De Funis v. Odegaard Brief Amicus Curiae

    UNITED STATES COURT OF APPEALS
FO U R TH  CIRCUIT.

No. 5803

A D E L IN E  A T W E L L  D A Y , 
A p p e l l a n t

vs.

A T L A N T IC  G REYH O U N D  CO RPO RATIO N ,
A ppellee

A ppe a l  prom  t h e  D ist r ic t  C ourt  of t h e  U n ited  
S tates  for t h e  E astern  D is t r ic t  of 

V ir g in ia , a t  R ic h m o n d

BRIEF ON BEHALF OF APPELLANT

H il l , M a r t in  & R obin son  
623 North Third Street 
Richmond 19, Virginia

Attorneys for Appellant

L A W Y E R S  P U B L ISH IN G  C O M PA N Y I nc. 
R ic h m o n d  7, V irg in ia



IN D E X  TO BRIEF

P age

Statement of the Facts.....................................................  2

Statement of the Case................. ......... ........ ................. 4

Questions Involved................ ...... ....................... ............  5

Argument

(a ) Approach to the Problem............. .................... 5

(b ) The Rule of the Defendant Corporation As
Interpreted to Require the Appellant, Because 
of Her Race, To Move to the Rear Seat of 
the Bus— Was Unreasonable...........................  18

(c )  There is no Segregation Law in Virginia
Applicable to Persons Traveling in Interstate 
Commerce, and the Court Should Have So 
Instructed the Jury......... ..................................  23

(d ) The Rule V io la te s  the United Nations
Charter ..................     25-31

Conclusion.....................        31

TABLE OF CITATIONS
P age

Adamson v. California, 67 S. Ct. 1672.......................   10

Bob-lo Excursion Co. v. Michigan, 68 S. Ct. 358
(1948) ........................................................................... 15

Brown v. Mississippi, 297 U. S. 278, 56 S. Ct. 461
(1936) ........................................................................... 15



TABLE OF CITATIONS— Continued

P age

Buchanan v. Warley, 245 U. S. 60, 38 S. Ct. 16
(1917) .... ..................................................... - .............. 29

Davis v. Commonwealth, 182 Va. 760.........................  21

Gondolfo v. Hartman, 49 Fed. 181 ................... . 29

Hanauer v. Doane, 79 U. S. 342.................................  31

Hart v. State, 100 Md. 596 (1905)................ - ..........  19

Henderson v. United States, 65 Fed. Supp. 9 0 7 .-10 ,20

Hurd et al v. Hodge et al, 82 U. S. App. D. C. 180,
162 F. (2d) 233............ ................................. ............  16

Kennett v. Chambers, 55 U. S. 38 -.............................  31

Lane v. Wilson, 307 U. S. 268, 59 S. Ct. 872 (1939) 13

Matthews v. Southern Railway System, 157 Fed. 
(2d) 609 .............. ........................... -......... -......- - - 2 0 ,  16

Mayer v. White, 65 U. S. 317................... ................. 31

Missouri Ex Rel Gaines v. Canada, 305 U. S. 337,
59 S. Ct. 232............................................... ................ 16

Mitchell v. United States, 313 U. S. 80, 61 S. Ct.
873 (1941) ................ .....................— .........................  15

Montgomery v. U. S., 82 U. S. 395........................—  31

Morgan v. Commonwealth, 184 Va. 24.............— 21, 23

Morgan v. Virginia, 328 U. S. 373, 66 S. Ct. 1050 
(1946) ........................ ................................... -.....3 ,15,21

N. & W . Ry. v. Brame, 109 Va. 422, 430, 63 S. E. 
1018 .......... .................... ................-.....-...................— 25



P age

N. & W . Ry. Co. v. Wysor, 82 Va. 250..................... 25

Neal v. Delaware, 103 U. S. 370 (1881 )..................... 15

New Jersey Steamboat Company v. Brockett, 1887,
121 U. S. 637, 7 S. Ct. 1039, 30 L. Ed. 1049........ 24

Nixon v. Herndon, 273 U. S. 536, 47 S. Ct. 446 
(1927) ..................................-.......................................... 14

Patterson v. Alabama, 287 U. S. 45, 53 S. Ct. 55 
(1932) ...................................... ....................................  15

Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55 
(1932) .................................................... - ...................  15

Re Drummond Wren, 4 D. L. R. 674 (Ontario 
High Court, 945 )................ .................................... 19,20

Rice v. Elmore, 165 Fed. (2d) 387.............................  15

Scott v. Sandford, 60 Lb S. 393, 19 How. 393, 15 
L. Ed. 691 (1857).......................... .......................... 8, 11

