Boynton v. Virginia Brief for the United States as Amicus Curiae

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J tt tfe d|0urt 0f t o  Wimtd S tates
October Term , 1960

B ruce B oynton, petitioner

v.
COMMONAVEALTH OF VIRGINIA

ON W R IT  OF C E R T IO R A R I TO T H E  SU P R E M E  COURT OF A P P E A LS  
OF T H E  COM M ONW EALTH  OF V IR G IN IA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

J. LEE R A N K IN ,
Solicitor General, 

HAROLD R. TYLER, JH .,
A ssistan t A ttorney General, 

P H IL IP  ELMAN,
A ssistan t to the Solicitor General, 

HAROLD H. GREENE,
RICHARD J. M EDALIE,
DAVID R U B IN ,
GERALD P. CHOPPIN,

A ttorneys,
Department of Justice, Washington 25, D.C.



I N D E X

i*ag«
Statement__________________  1
Argument________________   4

Point I______     5
Point II____________________________  9

Point III____________________________  16
Conclusion_____________________   28
Appendix___________________________________ 29

C ITA TIO N S
•Cases:

Air Terminal Services, Inc. v. Rentzel, 81 F.
Supp. 611_________________________   20

American Federation of Labor v. Swing, 312
U.S. 321__________________________   18

Atchison, Topeka & Santa Fe Ry. Co., 135
I.C.C. 633_________________________  14

Atlantic Coast Line R. Co. v. North Carolina
Corp. Commission, 206 U.S. 1__________  11

Augustus v. City of Pensacola, 1 R.R.L.R. 681 19
Barrows v. Jackson, 346 U.S. 249_________  17
Bob-Lo Excursion Co. v. Michigan, 333 U.S.

28________________________________  15
Boman v. Birmingham Transit Co,, decided

July 12, 1960_______________________  26
Bridges v. California, 314 U.S. 252_________ 18
Brown v. Board of Education, 347 U.S. 483__ 20
Cantwell v. Connecticut, 310 U.S. 296______  18
Chance v. Lambeth, 186 F. 2d 879, certiorari

denied, 341 U.S. 941____________ _____ 10,11
City of Greensboro v. Simkins, 246 F. 2d 425__ 20
561431— 60-------1 ( l )



II

Cases—Continued
City of Petersburg v. Alsup, 238 F. 2d 830, Page

certiorari denied, 353 U.S. 922__________ 19
Civil Rights Cases, 109 U.S. 3__________ 16,17, 21
Coke v. City of Atlanta, (N.D. Ga.)______ 20
Dayton Union Ry. Co. Tariff for Redcap Serv­

ice, 256 I.C.C. 289___________________  12
Debs In re, 158 U.S. 564________________  11
Derrington v. Plummer, 240 F. 2d 922, cer­

tiorari denied, 353 U.S. 924___ _________ 20
Draper v. City of St. Louis, 92 F. Supp. 546,

appeal dismissed, 186 F. 2d 307______ _ 19
Fay v. New York, 332 U.S. 261_______ ___  27
Flemming v. South Carolina Electric & Gas Co.,

224 F. 2d 752, appeal dismissed, 351 U.S.
901_______________________________  21

Freeman v. Retail Clerks Local 1207 (Kings 
County Super. Ct., Washington), decided 
December 9, 1959 (28 U.S.L. Week 2311).- 25

Gayle v. Browder, 352 U.S. 903___________  20
Gibbons v. Ogden, 9 Wheat. 1___________9
Hall v. DeCuir, 95 U.S. 485_____________  9
Hayes v. Crutcher, 137 F. Supp. 853_______  19
Henderson v. United States, 339 U.S. 816____ 7,

10, 12,13,15
Henry v. Greenville Airport Commission, de­

cided April 20, 1960__________________  20
Holley v. City of Portsmouth, 150 F. Supp. 6__ 19
Holmes v. City of Atlanta, 350 U.S. 879, revers­

ing 223 F. 2d 93_____________________  19
Hurd v. Hodge, 334 U.S. 24______________ 27
Kansas City So. Ry. Co. v. Kaw Valley List.,

233 U.S. 75_________________________ 10
" Kerr v. Enoch Pratt Free Library, 149 F. 2d

212, certiorari denied, 326 U.S. 721_____ 21



in

Cases—Continued Page
Keys v. Carolina Coach Co., 64 M.C.C. 769.. 8
Korematsu v. United States, 323 U.S. 214_____ 22
Kreshik v. St. Nicholas Cathedral, 363 U.S.

190_______________________________  18
Lawrence v. Hancock, 76 F. Supp. 1004_____19, 20
Lonesome v. Maxwell, 220 F. 2d 386___________ 19
McCabe v. Atchison .T. & S.F.R. Co., 235 U.S. :

151-----------------------------------------------  19
Marsh v. Alabama, 326 U.S. 501___ 5,17, 24,25, 26
Mayor and City Council of Baltimore v. 

Dawson, 350 U.S. 877, affirming 220 F. 2d
386------------------------- ---------------------- 19

Mitchell v. United States, 313 U.S. 80______  7,
10,13,15,19, 21

Moorhead v. City of Ft. Lauderdale, 152 F.
Supp. 131, affirmed, 248 F. 2d 544______  19

Moorman v. Morgan, 285 S.W. 2d 146_____ 19
Morgan v. Virginia, 328 U.S. 373____ 9, 10, 14,15
Morris v. Duby, 274 U.S. 135_____________ 11
Muir v. Louisville Park Theatrical Ass’n., 347

U.S. 971, reversing 202 F. 2d 275________ 19, 20
Munn v. Illinois, 94 U.S. 113______ ______  24
N.A.A.C.P. v. Alabama, 357 U.S. 449_______ 18
N.A.A.C.P. v. St. Louis-S.F. Ry. Co., 297

I.C.C. 335-------------------------------------- 12,15
Nash v. Air Terminal Services, 85 F. Supp. 545- 20
National Labor Relations Board v. Babcock &

Wilcox Co., 351 U.S. 105____   24
New Orleans City Park Improvement Assoc, v.

Detiege, 358 U.S. 54, affirming, 252 F. 2d
122--------------------------------  19

Philadelphia, B. & W.R. Co. v. Smith, 250
U.S. 101___ •_______________________  11

Republic Aviation Corp. v. National Labor 
Relations Board, 324 U.S. 793, n. 8_____ 24



IV

Cases—Continued Page
Rice v.Santa Fe Elevator Corp., 331 U.S. 218_ 12
St. Louis-S.F. Ry. v. Public Service Com­

mission, 261 U.S. 369___________________ 11
Seaboard Air Line Ry. v. Blackwell, 244 U.S.

310_______________________________  9
Shelley v. Kraemer, 334 U.S. 1____ 5,17,18, 25, 27
Smith v. Allwright, 321 U.S. 649____________  26
Solomon v. Pennsylvania R.R., 96 F. Supp.

7 0 9 - ___    9
South Covington Ry. v. Covington, 235 U.S. 537_ 10
Southern Pacific Co. v. Arizona, 325 U.S. 761 _ 9
Tale v. Department of Conservation, 133 F.

Supp. 53, affirmed, 231 F. 2d 615, certiorari
denied, 352 U.S. 838__________________ 20

Terry v. Adams, 345 U.S. 461____________  26
Virginia v. Rives, 100 U.S. 313___________  27
Ward v. City of Miami, 151 F. 593, affirmed,

252 F. 2d 787_______________________  19
Whiteside v. Southern Bus Lines, 177 F. 2d 949- 10,11 
Williams v. Carolina Coach Co., I l l  F. Supp.

