.
•74—
trary— are assumed to be true, the serious question
of establishing by law the State’s public policy in
dealing with the problem has not been delegated to
the Commission. I f it has, why is the Commission
driven to the untenable position of relying upon the
discrimination statute? The question whether,
agreeably to the Texas Constitution, such matters
could be so delegated, we need not consider. The
Legislature has enacted a comprehensive code of
railroad laws expressing the public policy of the
State, designed to promote the safe operation of rail
roads and the protection of passengers. It has oc
cupied the field of legislation dealing with train
crews and has not authorized the Commission to sup
plement the full crew law, Article 6380, R. C. S.
1925 (infra, p. 106). Other statutes are abstracted
in the appendix to illustrate the policy of the State
in reserving to the Legislature the exclusive power
to enact police laws. (Infra, p. 111.) Particularly
is this true of such delicate and important matters
as attempt to deal with race questions.
Section 1 of Article 6U7J/., the statute relied upon
by appellants, is not a service requirement statute;
in main, it is an anti-rebating statute. It does not
compel the railroads to render identical service as be
tween trains or to provide the same number of em
ployees on every train. It forbids discrimination as to
charges between shippers and passengers “ for doing
a like and contemporaneous service.” And it also
prohibits any railroad from giving any undue or un
reasonable preference or advantage to any particu
lar person, etc., or to subject any particular de-
•75—
scription of traffic to any undue or unreasonable
prejudice, delay or disadvantage.
Appellees submit that operating a train carrying
one, two or three day coaches and one Pullman car
with the regular train crew and one Pullman em
ployee does not “ subject a particular description of
traffic to any undue or unreasonable prejudice, de
lay or disadvantage,” even though other trains
carrying several sleeping cars have a Pullman con
ductor in addition to the porter. It is not an un
just discrimination to adapt the service to the vary
ing conditions of traffic.
If the statute requires every train to be an exact
counterpart of every other train, the railroads must
furnish on all trains a lounge car, a lounge car at
tendant, a barber and barber shop, shower baths, the
most modern type of chair cars and other equip
ment, and identical schedules, regardless of the
needs or conditions of traffic; or else furnish such
conveniences on no trains. If every train must be the
counterpart of every other train, neither the rail
roads nor the Pullman Company can improve the
services by modernizing their equipment, unless at
the same time they place the improved equipment
and service on every train. As a practical operating
problem, this would prevent improvement and would
put a stop to all progress.
— 76—
III.
The order is without rational basis, and contra
venes (a) the due process clause and (b) the equal
protection clause of the 14th Amendment of the
United States Constitution.
(In reply to Appellants’ Point III, Brief, p. 70.)
The concluding statement in the district court’s
Finding No. 7 (ante, p. 14) has not been effec
tively challenged. The Court said: “ In view of the
Pullman Company’s experience, extending over a
long period of years, there is no reasonable basis for
a finding contrary to the facts stated in this Finding
No. 7.” (R. 368.) The Court’s Finding No. 7 and
the order outlawing the porters-in-charge are ut
terly irreconcilable. Unless the Court’s findings
should be overturned, the conclusion is inescapable
that the Commission’s order is without rational
basis. If so, the order contravenes the due process
clause of the 14th Amendment as to the original
plaintiffs, The Pullman Company in particular, and
the equal protection and due process clauses as to
the intervening plaintiffs, the porters. Since the two
points are supported by a common group of facts, to
separate them completely in argument would in
volve repetition.
A. From the standpoint of The Pullman Com
pany and the railroads, the order represents arbi
trary action, in that, as found by the district court,
there is no need of an additional employee of The
Pullman Company on the single Pullman car lines.
The facts in support of the court’s Finding No. 7 to
that effect are fully set forth, ante, pp. 20, 22, 33-34.
•77—
The contention that the order may be sustained on
the assumption that the Pullman porter, being a
negro, is incapable of successfully policing the car,
is also devoid of merit.
The railroads and The Pullman Company recog
nize that in so far as the duty devolves upon the em
ployes on the train to furnish reasonable protection
the responsibility is primarily that of the railroad
company. If the railroad company has the respon
sibility, some choice must be left with that company
as to how it shall be discharged. Assuming that the
legislature may prescribe certain minimum require
ments looking to the performance of the company’s
duties in that respect (as, for example, requiring
a minimum train crew, including a conductor or
head official), this is far from saying that the Com
mission may supplement these provisions by com
pelling the railroad company to place one of the cars
on the train in charge of an employee, not of the
railroad company, but of The Pullman Company.
If the train is not being properly policed, and
additional regulations are needed, then, if the re
sponsibility is to be left with the railroad company,
the most that the Commission could do (assuming
delegated power to prescribe reasonable and appro
priate regulations) would be to require the railroad
company to conform to proper standards or, if need
e, to furnish an additional employee on the train
for the purpose.
The Commission’s order is sought now to be
sustained on an entirely different theory. Ap
pellants seek to uphold it as an exercise by the
ommission of the power to prevent “ unjust dis-
.7 8 -
crimination/’ as defined by statute. Nowhere is it
contended in the appellants’ argument that the
Commission has the power to supplement the Full
Crew Statute by requiring the railroads to furnish
additional members of the train crew on these
shorter trains, in the interest of the safety of
the passengers. And yet that this is what the
Commission has professed to do is plainly shown
by the various findings in the order itself. The in
validity of the order is exposed by the Commission’s
effort to legislate in a field and for a purpose not
within the scope of the Commission’s powers. “ In
short, we believe that the orders in question are un
reasonable and void as to plaintiffs because issued
in the attempted exercise, not of delegated, but of
usurped powers.” McMillan v. Railroad Commis
sion, 51 Fed. (2d) 400, 405, per Judge Hutcheson
for district court.
Indeed, the order as a whole exhibits its own in
firmities. Its very professions condemn it as being
beyond the reach of the Commission’s legitimate
powers. The self-interpretation contained in the
order reveals the purpose of the Commission to
accomplish that which is forbidden. Although avow
edly issued to prevent unjust discrimination, it is
also confessedly issued for other purposes beyond
the scope o f the Commission’s powers. Such pro
fessions reveal not only the illegal purposes but the
necessarily illegal effect and operation of the order.
Brimmer v. Rebman, 138 U. S. 78, 83-84 (1891;
unanimous opinion by Justice Harlan).
“ Any pretense or masquerading will be disre
garded, and the true purpose o f a statute ascer-
-7 9 -
tained.” Smith v. St. L. S. W. Ry. Co., 181 U. S.
248, 257 (1900), citing Chy Lung v. Freeman, 92
U. S. 275, and the leading case of Henderson v.
Mayor of New York, 92 U. S. 259. The order “ will
not be saved by name or form.” Mr. Justice Holmes
in G. H. & S. A. Ry. Co. v. Texas, 210 U. S. 217, 227.
In principle, the rule was applied in Minnesota v.
Barber, 136 U. S. 313, as is shown by the statement
made in the full paragraph on page 328 in the
unanimous opinion by Mr. Justice Harlan. Similar
reasoning was employed to expose the invalidity of
the order of the Interstate Commerce Commission
that was condemned by the Court in the unanimous
opinion of Chief Justice White in Southern Pacific
Co. v. Interstate Commerce Commission, 219 U. S.
433. There, it was made plain that an order emanat
ing professedly from the Commission’s rate making
authority was not actually exerted for that purpose.
The Court held that the nature and character of the
order was such that, although on its face it appeared
to be a rate order, the power actually exerted by
the Commission was not a rate making power. In
short, while it pretended to be, it was not, a bona
fide rate order. The Court said that, although por
tions of the record indicated that rate matters
had been considered, “we think when the opin
ion is considered as a whole in the light of the
condition of the record to which we have re
ferred it clearly results that it was based upon
the belief by the Commission that it had the
right under the law to protect the lumber interests
of the Willamette Valley from the consequences
— 80-
which it was deemed would arise from a change of
the rate, even if that change was from an unrea
sonably low rate which had prevailed for some
time to a just and reasonable charge for the service
rendered for the future.” (At p. 449.)
The Court will observe that it is not the purpose
of this order to require a Pullman conductor to re
main constantly on every Pullman car in the train.
It is the purpose of the order to require one Pullman
conductor on the train, regardless of the number of
cars. Reference in the order to the 17 runs affected
by the order makes this plain. The record shows
without dispute that the longer trains, carrying
as many as 8 Pullman cars (R. 143, 284), are com
monly operated with one Pullman conductor. The
order presupposes that such service is satisfactory.
The order would leave one conductor on the heavy,
8 Pullman car trains, and would require one on the
light, single Pullman car trains; whereas the court
has found, and the facts show, that one employe is
all that is needed on the latter.
B. I f it be supposed that the legislature has the
power of prescribing the number and qualification
of employees on a railroad train, neither the Legis
lature nor its agent can forbid the Company to em
ploy a man on account of his race. It is obvious that
in a constitutional sense the fitness of the porters
to have charge of the Pullman car, under the super
vision of the railroad conductor, is conclusively de
termined by considerations wholly apart from race.
I f in point of training, intelligence, and character
the man satisfies reasonable standards, the fact that
his race does not render him ineligible has been con-
— 81—
clusively determined by the 14th Amendment, any
finding by the legislature or its agent to the contrary
notwithstanding. Yick Wo v. Hopkins, 118 U. S.
356 (1886).
The arbitrary effect of the Commission’s order is
direct and unavoidable: Interpreting the holding of
the Court in Yick Wo v. Hopkins, a great jurist has
said that “ There the vice in the ordinance was not
‘the consequence of adventitious circumstances.’
People ex rel. Alpha Portland Cement Co. v. Knapp,
230 N. Y. 48, 58, 129 N. E. 202. Its prohibitions
had been cunningly framed to reach a single class.
Discrimination was its very purpose. No proc
ess that was valid could ever be issued under it.” *
So here the order has been “ framed to reach a single
class,” but the prohibition of the class, instead of
being cunningly hidden, lies plainly exposed on the
face of the order, its findings included. This order
says, not merely in its implications, but in words,
that the negroes are not equal to the whites and that,
in consequence, they are not entitled to receive equal
treatment. Being legislative in its effect, the order
stands condemned by the 14th Amendment.