Shelly et al v. Kramer et al, 68 S. Ct. 836 (1948)-.- 11

Sipuel v. Board of Regents o f the University of 
Oklahoma, 332 U. S. 631, 68 S. Ct. 299 (1948).... 16

Smith v. Allwright, 321 U. S. 649, 64 S. Ct. 757

TABLE OF CITATIONS— Continued

(1944) ........................................................................... 15

Southern Pacific Company v. Arizona, 235 U. S. 
761, 65 S. Ct. 1515..................................................... 19

Stauder v. West Virginia, 100 U. S. 303, 303 S. Ct.
312 (1880) ..................................................    15

Taylor v. Commonwealth, 187 Va. 214.....................  23



TABLE OF CITATIONS— Continued

P age

Virginia Railway & Power Company v. O ’Flaherty,
118 Va. 749 (1916 )..................................-----............ 25

Virginia S. W . Ry. v. Hill, 105 Va. 738, 54 S. E.
872, 6 L. R. A. (N . S.) 899........-...................... -.....  25

Washington, B. & A. Electric Railway Company v. 
W a lle r , 53 App. D. C. 200, 289 Fed. 598 
(1923) ..................................... -........... ....................18,20

M ISCELLAN EO U S A U T H O R ITIE S

Declaration of Independence, 1776.............................  6

Constitution o f the United States, Art. 2, para. 2....7, 26 

United Nations Charter, Article 56................. ...........  26

STA TU TE S

51 Stat. 1031....................... .....— - ..... -.................-.......  26

Racial Discrimination Act 1944 (Ont.) c51............ 28

Sec. 4533a Virginia Code.......................... -................... 23

Senate (51 Stat. 1031)...................................................  26



UNITED STATES COURT OF APPEALS
FO U RTH  CIRCUIT.

No. 5803

A D E L IN E  A T W E L L  D A Y , 
A p p e l l a n t

vs.

A T L A N T IC  G REYH O U N D  CO RPORATIO N , 
A ppellee

A ppeal  from  t h e  D ist r ic t  C ourt  of t h e  U n ited  
S tates  for t h e  E astern  D is t r ic t  of 

V ir g in ia , a t  R ic h m o n d

BRIEF ON BEHALF OF APPELLANT

This cause was tried in the United States District 
Court for the Eastern District of Virginia at Rich­
mond on June 30, 1948, before the Judge and a Jury. 
Upon verdict for the defendant, final judgment was 
entered on July 2, 1948. This is an appeal from that 
judgment.



[ 2 ]

STA TE M E N T OF T H E  FACTS

On December 22, 1946, Mrs. Adeline Atwell Day, 
a Negro citizen o f the United States and a resident 
of Syracuse, New York, 67 years o f age, purchased a 
roundtrip bus ticket from New York to Florida, which 
permitted a stopover for as long as six months in Rich­
mond, Virginia. She rode connecting carriers of the 
defendant Corporation, under tariffs signed and ap­
proved by them, permitting transfers from one carrier 
to the other, until she arrived in Richmond. She re­
mained in Richmond for about three weeks and then 
on the afternoon of January 22, 1947, pursuant to her 
contract o f transportation, boarded a bus of defendant 
company for Winterhaven, Florida. (Tr. pp. 16-18)

She was the first person to board the bus and occu­
pied the second seat from the front on the opposite 
side from the bus driver. (Tr. p. 19) Other passen­
gers boarded the bus until it was almost full, a white 
passenger from Canada being seated beside appellant. 
The appellant occupied the seat without incident or 
objection until the bus arrived in South Hill, Virginia, 
that being a rest stop. (Tr. pp. 19-20) All other pas­
sengers left the bus except appellant. While appellant 
was seated in the bus alone, the bus driver returned 
to the bus and demanded that she change her seat and 
sit on the last seat in the rear. This demand was made 
in order to carry out the rules and regulations o f the 
bus company, which required each colored passenger 
to sit on the last available seat towards the rear and



[ 3 ]

each white passenger to sit on the first available seat 
from the front. (Tr. pp. 64, 68)

Appellant refused to change, stating that the last seat 
in the rear was not as comfortable as the other seats, 
including the one she occupied, and further that she 
understood that since the decision of the Supreme Court 
o f the United States in the case of Irene Morgan v. 
Commonwealth of Virginia, (328 U. S. 373, 66 Sup. 
Ct. 1050), she was not required to occupy that seat.