329, affirmed, 207 F. 2d 408____________ 8
Williams v. Howard Johnson’s Restaurant, 268

F. 2d 845__________________________  13,14
Williams v. Kansas City, Mo., 104 F. Supp.

848, affirmed, 205 F. 2d 47, certiorari denied,
346 U.S. 826________________________ 19

Constitution and statutes:
United States Constitution:

Fourteenth Amendment. 15,16,17,18,19,20, 27
Art. I, Sec. 8, Cl. 3_________________  9,11

Act of September 18, 1940, 54 Stat. 899___ 5
Civil Rights Act of 1866, 14 Stat. 27______  23
Civil Rights Act of 1875, 18 Stat. 336_____  23



Constitution and statutes—Continued
Interstate Commerce Act, 49 U.S.C. 1, et seq.: 

National Transportation Policy (preced-
ing 49 U.S.C. 1)__________________  5-6

49 U.S.C. 3(1)_____________________ 7,12
49 U.S.C. 16(13)___________________ 8
49 U.S.C. 303(a)(19)_______________  7,9
49 U.S.C. 304(d)___________________ 8
49 U.S.C. 316(a)___________________  6
49 U.S.C. 316(d)___________________ 6, 7
42 U.S.C. 1981____________________ 27, 28
42 U.S.C. 1982____________________ 27, 28

Miscellaneous:
Cong. Globe, 42d Cong., 2d Sess., pp. 381,

382-383____________________  23
Cong. Record, 43d Cong., 1st Sess., p. 11._ 23
1 R.R.L.R. 681________________ 24
N.Y. Times, April 23, 1960, p. 21, col. 1.. 25



J n  the £ttj?ttme flfottrt of the United States
October T erm , 1960

No. 7
B ruce B oynton, petitioner

v.
Commonwealth op V irginia

ON W R IT  OF C E R T IO R A R I TO T H E  SU PR E M E  COURT OF A P P E A LS  
OF TH E  COM M ONW EALTH  OF V IR G IN IA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

STA TEM EN T

At 8:00 p.m. on December 20, 1958, petitioner, a 
Negro student in his third year at the Howard Uni­
versity School of Law in Washington, D.C., boarded 
a Trail ways bus in Washington to travel to his home 
in Selma, Alabama (R. 27). He had in his possession 
a ticket entitling him to travel to Montgomery, Ala­
bama, on Trail ways (R. 27). The bus arrived at the 
Trail ways Bus Terminal in Richmond, Virginia, at 
about 10:40 p.m. When the driver pulled the bus 
up to the stop at the terminal, he notified the passen­
gers, including petitioner, that there would be a forty- 
minute stopover (R. 28).

(i)



2

Because lie was hungry, petitioner alighted from 
the bus and entered the terminal to get something to 
eat (R. 28). He had never stopped in Richmond 
before and did not know of any other place where 
he could get something to eat within such a short time 
(R. 29). There were two restaurants in the terminal. 
One, which was “customarily used for colored people” 
(R. 22), appeared to be crowded (R. 28). Petitioner 
proceeded to the other restaurant, “customarily used 
for * * * white” people (R. 22) which was not 
crowded, and sat down upon one of the vacant stools 
at the counter (R. 28).

One of the waitresses thereupon asked him to leave 
and go over to the other restaurant (R. 28). He in­
formed her that the other restaurant was somewhat 
crowded and that he was an interstate passenger (R. 
28). She insisted that, because of specific orders 
which she had been given and also because of the 
custom there, she could not serin him (R. 28). He 
reminded her that he was an interstate passenger and 
explained that, because his bus would be leaving 
within a short time, he would like to get something 
that would not take too long to prepare (R. 28). The 
waitress suggested that he purchase a prepared sand­
wich, whereupon he ordered one of the sandwiches 
with a beverage (R. 29).

The waitress departed, and then returned and in­
formed petitioner that she had orders not to serve 
him (R. 29). He then asked her to find someone who 
could serve him (R. 29). She departed again and 
returned with the Assistant Manager of the restaurant 
(R. 20, 29). The Assistant Manager told petitioner



3

that he could not be served (R. 29), explained that 
there was a restaurant “ on the other side for the 
colored” (R. 21), and suggested that he go to that 
restaurant (R. 21). Petitioner refused and continued 
to insist that his status as an interstate passenger 
entitled him to be served (R. 29). The Assistant 
Manager then called a police officer to enlist his aid 
in getting petitioner to leave (R. 21). The officer 
took petitioner outside and “tried to explain to him 
the situation” (R. 21), and then returned and asked 
the Assistant Manager if he wanted a warrant for 
petitioner’s arrest (R. 21). After first replying in 
the negative (R. 21), the Assistant Manager, upon 
noticing that petitioner had returned, reconsidered 
and caused petitioner to be arrested for trespassing 
(R. 21, 29).

The bus terminal was owned and operated by 
Trailways Bus Terminal, Inc. (R. 9). The restau­
rants were built into the terminal upon its con­
struction and leased by Trailways to Bus Terminal 
Restaurant of Richmond, Inc. (R. 9-17). The lease 
grants exclusive authority to the latter to operate 
restaurants in the terminal (R. 10) and requires 
that the restaurants be operated in keeping with 
the character of service maintained in an up-to-date, 
modern bus terminal (R. 14), that the lessee obtain 
the lessor’s permission before selling any commodity 
not usually sold or installed in a “bus terminal 
concession” (R. 11), that the lessee refrain from sell­
ing on buses operating in or out of the terminal, and 
that, upon notice from the lessor, the lessee refrain

561431— 60----2



4

from making sales through the windows of the buses 
(ft. 16). At no facility in the terminal, with the ex­
ception of these restaurants, is racial segregation 
required or practiced (R. 8).

Trial on the trespassing charge was held on Janu­
ary 6, 1959, in the Police Court of the City of 
Richmond (R. 19). At the conclusion of the pro­
ceedings, petitioner was found guilty and fined $10 
(R. 30). On February 20, 1959, the judgment was 
approved by the Hustings Court of the City of 
Richmond (R. 30-31). On June 19, 1959, the 
Supreme Court of Appeals of Virginia affirmed the 
judgment of the Hustings Court (R. 32).

A RG UM EN T

During the course of his journey, petitioner, an 
American citizen traveling from one state to another 
on a federally-regulated carrier, was denied, solely be­
cause of his race or color, the right to equal treat­
ment in the use of an essential transportation facility - 
in this instance, a restaurant in a bus terminal serving 
interstate passengers. This denial was compounded by 
the action of a state in prosecuting and punishing him 
as a criminal trespasser. The invocation of the state’s 
trespass law against petitioner for acts constituting a 
peaceable and orderly attempt to exercise his federal 
rights to equal treatment in the use of transportation 
facilities while traveling on interstate carriers subject 
to federal regulation had the necessary and inevitable 
effect of thwarting and defeating these rights.
: This case does not involve purely private or individ­

ual action which is in no respect enforced, implemented,



5

or supported by governmental authority. I t  does not 
present any question as to “ the right of a homeowner” 
to choose or “to regulate the conduct of his guests” 
{Marsh v. Alabama, 326 U.S. 501, 506), for the facili­
ties with which we are concerned here were “built and 
operated primarily to benefit the public” {ibid.). Nor 
is this a case in which the state “has merely abstained 
from action, leaving private individuals free to impose 
such discriminations as they see fit.” Shelley v. 
Kraemer, 334 U.S. 1, 19. On the contrary, the judg­
ment here under review represents an affirmative exer­
tion of governmental authority to sanction and consum­
mate racial discrimination, thereby making the state 
itself a party to the discrimination. In short, the sig­
nificant aspects of this ease are its public, interstate, 
and governmental action aspects.

I

The discrimination here against petitioner con­
flicts both with the general purposes and objects of 
the Interstate Commerce Act, 49 U.S.C. 1, et seq., as 
embodied in the “National Transportation Policy,” 1

149 U.S.C. preceding Section 1, added to thej Interstate Com­
merce Act by the Act of September 18, 1940, 54 Stat. 899. Seg­
regation of interstate bus passengers by race in a bus terminal 
restaurant is contrary to the “National Transportation Policy” 
in almost every one of its particulars. That policy is as fol­
lows: “I t  is hereby declared to be the national transportation 
policy of the Congress to provide for fair and impartial regu­
lation of all modes of transportation subject to the provisions 
of this Act, * * * so administered as to recognize and preserve 
the inherent advantages of each; to promote safe, adequate, eco­
nomical, and efficient service and foster sound economic 
conditions in transportation and among the several carriers; 
to encourage the establishment and mainilend/nce o f reasonable



6

and with several of the specific provisions of the Act,* 
especially 49 U.S.C. 316(d).3 That subsection states 
clearly that it “shall be unlawful * * * to subject any

charges for transportation services, without unjust discriminar 
tions, undue preferences or advantages, or unfair or destruc­
tive competitive practices; to cooperate with the several States 
and the duly authorized officials thereof; and to encourage 
fair wages and equitable working conditions; all to the end 
of developing, coordinating and preserving a national trans­
portation system by water, highway, and rail, as well as other 
means, adequate to meet the needs of the commerce of the 
United States, of the Postal Service, and of the national de­
fense. All of the provisions of this Act shall be administered 
and enforced with a view to carrying out the above declaration 
of policy” (emphasis added).

