Henderson v. United States Motion and Brief Amicus Curiae

    IN  T H E

Supreme Court of the United States
October Term, 1949

No. 25
__________ ___  <v

ELMER W. HENDERSON,

vs.
Appellant,

THE UNITED STATES OF AMERICA, INTERSTATE 
COMMERCE COMMISSION and THE SOUTHERN 
RAILWAY COMPANY,

Appellees.

ON A P P E A L  PR O M  T H E  U N IT E D  STA TES D ISTR IC T  COU RT 

EOR T H E  D ISTR IC T OF M A RYLAND

M OTION AND BRIEF FOR THE NATIONAL ASSO­
CIATION FOR TH E ADVANCEM ENT OF COLORED 

PEOPLE AS AM IC U S CU RIAE.

R obert L. Carter ,
T hurgood  M a r sh a ll ,

Counsel for the National 
Association for the Advance­
ment of Colored People.



TABLE OF CONTENTS

Motion for Leave to File Brief as Amicus Curiae___  1

Brief for the National Association for the Advance­
ment of Colored People as Amicus Curiae___ ____ 3

The Opinions Below _____     3

Jurisdiction___________________________________ 3

Statutes Involved _____________________________  4

Statement of the Case __________________________ 4

Summary of Argument_______________________— 6

PAGE

Argument:

I. The present regulation violates the Interstate
Commerce Act________________________ 7

II. The present regulation constitutes a burden on 
interstate commerce in the same manner and 
to the same extent as the state statute which 
was struck down in Morgan versus Virginia 15

III. Sanction of this regulation by the Interstate
Commerce Commission constitutes govern­
mental action within the reach of the Fifth 
Amendment________—------------------------ - 18

IV. The government is powerless under the Con­
stitution to make, sanction, or enforce, any 
distinctions or classifications based upon 
race or color______________________ — 21

Conclusion 24



IX

T ab le  of C ases C ited

Adelle v. Beaugard, 1 Mart. 183_________________  16
Bob Lo Excursion Co. v. Michigan, 333 U. S. 28_____ 20
Chicago R. I. & P. Ey. Co. v. Allison, 210 Ark. 54, 178 

S. W. 401 (1915) _________________ ...__________ 17
Ex Parte Endo, 323 U. S. 283 ____________________ . 20
Gibbons v. Ogden, 9 Wheat. 1 ___________________ ... 20
Hall v. DeCuir, 95 U. 8. 485 _____________________  21
Hirabayashi v. United States, 320 IT. 8. 81____—20, 21, 22
Hurd v. Hodge, 332 U. S. 2 4 ___________________ 21, 22
Korematsu v. United States, 323 U. S. 214---------20, 21, 22
Lee v. New Orleans G. N. Ry., 125 La. 236, 51 S. 182__  16
Louisville & N. R. R. v. Ritchel, 148 Ky. 701, 147 S. W.

411 (1912) ___________________ ...____________  17
McCabe v. Atchison, T. & S. F. Ry. Co., 235 U. S.

151 ________ 1_______________________ 9 11
Missouri K. & T. Ry. Co. of Texas v. Ball, 25 Tex. Civ.

App. 500, 61 S. W. 327 (1901) _________________  17
Mitchell v. United States, 313 U. S. 80-----9,10,11,13,18, 20
Morgan v. Virginia, 328 U. S. 373 _____ ...----------------  15
Pennsylvania v. West Virginia, 262 U. S. 553, 596, 597 20 
Plessy v. Ferguson, 163 U. S. 537 ------------------------22, 24
Shelley v. Kraemer, 334 U. S. 1 _______________10, 21, 22
Sipuel v. Board of Regents, 332 U. S. 631---------------- 11
Skinner v. Oklahoma, 316 U. S. 535 ------------------------  21
State v. Treadway, 126 La. 300, 52 So. 500 — ...-----------  16
Steele v. Louisville & N. R. Co., 323 U. S. 192---------  20
Takahashi v. Fish and Game Commission, 332 U. S. 410 21
Truax v. Corrigan, 257 U. S. 312--------------------------- 21
Tunstall v. Brotherhood of Locomotive Firemen and 

Enginemen, 323 U. S. 210------- ------------------ 20, 21, 22
United States v. Screws, 325 U. S. 91.-----------— -------  21

PAGE



Ill

S ta tu te s

Alabama Code, tit. 1, Sec. 2; tit. 14, Sec. 360 (1940)__  16
Georgia Code, Sec. 2177 (Michie Supp. 1928)________  16
Georgia Laws, p. 272 (1927)_____________________  16
Interstate Commerce Act 10A, F. C. A., Title 49, Secs. 

1(5), 3(1), 49 IT. S. C. A. Secs. 1(5), 3(1)___4,15,19, 20
Interstate Commerce Act 10A, F. C. A., Title 49, Secs. 

1(13), 1(14), 49 U. S. C. A. Secs. 1(13), 1(14)___ 18,19
Interstate Commerce Act, 10 F. C. A., Title 46, Sec. 815,

46 U. S. C. A. Sec. 815_________________ A______ 20
Interstate Commerce Act, 10A F. C. A., Title 49, Sec.

484, 905 ______________________ ____ ________ 20
Louisiana Act No. 87 (1908)_____________________  16
Louisiana Act No. 206 (1910)_____________________  16
Louisiana Crim. Code, Arts. 1128-1130 (Dart 1932)___  16
North Carolina Gen. Stat., Secs. 51-3,14-181 (1943)___  16
North Carolina Gen. Stat., Sec. 115-2 (1943)________  16
South Carolina Const., Art. I ll, Sec. 33 (1895)______ 16

O th e r A u th o ritie s

To Secure These Rights, The Report of the President’s 
Committee on Civil Rights, IT. S. Government Print­
ing Office, Washington, D. 0., 1947_____________  23

PAGE



IN  T H E

Supreme Court of the United States
O ctober Term, 1949

No. 25

E l m e r  W . H en d erso n ,
Appellant,

vs.
T h e  U n ited  S tates op A m erica , I n t e r ­

state C o m m erce  C o m m issio n  a n d  T h e  
S o u t h e r n  R ailw ay  C o m pa n y ,

Appellees.