Thereupon, the bus driver called a police officer and 
again demanded that she move. Upon her continued 
refusal the police officer called another police officer 
and the two officers forcibly ejected her from the bus. 
One o f the officers said he was going to lock her up 
because she wouldn’t move. After they had taken her 
off the bus one of the police officers attempted to get 
her to go with him over to a police car so that he “ could 
talk with her.” She refused. He thereupon began 
pulling her and * attempted to forcibly put her in the 
police car. Being unable to do this, they walked her 
down the alley and up the highway and down to the 
jail, where she was charged with the crime of dis­
orderly conduct. She remained in jail for about three 
hours until she was allowed to deposit $20.00 in lieu 
o f bail. After about another hour she was able to get 
another bus to Raleigh, North Carolina, where she had 
to stop to recover her baggage which had remained 
on the bus from which she had been ejected. From 
there she continued her trip to Florida.

She lost a number o f items of her personal property 
as a result o f her ejection, arrest and imprisonment.



[ 4 ]

She had never before been arrested in her life.
The Court records show that upon trial in her ab­

sence she was convicted o f disorderly conduct, a police 
officer having testified that he arrested her for being 
disorderly after her ejection from the bus and not by 
reason of her action on the bus.

STA TE M E N T OF T H E  CASE

Appellant filed her complaint against defendant com­
pany for breach o f contract, unlawful ejection, false 
arrest and false imprisonment, to which defendant filed 
its answer.

During the trial o f the case appellant objected to 
the introduction in evidence o f the rules and regula­
tions o f defendant company requiring segregation of 
the races, first, on the ground that they were inad­
missible and constituted no defense to an action for 
false imprisonment, and second, on the ground that 
they were unreasonable. The Court overruled both 
objections and admitted the rules and regulations in 
evidence.

Appellant requested the Court to instruct the jury 
that the rules and regulations were unreasonable, which 
request the Court denied and instructed the jury that 
it was within their province to determine whether the 
rules and regulations were reasonable.

The jury found a verdict in favor o f the defendant 
company. Appellant moved the Court to set aside the 
verdict o f the jury on the ground that the verdict was 
contrary to the law and evidence and without evidence



[ 5 ]

to support it, which motion the Court denied. 'Phis 
case is here on appeal from that judgment.

1. Whether defendant’s rule and regulation requir­
ing appellant, because of her race, to remove to the 
rear seat o f the bus, was reasonable?

2. Whether the Court erred in submitting the rea­
sonableness of the rule to the jury?

3. Whether the Court erred in refusing to instruct 
the jury that there was no law in the State o f Virginia 
requiring defendant company to segregate white and 
colored persons?

The basis o f the plaintiff’s case is that the defendant 
corporation invaded a personal right of the plaintiff 
and thereby committed a private wrong or civil injury 
which, at the instance o f the plaintiff, the Courts are 
bound to redress. Deeply engraved upon and an es­
sential part o f the foundation upon which our Nation 
was built are these a priori declarations o f moral right:

‘W e  hold these truths to be self evident, that 
all men are created equal, that they are endowed 
by their Creator with certain unalienable rights, 
that among these are Life, Liberty and the Pur-

QU ESTION S IN V O L V E D

ARG U M EN T



suit o f Happiness. That to secure these rights, 
Governments are instituted among Men * * *m

A  review of our constitutional development is con­
sidered essential to a clear determination o f certain of 
those unalienable rights and the extent to which our 
governments (both Federal and State) are charged to 
protect the individual in his enjoyment thereof. W e 
approach the problem through inquiry as to who from 
time to time enjoyed them.

Under the Articles o f Confederation (1777) it was 
supposed that:

“ The better to secure and perpetuate mutual 
friendship and intercourse among the people of 
the different States in this Union, the free in­
habitants o f each of these States, paupers, vaga­
bonds and fugitives from justice excepted, shall 
be entitled to all privileges and immunities of 
free citizens in the several States * * *”

In thus limiting to free inhabitants the benefit o f 
collectively securing the privilege^and immunities with 
which their Creator had endowed all men, the founders 
o f our Nation attempted a compromise o f the moral 
rights for which they were then fighting the W ar for 
Independence and contradicted the first and basic o f 
the enumerated truths which they held to be self evi­
dent.

By the year 1787, the people of the newly founded 
nation had found it futile in the slaveholding states to

^Declaration of Independence— 1776.



[ 7 ]

attempt to secure to free Negroes all privileges and 
immunities o f free citizens. Rather than suggest that 
the privileges and immunities to be guaranteed by the 
federal government should be limited to those which 
effectively could be assured to free Negroes, the framers 
o f our Constitution proposed to restrict further the 
class o f persons whose unalienable rights might be 
secured by the government then to be formed.

“ The Citizens o f each state shall he entitled 
to all privileges and immunities of citizens in 
the several states.”  (Const. Art. IV, Sec. 2, 
1st.)