2 For example, 49 U.S.C. 816(a) provides in pertinent part 
that “[i]t shall be the duty of every common carrier of pas­
sengers by motor vehicle * * * to provide * * * adequate serv­
ice * * * and facilities for the transportation of passengers in 
interstate or foreign commerce; to establish, observe, and en­
force just and reasonable individual and joint rates, fares, and 
charges, and just and reasonable regulations and practices re­
lating thereto, and to * * * the facilities for transportation, 
and all other matters relating to or connected with the trans­
portation of passengers in interstate or foreign commerce

* * I t  seems clear that a segregated dining facility is 
foreign to the mandate, embodied in Section 316(a), that “ade­
quate service and facilities” be maintained for all, including 
Negro passengers. Similarly, the duty of enforcing “just and 
reasonable regulations and practices” relating to transportation 
facilities “and all other matters relating to or connected with 
the transportation of passengers” clearly seems to be violated 
by the practice of racial discrimination in the terminal facili­
ties which the passengers must use.

3 49 U.S.C. 316(d) provides in pertinent part that “[a]ll 
charges made for any service rendered or to be rendered by 
any common carrier by motor vehicle engaged in interstate or 
foreign commerce in the transportation of passengers or prop­
erty as aforesaid or in connection 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



7

particular person * * * to any unjust discrimination 
or any undue or unreasonable prejudice or disad­
vantage in any respect whatsoever * * This
provision in Section 316(d), embodied in Part I I  of 
the Act dealing with “ Motor Carriers,” is identical to 
the provision in 49 U.S.C. 3(1), embodied in P art I  
of the Act dealing with “General Provisions and Rail­
road and Pipe Line Carriers,” which was held in 
Mitchell v. United States, 313 U.S. 80, and Henderson 
v. United States, 339 U.S. 816, to proscribe racial dis­
crimination in interstate railroad pullman and dining 
cars. Under the Act, “racial classification of passen­
gers holding identical tickets” {id. at 825) is barred 
in relation to interstate transportation services of 
every kind.

To be sure, Section 316(d) speaks only of ‘'any com­
mon carrier by motor vehicle,” and not of terminals 
or terminal restaurant facilities as such. But 49 
U.S.C. 303(a) (19) defines the “services” and “trans­
portation” to which Part I I  of the Act applies as 
including “ all facilities and property operated or con­
trolled by any * * * carrier * * * used in the trans­
portation of passengers or property in interstate or 
foreign commerce or in the performance of any 
service in connection therewith” (emphasis added).

unlawful. I t  shall be unlawful for any common carrier by 
motor vehicle engaged in interstate or foreign commerce to 
make, give or cause any undue or unreasonable preference or 
advantage to any particular person * * * in any respect what* 
soever; or to subject any particular person * * * to any.unjust 
discrimination or any undue or unreasonable prejudice or dis­
advantage in any respect whatsoever * *



The facilities involved in the present case are so 
controlled. The Trail ways Bus Terminal in Richmond, 
Virginia, is owned by Trailways Bus Terminal, Inc. 
(R. 18). According to an authenticated copy of the 
records of the Interstate Commerce Commission, re­
printed in the Appendix, pp. 29-31, infra,4 Virginia 
Stage Lines, Inc., a “common carrier by motor vehicle,” 
owns fifty percent of the stock in Trailways Bus Ter­
minal, Inc., and operates the terminal as a joint facility 
with the Carolina Coach Company, also a “common car­
rier by motor vehicle” (see Williams v. Carolina Coach 
Co., I l l  P. Supp. 329 (E.D. Va.), affirmed, 207 P. 2d 
408 (C.A. 4) ; Keys v. Carolina Coach Co., 64 M.C.C. 
769).

The fact that the restaurant in the terminal is leased 
by Trailways Bus Terminal, Inc., to Bus Terminal 
Restaurant of Richmond, Inc., is thus immaterial 
here. Since a carrier is prohibited from enforcing 
racial segregation in facilities which it operates or 
controls, it may not evade its statutory responsibili­
ties in this respect by leasing such facilities to an­
other. The paramount federal duty of nondiscrimi­
nation is not delegable and cannot be discharged

4 “ [AJnnual or other reports of earners made to the Com­
mission * * * shall be preserved as public records * * 49
U.S.C. 16(13). These public records, including “copies of and 
extracts from” them, properly certified and sealed, “shall be 
received as prima facie evidence of what they purport to be 
* * * in all judicial proceedings * * Ibid ./ see 49 U.S.C.
304(d). The extracts from the annual reports of the carrier 
which appear in the Appendix, pp. 29-32, infra, have been cer­
tified by the Secretary under the Commission’s seal as required.



9

through, lease of facilities.6 I t follows that maiute- 
nance of segregation in the Richmond terminal restau­
rant, and its enforcement by the state, violate the 
Interstate Commerce Act which thus provides a full 
defense against the trespass charge on which the judg­
ment below was based. Cf. Solomon v. Pennsylvania 
R.E., 96 ¥. Supp. 709, 712 (S.D.N.Y.).

I I
Ever since Gibbons v. Ogden, 9 Wheat. 1, “the 

states have not been deemed to have ..the authority to 
impede substantially the free flow of commerce from 
.state to state * * *.” Southern Pacific Co. v. Arizona, 
325 U.S. 761, 767. This “ long-recognized distribution 
of power between national and state governments” 
has been predicated in some cases upon the expressed 
or the presumed intention of Congress (id, at 768), 
and in others “ upon the implications of the commerce 
clause itself” (ibid.). Thus, even in the absence of 
congressional action, the Commerce Clause, of its own 
force, requires invalidation of unreasonable state- 
imposed burdens on interstate commerce. See Morgan 
v. Virginia, 328 U.S. 373; Hall v. DeCuir, 95 U.S. 485. 
See also Seaboard Air Line By. v. Blackwell, 244 U.S.

6 Moreover, the terms of the lease itself evidence sufficient con­
trol by the carrier for purposes of Section 303(a) (19) : the termi­
nal restaurants are required to be operated in keeping with the 
character of service maintained in an up-to-date, modern bus ter­
minal (It. 14); the lessee must obtain the lessor’s permission be­
fore selling any commodity not usually sold or installed in a “bus 
terminal concession” (R. 11); the lessee must refrain from sell­
ing on buses operating in or out of the terminal (R. 16); and, 
upon notice from the lessor, the lessee must also refrain from 
making sales through the windows of the buses (R. 16).



10

310; South Covington Ry. v. Covington, 235 U.S. 537.
Whether any particular state legislation is invalid 

depends upon whether “ it unduly burdens * * * com­
merce in matters where uniformity is necessary * * 
Morgan v. Virginia, supra, at 377. And whether “ the 
statute in question is a burden on commerce” depends 
upon the “situation created by the attempted enforce­
ment of * * * [the] statute * * *.” Id. at 377-378. 
Thus, in Morgan v. Virginia, supra, a Virginia 
statute required racial segregation in interstate 
buses. Stating that the issue of the statute’s 
validity must be decided “as a matter of bal­
ance between the exercise of the local police power 
and the need for national uniformity in the regulations 
for interstate travel,” the Court concluded “ * * * 
that seating arrangements for the different races in 
interstate motor travel require a single, uniform rule 
to promote and protect national travel.” 328 U.S. at 
386. See also Henderson v. United States, 339 U.S. 
816; Mitchell v. United States, 313 U.S. 80; Chance v. 
Lambeth, 186 F. 2d 879 (C.A. 4), certiorari denied, 
341 U.S. 941; Whiteside v. Southern Bus Lines, Inc., 
177 F. 2d 949 (C.A. 6).

The application of a state statute is not the only 
official act of a state which has been found by the 
Court to be invalid as a burden on interstate com­
merce. In  Morgan v. Virginia, supra, at 379, the 
Court also observed that “ * * * a final court order is 
invalid which materially affects interstate commerce.” 
Accord, Kansas City So. Ry. Co. v. Raw Valley Hist., 
233 U.S. 75. An order of an administrative commis­
sion may also constitute a burden on interstate com-



11

merce. Morris v. Duty, 274 U.S. 135; St. Louis-S.F. 
Ry. v. Public Service Commission, 261 U.S. 369; 
Atlantic Coast Line R. Co. v. North Carolina Corp. 
Commission, 206 U.S. 1. Similarly, the federal courts 
have ruled that a burden may be created by the state 
enforcement of a private regulation. Chance v. Lam­
beth, supra; Whiteside v. Southern Bus Lines, Inc., 
supra.