MOTION FOR LEAVE TO FILE BRIEF AS 
AMICUS CURIAE.

To the Honorable, the Chief Justice of the United States and 
the Associate Justices of the Supreme Court of the 
United States:

The undersigned, as counsel for the National Associa­
tion for the Advancement of Colored People, respectfully 
move this Honorable Court for permission to file the ac­
companying brief as amicus curiae. Permission has been 
secured from all parties with the exception of the interven­
ing respondents, the Southern Railway Company, which has 
refused its consent. (The letters in answer to our request 
have been filed in the Clerk’s office.)



2

The National Association for the Advancement of 
Colored People for the past 40 years has devoted itself to 
the eradication of discrimination based on race and color 
from all phases of American life. We are dedicated to the 
belief that enforced racial separation is an ugly blot on 
American democracy and, consequently, saps it of much 
of its integrity. Our democracy is strong', not only because 
of its material wealth, but because the concept of equality 
and freedom for all has fired the hopes and aspirations of 
the people of the world. In practice, however, we have 
fallen far short of our preachments and we, as well as the 
rest of the world, have become increasingly aware of this 
fact. Either we must put our own credo into practice, or 
we must admit that we cannot successfully make these be­
liefs a part of our everyday life.

Prom time to time issues are presented to this Court 
which require that this “ American dilemma” be honestly 
resolved. This is just such an occasion. It is our belief 
that the racial distinctions and discriminations which the 
Southern Railway Company is now attempting to enforce 
under its present regulations, and which the Interstate Com­
merce Commission and United States District Court ap­
proved, are invalid, humiliating to passengers both white 
and Negroes alike, and directly contrary to the ideals of 
democratic living to which this country is dedicated.

Robert L. Carter 
Thurgood Marshall

Counsel for the National Association for 
the Advancement of Colored People.



IN  T H E

Supreme Court of the United States
O ctober Term , 1949

No. 25

E l m e r  W . H en d erso n ,
Appellant, 

vs.
T h e  U n it e d  S tates of A m erica , I n t e r ­

state C o m m erce  C o m m issio n  a n d  T h e  
S o u t h e r n  R ailw ay  C o m pa n y ,

Appellees.

BRIEF FOR TH E NATIONAL ASSOCIATION FOR
TH E ADVANCEM ENT OF COLORED PEOPLE AS 

AMICUS CURIAE.

T he O pinions Below .

The first report of the Interstate Commerce Commission 
(R. 184) is reported in 258 I. C. C. 413. The second report 
(R. 4) may be found in 269 I. C. C. 73. The first opinion 
by the three judge District Court (R. 63) can. be found in 
63 F. Sup. 906, and its later opinion from which this appeal 
is taken (R. 248) is reported in 80 F. Sup. 32.

Jurisdiction.
The jurisdiction of this Court to review on direct appeal 

the judgment entered in this case is granted under Title 28 
United States Code, Section 1253. Appellant’s appeal was 
filed on November 17, 1948, and probable jurisdiction was 
noted by this Court on March 14, 1949 (R. 266, 269, 278).

3



4

Statutes Involved.

Section 3, Subsection 1 of the Interstate Commerce Act 
makes it unlawful for any carrier subject to the provisions 
of the Act to make or to give any undue or unreasonable 
preference or advantage to any particular person, company, 
firm, corporation, association, locality, port, port district, 
gateway, transit point, or any particular description of 
traffic to any undue or unreasonable prejudice or disadvan­
tage in any respect whatsoever.1

Section 1, Subsection 5 makes it unlawful for any carrier 
to make an unjust and unreasonable charge for services 
rendered.2

Statem ent of the Case.

Appellant, a Negro, on May 17, 1942, was a Pullman 
passenger on a train of the Southern Railway Company on 
a trip from Washington, D. C., to Birmingham, Alabama, 
as a field representative of the President’s Committee on 
Fair Employment Practices. During the course of the

1 “It shall be unlawful for any common carrier subject to the pro­
visions of this chapter to make, give, or cause any undue or unreason­
able preference or advantage to any particular person, company, firm, 
corporation, association, locality, port, port district, gateway, transit 
point, or any particular description of traffic, in any respect whatso­
ever or to subject any particular person, company, firm, corporation, 
association, locality, port, port district, gateway, transit point, or any 
particular description of traffic to any undue or unreasonable prejudice 
or disadvantage in any respect whatsoever.”

2 “All charges made for any service rendered or to be rendered in 
the transportation of passengers or property as aforesaid, or in con­
nection therewith, shall be just and reasonable, and every unjust and 
unreasonable charge for such service or any part thereof is prohibited 
and declared to be unlawful: And provided further, That nothing in 
this chapter shall be construed to prevent telephone, telegraph, and 
cable companies from entering into contracts with common carriers 
for the exchange of services.”



5

journey, appellant had occasion to seek services in the 
dining car. At that time, the Southern Railway Company, 
pursuant to a regulation, issued on July 3, 1941 and a 
supplemental one issued on August 6, 1942, reserved two 
tables at the end of the diner, adjoining the kitchen, for 
Negro passengers for a certain time after the diner opened. 
If no Negroes presented themselves during that period, 
white passengers were then seated at these tables, and no 
Negro passenger could thereafter be served until both 
tables were no longer occupied by whites. Under no cir­
cumstances were Negroes permitted to eat at any of the 
other tables in the diner. If Negroes came to the diner 
while both of these two tables were empty, they were seated 
and curtains were drawn to separate them from the rest 
of the car until they had completed their meal.