The concluding paragraphs of the Commission’s
order (R. 52-53) do not in so many words prescribe
t at the Pullman conductor called for must be a
white man, but the recitals in the order make it en-
irely clear that the supposed evils to be corrected
consist in permitting a negro to perform work other
an what the Commission terms janitor service on
e car. The order must be construed and inter-
232J>jd v ol0’ concurring opinion in People v. Atwell,
W N - Y- 96> 133 N. E. 364, 367 (1921).
— 82—
preted in its entirety, and when so construed there
can remain no doubt that the meaning and intent of
the order is to require that every train carrying a
Pullman car shall be accompanied by a white Pull
man conductor.
Consequently, if the order should be allowed to
stand, the railroads and the Pullman Company
would be compelled either to add the Pullman con
ductors or to withdraw the one-car lines from serv
ice. The former would involve a heavy annual ex
pense, $5,000.00 of which would be contributed by
the porters-in-charge in the form of the extra pay
now allowed them for service in that capacity (R.
145-146). And in the latter alternative a large num
ber of porters, and other equipment service em
ployees, would be thrown out of employment entire
ly. (R. 187.) And this is to befall the porters, not
in consequence of their want of character, training,
or intelligence as individuals, but because they are
negroes and not white men.
Experience has removed the question from the
realm of debate: The assumption by the Commis
sion that a white Pullman conductor is indis
pensable to maintaining order or keeping the
peace in the Pullman car is overthrown by the
facts. The test is different from what it would
have been 50 years ago. Even if it be assumed
that then a regulation of this kind would have been
supportable, resting upon prophecy and speculation
as to what might happen, such assumption is not al
lowable now when prophecy has been supplanted by
experience. Events always control and override
- 8 3 -
predictions where the two are in conflict. In Chastle-
ton Corp. v. Sinclair, 264 U. S. 543, 547, Mr. Justice
Holmes said: “And still more obviously so far as this
declaration looks to the future it can be no more than
prophecy and is liable to be controlled by events.”
See, accord: Municipal Gas Co. v. Commission, 225
N. Y. 89, 121 N. E. 772 (1919)— unanimous opin
ion by Judge Cardozo; Van Dyke v. Geary, 244
U. S. 39, 48 (1917), per Justice Brandeis; Los
Angeles Gas, etp. Co. v. Railroad Commission, 289
U. S. 287, 305; Consolidated Water Co. of Utica
v. Maltbie, 3 N. Y. S. 799, 167 Misc. 269. Here,
the record without dispute supports the find
ings of the District Court that the experience
of the company in operating according to this
method for more than 50 years in the United
States and for more than 20 years in Texas, and in
other places in the South (e. g., on trains running
in and out of New Orleans) for approximately 25
years, renders it unnecessary to rely upon specula
tion. The experimental period is over, and we now
know that the so-called dangers incident to this
method of operating are imagined and not sub
stantial.
The rule announced by this Court, per Mr. Justice
Cardozo, in West Ohio Gas Co. v. Commission, 294
U. S. 79, 82, is apposite:
‘We have said of an attempt by a utility to give
prophecy the first place and experience the second
st elaborate calculations which are at war with
- 84-
realities are of no avail.’ Lindheimer v. Illinois Bell
Telephone Co., 292 U. S. 161, 164. We say the same
of a like attempt by officers of government prescrib
ing rates to be effective in years when experience
has spoken. A forecast gives us one rate. A survey
gives another. To prefer the forecast to the survey
is an arbitrary judgment.”
As suggested from the bench during the trial
(R. 262), the facts relevant to traveling in Pullman
cars in this country are generally known, and conse
quently we take it that they are within judicial cog
nizance. If it be argued, however, that, contrary
to the record and the findings of the District Court,
conditions are peculiar in Texas, calling for some
kind of special treatment, we submit that the Court
would not be warranted in overturning the findings
of the local judges who heard the evidence and had
the responsibility of determining the credibility of
the witnesses.
In Laurel Hill Cemetery v. San Francisco, 216
U. S. 358, 365, Mr. Justice Holmes observed “the
propriety o f deferring a good deal to the tribunals
on the spot” in determining the validity of police
regulations challenged as being unreasonable or ar
bitrary. This is true for the reasons stated by Mr.
Justice Brandeis in Nashville, C. & St. L. R'i u
Walters, 294 U. S. 405, 433: “ When the scope of the
police power is in question the special knowle ge
of local conditions possessed by the state tribunals
may be of great weight. Compare Welch v. Swas
— 85—
214 U. S. 91, 105, 106; Laurel HiU Cemetery v. San
Francisco, 216 U. S. 358, 365.”
The local judges not only have the advantage of
interpreting the evidence in the light of the domes
tic background but in a case of this kind this is of
less importance than is their superior opportunity
of weighing the evidence—of determining credibil
ity. See cases cited, ante, page 15.
The statements of the disinterested witnesses who
testified for the defendants (appellants) to the ef
fect that they would prefer to have a Pullman con
ductor (ante, p. 23) or that they would feel safer
with a Pullman conductor, and the statement of one
of the ladies that she would not permit her children
to ride and would herself prefer not to ride on a Pull
man car without a white conductor (R. 335-336),
proved nothing in a legal sense. Such whims, and
expressions of personal preferences and casual opin
ions furnish no legal support for the order. “ That
the inhabitants of a place demand greater facilities
than they have is not at all conclusive as to the rea
sonableness of their demand for something more.”
Atlantic Coast Line v. Wharton, 207 U. S. 328, 335.
The district court has found (ante, p. 13), and
the facts, without dispute, support the finding, that
the porters-in-charge as a group, including the in
tervener-plaintiffs, are competent and that they
have rendered satisfactory service over a long term
of years. (Ante, pp. 15-22.)
. fancied objections to the porters as contained
m the findings incorporated in the challenged order
are ascribed to them as a class because of their color.
— 86—
The fact inquiry involved in the legislative de
termination that race or color renders them incom
petent for the positions now held by them has been
settled the other way by the 14th Amendment. The
legislative process has to proceed on that basis as an
accepted fact. The vice inhering in this order is not
essentially different from the one that worked con
demnation of the ordinance in Chaires v. Atlanta,
164 Ga. 755, 139 S. E. 559, 55 A. L. R. 240. There
it was said that the operation of the ordinance would
in its enforcement prevent all colored men, diseased
or not, from serving white children as barbers. Here
the operation of the order would in its enforcement
prevent all of the porters, competent or not, from
serving as porters-in-charge. See the apposite case
of Alston v. School Board of City of Norfolk, 112
Fed. (2d) 992 (C.C.A. 4th, 1940); certiorari denied
Oct. 28, 1940, No. 429; and cases there cited. See
also People v. Ringe, 197 N. Y. 143, 90 N. E. 451,
454. The order ignores the “ righteous distinction
between guilt and innocence.” It is arbitrary and
illegal because it imposes its burden “where the evils
are absent as where they are present.” Tyson v.
Banton, 273 U. S. 418, 443.
We submit that the order is without rational
basis; and that it contravenes the due process and
the equal protection clauses of the 14th Amendment,
— 87—
IV.
The order is not rendered invulnerable by the ar
bitrary provision stating that, upon application,
“deviation” from its terms might be allowed, on
undisclosed conditions, if the Commission should
see fit to do so.
(Answer to Point V, Appellants’ Brief, p. 80.)
1. If such “deviation” should be permitted, for
example, as to 16 lines, and refused as to the one
remaining line, The Pullman Company, the inter
veners and the railroad company thus affected
would still be entitled to maintain the action. Es
sentially, The Pullman Company and the porters-
in-charge are the parties most vitally affected.
Since it is not suggested that “deviations” would in
any circumstances be allowed as to all lines, the
necessity for the present action is unavoidable.
In the argument in Appellants’ Brief (p. 82) they
say that the question whether “ deviation” from the
order should be allowed is determinable by traffic
conditions, which vary as to each of the 17 lines. But
they took the opposite position in their answer to the
complaint. Plaintiffs alleged that the absence of
Pullman conductors on the 17 lines was warranted
by the difference in the demands of traffic as be
tween those lines and the heavier trains car
rying several Pullman cars. (Complaint, Par. 25,
R. 21-22.) Replying, defendants specifically denied
that the need for a Pullman conductor on a given
train is determined by operating conditions affecting
at train, including the volume o f traffic, the length
— 88—
of the train with the consequent demands upon the
time and services o f the railroad and Pullman em
ployees, . . . (R. 69-70). And that “ In this con
nection defendants show that other factors than
those mentioned in said paragraph enter into the
need of a Pullman conductor . . . (R. 70). The
“ other factors” were not in that connection stated,
but we may assume that they were stated in the
findings (quoted in part immediately below) con
tained in the challenged order— the factors that, as
viewed by the Commission, rendered the porters in
competent to have charge of the cars in any circum
stances.
2. The order has been twice entered: first, with
out a hearing and, again, after hearing. Following
the hearing the Commission found:
“ (8) * * * there are seventeen separate and dis
tinct operations on the various railroads in Texas
without pullman conductors in charge of pullman
cars. The Commission further finds that all other
runs other than the seventeen operations disclosed
by the evidence, do have a pullman conductor in
charge of the pullman cars; that the failure to have
Pullman conductors on the seventeen operations is
a discrimination against the passengers who ride
on those particular runs in that all other operations
of Pullman cars do have Pullman conductors; * * *
(R. 41-42).
“ (16) The Commission further finds from the
evidence that the porters on Pullman cars are negro
men.
“ (17) * * * if negro porters are placed in charge
of the Pullman cars when the service of a conduc
tor is dispensed with that there is imminent danger
pf insults to the lady passengers on the Pullman
-8 9 -
cars and that such condition exists in the seventeen
operations by the Pullman Company where they do
not use conductors, as hereinabove referred to, and
that the same constitutes an abuse and an undue
and unjust disadvantage and discrimination; . . . ”
(R. 46).