In the present case, petitioner was ejected from the 
restaurant and arrested by a state police officer, 
prosecuted by the state for violation of a law enacted 
by the state legislature, and convicted by a state judge 
in a state court. Thus, whether the trespass convic­
tion be isolated as an unconstitutional application of 
the state trespass law or whether it be regarded as a 
combination of state legislative, executive, and judicial 
action, it nevertheless is clearly the type of activity 
which is embraced within the scope of the Commerce 
Clause.6

I t  is not material that the present case 
involves racial segregation in dining facilities at 
bus terminals rather than on the bus itself. The fur­
nishing of food to interstate passengers is as much a 
part of interstate commerce in the one place as the 
other. See Philadelphia, B. & W. R. Co. v. Smith, 
250 U.S. 101; Henderson v. United States, 339 U.S. 
816. Facilities are, of course, not removed from inter-

6 Some courts have indicated—correctly, we believe—that racial 
segregation imposed by a private carrier alone, unsupported by 
state authority, would also constitute an unlawful burden on in­
terstate commerce. Chance v. Lambeth, supra, at 882-883; 
Whiteside v. Southern Bus Lines, Inc., supra,, at 953; cf. In  re 
Debs, 158 U.S. 564, 581, 582.

561431— 00----3



12

state commerce simply because they are stationary. 
See, e.g., Bice v. Santa Fe Elevator Corp., 331 U.S. 
218, 229. The Interstate Commerce Commission, by 
asserting jurisdiction over terminal facilities such as 
red-cap service, Dayton Union By. Co. Tariff for 
Bedcap Service, 256 I.C.C. 289, 299, and station wait­
ing rooms and rest rooms, N.A.A.C.P. v. St. Louis- 
S.F. By. Co., 297 I.C.C. 335, has demonstrated its recog­
nition that a facility may be in interstate commerce 
although it is located in a terminal rather than on a 
moving carrier.7 This Court, in Henderson v. United 
States, 339 U.S. 816, 824, characterized regulations of 
a railroad carrier which required segregation of the 
races in dining cars as “ unreasonable discriminations” 
in violation of Section 3(1) of the Interstate Commerce 
Act, 49 U.S.C. 3(1).8 Segregation in terminal dining

7 By striking down racial segregation in station waiting rooms 
and rest rooms as violative of the Interstate Commerce Act, the 
Commission has recognized that segregation within the confines 
of a terminal prejudices and disadvantages a Negro traveler as 
unreasonably as segregation on the carrier itself. N.A.A.C.P. v. 
St. Louis—S.F. Ry. Co., supra.

8 In  A .A.A.C.P. v. St. Louis-S.F. Ry. Co., supra, the Interstate 
Commerce Commerce Commission refused to assert jurisdiction, 
under Section 3(1), over lunchrooms in the Richmond railway 
terminal. However, the Commission’s sole basis for declining 
to assert jurisdiction over the lunchroom was that there had 
been a nineteen-year lapse in its operation, which, according 
to the Commission, indicated that this lunchroom had not 
constituted an integral part of the terminal’s common-carrier 
functions and therefore was not within its jurisdiction. But, 
as the record shows in the present case, the restaurants were 
built as an integral part of the interstate terminal facility 
(R. 9), and there is no indication that they have not been in 
continuous operation since then. Access to the restaurant was 
intended to, and did, facilitate interstate travel.



13

facilities, no less than segregation on a moving diner, 
constitutes, in the words of Henderson, “unreasonable 
discrimination,” “unreasonable prejudice,” and “un­
reasonable disadvantage” to the passenger denied 
equality of treatment.9

Bus passengers are far more dependent upon termi­
nal dining facilities than are railroad passengers. 
Unlike bus companies, railroads do not schedule regu­
lar stops which are long enough to permit their pas­
sengers to eat in terminals. Once a journey by rail has 
commenced, railroad passengers normally satisfy 
their food requirements during the course of the trip 
either by buying sandwiches and eating them while 
occupying seats in coaches, or by eating regular meals 
in the dining car of the train itself. As a practical 
matter, interstate bus passengers ordinarily must ob­
tain their meals from the facilities offered at the bus 
terminal or go hungry. Thus, bus terminal restau­
rant facilities are a precise equivalent of dining cars 
on railroad trains.

The decision of the court of appeals in Williams v. 
Howard Johnson’s Restaurant, 268 F. 2d 845, 848 
(C.A. 4), assuming that it was correctly decided, does 
not compel an opposite conclusion. In that case the 
court decided that a restaurant located on an inter­
state highway in the city of Alexandria is not engaged 
in interstate commerce “merely because in the course 
of its business of furnishing accommodations to the

8 This Court has similarly characterized, and has held repug­
nant to the Interstate Commerce Act regulations segregating 
Negroes from whites in Pullman cars. Mitchell v. United 
States, supra.



14

general public it serves persons who are traveling from 
state to state,” and it concluded that the restaurant 
was “an instrument of local commerce.” 10 The Trail- 
ways bus restaurant in Richmond, on the other hand, 
is located in an interstate bus terminal, was con­
structed at the same time that the terminal was con­
structed (R. 9), and was leased upon conditions re­
quiring that the lessee obtain the lessor’s permission 
before selling any commodity not usually sold or in­
stalled in a “bus terminal concession” (R. 11), and 
that the restaurant be operated “ in keeping with the 
character of service maintained in an up-to-date, mod­
ern bus terminal” (R. 14). There is therefore no 
warrant for designating the restaurant in this case as 

an instrument of local commerce.” Even though it 
may incidentally serve local traffic (R. 23), it clearly 
is primarily an instrument of interstate travel, and in 
this case it was in fact sought to be used by petitioner 
in connection with his interstate journey. Cf. Atchi­
son, Topeka & Santa Fe By. Go., 135 I.C.C. 633, 634- 
635.

Racial discrimination or segregation interferes with 
a “single, uniform rule to promote and protect national 
travel” (Morgan v. Virginia, supra, at 386), and 
thereby imposes a burden on interstate commerce. In 
instances in which rules have varied from state to 
state with respect to racial discrimination or non­
discrimination in interstate transportation facilities, 
the Court has held invalid statutes requiring racial

10 The plaintiff in the Williams case contended that the pri­
vate segregation itself constituted a burden on interstate com­
merce. Cf. footnote 6, supra.



15

discrimination (see, e.g., Morgan v. Virginia, supra) 
because of their tendency to undermine any “ single, 
uniform rule to promote and protect national travel.” 
See Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28, 
40. I f  diversity of racial rules from state to state is 
to be avoided, and uniformity with respect to inter­
state travel achieved, racial discrimination and segre­
gation, be it by state statute no matter how enforced, 
must be deemed invalid. Interstate commerce would 
flow more smoothly if states did not use their criminal 
process to support racially discriminatory policies of 
the proprietors of such restaurants, and if the latter 
were thereby encouraged to serve all interstate passen­
gers indiscriminately instead of refusing to serve some 
of them on grounds irrelevant to the interstate travel.

Moreover, enforcement of racial discrimination, 
such as that involved in the present case, supports 
and accentuates an unreasonable disadvantage and 
prejudice to a class of interstate travelers. Cf. Hen­
derson v. United States, 339 U.S. 816, 824; Mitch­
ell v. United States, 313 U.S. 80. Since interstate bus 
travel cannot be conducted without regularly sched­
uled bus stops, and since dining facilities at such 
stops are an integral and essential part of interstate 
bus service, the disadvantage and prejudice cannot be 
avoided by the interstate Negro bus traveler. In 
N.A.A.C.P. v. St. Louis-S.F. By. Co., 297 I.C.C. 335, 
347, the Interstate Commerce Commission, in ordering 
the end of segregation in interstate rail travel, 
declared:

* * * The disadvantage to a traveler who is 
assigned accommodations or facilities so desig-



16

nated as to imply his inherent inferiority solely 
because of his race must be regarded under 
present conditions as unreasonable. Also, he is 
entitled to be free of annoyances, some petty 
and some substantial, which almost inevitably 
accompany segregation even though the rail 
carriers, as most of the defendants have done 
here, sincerely try to provide both races with 
equally convenient and comfortable cars and 
waiting rooms.

Racial segregation works a serious and unwar­
ranted burden and hardship upon those against whom 
it operates, and the prospect of encountering it in 
bus terminals surely operates as a deterrent to a 
Negro contemplating an interstate bus journey. Na­
tional travel is hindered by the enforcement of such 
arbitrary discriminations in service. Persons hold­
ing the same tickets, whatever their race, color, reli­
gion or other irrelevant personal characteristic, are 
entitled to the same service and treatment when they 
travel in interstate commerce. Under the controlling 
provisions of federal law, a Negro passenger is free to 
travel the length and breadth of this country without 
hindrance or humiliation, and to receive precisely the 
same service, no more and no less, as any other 
passenger.