When appellant sought service, the two end tables were 
then occupied by whites, and he was told that he could not 
be served but would have to return later. There was, at 
that time, available space at both tables and at other tables 
in the diner. There is no question but that had appellant 
been a white passenger he would then and there have been 
seated and served. When appellant returned to the diner 
for the second time, the two end tables were still in use, 
and the dining car steward informed him that he would 
send word back to his Pullman seat, when he could be served. 
The steward failed to do this, and the diner was taken off 
in Greensboro, North Carolina, without appellant having 
been served at all.

A complaint was then filed with the Interstate Commerce 
Commission alleging unequal treatment and unjust prej­
udice and discrimination (R. 80). The Commission found 
the allegations of the complaint had been sustained, but con­
cluded that a future order would serve no useful purpose 
and, therefore, dismissed the complaint (R. 184, 195). On



6

suit to set aside the Commission’s order the District of 
Maryland set aside the order of the Commission on the 
ground that the regulations did not afford the equality of 
treatment which the Interstate Commerce Act required (R. 
63).

Thereupon, the Southern Railway published a new regu­
lation under which one table is reserved exclusively for 
Negro passengers at the kitchen end of the diner and will 
be set off by a wooden partition of approximately five feet 
in height (R. 223). The Commission, with two members 
dissenting in part, found that this new regulation provided 
the equality of treatment which the Interstate Commerce 
Act required and dismissed the complaint (R. 4-11). The 
Court below affirmed in a two to one decision, and thereupon 
appellant sought review in this Court.

Summary of Argum ent.

The regulation which has been approved as giving to 
Negro passengers equal treatment required under statu­
tory and constitutional provisions is both discriminatory 
and unreasonable. Race alone is the basis for its existence. 
The regulation requires governmental approval. The ap­
proval of the regulation by the Interstate Commerce Com­
mission is invalid on constitutional and statutory grounds.

What the carrier contends is that as a result of a survey, 
it has found that the division of its diners among its white 
and Negro patrons as provided under its regulation af­
fords the Negro an equitable amount of space. However, 
the Constitution and the Interstate Commerce Act require 
that equal treatment be afforded the individual, and when­
ever a Negro passenger is forced to remain standing when 
he would have been served had he been white, his right to 
equal protection has been invaded. Moreover, every pas­



7

senger is entitled to equal treatment without governmen- 
tally-enforeed racial segregation.

The carrier must, under the present regulation, deter­
mine what it means by the term Negro. The term is sub­
ject to varying conflicting statutory definitions, and would 
subject interstate commerce to the same confusion and 
burdens which caused this Court to hold state segregation 
statutes burdensome to interstate commerce in the Morgan 
case. Further, there is less reason for permitting the car­
rier to make racial distinctions than there is for permitting 
the states to do so.

The Interstate Commerce Commission sanctioned the 
regulation and thereby gave to it government support. Our 
national government is not permitted to make race or color 
the basis for its action. Governmen tally-enforced racial 
segregation serves no useful purpose. The “ separate but 
equal” doctrine has never provided the equality required 
by the Constitution. The requirement that Negro passen­
gers, solely because of race, must be confined behind a 
wooden partition from all other passengers in and of itself 
is unequal treatment. Our Constitution prohibits such gov- 
ernmentally-enforced segregation.

A R G U M E N T .

I.
The present regulation violates the Interstate Com­

merce Act.
The present regulation sets aside a table for the exclu­

sive occupancy of Negroes at the kitchen end of the dining 
car while the train is going through those states where 
segregation is required. From Washington to New York,



8

Negroes may be served on the same basis as any other pas­
senger. If this regulation is upheld, the Southern Rail­
way Company will install on all of its trains a wooden par­
tition approximately five feet in height which will separate 
this table and its Negro diners from the rest of the tables 
and white passengers in the car.3 Negro passengers, re­
gardless of their number, are required to eat at this table. 
The rest of the diner is reserved exclusively for whites. 
This arrangement was made pursuant to a purported sur­
vey which showed Negroes to be approximately 3.48 per­
cent of the persons using the diner of the Southern Railway. 
(See Exhibits, R. 225-247.)

Since respondent’s position holds that the present regu­
lation adequately protects Negroes against future discrimi­
nation in dining car service, it is very relevant to determine 
whether the new regulation will insure that the rights of 
Negro passengers protected by the Interstate Commerce 
Act will be safeguarded in all circumstances which may

3 “Transportation Department Circular No. 142. Cancelling in­
struction on this subject, dated July 3, 1941, and August 6, 1942. 
S u b j e c t  : Segregation of White and Colored Passengers in Dining 
Cars. To: Passenger Conductors and Dining Car Stewards. Con­
sistent with experience in respect to the ratio' between the number of 
white and colored passengers who ordinarily apply for service in avail­
able diner space, equal but separate accommodations shall be provided 
for white and colored passengers by partitioning diners and the allot­
ment of space, in accordance with the rules, as follows: (1) That one 
of the two tables at Station No. 1 located to the left side of the aisle 
facing the buffet, seating four persons, shall be reserved exclusively 
for colored passengers, and the other tables in the diner shall be re­
served exclusively for white passengers. (2) Before starting each 
meal, draw the partition curtain separating the table in Station No. 1, 
described above, from the table on that side of the aisle in Station No. 
2, the curtain to remain so drawn for the duration of the meal. (3) A 
“Reserved” card shall be kept in place on the left-hand table in Sta­
tion No. 1, described above, at all times during the meal except when 
such table is occupied as provided in these rules. (4) These rules 
become effective March 1, 1946. R. K. McClain, Assistant Vice- 
President.”