At the time of trial there were 17 runs on which
the single line Pullman car is in charge of a Pull
man conductor. They are the identical lines that
were involved at the Commission hearing and re
ferred to in the Commission’s findings, except that
(a) at the time of the trial, Line 3010, the train
from New Orleans, Louisiana, to Oakland, Califor
nia, was being operated in charge of a porter be
tween Sweetwater and Texico, on the Panhandle
and Santa Fe Railway Co. (R. 56); at the time of
the Commission hearing and also at the time of the
trial, the Pullman car on this train was also being
operated in charge of a porter between Houston
and New Orleans (in Texas between Houston and
Sabine River—See Line 3010, R. 55); (b) at the time
of the trial, Line 3106 (last “ Line,” R. 56) was a
porter-in-charge line, between Amarillo and Den
ver, but at the precise time of the Commission hear
ing this line was in charge of a Pullman conductor,
since at that season, in consequence of the summer
tourist travel between Texas and Colorado, addi
tional sleeping cars were carried on the train. As
a matter of fact, however, this line has been sea
sonally operated in this fashion for a number of
years; that is, in the winter months one of the Pull-
nian cars is dropped off at Amarillo and the con
ductor remains with that car while the other car
proceeds to Denver with the porter in charge. It
■90-
is not claimed that there is anything distinctive
about this line or Line 3010 that would entitle them
to peculiar treatment as distinguished from the
other 15 lines. And if they were out, the case would
still be here as to the others, (c) After the Commis
sion hearing and before the trial, Line 3258 (bot
tom of R. 55) had been discontinued; that is, the
Pullman car had been withdrawn from service. (R.
114.)
The trial began on February 17, 1940, a Satur
day. At noon a recess was taken, and the trial re
sumed on Monday morning, February 19, 1940. (R.
127.) On the convening of court on Monday morn
ing, the court asked for an interpretation of the
provision of the order above referred to, with the
view of determining whether court action was at
that time required. (R. 127-131.) Appellees stated
that they had been to the Commission in respect
of each of the lines excepting two of them and that
they regarded the provision of the order as being
but an additional arbitrary feature. This colloquy
took place:
“Judge Sibley: They were separately presented
to the Commission?
“Mr. Graves: Yes, sir, every one except the two
that have been inaugurated since the hearing.
“Judge Sibley: You say about one or two of these
runs, that they don’t involve anything but inter
state passengers. Was all of that before the Com
mission ?
“Mr. Graves: Yes, sir.
“Judge McMillan: Did they make any order?
“Mr. Graves: No, sir. Exhibit F is a new order
they made after the hearing, and it contains the
broad, sweeping, prohibitory provision in the exact
— 91—
language of the original order they entered with
out notice or hearing.
“Judge Sibley: And then added this opportunity
to come back to the Commission? Is that a single
charter car or something?
“Mr. Graves: I don’t know, Your Honor. (R.
129. )
* *
“Mr. Graves: These are all of the porter in charge
operations in the State of Texas, and we would still
be here with this very bill.
“Judge Sibley: Well, if they mean business, if
they have considered this thing and made their de
cision there isn’t any reason to go over it again. I
was just asking if they had done that.
“Mr. Graves: Yes, sir, they have considered all
of them except the two runs inaugurated since then.
“Judge Sibley: Judge McMillan wants to put it to
you pretty pointedly. He wants to ask you straight
off the bat that as representatives of the Commis
sion whether the Commission regards these matters
as open or whether they regard them settled?” (R.
130. ) (This was addressed to counsel for the
Commission.)
In response, counsel for the Commission, instead
of answering the Court’s question,! undertook to
view the order objectively and, so viewing it, said:
If the Court please, about the only way we can
answer that is in this way, that looking at this or-
er and considering it in the light of the testimony
at was given before the Commission, which we
ave read, it doesn’t seem to me that the order is
cessarily intended to preclude each and every line
01 °Peration in the State of T exas____ ” (R. 130).
Counsel for the Commission then undertook to
s a e m general what was before the Commission
■92—
in the form of evidence and as to questions consid
ered,—a very general statement. (R. 130.) Judge
Sibley then inquired:
“Now, in finding five they say there are seven
teen lines run at present without a conductor, and
that the passengers on them pay the same amount
and don’t get the same service, and they find that
there is a discrimination there. That looks like they
passed on it.
“Mr. Lewis (counsel for the Commission): Yes,
Your Honor, that paragraph does, all right.”
In view of the statements that had been made
by counsel as to what had transpired at the Com
mission hearing we offered in evidence the Commis
sion record:
“Mr. Graves: In connection with the question that
the Court has raised, I will ask counsel if he has a
copy of the transcript, the official transcript of the
record before the Commission?
“Mr. Rotsch: Yes, sir, we have it.
“Mr. Graves: We would like to offer in evidence
this transcript, if the Court please.
“Judge Sibley: That is a whole lot of evidence.
Is there any result coming from that? Of course,
we ought to test what they did by what they or
dered. (Counsel for the Commission made no com
ment.)
“Mr. Graves: That has been our contention, Your
Honor.
“Judge Sibley: You all don’t agree about it We
are killing time. Go ahead with the evidence.” (k.
131.)
At another stage of the hearing we offered m
evidence, for limited purposes, the Commission rec-
— 93—
prd and, on objection by defendants (appellants)
that it was irrelevant and immaterial, it was ex
cluded. (R. 354.)
We submit that when the Court called upon the
Commission at the trial to ascertain whether it
meant business as to the 17 lines then involved, the
Commission was not entitled to answer by viewing
the order in an objective sense. The Commission
and the Attorney General were defendants in the
action and, as such, their response was evasive.
Moreover, the complaint (par. 34, R. 27) charged,
and the answer (R. 72) admitted, that in the ab
sence of an injunction defendants would endeavor
to subject the plaintiffs to heavy penalties if they
should attempt to operate the Pullman cars without
a Pullman conductor.
3. Since unjust discrimination is the sole statu
tory basis relied upon, and the failure to furnish
the conductor on any train constitutes the of
fense (or else none is denounced), the Commission
has no power to grant exemptions or “deviations”
that would amount to suspending the law. So, if it
be assumed that the Commission has the power, at
its discretion, on unnamed conditions, to suspend
the requirement, this implies that the statutory
offense of unjust discrimination is not committed
at all by the mere act of not having a Pullman con
ductor on the train. If, as the Commission asserts
under its Point II, the failure to provide a Pullman
conductor constitutes a violation of the penal stat
ute, Art. 6474, then manifestly the Commission has
no power to pardon the offender.
And when the Commission at once affirms (a)
that by failing to furnish a conductor on any train
— 94—
the statutory offense of unjust discrimination is
committed, and (b) that the Commission has the
power to immunize some of the railroads while
holding others responsible to the law, the Commis
sion creates this dilemma : either the act condemned
by the Commission as an offense is not such, or
the Commission’s professed willingness to consider
granting exemptions in individual cases is an empty
gesture. And since, as already shown, the viola
tion of the order is attended with heavy penalties,
the so-called exemption provision, even though it is
an exemption to be allowed at the Commission’s
option, renders nugatory the entire order. There
is no basis for sustaining the order at all unless,
as a matter of law, unjust discrimination is inev
itably committed whenever the conductor is left off
of any train. Unless this is an offense, none has
been named. But the admission by the Commission
that, in undisclosed circumstances, to leave the con
ductor off of a given train is not an offense, denudes
the defined offense qf the only gravamen supplied
by the definition.
If, as stated by appellants in their Point V (Brief,
p. 80), “possibly some of the plaintiffs were entitled
to an injunction,” or that possibly some of the plain
tiffs were entitled to “a modification of the order,”
this can only mean that it is not an offense under
some circumstances to operate a Pullman car with
out a Pullman conductor. The order forbids the
operation of a Pullman car in any circumstances
without a Pullman conductor. To save the order
the Court can not modify it. The order must stand
or fall as written. And since the Commission has
admitted, both in the order and in its brief (Point
■95—
V ), that in undefined circumstances unnamed indi
viduals or companies may be entitled to alleviation
from the order, this is an effective admission that
as a penal order it cannot stand. The order pro
vides that, regardless of circumstances, a conduc
tor shall be furnished. If, as is asserted by the Com
mission, there are circumstances in which it is not
an offense to operate the train without a Pullman
conductor, let the circumstances be revealed. Other
wise, we have regulation by caprice and not by law.
We are not dealing with a regulation applying to
subject-matter the very nature of which requires
exceptions in order that the regulation may be rea
sonable in its application, or where exceptions are
needed in order to carry out fully the purpose of the
regulation. Compare Gorieb v. Fox, 274 U. S. 603,
607. According to the express findings of the Com
mission, the evils at which the regulation is directed
exist in the case of each and all of the 17 lines. The
purported evils inhere, not in individual instances,
but in the class. Hence, it is plain that any excep
tions that might be granted under this “ deviation”
clause, in favor of members of the class, would be
in the nature of mere personal and therefore unsup-
portable exemptions.
V.
Answer to errors specified “to be urged” but not
otherwise urged.
1. Error No. 1(a), (Appellants’ Brief, p. 17):
In so far as this point has been argued, it has been
answered by our Point I B (ante, p. 51). In addi-
— 96—
tion, it is devoid of merit since (a) there was no
“plea to the jurisdiction of the court” ; (b) there was
no motion to dismiss on the ground stated; (c) there
was no motion challenging jurisdiction in equity
on the ground that the contracts as pleaded were
illegal and void because they represented an at
tempt on the part of the railroads to delegate a
part of their charter powers to a foreign corpora
tion; (d) indeed, there was no motion or pleading
of any kind presenting the defense stated in Er
ror 1(a).
2. Error No. 1(b), (Appellants’ Brief, p. 17):
This error was not presented by any motion or plead
ing. The complaint was in no manner challenged on
the grounds stated. Even if the point had been raised,
it would have presented nothing more than a basis
for requiring a more particular statement in the
complaint; and no motion for greater particularity
in that respect was made.