I l l
In the Civil Rights Cases, 109 U.S. 3, 11, this Court 

declared that “ positive rights and privileges are un­
doubtedly secured by the Fourteenth Amendment,” 
which “nullifies and makes void all State legislation, 
and State action of every kind, which impairs the



17
privileges and immunities of citizens of the United 
States, or which injures them in life, liberty or prop­
erty without due process of law, or which denies to 
any of them the equal protection of the laws.” Ibid. 
(emphasis added). Racially discriminatory acts of in­
dividuals, moreover, are insulated from the proscrip­
tion of the Fourteenth Amendment only insofar as 
they are “ unsupported by State authority in the shape 
of laws, customs, or judicial or executive proceed­
ings,” or are “ not sanctioned in some way by the 
State.” Id. at 17.

That the discrimination in the present case was of 
private origin is irrelevant. The application of a 
general, nondiscriminatory, and otherwise valid law 
to effectuate a racially discriminatory policy of a pri­
vate agency, and the enforcement of such a discrimi­
natory policy by state governmental organs, has been 
held repeatedly to be a denial by state action of rights 
secured by the Fourteenth Amendment. Thus, in 
Shelley v. Kraemer, 334 U.S. 1, the judicial enforce­
ment of private racially restrictive covenants by 
injunction was held violative of the Fourteenth 
Amendment; similarly, in Barrows v. Jackson, 346 
U.S. 249, this Court decided that such covenants 
could not be enforced, consistently with the Four­
teenth Amendment, by the assessment of damages for 
their breach; and in Marsh v. Alabama, 326 U.S. 501, 
this Court ruled that the criminal courts could not be 
used to convict of trespass persons exercising their 
rights of free speech in a privately-owned company



18

town,11 See also Kreshik v. St. Nicholas Cathedral, 
363 ILS. 190, 191; N.A.A.C.P. v. Alabama, 357 U.S. 
449, 463.

If, in Shelley, the action of a state judiciary alone 
was in question, in the present case each branch of 
state government contributed directly and substan­
tially to the support and enforcement of the terminal 
restaurant’s discriminatory policy. By the active in­
tervention of the executive and judicial branches of 
that government, applying a law passed by its legis­
lature, “the full panoply of state power” (Shelley 
v. Kraemer, supra, at 19) was exerted to deny to 
petitioner, on the ground of race or color, the enjoy­
ment of the right to equal treatment in the use of 
accommodations open to the public generally—here 
interstate travel facilities—a right clearly secured by

11 I t  is immaterial that the state judicial action which en­
forces the denial of rights guaranteed by the Fourteenth 
Amendment may be procedurally fair. Such action is consti­
tutionally proscribed “even though the judicial proceedings 
* * * may have been in complete accord with the most rigor­
ous conceptions of procedural due process.” Shelley v. Krae­
mer, supra at 17. See also Bridges v. California, 314 U.S. 252; 
American Federation of Labor v. Swing, 312 U.S. 321; Cant­
well v. Connecticut, 310 U.S. 296. Similarly, it is no answer 
to say that the state courts stand ready to convict white per­
sons of trespass should they refuse to leave bus terminal res­
taurants from which they have been excluded because of race 
or color. “The rights created by the first section of the Four­
teenth Amendment are, by its terms, guaranteed to the indi­
vidual. The rights established are personal rights. * * * Equal 
protection of the laws is not achieved through indiscriminate 
imposition of inequalities.” Shelley v. Kraemer, swpra at 22.



19

the Fourteenth Amendment. See Mitchell v. United 
States, 313 U.S. 80,94.12

The right not to be excluded solely on account of race 
from facilities open to the public has been held to ex­
tend to such accommodations as public beaches and 
bathhouses (Mayor and City Council of Baltimore v. 
Dawson, 350 U.S. 877, affirming 220 F. 2d 386 (C.A.
4 ) ),13 golf courses (Holmes v. City of Atlanta, 350 U.S. 
879, reversing 223 F. 2d 93 (C.A. 5)),14 park and recre­
ational facilities {New Orleans City Park Improve­
ment Assoc, v. Detiege, 358 U.S. 54, affirming, 252 F. 
2d 122 (C.A. 5)),15 and theatres {Muir v. Louisville 
Park Theatrical Ass’n., 347 U.S. 971, reversing 202 F. 
2d 275 (C.A. 6), and remanding for consideration in

“ There, the Court stated that “ [t]he denial to appellant of 
equality of accommodations because of his race would be an 
invasion of a fundamental individual right which is guaranteed 
against state action by the Fourteenth Amendment.” See also 
McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 151, 160-162.

13 See also City of Petersburg v. Alsup , 238 F. 2d 830 (C.A.
5) , certiorari denied, 353 U.S. 922; Williams v. Kansas City, 
Mo., 104 F. Supp. 848 (W.D. Mo.), affirmed, 205 F. 2d 47 (C.A. 
8), certiorari denied, 346 U.S. 826; Draper v. City of St. Louis, 
92 F. Supp. 546 (E.D. Mo.), appeal dismissed, 186 F. 2d 307 
(C.A. 8); Lawrence v. Hancock, 76 F. Supp. 1004 (S.D. W. 
Va.).

14 See also Moorhead v. City of Ft. Lauderdale, 152 F. Supp. 
131 (S.D. Fla.), affirmed, 248 F. 2d 544 (C.A. 5); Holley v. 
City of Portsmouth, 150 F. Supp. 6 (E.D. Y a.); Ward v. City 
of Miami, 151 F. Supp. 593 (S.D. Fla.), affirmed, 252 F. 2d 787 
(C.A. 5); Hayes v. Crutcher, 137 F. Supp. 853 (M.D. Tenn.); 
Augustus v. City of Pensacola, 1 R.R.L.R. 681.

15 See also Lonesome v. Maxwell, 220 F. 2d 386 (C.A. 4); 
Augustus v. City of Pensacola, supra; Moorman v. Morqan, 
285 S.W. 2d 146 (Ky.).



20

light of Brown v. Board of Education, 347 U.S. 483, 
and “conditions that now prevail” )-16

A restaurant, like a theatre, a common carrier, a 
school, a beach, a pool, a park, or a golf course, is a 
place of public accommodation. The federal courts 
have held, therefore, that rights guaranteed by the 
equal protection clause are contravened when a private 
lessee of a state-owned restaurant engages in racially 
discriminatory practices. Derrington v. Plummer, 240 
F. 2d 922 (C.A. 5), certiorari denied, 353 U.S. 924; 
Coke v. City of Atlanta (N.D. Ga.).17 These holdings 
illustrate, moreover, that where the state enforces or 
supports racial discrimination in a place open for the 
use of the general public—as, in this case, interstate 
transportation facilities—it infringes Fourteenth 
Amendment rights notwithstanding the private origin 
of the discriminatory conduct.18

Uor is it relevant that the property upon which the 
discrimination occurs is privately owned. State laws 
which require or permit segregation of the races on 
privately owned interstate motor buses are invalid 
under the Fourteenth Amendment. Gayle v. Brow-

16 See also Henry v. Greenville Airport Commission (C.A. 4), 
decided April 20, 1960 (waiting room in a municipal airport).

17 Cf. Nash v. Air Terminal Services, 85 F. Supp. 545 (E.D. 
V a .); Air Terminal Services, Inc. v. Rentzel, 81 F. Supp. 611 
(E.D. Va.).

18 Accord, Muir v. Louisville Park Theatrical Ass'n., supra; 
City of Greensboro v. Simkins, 246 F. 2d 425 (C.A. 4); Der­
rington v. Plummer, supra; Tate v. Department of Conserva­
tion, 133 F. Supp. 53 (E.D. Va.), affirmed, 231 F. 2d 615 
(C.A. 4), certiorari denied, 352 U.S. 838; Nash v. Air Terminal 
Services, supra; Lawrence v. Hancock, 76 F. Supp. 1004 (S.D. 
W. Va.).



der, 352 U.S. 903; Flemming v. South Caroli?ia Elec­
tric & Gas Co., 224 F. 2d 752, appeal dismissed, 351 
U.S. 901; see Mitchell v. United States, 313 U.S. 80, 
94. Racial discrimination by a privately-owned place 
of public accommodation may also violate Fourteenth 
Amendment rights if such place is financially sup­
ported or regulated by the state. Kerr v. Enoch 
Pratt Free Library, 149 F. 2d 212 (C.A. 4), cer­
tiorari denied, 326 U.S. 721. That the right to 
equal treatment in places of public accommodation 
is protected by the Fourteenth Amendment against 
deprivation by state action is not impaired by the 
decision in the Civil Rights Cases, 109 U.S. 3, for 
there the Court carefully reserved the question 
whether the Amendment secured the right to be free 
from state-sanctioned discrimination in places of pub­
lic accommodations.19

19 The Court emphasized that it was reserving this question 
(109 U.S. at 19, 21, 24):

We have discussed the question presented by the law on 
the assumption that a right to enjoy equal accommodation 
and privileges in all inns, public conveyances, and places 
of public amusement, is one of the essential rights of the 
citizen which no State can abridge or interfere with. 