9

present themselves in the future.4 Demonstration of the 
inadequacy of the present regulation in any situation as­
sures the conclusion that its sufficiency fails to meet the re­
quirements of the Interstate Commerce Act. The present 
regulation, therefore, must be tested in the light of any and 
all reasonably foreseeable situations.5

The fundamental right to equality of treatment is a right 
specifically safeguarded by the Fourteenth Amendment to 
the Constitution of the United States,6 against the carrier 
acting pursuant to state laws, and against the carrier acting 
pursuant to privately promulgated regulations by the ex­
press provisions of the Interstate Commerce Act.7 The 
right of a Negro passenger guaranteed by these provisions 
is the right to be served according to the same rules govern­
ing all other passengers, a right accruing upon the pur­
chase of the ticket. Where a Negro passenger applies for 
service and is denied the same at a time when there is a seat 
available, and is forced to remain standing while a white 
passenger who subsequently applies is admitted to and 
served in the same seat denied the Negro passenger, it is 
clear that the Negro passenger has, on account of his color, 
been subjected to a disability not suffered by white passen­
gers, and a violation of the Act is patent.

4 It is to be noted that there has been no showing of a factual basis 
demonstrative of the equality claimed to be afforded by the present 
regulation. The division is based upon a survey made from May 
14-24, 1945, and October 1-10, 1946, showing the number of Negroes 
and whites using the dining car facilities of the Southern Railway (R. 
225-247). While this gives some idea as to the approximate volume 
of Negro patronage in the dining car, there are no means available 
for determining how many Negro passengers will request service on a 
particular trip, and the present regulation is insufficient to accommo­
date an unanticipated volume of Negro traffic.

5 See first opinion of lower court in this case (R. 76).
6 McCabe v. Atchison, T. & S. F. Ry. Co., 235 U. S. 151.
7 Mitchell v. United States, 313 U. S. 80.



10

Yet, this is what is accomplished under the present regu­
lation as applied to a situation which may be reasonably 
expected to occur. Where Station 1 is fully occupied by 
Negro passengers, and Station 2 is wholly or partially occu­
pied by white passengers, a Negro passenger then applying 
for service is forced to wait, irrespective of the number of 
vacant seats in the white section. A white passenger pre­
senting himself for service, immediately after the refusal 
of the Negro passenger, is served without delay.

Nor is it an answer to say that whites also have to wait 
for seats on some occasions.7* The inquiry does not stop 
at the situation where all seats in the dining car are taken, 
or where both Negro and white passengers are standing; 
the character of the right possessed by the Negro passenger 
who stands while all whites are seated, and while there is 
space for him in the “ white” section, clearly makes the 
difference.8 Equal protection is not met by saying to the 
Negro passenger applying for accommodations in a sleeper,

7a Equality of treatment is not granted because there is between 
whites and Negroes an “indiscriminate imposition of inequalities.” 
Shelley v. Kraemer, 334 U. S. 1, 22.

8 “We take it that the chief reason for the Commission’s action 
was the ‘comparatively little colored traffic’. But the comparative 
volume of traffic cannot justify the denial of a fundamental right of 
equality of treatment, a right specifically safeguarded by the provisions 
of the Interstate Commerce Act. We thought a similar argument with 
respect to volume of traffic to be untenable in the application of the 
Fourteenth Amendment. We said that it made the constitutional 
right depend upon the number of persons who may be discriminated 
against, whereas the essence of that right is that it is a personal one. 
While the supply of particular facilities may be conditioned upon there 
being a reasonable demand therefor, if facilities are provided, substan­
tial equality of treatment of persons traveling under like conditions 
cannot be refused. It is the individual, we said, who is entitled to the 
equal protection of the laws—not merely a group of individuals or a 
body of persons according to their numbers. And the Interstate Com­
merce Act expressly extends its prohibitions to the subjecting of ‘any 
particular person’ to unreasonable discriminations.” Mitchell v. 
United States, supra, at page 97.



11

at a time when such accommodations are available to whites, 
that he may travel tomorrow,9 nor is it accomplished by 
telling the Negro student who seeks a legal education, at a 
time when such facilities are immediately available to 
whites, that he may study later.10 The conclusion seems in­
escapable that the right to dining car service must be af­
forded when the passenger presents himself, if facilities 
for affording service are then available anywhere in the car.

Appellant is entitled to and seeks a guarantee of the 
same service in every respect which is accorded white pas­
sengers under like conditions. This includes, among other 
things, the right to receive the same service and to be served 
as expeditiously.11 Earlier regulations of the Southern 
Railway fell short of affording this needed protection, and 
it is believed that the inadequacy of present regulations is 
equally clear.

A review of the history of regulations of the carrier as 
to dining car service for Negro passengers demonstrates 
the discrimination which has inevitably accompanied its 
segregation policies. First in point is its practice of many 
years’ duration of serving meals to passengers of different 
races at different times, Negro passengers being served 
either before or after the service of white passengers was 
completed (R. 186). The fact that the period required for 
the service of white passengers extended into the next meal 
period, completely obliterated all possibilities of service of 
Negro passengers and finally forced modification of this 
practice as accomplished by its regulation of July 3, 1941, 
which in turn was found lacking by the Commission and the

9 Mitchell v. United States, supra, at page 97.
10 Sipuel v. Board of Regents, 332 U. S. 631.
11 McCabe v. Atchison T. & S. F. Ry. Co., supra; Mitchell v. 

United States, supra.