3. Errors Nos. 2 and 3 (Appellants’ Brief, p. 18)
have been answered under our Point IA (ante, p.
47).
4. Error No. 4 (Appellants’ Brief, p. 19) has been
answered under our Point II (ante, p. 66).
5. Error No. 5 (Appellants’ Brief, p. 19) has been
answered by our Point III (ante, p. 76).
6. Error No. 6 (Appellants’ Brief, p. 19) com
plaining of the district court’s ruling that the rate
features of the order are invalid because of want
of notice—has been factually answered by the state
ments from the record under the head “2. Facts
Touching the Rate Features of the Challenged Or
der” (ante, p. 10).
•97—
Apparently the point has been abandoned. No
statements from the record appear in Appellants’
Brief, purporting to support the point. Obviously
where the Commission’s jurisdiction to promulgate
a rate order is conditioned upon notice, the Com
mission cannot conclude that question by reciting
that notice was given. Where, as here, the notice
as given is in the record (R. 34) and there is no
dispute about it, and where it says nothing about
rate matters, the Commission’s recital that notice
was given is not controlling. When we offered the
Commission record, the last time, Judge Sibley
stated: “What sort of hearing there was would be
primarily fixed by the notice required. You have
got the notice here.” (R. 355.)
7. Error No. 7 (Appellants’ Brief, p. 20); (This
point has apparently been abandoned by the Com
mission, although it is presented by the Conductors
in their Point No. 5, p. 27). The assertion that “this
was an order authorized by said Code (Sanitary
Code) and the statutes in regard to the enforce
ment thereof” has not been made in an assigned er
ror (R. 373); and, we submit, is patently unsubstan
tial. The order is not, and does not purport to
be, an exertion of powers so conferred, although
the conductors contend that the Commission’s
Finding No. 13(c) is so supported. That find
ing concludes: “ that the Pullman conductor is spe
cifically charged with the responsibility of regulat
ing the same (heating and air-conditioning) and
that he receives special instructions in the opera
tion of the same.” (R. 44; Conductors’ Brief, p. 29.)
The finding, if it means that the porter-in-eharge
is incapable of attending to such matters, has been
■98—
.overthrown by Finding No. 7 of the district court
(ante, p. 13). As to air conditioning specifically,
see “ Porter and Air Conditioning” (ante, p. 31).
8. The proposition contained in Error No. 8 (Ap
pellants’ Brief, p. 21), is an abstract one, since
neither The Pullman Company nor the railroad
companies had notice that rates would be consid
ered at the Commission hearing. Moreover, the
Commission sought to prescribe and regulate sleep
ing car fares in 1907. The company litigated the
question and it was settled adversely to the Com
mission by the United States Circuit Court of Ap
peals, Fifth Circuit, in 1908, and the judgment be
came final. No written opinion was filed and ap
parently the case was not reported. We have
appended, infra, p. 114, a report of the litigation
as contained in the records of the Attorney Gen
eral’s Office. Since then the Legislature has not
enlarged the Commission’s rate powers so as to in
clude sleeping car fares, but the Codes of 1911 and
1925 have substantially readopted the statutes
touching those matters as they existed in 1907.
9. Errors Nos. 9 (Appellants’ Brief, p. 21) and
14 to 18, incl. (Brief, pp. 24-26), present in varying
forms the contention argued by appellants under
their Point II, and has been answered by us, under
our Point II, (ante, p. 66.)
10. Errors Nos. 10 and 19 (Appellants’ Brief,
pp. 22 and 27) present, in effect, the contention
(urged in Appellants’ Brief, p. 42) that we are not
entitled to test even the constitutional questions by
judicial trial but that all that the Court can do is to
review the Commission record and inquire whether
any substantial evidence was heard by the Commis
sion supporting its order. This contention we have
answered under our Point I (Sub. C ), {ante, p. 58).
Despite the concluding assertion in Error 19 (Brief,
p. 27) the complaint did allege interference with
interstate commerce and the taking of plaintiffs’
property without due process of law. See, for ex
ample, paragraphs 36 c, d, e, h, i, and j (R. 28-30).
In presenting the same contention in abstract form,
the Conductors say (Brief, p. 24): “It is suggested
that many of the same witnesses who appeared be
fore the Railroad Commission likewise appeared be
fore the Trial Court and thus substantially the same
testimony was heard. Based upon such testimony the
Trial Court arrived at a different conclusion to the
administrative body and simply reversed the conclu
sions of the Railroad Commission.” We do not un
derstand the import of such statements. The record
affirmatively shows that none of the 10 Pullman
porters who testified at the trial testified at the Rail
road Commission hearing. In fact, the record shows
that they had no notice of the hearing and were not
present. (R. 353.) It was affirmatively shown
that some of the witnesses at the trial did testify
at the Commission hearing. In the absence of the
Commission record, we are not at liberty to say
more. And, as elsewhere shown, we are not re
sponsible for the fact that the Commission record
is not here.
11. Error No. 11 (Appellants’ Brief, p. 22) coim
plains, ineffectively, o f the District Court’s Finding
No. 7. The point has been briefed by appellants, in
so far as briefed at all, under their Point III (Ap-
— 100—
pellants’ Brief, p. 70). As elsewhere shown herein,
District Court Finding No. 7 has been insufficiently
challenged since (a) it has not been charged in any
assignment, and the evidence has not been pointed
out showing, that the finding is clearly erroneous.
See discussion, ante, pp. 14-15; (b) we have shown
{ante, p. 41) that the finding not only is abundant
ly supported by the record, but that no other find
ing was permissible under the facts. It is apparent
that appellants have staked their case upon the
proposition that the trial in the district court, even
where constitutional questions are drawn in issue,
is confined to the single inquiry, whether substan
tial evidence was heard by the Commission in sup
port of its order. This proposition being groundless,
the appellants simply have no assignment of error
effectively challenging the findings of the district
court on the controlling fact questions in the case.
12. Error No. 12 (Appellants’ Brief, p. 23), as
serting that the plaintiffs’ case is grounded in mo
nopolistic contracts and that therefore plaintiffs
have no standing in a court of equity, is an after
thought. (a) It was not assigned as error in the
assignments of error (R. 373). Indeed, apparently
the point has been abandoned and will not be
pressed, (b) No motion to dismiss the complaint
was made on the ground asserted in Error No. 12.
(c) It will be observed that the ground asserted is
that the motions to dismiss should have been grant
ed. It is not shown and cannot be shown that it
appears from the complaint that the contracts be
tween the railroads and The Pullman Company are
void and illegal, (d) The question of the validity of
■101—
the contracts was not drawn in issue at the trial
in any way. The case was tried on the op
posite assumption, (e) The plaintiffs’ cause of action
is not predicated on the contracts in the sense that
the action is a suit to enforce the contracts. The con
tracts were brought into the case by the plaintiffs for
the purpose of showing that The Pullman Company
and not merely the railroad companies are directly
affected by the challenged order. Wherefore, it was
proper to join all of the plaintiffs in a single action.
This will be further noticed in reply to Appellants’
Error 13, next below.
13. Error No. 13 (Appellants’ Brief, p. 23 ):
Appellants assert that the court erred in holding
that the railroads are necessary and proper parties
to the action “because such a conclusion is contrary
to the evidence and testimony in this case and con
trary to law.” The point has not been briefed and
we assume that it has been abandoned. In any
case, it is without merit. The relation between The
Pullman Company and the railroads was established
without dispute. The order is directed against the
railroads but it compels the railroads to require a
Pullman conductor on every train carrying a sleep
ing car. Appellants’ point is effectively answered
by the District Court’s second conclusion of law and
the authorities supporting it as follows:
“Since the order is directed in terms against the
railroads and not against The Pullman Company,
the only way in which The Pullman Company can
obtain effective relief is by means o f an injunction
prohibiting enforcement of the challenged orders
against the railroads. For this reason and for the
further reason that the order undertakes to deter-
- 1 0 2 -
mine, and interferes with, the rights of The Pull
man Company in its contracts with the railroads,
the railroads are necessary and proper parties to
this action. Rule 19, Federal Rules of Civil Proce
dure; Niles-Bement Co. v. Iron Moulders Union, 254
U, S. 77, 81-82; see also Troy v. Whitehead, 222
U. S. 39, 41; Ducker v. Butler, 104 Fed. (2d) 236,
238 (App. D. C. 1939).” (R. 368.)
14. We assume that Errors Nos. 20 and 21 chal
lenging the jurisdiction of the district court to de
cide the State question where, as here, jurisdiction
rests, not upon diversity, but upon Federal questions,
has been abandoned. It has not been briefed and is
totally devoid of merit. Jurisdiction having attached
on substantial constitutional grounds, the United
States Courts have jurisdiction to decide every ques
tion, local and federal, properly arising in the case.
Siler v. L. & N. R. R. Co., 213 U. S. 175, 190, 191;
L. & N. v. Garrett, 231 U. S. 298, 303; Waggoner
Estate v. Wichita County, 273 U. S. 113, 116
(1926). We deem it unnecessary to accumulate the
cases so holding.
VI.
Additional reply to points in Conductors’ Brief.
(a) The Conductors’ Point 1 (their Brief, p. 2)
stating that “ the only damage alleged or proved”
was that the plaintiffs “would be prevented from
collecting illegal, unauthorized and extortionate
tolls and fares,” is based upon a misapprehension
of the record. Factually it is completely answered
by the District Court’s Findings of Fact Nos. 2 and 3.
— 103-
(R. 366; stated in full, ante, p. 2.) Both of the
findings are unchallenged by any assignment of er
ror or any specification of error.
The argument presented by the Conductors under
their Point 1 is wholly unrelated to the point, except
a portion on pages 8 to 10, already answered in our
reply to Appellants’ Point 1(a), ante, p. 47.
(b) The Conductors’ Point 2 (their Brief, p. 11)
is not within the scope of any asignment of error
or specification of error. Nevertheless it has been
answered at ante, pp. 10-13.