r Whether it is such a right, or not, is a different question 
which, in the view we have taken of the validity of the 
law on the ground already stated, it is not necessary to 
examine.

jJ; * * * *
But is there any similarity between such servitudes [the 

: ’ burdens and disabilities incident to feudal vassalage] and 
a ; denial by the owner of an inn, a public conveyance, or a 
theatre, of its accommodations and privileges to an in-



22

Because an asserted justification for invasion of the 
right to be free from state enforcement of racially 
discriminatory practices warrants the most searching 
judicial scrutiny, such enforcement can withstand 
attack, if at all, only where the constitutional right is 
subordinated to a countervailing right or interest so 
weighty as to occupy a preferred constitutional status. 
Gf. Korematsu v. United States, 323 U.S. 214, 216. 
The narrow issue in the present case is not whether 
the right, for example, of a homeowner to choose his 
guests should prevail over petitioner’s constitutional 
right to be free from the state enforcement of a 
policy of racial discrimination, but rather whether 
the interest of a proprietor who has opened up his 
business property for use by the general public—in 
particular, by passengers travelling in interstate com-

dividual, even though the denial be founded on the race or 
color of that individual? Where does any slavery or ser­
vitude, or badge of either, arise from such an act of de­
nial? Whether it might not he a denial o f a right which, 
i f  sanctioned by state law, would he obnoxious to the pro­
hibitions of the Fourteenth Amendment, is another ques­
tion.

* * * * *  
Now, conceding, for the sake of the argument, that the 

admission to an inn, a public conveyance, or a place of 
public amusement, on equal terms with all other citizens, 
is the right of every man and all classes of men, is it any 
more than one of those rights which the states by the 
Fourteenth Amendment are forbidden to deny to any per­
son? And is the Constitution violated until the denial 
of the right has some State sanction or authoiity? [Em­
phasis added.]



23

meree on a federally-regulated carrier—should so pre­
vail.20

20 During the debate on the bill introduced in the Senate by 
Charles Sumner of Massachusetts on December 20, 1871, to 
amend the Civil Eights Act of 1866, 14 Stat. 27, which served 
as the precursor to the Civil Eights Act of 1875, 18 Stat. 336, 
Senator Sumner distinguished between a man’s home and places 
and facilities of public accommodation licensed by law: “Each 
person, whether Senator or citizen, is always free to choose who 
shall be his friend, his associate, his guest. And does not the 
ancient proverb declare that a man is known by the company he 
keeps? But this assumes that he may choose for himself. 
His house is his ‘castle’; and this very designation, bor­
rowed from the common law, shows his absolute independence 
within its walls; * * * but when he leaves his ‘castle’ and goes 
abroad, this independence is at an end. He walks the streets; 
but he is subject to the prevailing law of Equality; nor can he 
appropriate the sidewalk to his own exclusive use, driving into 
the gutter all whose skin is less white than his own. But no­
body pretends that Equality on the highway, whether on pave­
ment or sidewalk, is a question of society. And, permit me to 
say,, that Equality in all institutions created or regulated by 
law is as little a question of society” (emphasis added). After 
quoting Holingshead, Story, Kent and Parsons on the common 
law duties of innkeepers and common carriers to treat all alike, 
Sumner then said: “As the inn cannot close its doors, or the 
public conveyance refuse a seat to any paying traveler, decent 
in condition, so it must be with the theater and other places 
of public amusement. Here are institutions whose peculiar 
object is the ‘pursuit of happiness,’ which has been placed 
among the equal rights of all.” Cong. Globe, 42d Cong., 2d 
Sess., 382-383. See also Cong. Eec., 43d Cong., 1st Sess., 11: 
“Our colored fellow-citizens must be admitted to complete 
equality before the law. In  other words, everywhere in every­
thing regulated by law, they must be equal with all their fellow 
citizens. There is the simple principle on which this bill 
stands” (emphasis added); Cong. Globe, 42d Cong., 2d Sess., 
381: “The precise rule is Equality before the Law; * * * 
that is, that condition before the Law in which all are alike— 
being entitled, without any discrimination to the equal enjoy­
ment of all institutions, privileges, advantages and conveniences 
created or regulated by law * * *” (emphasis added).



24

Courts have long placed restrictions upon pro­
prietors whose operations are of a public nature, af­
fecting the community at large. As early as Munn v. 
Illinois, 94 U.S. 113,126, this Court said:

Property does become clothed with a public 
interest when used in a manner to make it of 
public consequence, and affect the community 
at large. When, therefore, one devotes his 
property to a use in which the public has an in­
terest, he, in effect, grants to the public an 
interest in that use, and must submit to be 
controlled by the public for the common good, 
to the extent of the interest he has thus 
created. * * *

This Court in Marsh v. Alabama, 326 U.S. 501, 506, 
similarly rejected the contention that the rights of a 
proprietor of property open to the public were coex­
tensive with those of a homeowner:

Ownership does not always mean absolute do­
minion. The more an owner, for his advan­
tage, opens up his property for use by the 
public in general, the more do his rights be­
come circumscribed by the statutory and con­
stitutional rights of those who use it * * *.21

21 Of. Republic Aviation Gorp. v. National Labor Relations 
Board, 324 U.S. 793, 798, 802, n. 8; National Labor Relations 
Board v. Babcock da Wilcox Go., 351 U.S. 105, 112. Although 
Marsh v. Alabama involved the rights of free speech and 
religion, its principle is equally applicable to other Fourteenth 
Amendment rights, and this Court, in Shelley v. Kraemer, 
supra, at 22, has specifically applied it to the right to equal 
protection of the laws, stating that “the power of the State 
to create and enforce property interests must be exercised 
within the boundaries defined by the Fourteenth Amendment. 
Of. Marsh v. Alabama, 326 U.S. 501 (1946).”



25

Only recently, a Washington court applied the 
Marsh principle in rejecting the right of an owner 
of a shopping center to obtain an injunction from a 
state court restraining peaceful picketing on the pri­
vately-owned sidewalks of the shopping center. Free­
man v. Retail Clerks Local 1207 (Kings County 
Super. Ct., Washington), decided December 9, 1959 
(28 U.S. Law Week 2311). The court noted that the 
owner had contracted away his right to private and 
personal use and occupancy, and emphasized that in­
terference with the owner’s fundamental right of pri­
vacy was not involved because he had devoted his 
property for use by the general public. In April of 
this year, the Superior Court of Raleigh, North Caro­
lina, relying on the Marsh decision, dismissed trespass 
charges against forty-three Negroes who had been ar­
rested for demonstrating on the privately-owned side­
walks of a shopping center against segregated lunch 
counters in the stores of the shopping center. See 
New York Times, April 23, 1960, p. 21, col. 1.

The concepts of “private property” and “state 
action,” as Marsh illustrates, do not fall into neat, 
precise categories. In the last analysis, the determi­
nation whether private conduct has been so “ pano­
plied” by governmental action, power, or support 
that it may fairly be judged by the standards of the 
Fourteenth Amendment is, like so many questions of 
constitutional law, one of proximity and degree. As 
already noted, this case concerns, not an individual 
home owner, but an essential public transportation 
facility in the direct stream of interstate commerce



26

and subject to effective federal regulation under the 
Interstate Commerce Act. While the facility here 
may be distinguished from a company town, such as 
was involved in Marsh v. 'Alabama, or from the pri­
mary voting machinery involved in Terry v. Adams, 
345 U.S. 461, 473, and Smith v. Allwright, 321 U.S. 
649, we think the underlying rationale of those cases 
is equally applicable here. The Trailways Bus Ter­
minal in Richmond, Virginia, is not comparable to 
a home or even to a corner grocery store. Though 
privately owned, it is an interstate facility operated 
for the benefit of the general public, in relation to 
which the broad constitutional principle of Marsh v. 
Alabama may properly be applied. Cf. Boman v. 
Birmingham Transit Co., decided July .12, 1960, in 
which the Fifth Circuit held that because of “the 
peculiar function” performed by a bus transit com­
pany as a public utility “ and its relation to the City 
and State of Alabama through its holding of a special 
franchise to operate on the public streets of Birming­
ham,” the acts of the bus company in requiring 
racially segregated seating were “state acts,” and 
thus violated the constitutional rights of Regro 
passengers.

To be sure, local trespass laws are directed towards 
the avoidance of breaches of the peace. But petition­
er’s conduct was peaceable and orderly; if any threat to 
the peace was involved, it arose solely from the racial 
discrimination against him. Accordingly, if the state’s 
legitimate interest in preventing breaches of the peace 
is made the basis of governmental intervention in such 
a situation, its intervention could be constitutionally



27

justified only if directed at the source of the threat to 
the peace, rather than at the person who is being dis­
criminated against.