12

District Court.12 The supplemental regulation of August 
6, 1942, in force at the time appellant was refused service 
met the same fate in court.13 * * * * 18 Experience as to the regu­
lations of the carrier demonstrates that only by a wide and 
radical departure from its practices pursuant to its previous 
regulations will illegal discriminations be avoided. It is 
apparent, however, that no such change is sought to be 
accomplished by the regulation under inquiry. The inade­
quacy of the regulation under consideration becomes more 
apparent when examined in light of its inflexible character, 
even though there is a variance in the number of Negro 
passengers travelling on a given train or seeking service 
in a particular diner. No matter how many Negro passen­
gers seek or desire service in the dining car, no matter 
whether they seek service singly, in couples or in larger

12 Dining Car Regulations at R. 186: “Meals should be served to 
passengers of different races at separate times. If passengers of one
race desire meals while passengers of a different race are being served 
in the dining car, such meals will be served in the room or seat occu­
pied by the passenger without extra charge. If the dining car is
equipped with curtains so that it can be divided into separate com­
partments, meals may be served to passengers of different races at the
same time in the compartment set aside for them.” As to this regula­
tion the lower court said at R. 78: “The alternative offered the
Negro passenger of being served at his seat in the coach or in the
Pullman car without extra charge does not in our view afford service 
substantially equivalent to that furnished in a dining car.”

18 Dining Car Regulations at R. 186: “On August 6, 1942, these 
instructions were supplemented as follows: Effective at once please
be governed by the following with respect to the race separation cur- 
trains in the dining cars: Before starting each meal pull the curtains 
to service position and place a ‘Reserved’ card on each of the two 
tables behind the curtains. These tables are not to be used by white 
passengers until all other seats in the car have been taken. _ Then if 
no colored passengers present themselves for meals, the curtain should 
be pushed back, cards removed and white passengers served at those 
tables. After the tables are occupied by white passengers, then should 
colored passengers present themselves they should be advised that 
they will be served just as soon as those compartments are vacated. 
‘Reserved’ cards are being supplied you.” This regulation was also 
found inadequate by the lower court (R. 63).



13

groups, under respondent’s present regulation the same dis­
position must be made in each instance. They must wait 
until there is room at the single table for four reserved 
exclusively for their benefit behind the wooden partition. 
In each of these situations it appears that the number of 
seats then available in the white section is immaterial since 
under no circumstances will the overflow demand of Negro 
passengers waiting for dining car service be taken care of 
except at the table for four.

Such situations will, in the very nature of things, con­
stantly present themselves, and their proposed disposition 
by respondents is intolerable. Incessant delays in obtain­
ing a seat at this one table are inevitable, and for many 
Negroes the procuring of a seat will be impossible. For 
those who are fortunate enough to obtain a seat, there will 
remain the consequent lack of expediency in service. The 
exercise of the privilege of dining with one’s friends, a 
matter of course among whites, becomes for the Negro an 
extraordinary accomplishment. When the seats reserved 
exclusively for Negroes are in use and seats reserved for 
whites are empty, it is clear that a Negro seeking service in 
respondent’s diner, on being denied such service at one of 
the empty seats, has been afforded discriminatory treat­
ment on the basis of race and color in violation of the Inter­
state Commerce Act.14

The best that can be said for this regulation is that it is 
based on a very limited survey indicating the habits of a 
racial group made with respect to the use of the dining car 
service. However, the Interstate Commerce Act and the 
Constitution secures and protects individual rights, and 
where an individual is discriminated against the Act and 
the Constitution is violated regardless of how accurate or 14

14 See Mitchell v. United States, supra.



14

exact may be the arrangement regarding the group with 
which he is identified. We believe that the carrier’s past 
regulations show that the equal treatment to individual pas­
sengers which the Interstate Commerce Act requires, can­
not be secured except under an arrangement whereby all 
passengers, regardless of race and color, have the same 
accommodations, service and treatment available. The only 
rule governing the availability of accommodations should 
be the democratic rule of “ first come—first served” rather 
than consideration of race and color.

When appellant bought his ticket for a journey over the 
Southern Railway between Washington, D. C., and Birming­
ham, Alabama, in addition to his seat and berth in a Pull­
man car, he was entitled to all other services and accom­
modations incident thereto, including the right to dine in 
the carrier’s diner. The record shows that pursuant to 
regulations then in force, appellant was not permitted to 
eat in the dining ear because of his race and color. White 
persons, on the other hand, paying the same charges and 
fare, were permitted to dine in the diner as a matter of 
course. It is now not disputed that appellant was subjected 
to an undue preference and prejudice proscribed under Sec­
tion 3 of the Interstate Commerce Act. The further con­
clusion is equally inescapable that white persons received 
greater service, comfort and convenience than appellant and 
other Negro passengers, paying the same charges and fare 
and entitled in all respects to like accommodations, comforts 
and conveniences. Clearly this is a basis for inquiry con­
cerning the reasonableness of the fare exacted as required 
under Section 1. Further there can be no doubt that ap­
pellant and other Negro passengers were receiving less ser­
vice and comfort than whites paying the same fare and were 
therefore being charged greater compensation for the trans­
portation than were white passengers.



15

Under the new regulation which was the subject of fur­
ther hearing before the Interstate Commerce Commission, 
these violations have not been cured as indicated, supra. 
Appellant and other Negro passengers who are using, or 
who in the future will use, respondent’s train are and will 
be subjected to undue prejudice and disadvantage, will re­
ceive less service, comfort and convenience than white per­
sons paying the same fare. Appellant contends that this 
disproportion amounts, and will amount, to a violation of 
Section 1 (5) as well as Section 3 of the Act.

II.
T he present regulation constitutes a burden on in­

terstate com m erce in the sam e manner and to the sam e 
extent as the state statute w hich w as struck dow n in 
M organ  versus Virginia.

The same factors which influenced this Court in declar­
ing that the states are without authority to require the sepa­
ration of races in interstate commerce are at work with 
equal force when the effect of a carrier regulation enforcing 
such segregation is considered. In Morgan v. Virginia,10 
this Court found that one of the main vices of giving effect 
to local statutes enforcing segregation in interstate com­
merce was the difficulty of identification.15 16 That difficulty 
is no less when the separation is attempted under a carrier 
regulation rather than under a state statute.