We do not question the power of the Railroad
Commission to prescribe, within statutory limits,
railroad rates. But when we appeared in response
to the notice issued by the Commission we did not
appear under a notice indicating that rates would
be considered; and there is nothing in the record
to show that any of the plaintiffs waived their right
to the statutory ten days’ notice (Article 6449) that
conditions the Commission’s rate making powers.
(c) From the abstract proposition of law stated
in the Conductors’ Point 3 (their Brief, p. 21), we
have no occasion to dissent. In so far as there is
substance in the argument presented under the
point, we have answered it in reply to the Appel
lants’ Point 1(b) ante, p. 51.
(d) We find it unnecessary to combat the ab
stract statement made in Conductors’ Point 4 (their
Brief, p. 24), but the point is inapplicable. In so
far as the argument presented under it seeks to
apply the proposition to this case, we have answered
It in reply to Appellants’ Point 1(c), beginning
— 104—
ante, p. 58. The Conductors’ last paragraph of
the argument under that point (p. 26), wholly un
related to the point, has been answered in our reply
to Appellants’ Point V, beginning ante, p. 87.
(e) The Conductors’ Point 5, in so far as it in
vokes the Public Health Sanitary Code, has been
answered by us {ante, p. 97) in reply to appel
lants’ unargued specification of error No. 7.
We have no occasion to dissent from the Conduc
tors’ diagnosis of the challenged order as being an
attempted “exercise of the police power of the
State.” To that extent the Conductors are aligned
with us and against the Commission. The Com
mission seeks to uphold the order by ascribing it
to the Commission’s authority to prevent “unjust
discrimination,” as defined by Article 6474. The
order, its findings included, bears irrefutable inter
nal evidences o f the Commission’s design to enact
a police regulation—in the interest of what the Com
mission has repeatedly in its findings referred to
as the safety and convenience of the passengers.
The Attorney General, properly recognizing that the
Commission has no such power, has presented no
such point.
The contention thus advanced by the Conductors
bespeaks a want o f confidence in the stand taken by
the Commission in defending its order. Such conten
tion is answered by the court’s Finding No. 7, as to
which there is no effective assignment of error and
no effective point of argument in the brief of either
the Commission or the Conductors.
(f) The Conductors’ Point 6 is not within the
scope o f any assignment of error, and the argument
— 105—
under it touches none of the issues in the case. The
constitutional attack upon the order is not condi
tioned upon the unreasonableness of the cost of
complying with it. The district court’s findings,
however, that to comply with the order will cost The
Pullman Company $25,000.00 per annum after al
lowing all offsets; and that it will cost each of the
porters-in-charge $13.50 per month during their ac
tive service, and a related amount during their re
tirement (Findings 2 and 3, R. 366), have not been
challenged.
Conclusion
The order is not within the scope of powers dele
gated to the Railroad Commission; and consequently
is violative of State law. It is without rational
basis, and contravenes the 14th Amendment to the
National Constitution. We therefore respectfully
submit that the judgment of the district court ap
pealed from should be affirmed.
Respectfully submitted,
L o w e l l M . G r e e n l a w ,
H e r b e r t S . A n d e r s o n ,
C h a r l e s L . B l a c k ,
I r e l a n d G r a v e s ,
Attorneys for The Pullman Company;
C l a u d e P o l l a r d ,
Attorney for all Railroad Companies
and Trustees, Appellees;
I r e l a n d G r a v e s ,
Attorney for Intervener Appellees.
January 14, 1941.
APPENDIX
Art. 6380—Full Crew.
No railroad company or receiver of any railroad
company doing business in this State shall run over
its road, or part of its road, outside of the yard
limits:
1. Any passenger train with less than a full pas
senger crew consisting of four persons: one engi
neer, one fireman, one conductor and one brakeman.
2. Any freight train, gravel train or construc
tion train with less than a full crew consisting of
five persons: one engineer, one fireman, one conduc
tor and two brakemen.
3. Any light engine without a full train crew
consisting of three persons: one engineer, one fire
man and one conductor.
4. The provisions of this article shall not apply
to nor include any railroad company or receiver
thereof, of any line of railroad in this State, less
than twenty miles in length; and nothing in subdivi
sions one and two hereof shall apply in case of dis
ability of one or more of any train crew while out on
the road between division terminals, or to switching
crews in charge of yard engines, or which may be
required to push trains out of the yard limits.
Any such company or receiver which shall violate
any provision of this article shall be liable to this
State for a penalty of not less than one hundred nor
more than one thousand dollars for each offense.
Suit for such penalty shall be brought in Travis
County or in any county in or through which such
line of railroad may run, by the Attorney General,
or under his direction, or by the county or district
attorney in any county in or through which such
railroad may be operated. Such suits shall be sub
ject to the provisions of Article 6477.
- 1 0 7 -
Art. 6453—Judicial Review. (See Appellants’ Brief,
pp. 94-95).
Art. 6454—Burden of Proof.
The burden of proof shall rest upon the plaintiff
to show the rates, regulations, orders, classifications,
acts or charges complained of are unreasonable and
unjust to it or them.
Art. 6474—Unjust Discrimination.
Unjust discrimination is hereby prohibited and
the following acts or either of them shall constitute
unjust discrimination.
_ 1. If any railroad subject hereto, directly or in
directly, or by any special rate, rebate, drawback or
other device, shall charge, demand, collect or receive
from any person, firm or corporation a greater or
less compensation for any service rendered or to be
rendered by it than it charges, demands, collects or
receives from any other person, firm or corporation
for doing a like and contemporaneous service, or
shall give any undue or unreasonable preference or
advantage to any particular person, firm or corpora
tion, or locality, or to subject any particular descrip
tion of traffic to any undue or unreasonable preju
dice, delay or disadvantage in any respect whatso
ever.
2. If any railroad company shall fail or refuse,
under regulations prescribed by the Commission, to
receive and transport without delay or discrimina
tion the passengers, tonnage and cars, loaded or
empty, of any connecting line of railroad, and every
railroad which shall, under such regulations as the
Commission ̂may prescribe, fail or refuse to trans
port and deliver without delay or discrimination any
passengers, tonnage or cars, loaded or empty, des
tined to any point on or over the line of any connect-
■108—
ing line of railroad; provided perishable freights of
all kinds and live stock shall have precedence of ship
ment.
3. I f any railroad company shall charge or re
ceive any greater compensation in the aggregate for
the transportation of like kind of property or pas
sengers for the shorter line than for a longer dis
tance over the same line; provided, that upon appli
cation to the Commission any railroad may in special
cases, to prevent manifest injury, be authorized by
the Commission to charge less for longer than for
shorter distances for transporting persons and prop
erty, and the Commission shall, from time to time,
prescribe the extent to which such designated rail
road may be relieved from the operation of this pro
vision. No injustice shall be imposed upon any citi
zen at intermediate points. Nothing herein shall be
so construed as to prevent the Commission from
making what are known as “ group rates” on any
line or lines of railroad in this State.
4. Penalty.— Any railroad company guilty of un
just discrimination as hereinbefore defined shall for
each offense pay to the State of Texas a penalty of
not less than five hundred dollars nor more than five
thousand dollars.
5. Exceptions.— Nothing herein shall prevent the
carriage, storage or handling of freight free or at
reduced rates, or to prevent railroads from giving
free transportation or reduced transportation under
such circumstances and to such persons as the law
of this State may permit or allow.
This is a reenactment without substantial change
of Sec. 15 of the original Railroad Commission Act
(Acts of 22nd Leg., 1891, pp. 55, 62; 10 Gammel’s
Laws, pp. 57, 64). It was first reenacted as Art.
4574, R. C. S. of 1895, then as Art. 6670, R. C. S.
1911.
1 0 9 -
Art. 6476— Penalty Not Otherwise Provided.
If any railway company doing business in this
State shall violate any provision of this title, or shall
do any act herein prohibited, or shall fail or refuse
to perform any duty enjoined upon it for which a
penalty has not been provided by law or shall fail,
neglect or refuse to obey any lawful requirement,
order, judgment or decree made by the Commission,
for every such act of violation it shall pay to the
State of Texas a penalty of not more than five
thousand dollors.
Art. 6477—Suits for Penalty.
All of the penalties herein provided, except as
provided in Article 6475, recoverable by the State
shall be recovered and suits thereon shall be brought
by the Attorney General or under his direction in
the name of the State of Texas, in Travis county, or
in any county into or through which such railroad
may run; and the attorney bringing such suit shall
receive a fee to be paid by the State of fifty dollars
for each penalty recovered and collected by him, and
ten per cent of the amount collected. In all suits
arising under this chapter, the rules of evidence
shall be the same as in ordinary civil actions, except
as otherwise herein provided. All fines and penalties
recovered by the State under this chapter shall be
paid into the State Treasury; provided suits brought
under Title 66 for recovery of penalties, may be
brought in any county:
1. Where an act violative of any provision there
of is committed.
2. Where such company or receiver has an agent
or representative.
. 3. Where the principal office of such company
is situated, or such receiver or receivers, or either,
reside. One-half of all moneys collected under the
- 110-
provisions of said title, less the commission and ex
penses allowed by law, shall be paid into the State
Treasury; the remainder thereof shall be paid into
the treasury of the county where such suit or suits
may be maintained and constitute a part of the jury
fund of such county.
Art. 7063— Sleeping, Palace or Dining Car Com
panies.
Every sleeping car company, palace car company,
or dining car company doing business in this State,
and each individual, company, corporation or as
sociation leasing or renting, owning, controlling or
managing any palace cars, dining cars, or sleeping
cars within this State for the use of the public, for
which any fare is charged, shall, on the first days
of January, April, July and October of each year,
report to the Comptroller, under oath of the indi
vidual or of the president, treasurer or superin
tendent of such company, corporation or association,
showing the amount of gross receipts earned from
any and all sources whatever within this State, ex
cept from receipts derived from buffet service, dur
ing the quarter next preceding. Said individuals,
companies, corporations and associations, at the time
of making said report, shall pay to the Treasurer of
this State an occupation tax for the quarter begin
ning on said date equal to five per cent of said gross
receipts as shown by said report. The tax herein
provided for shall be in lieu of all other taxes now
levied upon sleeping car, palace car or dining car
companies, except the tax of twenty-five cents on the
one hundred dollars of capital stock of such car
companies as provided by law. Id.