The federal statutory and constitutional rights here 
invoked are derived from not only the Interstate 
Commerce Act and the Fourteenth Amendment, but 
the Civil Rights Acts as well. 42 U.S.C. 1981 pro­
vides: “All persons within the jurisdiction of the 
United States shall have the same right in every 
State and Territory to make and enforce contracts, 
* * * and to full 'and equal benefit of all laws and 
proceedings for the security of persons and property 
as is enjoyed by white citizens * * 42 U.S.C.
1982 provides: “ All citizens of the United States 
shall have the same right, in every State and Terri­
tory, as is enjoyed by white citizens thereof to * * * 
purchase * * * real and personal property.” Refer­
ring to similar statutory provisions involving jury 
service, this Court has declared: “For us the majestic 
generalities of the Fourteenth Amendment are thus 
reduced to a concrete statutory command when cases 
involve race or color which is wanting in every other 
case of alleged discrimination.” Fay v. New York, 
332 U.S. 261, 282-283. See also Shelley v. Kraemer, 
334 U.S. 1, 10-12; Hurd v. Hodge, 334 U.S. 24, 30-34. 
In Virginia v. Rives, 100 U.S. 313, 318, the Court, 
speaking of these statutes, said:

The plain object of these statutes, as of the 
Constitution which authorized them, was to 
place the colored race, in respect of civil 
rights, upon a level with whites. They made 
the rights and responsibilities, civil and crimi­
nal, of the two races exactly the same.



28

When a state abets or sanctions discrimination 
against a colored citizen who seeks to patronize a 
business establishment open to the general public, 
the colored citizen is thereby denied the right “ to 
make and enforce contracts” and “ to purchase per­
sonal property” guaranteed by 42 U.S.C. 1981 and 
1982 against deprivation on racial grounds.

CONCLUSION

I t  is respectfully submitted that the judgment 
below should be reversed with directions to vacate the 
conviction and dismiss the criminal proceedings 
brought against petitioner.

J .  L e e  R a n k i n ,
Solicitor General. 

H a r o l d  R .  T y l e r , J r ., 
Assistant Attorney General. 
P h i l i p  E l m a n ,

Assistant to the Solicitor General. 
H a r o l d  H .  G r e e n e ,
R i c h a r d  J .  M e d a l ie ,
D a v id  R u b i n ,
G e r a l d  P. C h o p p i n ,

Attorneys.
S e p t e m b e r  1960.

1T.S. 80VERIIKEHT PBJNT1N8 O FPIC Ii lff«0



A P P  E N D I X

ANNUAL REPORT
I. C. (3: D oc**t  No. ,

ORGANIZATION AND CONTROL

1. S ta te  full and exact nam e of respondent m aking th is report:
V i r g i n i a  S ta g e  L in e s *  I n c .

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2, H*k»% title ,j*nd  address of officer, owner or partner to  whom correspondence concerning th is repo rt should be addressed.

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(N  um im )  (Street)

3. Address of dffiee where accounting records are m aintained:

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T ~ ! ..........(State''

C h a r l o t t e  s v i l l e ..................
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4. Carrier is ........Corporation ______*..................... ........... .......................... ................................ ..... ...................
(XadWidufti, partTOrsbip, corporation, etf.) .

&. It a  partnersh ip , s ta te  th e  nam es and  addresses of each p a rtn e r , including silen t or lim ited , a n j  th e ir in terests; ,
' ■ Name AddrtM ■ ; 1 Pn>foH

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o n ____19.??.

6. If a  sorporation, association,, or o th er sim ilar form of enterprise:
A. Incorporation  or organisation was—

In  the  S ta te  o f ____ V ir g in ia ------ ------------ -----------------------...-------
B. T he  directors’ nam es, addresses, and  te n sa  of office are:

S, a , Jessup*1** Chario11 e s v ^ a . __Qoe y ea r  or u n t i l
....... p„ SA J e s s u p ___ _________ _________.Wa,sklri&tan#..-EA..C*.------------ —.—  q t a j x S-.
__ .J e s su p ................................. ........................JCharJLfl.tt&sxijLle>-Aaw._i—i---------  ifaily. ..sJkc£.tted.*—
___ l«.JL ,..lessujA __________________ „..CixaiilQtte.sxillfi*-Aaw...,.-.i-..... -----

Jks G. Muncy _ C h a r lo t t e s v i l l e  , Va.__________ _ ___............ -............. _

~F~

——— r-— rr.*?‘ *r~*rm-,~-7-T-rr • T~."r ~tvTr’—"ttt-
C. The namea and titlea rtf principal general officers are: ...............< .... .. .....

N a m t Title
S, A, Jessu p  Chairman o f  Board

......................... c :* X “ je s su E .........................................  " g r is a g n t " ^  G en'eral'l^ n g e f  ' ......
.................... -Je.ES.up.........................................................yiCfi..jP.re.5Me.«.t........................................ .

....... ..................v  r,_ M?»we.y................................................ Sft£X<:XazJ..b.. As a i s la n t.. Ti^.a sure r  _

....... ............ .....................................................  .JrfiaAWsr-,....

.......................... Rennalda........................................ -..............A s.5 l§ .tM t...|e cre t^ y _ _ ..------- ...
R, .A;. T r ic e ............................. ..................A s s is ta n t S c c r e t t g i ; . : ; ^ , ,^ ____....

C raft V ice -P resident ! ........
...............................................- ........................- ................................. - ......................................................—

........................ ..............................------------------rrrrrrrrr"-rxr-:rr-

. . . . . . .  ----

. . . . --- W;--------»—

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IS. List of companies under common oootroi with resjKxi'Vrtt

Lis*
So.

. C h a r l o t t e s y i  l i e A i b e m a r ;. CU

.T r  a  i  iw a ir  s . S e  r . Y . i .„...............................
S a f e w a y  . I r a n  s i . t - .C .c 4....................... ..... .............

.Lyncljj3«rig..TxAXi!a.t..C:v'...................... .  . ..

. S a f e t y . .  M o.t© x.. 1 c j m &jlL. .CJ«...........................
- S a f e w a y - lx a x I .S L ,- . J x t '. . . . ..................... ........... .
.All£nt^HTi.k.fieajiliX!iz..-lxaLaaxi- G.  ̂ ... 
.IraiiWay.5..Biju3—Tft.rjiuxja.1 . .la;... .. .. ...
V aA..J?e P S i . . C o. i a . . B e 1 1 1 i  n j . . C>,,. I t .  - .,

- l £ a i l w ra y x . . j£ X .m .r ta i . . .a K . .W a i ih ^ n g t? .n ... 
- I i a i j j» 'a y 5 . . .o i . . f i e .w . . - £ c a t x a t t d ._____ ______

In.,

i ‘Wa» - o t t e  ?! i - I le  Va_. 
Wa t.nfil.on Do Co
w imx.ngj.tm.,.. N» .Co__
ly;nr.hibur.,;.. . V.a»
H.<xC.,'.Ke.. v i . ..... .
k ia n s t : : ! 1 ..Do C«

...
guiunoxta. . Va* ..
Char i  i . e V a»
Wa. ?.b xngt on D». C.....
toasL-.iigton D._ Co

J o i n t .

. JoyntL 

. j.Qtn.t. 
Jsjxn.t- 
. Jo in t, 
jo in t 

J o in t .

M anagem ent... 
M a n a g em en t.. 
i jn a g e m e n .t .  
^ a g e r o e n t . . .  
Management... 
M anagemnt...
.ManagstK.ng... 
F a c i l i t y .___
M a n a H e m e .n t ..
F a c i l i t y . ____
. Management

14. Furnish complete list showing ail companies controlled by respondent, either directly or indirectly. List under each directly con­
trolled company the companies controlled by it  and under each such company any others of more rem ote control. Each step  of control 
should be appropriately indented from the left margin. After each company sta te  the percentage, if any, of the voting power represented 
by securities owned by the im mediately controlling company.

LineNo,

21
22

»
24

25 

»
27

28 

29 

S© 

81
32

33

34 

3h

Allentown h  Reading Tra n s i t  A:, entown Pa.,...... IJOjC Stc;.k Owner.ship

lif t  A .1 W ays.. Se ry-it e Wa.\h.,.ngt y*n. . .P y..Co..... .................  50% Stock Owner s h ip
jo in t  Ga r a g e  F a c i l i t y -R e s p o n d e n t b .S afew ay ...T ra i i s.i...Inp.;..... W ashington^.._D, . Co

..T railw ay.§...P .u5...Tgm iaft,l.-,..Ini:r.A ..R ichm ond.,..V a5......... .........................................50% S to ck  Ownership
. .J i3in.t...TfirJM .na.l..igvgiLtJ.::Re.aE2adent..&  C a r o l in a  . C g f t . J r . C ^ ..............................