The carrier in order to enforce the present regulation 
must define what is meant by the term “ Negro” or 
“ colored” person. Appellant, in the instant case, travelled 
through five states, Virginia, North Carolina, South Caro­

15 TT S  ^7 ^
Ibid at pages 382, 383.



16

lina, Georgia and Alabama en route to his destination, 
Birmingham. In Virginia, Georgia and Alabama the term 
“ Negro” or “ colored” person includes all persons with any 
ascertainable amount of Negro blood.17 In North Carolina 
this term embraces all persons with Negro blood to the third 
generation inclusive,18 whereas in South Carolina % or 
more of Negro blood is enough to classify one as a “ Negro” 
or “ colored person” .19

If, therefore, the carrier attempts to enforce the pro­
posed regulation in accord with state policy, it will have to 
adopt the definitions of all states along the route over which 
the suggested regulation is to operate.

The record does not show that the carrier here involved 
has at any time attempted to formulate a definition or test 
by the application of which a passenger may be determined 
as a white person or Negro within the meaning of the 
regulation in question. But even if this were so, the situa­
tion would not be helped. The carrier regulations would

17 Ga. Laws, 1927, page 272; Ga. Code (Michie Supp.) 1928, Sec. 
2177; Va. Code (Michie) 1942, Sec. 67; Ala. Code, 1940, Title 1, 
Sec. 2 and Title 14, Sec. 360.

18 N. C. Gen. Stat. 1943, Secs. 51-3 and 14-181 (marriage law) ; 
but see N. C. Gen. Stat. 1943, Sec. 115-2 (separate school law) for a 
different definition of the term.

19 S. C. Const., Art. I ll , Sec. 33 (intermarriage). If the trip were 
continued to New Orleans, Louisiana, the rule is not clear. It was 
first held that all persons, including Indians, who were not white were 
“colored”. Adelle v. Bectugard, 1 Mart. 183. In 1910 it was held that 
anyone having an appreciable portion of Negro blood was a member 
of the colored race within the meaning of the segregation law. Lee v. 
New Orleans G. N. Ry., 125 La. 236, 51 S. 182. In the same year, 
however, it was decided that an octoroon was not a member of the 
Negro or black race within the meaning of the concubinage law (La. 
Act, 1908, No. 87). State v. Treadaway, 126 La. 300, 52 So. 500. 
Shortly after the latter decision, the present concubinage statute was 
enacted substituting the word “colored” for “Negro”. La. Acts, 1910, 
No. 206, La. Crim. Code (Dart), 1932, Arts. 1128-1130. The effect 
of the change is yet to be determined.



17

necessarily be even less precise in this regard than a state 
segregation statute. It is also perfectly clear that, as be­
tween different carriers and their respective segregation 
regulations, there are bound to be a multiplicity of varia­
tions of definitions of passengers as white and colored, 
and a multiplicity of variations in the ascertainment of pas­
sengers as white and colored. The dining car steward 
makes the determination as to the race of a passenger who 
seeks to dine in his car, and as between different stewards 
there is bound to be variations in the enforcement of the 
regulation. One steward might consider a passenger a 
white person and another steward might consider the same 
passenger a Negro within the meaning of the regulation. 
One thing* is clear, whether the carrier follows the state 
definitions or adopts its own, it makes itself subject to bur­
densome litigation.20 Hence, it is clear that the proposed 
regulation is as objectionable and as burdensome to com­
merce as the Virginia statute voided in the Morgan case.

There is, moreover, even less reason for giving effect to 
a carrier regulation than to a state statute. None of the 
factors which are said to give validity to a legislative judg­
ment which is expressed in segregation laws are operative 
where carrier regulations are involved. If respondent fears, 
as suggested before the Interstate Commerce Commission 
and in the lower court, that the co-mingling of Negro and 
white passengers will result in breaches of the peace, there 
is no reason advanced to show* that the states along re­
spondent’s route are without power to handle or control

20 See Louisville & N. R. R. v. Ritchel, 148 Ky. 701, 147 S. W. 
411 (1912) ; Missouri K. & T. Ry. Co. of Texas v. Ball, 25 Tex. Civ. 
App. 500, 61 S. W. 327 (1901); Chicago R. /. V P. Ry. Co. v. 
Allison, 210 Ark. 54, 178 S. W. 401 (1915) where punitive damages 
were afforded white persons for mistaken placement in colored coaches. 
Regardless of the definition used the carrier will be liable in damages 
unless its definition is a correct one as determined by the law of the 
applicable forum.



18

such incidents and to protect respondent’s property.2051 
National interests in maintaining commerce free of burdens 
and obstructions, must prevail over carrier regulations as 
well as state statutes. Hence under the rationale of the 
Morgan case, it must logically follow that neither a state 
nor a carrier has authority to burden interstate commerce 
by the enforced segregation of passengers in interstate 
commerce.

III.

Sanction o f this regulation by the Interstate Com­
m erce Com m ission constitutes governm ental action  
w ithin the reach o f the F ifth  A m endm ent.

With the passage of the Interstate Commerce Act, the 
Congress established the Interstate Commerce Commission 
to exercise its authority with respect to interstate com­
merce within the terms of the statute.

Under Section 1 (13) the Commission is authorized by 
general or special orders to require all carriers by railroad 
subject to the provisions of the Act to file from time to time 
their rules and regulations with respect to car service, and 
the Commission may in its discretion direct that such rules 
and regulations be incorporated in their schedules showing

2°a yfor may we aqq js there any reason to anticipate trouble. The 
Southern Railway is no local carrier but operates over one of the 
main arteries of travel connecting the North and South. People from 
states having civil rights statutes as well as those from states which 
practice segregation use its facilities. Negro passengers, at least since 
Mitchell v. United States, supra, have used its Pullman facilities with­
out segregation and without any infractions of the law taking place. 
Service in its diner without segregation will not force any white per­
son who does not desire to sit down and eat with a Negro.