Art. 7098—State Tax Board.
The State Tax Board shall be composed of the
Comptroller, the Secretary of State and of the Attor-
—Ill—
ney General. A record of the proceedings of said
board shall be kept at the State Capitol, and shall be
open to the inspection of the public. Acts 1905, p.
35; Acts 1907, 1st C. S., p. 469; Acts 1939, 46th
Leg., S. B. No. 119, Sec. 1.
Art. 7105—Tax on Intangible Assets.
Each incorporated railroad company, ferry com
pany, bridge company, turnpike or toll company, oil
pipe line company, and all common carrier pipe line
companies of every character whatsoever, engaged
in the transportation of oil, doing business wholly
or in part within this State, whether incorporated
under the laws of this State, or of any other State,
territory, or foreign country, and every other indi
vidual, company, corporation or association doing
business of the same character in this State, in addi
tion to the ad valorem taxes on tangible properties
which are or may be imposed upon them respectively,
by law,_ shall pay an annual tax to the State, begin
ning with the first day of January of each year, on
their intangible assets and property, and local taxes
thereon to the _ counties in which its business is
carried_on; which additional tax shall be assessed
and levied upon such intangible assets and property
m the manner provided in this chapter. The county
or counties in which such taxes are to be paid, and
the manner _ of apportionment of the same, shall be
determined in accordance with the provisions of this
chapter. Acts 1905, p. 35; Acts 1907, 1st C. S., p.
469; Acts 1933, 43rd Leg., p. 409, ch. 162, Sec. 12.
Other Railroad Statutes.
Other railroad statutes, with condensed statement
ot their subjects, are listed below. They are re-
erred to, not as having any bearing on this case, but
i ustraang the policy of the State in regulating
— 112—
the railroads in a detailed way through acts of the
Legislature.
Article 6458— Emergency freight rates.
Article 6459— Temporary tariffs— “whenever an
emergency arises.”
Article 6466— Commission shall ascertain cost of
railway, etc.
Article 6470— Commission shall investigate all
through freight rates, etc.
Article 6473— Provides a penalty of not less than
$100 nor more than $5000 per day
if any railroad company subject to
the provisions of this title shall be
guilty of extortion as defined in the
statute.
Article 6479— Conferring certain powers upon the
Commission to relax requirements
as to number of passenger trains,
providing for hearings; stopping at
county seats.
Articel 6479a— (Acts 1933, 43rd Leg., p. 280, Ch.
110) Requiring adequate and fre
quent freight rates and conferring
certain powers upon the Commis
sion in that respect after hearing.
Article 6481— Requiring railroad company to fur
nish freight cars to shippers.
Article 6482— Penalty.
Article 6490— Requiring every railroad company to
provide sufficient tracks, switches,
sidings, yards, depots, motive
power, cars and all other needful fa
cilities and appliances for receiving
and delivering freight.
1 1 3 -
Article 6491— Requiring railroads to interchange
cars at junction points.
Article 6492— Authorizing Commission to make
rules governing the furnishing of
freight cars and for exchanging and
interchanging the same.
Article 6496— Defining shipper.
Article 6497— Defining “ reasonable time” for fur
nishing cars to shipper.
Article 6498— Requiring railroad companies to pro
vide and maintain adequate, con
venient and clean depots, etc.
Article 6499— Authorizing Commission to require
union passenger depots.
Article 6503—Declaring as an abuse the operation
of double header trains under cer
tain circumstances and authorizing
the Commission to investigate such
abuses and see that same are cor
rected, regulated or prohibited as
hereinafter provided.
Article 6504— Same subject.
Article 6505— Penalty for same.
Article 6506— Authorizing Commission to require
railroad to maintain road bed and
track in proper condition.
Article 6507— Penalty.
Article 6509— Requiring sidings and spur track.
Article 6510—Authorizing Commission to require
compliance with “preceding art
icle.”
-1 1 4 -
Article 6511— Requiring railroad to connect with
private switch, tracks and to fur
nish connections therefor.
Article 6512— Authorizing Commission to enter or
ders governing maintenance and op
eration of switch connections.
Article 6513— Authorizing Commission to fix rates
for moving freight over spur tracks
to private industries.
Article 6514—Authorizing Commission to prescribe
rates for operation of side tracks,
spur tracks, etc.
Article 6515— Preventing discrimination as to spur
tracks and authorizing the Commis
sion to order railroads to furnish
equal accommodations to all ship
pers “ similarly situated on the same
terms and conditions.”
Article 6516— Penalty.
Article 6517— Giving action for damages for viola
tion of 6 preceding articles.
Article 6518— Authorizing Commission to investi
gate and to require after notice and
hearing rearrangement of tracks,
switches and depot buildings.
Article 6519— Penalty.
Report of Pullman Fare Case.
No. 1791.— The Pullman Company et al. vs. Rail
road Commission of Texas: Suit for injunction m
the Circuit Court of the United States, Northern
District of Texas, to restrain the enforcement of an
order of the Railroad Commission reducing the rates
to be charged for berths and seats in sleeping cars.
— 115—
The demurrers to plaintiff’s bill were argued and
overruled, and the court rendered judgment on
February 4, 1908, continuing in force the temporary
injunction which had theretofore been issued. The
time for filing answer was enlarged to the rule day
in January, 1908, and the defendants appealed from
the order continuing the injunction in force, to the
Circuit Court of Appeals, at New Orleans, which
court affirmed the judgment of the Circuit Court at
Dallas. (Reports of the Attorney General of Texas,
1906-1908, p. 36.)
I N T H E
Supreme Court of the United States
OCTOBER TERM, 1940
NO. 283
RAILROAD COMMISSION OF TEXAS,
ET AL,
Appellants
v.
THE PULLMAN COMPANY,
ET AL,
Appellees
REPLY BRIEF FOR APPELLANTS
(Railroad Commission of Texas, Lon A. Smith,
Ernest 0 . Thompson, Jerry Sadler, and Gerald C. Mann)
AND FOR INTERVENING DEFENDANTS
(M. B. Cunningham, W . A . Worley, W . M. Hadley,
and Order of Sleeping Car Conductors).
Appeal from the District Court of the United States
for the Western District of Texas
FXEH FOUNDATION---- AU STIN
V - 9 ? ® ii
.
SUBJECT INDEX
Page
1. The Plaintiffs’ (Appellees’ ) Suit Has Not
Been Properly Brought as a Direct Attack ..... 1
2. Rates and Fares______ ____________________ 8
3. On the Question of Notice._____________ ___ 11
4. The “ Full Crew Law” (Article 6380)
Does Not Prevent The Railroad Commis
sion of Texas From Passing Orders to
Correct Abuses Under Article 6445, 6448
and 6474___________________________________ 14
5. No Race Question is Involved in This Case... -15
6. Opportunity for Personal Observation of
Witnesses and Evidence by Railroad
Commissioners. _____________ 16
Conclusion. ____________________________ 17
TABLE OF CASES AND STATUTES
Page
Falvey v. Simms Oil Company, 90 S. W. (2d)
292 ------------------------------------------------ ' ________l l
Henderson v. Terrell, 24 Fed. Supp. 147 ..... . . . 2
Houston Chamber of Commerce v. Railroad
Commission of Texas, 19 S. W. (2d) 583 12
Humble Oil & Refining Company v. Railroad
Commission o f Texas, 1 1 2 S. W. (2d) 2 2 2 5
Radiee v. N ew Y o rk , 264 U. S, 29 2 17
TABLE OF CASES AND STATUTES— Continued
Page
Railroad Commission of Texas v. Beaver Re
clamation Oil Co., 132 Tex. 2 7 ----------------------- 8
Railroad Commission of Texas v. Rowan &
Nichols Oil Co., 61 S. Ct. 343, 85 L. Ed. 321 _ 3, 7
Reagan v. Farmers’ Loan & Trust Co., 154
U. S. 362 __________________________________ 3
Revised Civil Statutes of Texas
Article 6260 ------------------ -
Article 6380 _______________
Article 6416 ______________
Article 6445 _____________
Article 6448 _______________
Article 6449 ______________
Article 6453 ______________
Article 6473 ______________
Article 6474 ----------------------
Tagg Bros. & Moorhead v. United States, 280
U. S. 420 __________________________________ 10
Texas Steel Co. v. F. W. & D. C. Ry. Co., 120
Tex. 597 ______________________________ 2, 8, 12
__ 11
14, 15
_____ 9
___ 14
10, 14
___11
_ J 2
...14
IN THE
Supreme Court of the United States
OCTOBER TERM, 1940
NO. 283
RAILROAD COMMISSION OF TEXAS,
ET AL,
Appellants
v.
THE PULLMAN COMPANY,
ET AL,
Appellees
REPLY BRIEF FOR APPELLANTS
(Railroad Commission of Texas, Lon A. Smith,
Ernest 0. Thompson, Jerry Sadler, and Gerald C. Mann)
AND FOR INTERVENING DEFENDANTS
(M. B. Cunningham, W. A. Worley, W. M. Hadley,
and Order of Sleeping Car Conductors).
Appeal from the District Court of the United States
for the Western District of Texas
The Plaintiffs’ (Appellees’) Suit Has
m t Been Properly Brought as a Direct At
tack.
The appellees state that “ the present action, chal
lenging the Commission’s order. . . ., is a direct at
-2—
tack.” (Page 58, Brief for Appellees). This state
ment is apparently in answer to the appellants’ re
quest that the appellees advise the court whether
they are bringing a direct or collateral attack in this
case. (Page 42, Brief for Appellants).