.S a ff iw a y -J r g U -s .,-Ia u 0.i...W auaingtun,,..DA..QA....... ............. ....... .Omer&kip__pf 355 .sh a re s  o f  t o t a l  o f

...................................................... ................................. ............. .................. .i.5.0.0..-9.hft.r;es..out9tgnd.ing..............................

.I ta jJ y a y A .J itrm ijo a l..a £  J fo & h i.n g ta n ....lL .,u ................. ....... .......................... .......5.PJ. Slock..Ow n ersh ip ............
Jflii3X..JjiXjrjLaag.JxLi-LliLy..Reipcnden.t.-&..5ftffiWiis...Trgkii; .-tox-s.*...Waih.ing.t;onJ1...J3A..CA............ ....... .

...Safew ay-Jrajasi.t..£a>v..tfxiiaingtap^..Wa..Ca............... . -.................................15P%J5iQ£L.0!fl2S.C&h.AP-.
Traxlway..s. a t .g e w .E n g la n d ................... ............. ............... ............. .......................... 52%.J.fQfck..QWB£X.3h.ip..

» j...Safe-ty..Mator...Xransi.t..Co^y.Ik,anoKe_..i’a .    .................... ...... ............ lQQ2„StQfck..QwnfiXJ5lup..
37

38 

30 

40

yallgy...Traglway&i. .I n c M.................... . ................ ........................................... 50% Stock Ownership.............
.L ynghbutg .T ransit. Co.c ..Lynchbui g V j. ....... ......  ......... ........ ....... 100% Stock Owner$h i p ............
3 ^ 0  x e e . C o a c h  . L i n e I  n  .:,  . T am pa, K c . r . d a  ■ ICC D o c k e t  M MCF b - tb - J  >3 1 , 3 % S t o c k  Own e r s h i p  

.JUms...R.ibbv>.n. k i n e  s . w r.p ».» A.Juand*. K ftn ipx  ky ....... ......................  100% Stock O w n e rs h i p .............

15. Furnish complete list showing companies controlling the respondent. Commence w ith the company which is m ost rem ote and 
list under each such company the company im m ediately controlled by it. Each step of control should be appropriately indented from the 
left margin. After each company sta te  the percentage, if any, of the voting power represented by securities owned by the immediately con­
trolling company. Where any company listed is im mediately controlled by or through two or more companies jointly, list all such companies 
and  list the controlled company under each of them , indicating its sta tus by appropriate cross references.

Line
No.

61
62
63

64

56 

88
57 

88 
89 

00

None

30

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-

Schedule *>#».~€O N T SA C T S AND AGRKEMKNTS— ASSOCIATED COM PANIES

1. Furnish  th e  inform ation called for In item  9 concerning each contract agreement or arrangem ent (w ritten or unw ritten) in effect a t  
any tim e during the year betw een the respondent and companies or person* associated w ith the respondent, including ofBeera, directors, stock­
holders, owners, partners o r the ir w ires and o ther oloee relatives, or the ir agents, whereby the respondent reoaired m anagem ent, oonatruettoo, 
engineering, financial, legal, accounting, purchasing or o ther type of service including th e  furnishing erf m aterials and supplies, purchase at 
equipm ent and  th e  leasing of structures, land, and  vehicles.

2. T he basis for com puting paym ents such as rental charges, commissions, taxes, m aintenance eoeta. charges for im provem ents, ate., 
should be fully sta ted  in th e  case of each such contract, agreem ent or arrangem ent.

8. T he to ta l am ount paid by th e  respondent during th e  year under the term s of each contract, agreem ent, etc., should be sta ted .
4. I f  m otor fuel is furnished th e  respondent, th e  price per gallon should be shown.
8. In  connection w ith  th e  repairing and servicing of the respondent's equipm ent, and the furnishing at o ther m aterials and supplies, the 

m ark-up at labor mud m aterials should be stated.
6. Inform ation to  be reported in  th is schedule shall be furnished for each company or individual to  whom th e  respondent paid $3,800 or 

more during th e  year covered by th e  report.
7. Do no t include inform ation shown in schedule 9003-A,
$. If th e  respondent did no t partic ipate  in any  such contract or arrangem ent, th a t fac t should be stated.
9. (a) Nam e of oompemy or person rendering service.

(ib) If  associate is o ther th a n  a  principally-owned subsidiary of respondent such as a com pany controlled by persona associated w ith 
respondent, furnish names of partners, owners, or stockholders of associate and  their proportionate in terest in associate.

(<) C haracter of service.
<«f> B is k  of charges,
(«) D ate  and term  of eon trac t. j ,
( / )  D ate  of Commkwkm authorisation , if con tract has received Commission approval.
(g) T o tal charges for year, classified as to  purchases, com pensation for service, and  reim bursem ent fa r expenses.

Lint
N».

( a i  T r a i l w a y s  S e r v i c e  I n - , „  W a s h i n g t o n ,  B . C .
( c )  M a i n t e n a n c e  & S e r v i c e  t o  R e v e n u e  E q u i p m e n t
( d l  C o s t  o f  a c t u a l  w o r k  d o n e  p l u s  f i x e d  p e r c e n t a g e  o v e r r i d e  o n  l a b o r ,  m a t e r i a l s  a n d

s u p p l i e s  f u r n i s h e d  t o  c o v e r  o v e r h e a d .
( e )  S e p t e m b e r  1 9 4 7  w i t h  c a n c e l l a t i o n  by  e i t h e r  p a r t y  ____________ ______ _____________________________
( f i  N o n e  .................. ........................................ .............................................................................................................  ........... .............. J
( g )  N o t  a v a i l a b l e  ....................................... ........ __ __________ _________ ___ ________ ________

» ....................J i . f f i . v a y . . .T i a l l a ^ . . I a f f - i L . . h a h . . i f i a ^ £ d . . i fp A v £ . . iD .^ e .v t . . I f t r .K . .E c r t . . i 3 X . .A u ib D r i tX - iu a . i c L D a i a A l --------
» ...... ............. —
II .....................X .o r „ .c .O D 4 p e x A tx m ^ y - f t c t i& A n £ . .a » d . .5 a i £ ^ .P x .o in o . t l . a j a . J j i . . t h e . J i£ N . .X p x k .A r e A . . ......................................... .

] |

U _______ , . . .R £ 3 p c M e r i t . . j o j m h . - . i Q i . .S t a u k . .Q l . . l x a i i w a A i i . J 3 j u x . l e i i h m a i , . . . I n c * . . « i u x .h . .A ^ . j o f ! f t r j i L e d . j i i a . j i — ...
m ..................... J f i i i2t..l£xm inaJ..la.cjJLi£y...JUi..RAwj3iacnd^...Y A i^m ia..-iiL iLh..C araiJuia..£ca£k.£ojnpany.^ ---------------- . . . .

IS
gg
m Respondent owns 50% of Stock of T r a i lw ays Terminal o f W a sh in g to n , I n c .
m
m

W ashington, D„ C. which is  operated  as a jo in t f a c i l i t y  w ith  S a few a y  T r a i l s ,  I n c .

M
R e sp o n d e n t a l s o  h a s  working a rra n g em en t .3 w ith  v a r io u s  o t h e r  c a r r i e r s  f o r
^ P o o led  E q u ip m en t’1 b e tw e e n  v a r io u s  p o i n t s  on an  ex c h a n g e  eq u ip m en t b a s i s ,  lihe
c o n t r a c t  c o n t e m p la t e s  b a la n c in g  o u t  m ile a g e  by e v e n  m ile a g e  on e x c h a n g e  o f
e O P A P m e P t*  . . ..................... ............................................................. ..............................................

3£

n

M
M
M
91
99

m
m
m
41
«

31
Moral Ci -rtmx d

CO

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interstate Commerce Commission
BHa^tngton 2 5 ,3B. C.

SEC
COMMERCE COMMISSION

HAROLD D. McCOY, Secretary of the INTERSTATE COMMERCE 

COMMISSION, do hereby certify that the attached is a 

rue copy of the Title page and pages 3 and 50 taken from 

annual report of Virginia Stage Lines, Inc., for 

year ended December 31» 1959} "the original of which 

on file in this Commission, in my custody as 

of said Commission.

IN WITNESS WHEREOF, I have 

hereunto set my hand and 

affixed the Seal of said 

Commission this 8th day 

of August, A. D. I960.

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