19

rates, fares, and charges for transportation and be subject 
to any and all provisions of this chapter relating thereto.21

The Commission is further authorized under Section 
1 (14) after hearing a complaint or on its own initiative 
without complaint, establish reasonable rules, regulations 
and practices with respect to car services by carriers by 
railroads subject to this chapter.22

Under Section 3 (1) Congress has declared it unlawful 
for any common carrier to make or give any undue or un­
reasonable preference or advantage to any person.

Under Section 1 (5) the carriers subject to the Act are 
required to charge reasonable and just rates for services. 
The Commission has the authority and the duty of seeing to 
it that these provisions are carried out, and it may deter­
mine on its own initiative or on the complaint of an in­
dividual party whether a purported regulation or a regula­
tion in force is in keeping with the requirements of the Act.

From the decisions of this Court, it is clear that Con­
gress intended to reach all forms of discriminatory prac­
tices made by carriers subject to the Interstate Commerce

21 Sec. 1 (13) provides—Rules and regulations as to car service 
to be filed, etc.—The commission is authorized by general or special 
orders to require all carriers by railroad subject to this chapter, or any 
of them, to file with it from time to time their rules and regulations 
with respect to car service, and the commission may, in its discretion, 
direct that such rules and regulations shall be incorporated in their 
schedules showing rates, fares and charges for transportation, and be 
subject to any or all of the provisions of this chapter relating thereto.

32 Sec. 1 (14) provides—Establishment by commission of rules, 
etc. as to car service.—The Commission may, after hearing, on a com­
plaint or upon its own initiative without complaint, establish reason­
able rules, regulations, and practices with respect to car service by 
carriers by railroad subject to this chapter, including the compensa­
tion to be paid for the use of any locomotive, car, or other vehicle not 
owned by the carrier using it, and the penalties or other sanctions for 
non-observance of such rules, regulations or practices.



2 0

Act.23 Regarding such practices, it is clear that discrimi­
nation because of race and color is prohibited. There is no 
question but that Congress has therefore occupied the field 
and that private or state regulations contrary to the con­
gressional purpose must fall.24

23 Mitchell v. United States, supra, at pages 96, 97.
24 This has been the rule since Gibbons v. Ogden, 9 Wheat 1. In 

this connection it seems important to note that while this Court on 
occasion has questioned certain of its own earlier distinctions between 
direct and indirect impositions, the fact that exercise of control over 
interstate commerce is the purpose and objective of a questioned state 
statute, and that its enforcement is achieved by interference with inter­
state movement itself, militates strongly against the validity of the 
statute. This is because such an impact necessarily involves some 
invasion of the national interest in maintaining the freedom of com­
merce across state lines. If this fact alone is not conclusive, it at least 
suffice to establish the impropriety of the state regulation until and 
unless it is shown that urgent considerations of local welfare take a 
particular case out of the general rule. See Pennsylvania v. West 
Virginia, 262 U. S. 553, especially 596, 597; Bob Lo Excursion Co. v. 
Michigan, 333 U. S. 28, follows the same rationale. There it was felt 
that commerce was so peculiarly local that there could in no respect 
be an interference with the control of the United States over foreign 
commerce. Further, this conclusion seemed to be reached by virtue 
of the fact that the Michigan statute and public policy was found by 
the court to conform to the national policy with regard to barring 
distinctions and classifications based on race and color. On this point 
the Court said in note 16: “Federal legislation had indicated a national 
policy against racial discrimination in the requirement, not urged here 
to be specifically applicable in this case, of the Interstate Commerce 
Act that carriers subject to its provisions provide equal facilities for 
all passengers, 49 U. S. C. A. Sec. 3 (1), 10A,_ F. C. A. title 49, 
Sec. 3 (1), extended to carriers by water and air, 46 U. S. C. A. 
Sec. 815, 10 F. C. A. title 46, Sec. 815 ; 49 U. S. C. A. Secs. 484, 905, 
10A F. C. A. title 49, Secs. 484, 905, Cf. Mitchell v. United States, 313 
U. S. 80, 85 L. ed. 1201, 61 S. Ct. 873. Federal legislation also com­
pels a collective bargaining agent to represent all employees in the 
bargaining unit without discrimination because of race. 45 U. S. C. A. 
Secs. 151, et seq., 10A F. C. A. title 45, Secs. 151, et seqx, Steele v. 
Louisville & N. R. Co., 323 U. S. 192, 89 L. ed. 173, 65 S. Ct. 226; 
Tunstall v. Brotherhood of Locomotive F. E., 323 U. S. 210, 89 L. ed. 
187, 65 S. Ct. 235. The direction of national policy is clearly in ac­
cord with Michigan policy. Cf. also Hirabayashi v. United States, 
320 U. S. 81 L. ed. 1774, 63 S. Ct. 1375; Korematsu v. United States, 
323 U. S. 214, 89 L. ed. 194, 65 S. Ct. 193; E x parte Endo, 323 U. S. 
283, 89 L. ed. 243, 65 S. Ct. 208.”



21

The situation which wTas present when Hall v. DeCuir 
was decided is present no longer.25 26 There it was felt that 
state statutes that required equal treatment of passengers 
in interstate commerce were burdensome on such com­
merce and that private carriers were free to make their 
own rules and regulations until such time as Congress had 
spoken. Congress has now spoken.

It is the duty of the Commission to say whether a regula­
tion provides equality of treatment, and the carrier regula­
tions dealing with this subject matter are of no force or ef­
fect without the sanction of the Commission. They can 
only exist with the sanction of the government. In this case, 
the Commission specifically approves the present regula­
tion and this is clearly governmental action within the 
meaning of the Fifth Amendment.26

IV.