We submit that a direct attack can only be brought
in the manner provided by statute, and that manner
is prescribed by Article 6458, as follows:
“ If any railroad company or other party at
interest be dissatisfied with the decision of any
rate, classification, rule, charge, order, act or
regulation adopted by the Commission, such
dissatisfied company or party may file a petition
setting forth the particular cause or causes of
objection to such decision, act, rate, rule, charge,
classification, or order, or to either or all of them,
in a court of competent jurisdiction in Travis
County, Texas, against said Commission as de
fendant. . . . ”
In the case of Texas Steel Company V. F. W. &
D. C. Ry. Co., 120 Tex. 597, the Supreme Court of
Texas held that an order of the Railroad Commis
sion of Texas regular on its face is “ not subject to be
called in question except in a direct proceeding
brought in full conformity with the provisions of
Article 6Jf53.”
We pointed out in the Brief for Appellants, here
tofore filed in this case, that in the case of Henderson
V. Terrell, 24 Fed. Supp. 147, Judge Hutcheson held
in a situation similar to this case that when they weu'
—3—
residents of Texas “plaintiffs cannot maintain their
suit as a statutory suit against the Commission in
this (a Federal) Court. . . . ” We believe that that
position is further supported by the opinion of this
court in the very recent case of Railroad Commission
of Texas V. Roivan & Nichols Oil Company, 61 S. Ct.
343, 85 L. Ed. 321 (decided January 6, 1941, and
not yet officially reported) in which it was said:
“ . . . In denying the petition for rehearing in
the earlier cases we held that whatever rights
the state statute may afford are to be pursued in
the state courts.”
As authority for the right to maintain a direct
attack in the manner they seek to maintain it in this
case the appellees cite the case of Reagan v. Farmers’
Loan & Trust Co., 154 U. S. 362; but, in that case
there was a diversity of citizenship, and there is no
such diversity in this case. In the Reagan case the
court said:
. . . it may be laid down as a general proposi
tion that, whenever a citizen of a State can go
mto. the courts of a State to defend his property
against the illegal acts of its officers, a citizen of
another State may invoke the jurisdiction of the
mderal courts, to maintain a like defense. A
f p . cannot tie up a citizen of another State,
havmgpjmpgrty rights within its territory in
vaded by unauthorized acts of its own officers, to
suits for redress in its own courts. Given a case
vnere a suit can be maintained in the courts of
cue E a,e to protect property rights, a citizen of
4-
another State may invoke the jurisdiction of the
Federal courts.”
In this case some of the plaintiffs are citizens of Tex
as, and all of the defendants are citizens, and there
fore the rule in the Reagan case does not apply.
If the appellees (plaintiffs) have brought a direct
attack, as they contend, in this case, then we submit
that they are not entitled to an injunction enjoining
the enforcement of the Railroad Commission’s order
for two reasons. First, the plaintiffs’ (appellees’ )
complaint does not allege that there was no substan
tial evidence before the Railroad Commission entit
ling it to pass the order in question. Second, it was
not proved that there was no substantial evidence
before the Railroad Commission to sustain its order.
We sincerely believe that the same error that was
committed by the three-judge court in the second
Rowan & Nichols Oil Company case was committed
by the court in this case*, and that is that the trial
court totally ignored the findings of fact of the Rail
road Commission and the evidence before the Com
mission. If the findings of fact of the Railroad Com
mission are accepted at “ face value” there are suffi
cient grounds to justify the order in question. As
far as the three-judge trial court knew, and as far as
this court knows, there was ample evidence before
the Railroad Commission to support the order m-
*This case was the next case in the trial court after the fj.owa
& Nichols Oil Company case (reversed in 61 S. Ct. 343, So '■
321), and the same three-judge court tried both cases.
—5—
volvecl in this case. The three-judge trial court was
never informed as to what amount or kind of evi
dence was before the Railroad Commission. We
contend that for that reason the trial court is not en
titled to enter a judgment holding that there was no
substantial evidence before the Commission to sus
tain its order.
Without alleging that there was no substantial
evidence to support the Commission’s order, the
plaintiffs (appellees) filed an independent suit ask
ing the Federal court to determine as an original in
vestigation from evidence before the court, and not
from evidence before the Railroad Commission,
whether said Federal court thought such order wTas
wise or unwise. The plaintiffs (appellees) per
suaded the trial court to ignore the evidence that had
been considered by the Commission and to make its
own investigation and substitute its own findings of
fact. Thus, we have two separate and independent
trials with wholly separate and different records of
facts, two separate and diametrically opposed find
ings of facts, and two conflicting orders. We submit
that such procedure is improper according to the
Texas decisions. The Texas cases hold that “ the only
matter with which the courts are concerned is
whether or not there was substantial evidence before
the Railroad Commission to sustain its order in the
premises.” In the case of Humble Oil & Refining
Company v. Railroad Commission of Texans, 112 S. W.
(2d) 222, by the Texas Court of Civil Appeals, Third
District, the court said:
“ The Texas courts have consistently held that
the only issue in a court review of the action of
the commission in making administrative ord
ers, rules, and regulations, is to determine
whether there is any substantial evidence to sup
port the order, rule, or regulation of the com
mission. It is a familiar rule of law that a jury’s
finding of fact is not reviewable in a direct pro
ceeding on appeal, unless it is unsupported by
evidence. The same is true of orders and find
ings of fact by a regulatory board or commis
sion. The decision of such a board has at least
as high standing in regard to finality as a ver
dict or finding of a jury. Texas Juris, Vol 3,
p. 1088 et seq. Such has been the uniform hold
ing of our courts with reference to valuations
found by tax and equalizations made by the state
superintendent of public schools; with regard to
the granting or refusing of a permit of conven
ience and necessity to operate buses and trucks;
and with regard to the rates of railroad com
panies and public utility companies. . . .
“ This is in accord with the often-repeated
rule that any order of the commission as to any
matter within its jurisdiction shall be accepted
under statutory provision as prima facie evi
dence of its validity. This means that when the
order is challenged, the court will presume it to
be valid, and will sustain it, unless the evidence
clearly shows it to be unreasonable and unjust.
The mere fact that the order In question may he
unwise will not warrant a court in striking
down, so long as it is based on any substamm
evidence. Brown v. Humble Oil & Re-f. C-o.,
Tex. 298,83 S. W. (2d) 935, 87 S. W. (2d)
-7 -
99 A.L.R. 1107, 101 A.L.R. 1393; Rabbit Creek
Oil Co. v. Shell Pet. Corp., Texas Civ. App., 66
S. W. (2d) 737; Falvey v. Simms Oil Co., Tex.
Civ. App., 92 S. W. (2d) 292, and Smith County
Oil & Gas Co. v. Humble Oil & Refining Co., 112
S. W. (2d) 220, decided by this court May 19,
1937 , and wherein it was held, as follows: ‘Under
the repeated holdings of this court and of the
Supreme Court, under such circumstances, the
only matter with which the courts are concerned
is whether or not there was substantial evidence
before the Railroad Commission to sustain its
order in the premises.’ ” (Italics ours)
The same rule was stated by this court in the case of
Railroad Commission of Texas v. Rowan & Nichols
Oil Company, 61 S. Ct. 343, 85 L. Ed. 321, supra, in
language as follows:
“ • . • Nor, on the basis of intrinsic skills and
equipment, are the federal courts qualified to set
their independent judgment on such matters
against that of the chosen state authorities.
For its own good reasons Texas vested authority
over these difficult and delicate problems in its
Railroad Commission. . . . Indeed, we are asked
to sustain the district court’s decree as though it
derived from an ordinary litigation that had its
origin in that court, and as though Texas had
not an expert Commission which already had
cam assed and determined the very issues on
which the court formed its own judgment. For
appears that the court below nullified the Corn-
actVm. without even having the record
Commission before it. When we consider
tne limiting conditions of litigation— the adapt-
ft
—8—
ability of the judicial process only to issues defi
nitely circumscribed and susceptible of being
judged by the techniques and criteria within the
special competence of lawyers— it is clear that
the Due Process Clause does not require the feel
of the expert to be supplanted by an indepen
dent view of judges on the conflicting testi
mony and prophesies and impressions of expert
witnesses.” (Italics ours)
Thus, we see that the appellees’ (plaintiffs’ ) suit
has not been properly brought as a direct attack. The
appellees (plaintiffs) have brought a collateral at
tack in this case; but, under the rule stated in the
cases of Texas Steel Co. v. F. W . & D. C. Ry. Co., 120
Tex. 597, and Railroad Commission o f Texas V.
B eaver Reclamation Oil Co., 132 Tex. 27, the ap
pellees are not entitled to enjoin the order in ques
tion because “ an order regular upon its face made by
the Commission is not subject to collateral attack.”
The order in this case is clearly regular on its face.
2. Rates and Fares.
The appellees deny that they are collecting more
than three cents per mile from passengers. (Page 50,
Brief for Appellees). However, the record shows
that the regular passenger fare is two cents per mile
(R. 240); and in addition to said two cents per mile
a person who rides in a Pullman car must pay
extra one cent per mile and also an additional seat
accommodation charge. (R. 139, 140). Th is makes
—9—
a total of more than three cents. The witness B. H.
Vorman testified:
“ Q. All right. Then, for the privilege of
riding in the Pullman car the Railroad Com
pany does charge an extra fare, you know that,
don’t you?
“A. Yes, sir.
“ Q. That is one cent a mile, isn’t it, in
Texas?
“A. I believe it is.
“ Q. Then in addition to paying that extra
railroad fare to ride in the Pullman car, the
Pullman Company then charges an additional
fare?
“A. They charge for their accommodations.
“ Q. Well, that is an additional charge,
though, in addition to the railroad fare, and
then the extra fare to ride in the Pullman?
“A. It is an additional expense to the pas
sengers. You can’t go to the theater without
paying for it, and if you ride in a Pullman car
you must pay for a seat or berth; that applies
on both roads and on all roads.” (R. 139,140)
As pointed out in the Brief for Appellants, such a
cnarge in excess of three cents per mile is a violation
of Article 6418 of the Revised Civil Statutes of Tex
as- It also constitutes extortion in violation of
- 1 0 -
Article 6473 of the Revised Civil Statutes of Texas.