The government is powerless under the Constitu­
tion to make, sanction, or enforce, any distinctions or 
classifications based upon race or color.

It has been the consistent opinion of this Court that the 
Constitution requires that all persons similarly situated be 
treated in a like manner.27 Thus, where legal distinctions

25 95 U. S. 485.
26 For full discussion of the concept of state action under the Four­

teenth Amendment see United States v. Screws, 325 U. S. 91, and 
particularly Mr. Justice R u t l e d g e ’s  opinion at pages 113, 114, 115. 
It is clear the same principle will determine whether there is govern­
mental action under the Fifth Amendment. This issue was raised in 
Hurd v. Hodge, 332 U. S. 24, but not decided because the court dis­
posed of the problem without reaching the constitutional question.

27 See Truax v. Corrigan, 257 U. S. 312; Skinner v. Oklahoma, 
316 U. S. 535; Takahashi v. Fish and Game Commission, 332 U. S. 
410; Shelley v. Kraemer, 334 U. S. 1; Hirabayashi v. United States, 
320 U. S. 81 ; Korematsu v. United States, 323 U. S. 214; See also 
Hurd v. Hodge, 334 U. S. 24; Tunstall v. Brotherhood of Locomo­
tive Firemen and Enginemen, 323 U. S. 210.



are made as between persons or groups, such distinctions 
must have a rational basis in order to avoid conflict with 
either the Fourteenth or Fifteenth Amendments. This 
Court has consistently held that governmental distinctions 
between persons based upon race or color are arbitrary and 
unreasonable and cannot stand under the Constitution.28 
Although the Fifth Amendment contains no equal protec­
tion clause, it is no longer open to doubt that the United 
States government is as limited in making race a basis for 
a legislative enactment as are the states under the Four­
teenth Amendment.28a It is also now clear from the deci­
sions of this Court that the government cannot be a party 
to the enforcement of racial distinctions and classifications 
which are privately promulgated.29 Although Hurd v. 
Hodge was decided without reaching this constitutional 
question, it seems certain that this Court will find the fed­
eral government bound by the same constitutional limita­
tions which is found applicable to the states in Shelley v. 
Kraemer.

Only under the rationale of Plessy v. Ferguson30 could 
a contrary decision be reached. That decision gave birth 
to the much criticized “ equal but separate” doctrine, under 
which enforced racial separation is declared permissible 
as long as the facilities available for Negroes are equal or

28 See cases supra, in note 27.
28a Hirdbayashi v. United States, supra; Korematsu v. United 

States, supra; and Tunstall v. Brotherhood of Locomotive Firemen 
and Enginemen, supra.

29 Shelley v. Kraemer, 334 U. S. 1.
30 1 63 U. S. 537.



23

substantially equal to those available to whites.31 Of course 
there can be no question of equal facilities in this case when 
under the carrier’s present regulations a passenger who is 
a Negro is forced to eat in isolation behind a wooden barrier 
as if he were unclean or an untouchable.32 But for more

31 The Report of the President’s Committee on Civil Rights at 
page 81. “This judicial legalization of segregation was not accom­
plished without protest. Justice Harlan, a Kentuckian, in one of the 
most vigorous and forthright dissenting opinions in Supreme Court 
history, denounced his colleagues for the manner in which they inter­
preted away the substance of the Thirteenth and Fourteenth Amend­
ments. In his dissent in the Plessy case, he said: ‘Our Constitution 
is color blind, and neither knows nor tolerates classes among citi­
zens. * * * ’ ‘We boast of the freedom enjoyed by our people above 
all other peoples. But it is difficult to reconcile that boast with a 
state of the law which, practically, puts the brand of servitude and 
degradation upon a large class of our fellow citizens, our equals before 
the law. The thin disguise of ‘equal’ accommodations * * * will not 
mislead anyone, or atone for the wrong this day done. I f evidence 
beyond that of dispassionate reason was needed to justify Justice 
Harlan’s statement, history has provided it. Segregation has become 
the cornerstone of the elaborate structure of discrimination against 
some American citizens. Theoretically this system simply duplicates 
educational, recreational and other public services, according facilities 
to the two races which are ‘separate but equal’. In the Committee’s 
opinion this is one of the outstanding myths of American history for 
it is almost always true that while indeed separate, these facilities dre 
far from equal.’ ” (Italics supplied.)

82 The Report of the President’s Committee on Civil Rights at page 
79. “Mention has already~been made of the ‘separate but equal’ policy 
of the southern states by which Negroes are said to be entitled to the 
same public service as whites but on a strictly segregated basis. The 
theory behind this policy is complex. On one hand, it recognizes 
Negroes as citizens and as intelligent human beings entitled to enjoy 
the status accorded the individual in our American heritage of free­
dom. It theoretically gives them access to all the rights, privileges, 
and services of a civilized, democratic society. On the other hand, it 
brands the Negro with the mark of inferiority and asserts that he is 
not fit to associate with white people.” (Italics supplied.)



24

than 20 years this Court has shown an acute awareness of 
the dangers and fallacies in ratio decedendi of Plessy v. 
Ferguson and has moved further away from the philosophy 
which that case expounded. There is now little doubt but 
that government cannot now use race or color as a permis­
sible basis for legislative or administrative action. Consti­
tutional limitations in this regard are probably more strin­
gent and inflexible when the national government is involved 
than when there is a question of permissible state action. 
The “ equal but separate” doctrine should be reexamined 
and discarded.

Conclusion.

It is respectfully submitted that the judgment of the 
Distinct Court should be reversed and that the Interstate 
Commerce Commission should be directed to enter an order 
prohibiting- the railroad from requiring racial segregation 
of its Negro dining car patrons.

Robert L. Carter 
Thurgood Marshall 

Attorneys for Amicus Curiae.