We believe that the Railroad Commission is entitled
to take jurisdiction over such matter by virtue of
Article 6448 of the Revised Civil Statutes which pro
vides that the Commission shall “ correct abuses and
prevent unjust discrimination and extortion in rates
of freight and 'passenger tra ffic on the different rail
roads in this State.”
The appellees contend that the order in question
is a rate order. If it is a rate order it does not at
tempt to change any legally established rate because
the rates and charges now being made by the Pull
man Company are illegal and extortionate, as pointed
out above, and they have never been authorized by
the Railroad Commission.
This court in the case of Tagg Bros. & Moorhead
V . United States, 280 U. S. 420, said:
“A rate order is not res judicata. Every rate or
der made may be superseded by another.”
If it should be held that this is a rate order, it is sub
ject to be changed by the Railroad Commission from
time to time.
The contracts between the Pullman Company and
the railroads provide that the profits derived from
these illegal rates shall be split between the parties
to the contracts. These contracts, based on these
— 11—
illegal excess fares, constitute the basis of the appel
lees’ (plaintiffs’ ) suit, Such a suit cannot be main
tained.
3= On the Question of Notice,
The appellees contend that the Railroad Commis
sion did not give the proper notice before it held a
hearing in this case. The statute (Article 6449)
only requires notice “ before any rates shall be estab
lished.” We do not believe any rates were establish
ed in this case. Therefore, we doubt that the notice
statute (Article 6449) is involved. But, regardless
of whether or not any rates were established, we be
lieve that said statute would only require notice to
be given to Texas Railroads, as a non-Texas corpora
tion cannot operate a railroad legally in Texas
(Article 6260), and we believe such notice was given.
The Railroad Commission’s order recites that notice
was given. (R. 38) The order also recites that at
torneys for the Pullman Company and an attorney
for all “ Texas railroads” appeared at the hearing
(R. 38, 39 ); and such finding is not contested by the
appellees, and therefore we submit it must be accept
ed as true. In the case of Falvey v. Simms Oil Co.,
92 S. W. (2d) 292, by the Texas Court of Civil Ap
peals, Third District, the court said:
“ . . . any order of the Commission as to any
matter within its jurisdiction shall be accepted
under statutory provision as prima facie evi
— 12—
dence of its validity.”
Regardless of what form of notice was sent to the
Texas railroads, whether by formal citation, letter
or telephone call, the fact that they appeared (which
fact is not denied) prevented any injury to them
because of any defectiveness in the form of the notice.
They appeared, and the purpose of the notice statute
was served.
The appellees seem to think that notice should
have been given to everyone, including the porters.
But, the law is to the contrary, according to the case
of Houston Chamber o f Commerce v. Railroad Com
mission o f Texas, 19 S. W. (2d) 583, by the Texas
Court of Civil Appeals, Third District, (affirmed by
the Supreme Court of Texas in 124 Tex. 8 7 5 ) in
which the court said:
“ In the hearing before the Commission, the
only notice that is required is that given to the
railroad companies, whose interests are affect
ed. Shippers, localities, and others who may be
affected or interested are not required to be
given notice.”
Another reason why no question can be raised
about the notice in this case is that sufficiency of the
notice cannot be questioned in a collateral attack.
The appellees’ (plaintiffs’ ) suit is a collateral attack,
as heretofore pointed out. In the case of Texas Steel
Company v. F. W . & D. C. Ry. Co., 1 2 0 T e x . 5 9 7 , r e
ferred to above, the court said:
— 13—
“As shown by the certificate the Steel Com
pany contends that the orders of the Railroad
Commission are utterly void, because (a) made
without notice to the railroads, (b) because no
notice was given to the Steel Company. . . . All
of these contentions are utterly untenable. . . .
“ Under the plain and simple terms of article
6452 it is provided that all rates prescribed by
the commission shall be conclusive as between
private parties and railway companies, until
found otherwise in a direct action.*. . .
“ Under the provision of article 6453 it is ex
pressly provided that any party dissatisfied
with any decision of the commission may at
tack the same by a direct proceeding or suit in
Travis County, Texas, in which suit the Rail
road Commission must be made a party. . . .
“ If an order of the commission regular on its
face can be collaterally attacked on the ground
of want of notice, or any other ground here
urged, then the orders and rates of the commis
sion could b e rendered null and void in a pro
ceeding in which the commission was never
given an opportunity to be heard either on the
facts or the law. Furthermore different courts
might reach conflicting conclusions as to the
facts involved in the same order. This demon
strates the wisdom of the statute, and the cor
rectness of the rule here announced. The Leg
islature recognized in the beginning that to
allow such attacks would lead to intolerable re
sults, and foreclosed the right to do so by the
statute prescribing the manner and the court in
which the rules and rates of the commission can
— 14—
be subjected to judicial review. . . . What we
hold is that the orders here attacked are not sub
ject to be called in question except in a direct
proceeding brought in full conformity with the
provisions of article 6453, supra.”
4. The “Full Crew Law” (Article 6380)
Does Not Prevent the Railroad Commission
of Texas From Passing Orders to Correct
Abuses Under Articles 6445, 6448 and 6474.
The appellees seem to argue that Article 6380 of
the Revised Civil Statutes of Texas, known as the
“ Full Crew Law,” which prescribes that there m u s t
be a crew of at least four persons on a passenger
train, impliedly prohibits the Railroad Commission
from passing the order in question that requires a
Pullman conductor on certain trains, (page 74, Brief
for Appellees)
We submit that Articles 6445, 6448 and 6474 of
the Revised Civil Statutes of Texas authorize the
Railroad Commission “ to . . . regulate . . . railroads
. . . and to prevent. . . abuses in the conduct of their
business.” * We have pointed out in the Brief for
Appellants, heretofore filed, that the order in ques
tion is a correction of an abuse of the kind defined
by the Legislature of Texas.
*A not© on the opinion of the trial court in this ease (33 Fed.
Supp. 675), commenting on the authority of the Railroad Commis
sion of Texas, has been published in the December, 1940, issue Oi
the TEXAS LAW REVIEW, Vol. XIX, page 8 6.
—15—
The “ Full Crew Law” is designed to contribute
to the safe operation of the physical equipment of
the train, while the order in question is for the safety
and protection and welfare of the passengers who
pay the extra fare to ride in the Pullman cars.
The Legislature apparently believed that there
should be a crew of at least four men on all passenger
trains and therefore it passed the “ Full Crew Law”
(Article 6880); and it also believed that abuses,
particularly discriminations, should be prevented,
and it authorized the Railroad Commission to correct
certain abuses whenever they appeared. We submit
that that authority would allow the Railroad Com
mission to require another man on certain passenger
trains, even in addition to the four prescribed by the
“ Full Crew Law,” if such was necessary to prevent
an abuse defined by the Legislature; and such was
clearly necessary in this case.
The Legislature believed that in all cases there
should be a minimum crew of four men on passenger
trains, but it also authorized the Railroad Commis
sion to require an additional man in certain in
stances, to-wit, where it was necessary to correct
certain abuses, and this is one of those instances.
5. No Race Question is Involved in This
Case.
The appellees in desperation for some tangible
and logical basis to sustain the clearly erroneous de
— 16—
cision of the trial court attempt to raise the race
question, no doubt in the hopes of trying to prejudice
this honorable court. No other purpose could be ef
fected by the matters set out on page 80, and else
where, of their brief.
The complete answer to this fallacious argument
is that the order nowhere requires that the Pullman
conductors be white men. The Pullman Company
and the railroads are left completely free to select
men or women of their own choosing as Pullman con
ductors. They may be of any race or color, and there
is nothing in the findings of fact of the Railroad
Commission even to suggest that there would neces
sarily follow any race discrimination. If there had
been, no doubt able counsel would have pointed it out
to this court in forceful language. The only thing
the order does require is that the Pullman cars shall
be supervised by some one,— whether white or black
being left entirely and exclusively to the employers.
6. Opportunity for Personal Observation
of Witnesses by Railroad Commissioners.
In the footnote on page 16, and also on page 85, of
the Brief for Appellees it is contended that great
weight should be given to the findings of the three-
judge Federal trial court because the judges of said
court had the opportunity personally to observe the
witnesses and thereby had a better opportunity to
make correct findings of fact. Does not the same
- 1 7 -
argument apply to the Railroad Commission hear
ing? Did not the Commissioners have the same op
portunity to observe the witnesses? The answer is
“ Yes,”
The Railroad Commission had a complete hearing
in which, according to the order, the testimony of
seventeen witnesses was heard. (R. 39) Then the
three-judge Federal Court had another hearing, un
connected with the Commission’s hearing, and with
out knowing what the seventeen witnesses testified
to before the Commission, the three-judge Federal
court substituted its own motion as to what con
stituted the facts. We submit that such procedure
was improper under the rule stated in the case of
Radice V. New York, 264 U. S. 292, as follows:
“ The legislature had before it a mass of in
formation from which it concluded that night
work is substantially and especially detrimen
tal to the health of women. We cannot say that
the conclusion is without warrant. . . . Where
the constitutional validity of a statute depends
upon the existence of facts, courts must be cau
tious about reaching a conclusion respecting
them contrary to that reached by the legisla
ture ; and if the question of what the facts estab
lish be a fairly debatable one, it is not permis
sible for the judge to set up his opinion in re
spect of it against the opinion of the lawmaker.”
Conclusion
For the reasons stated, it is respectfully prayed
— 18—
that the judgment of the District Court be reversed.
Respectfully submitted,
Gerald C . M a n n
Attorney General of Texas
G l e n n R . L e w i s
Assistant Attorney General
L e e S h o p t a w
Assistant Attorney General
C e c il C . R o t s c h
Assistant Attorney General
All of Austin, Texas.
Attorneys for Appellants
(Railroad Commission of Tex
as, Lon A. Smith, Ernest 0.
Thompson, Jerry Sadler and
Gerald C. Mann.)
A. B . C u l b e r t s o n
C e c il A . M o r g a n
Both of Fort Worth, Texas.
Attorneys for Intervening De
fendants (M. B. Cunningham,
W. A. Worley, W. M. Hadley
and Order of Sleeping Car Con
ductors).