This attempted further compromise of moral right—  
this attempted further negation o f self evident truth 
was then thought justified because as was later ex­
pressed by Chief Justice Taney in speaking of that 
“ unfortunate race” :

“ They had for more than a century before 
been regarded as beings o f an inferior order; 
and altogether unfit to associate with the white 
race, either in social or political relations; and 
so far inferior, that they had no rights which 
the white man was bound to respect; and that 
the Negro might justly and lawfully be reduced 
to slavery for his benefit. . . . This opinion 
was at that time fixed and universal in the 
civilized portion of the white race. It was re­
garded as anjaxiom in morals as well as in poli­
tics, which no one thought of disputing, or sup­
posed to be open to dispute; and men in every



[ 8 ]

grade and position in society daily and habitu­
ally acted upon it in their private pursuits, as 
well as in matters o f public concern, without 
doubting for a moment the correctness of this 
opinion.” 2

Thus had the People of the United States secured to 
citizens those unalienable rights with which the Cre­
ator had endowed all men, including

“ the right . . .  to go where they pleased . . . 
without molestation, unless they committed some 
violation of law.” 3

and also including the right to be exempt from “ the 
operation of the special laws (applicable to persons of 
color) which citizens of the slaveholding states con­
sidered to be necessary for their own safety.”

Thus had the people of the United States allowed 
individual States to “ stigmatize and to impress deep 
and enduring marks of inferiority and degradation” 
upon certain inhabitants o f those states and to deprive 
them of individual rights with which their Creator had 
endowed all men. In reviewing and analyzing what he 
termed as “ special laws and regulations” , Justice Taney 
found such to be their purpose and found that such 
laws show that “ this class of persons (persons not 
citizens) were governed by special legislation directed 
expressly to them, and always connected with provi-

2Scott V. Sanford, 60 U. S. 393, 19 How. 393, 15 L. Ed. 691.

‘Ibid, p. 705.



[ 9 ]

sions for the government o f slaves, and not with those 
for the government o f free white citizens.”

Thus did the people o f the United States tie the 
hands of the Federal Judiciary and prevent it from 
securing to persons o f color those inalienable rights 
with which the Creator had endowed all men.

One great lesson of biography and of sacred and 
profane history is that moral right cannot be com­
promised. The attempt at compromise with truth and 
right, in the shadow of which our Constitution was 
born, only make necessary other, further, successive 
and equally futile attemtps at more futile compromise 
until the problem of the inalienable rights of the indi­
vidual took on such proportions that the very exist­
ence of the nation was threatened by an holocaust 
which all but destroyed the roots from which our coun­
try had sprung.

Following the Civil War, the people o f the United 
States by constitutional amendments released the shack­
les with which its federal judiciary had been restrained 
from securing to all persons those inalienable rights 
which had heretofore been recognized as belonging to 
citizens only. Upon the enactment o f the 13th, 14th 
and 15th Amendments, the Negro was included in the 
category of “ men” , “ people” , and “ citizens”  as those 
terms had been used in The Declaration o f Independ­
ence and in The Constitution o f the United States and 
as those terms had been defined in current judicial 
interpretation.

As additional evidence of the invalidity o f such rule 
is the fact that neither Congress nor the common law 
has ever adopted, sanctioned or approved a segregation 
rule or regulation such as in the case at bar.



I 1 0  J

The whole phase o f national discrimination in segre­
gated travel, and the burdens necessarily imposed upon 
interstate travel occasioned thereby, is succintly stated 
in the Court’s opinion in the recent case of Henderson 
v. United States, supra:

“ By virtue o f the Commerce Clause of the 
Constitution, Congress might legislate specifi­
cally with respect to segregation in interstate 
travel, but Congress has not done so. However, 
Section 3, paragraph 1 of the Interstate Com­
merce Act makes it unlawful to subject any per­
son in interstate commerce to any undue or 
unreasonable prejudice or disadvantage in any 
respect whatsoever, and this prohibition clearly 
embraces the matter of dining car facilities, just 
as seating, sleeping or any other facilities in 
interstate commerce.” (citing cases)

As a further exposition of the above reasoning, we 
feel that the Court’s attention should be called to the 
language of Mr. Justice Black in his dissenting opinion 
in Adamson v. California, 67 Sup. Ct. 1672, at 1686, 
concurred in by three other members of the Court, in 
which he said:

“ My study of the historical events that cul­
minated in the Fourteenth Amendment, and the 
expressions o f those who sponsored and favored, 
as well as those who opposed its submission and 
passage, persuades me that one o f the chief 
objects that the provisions o f the Amendment’s



[ 11  ]

first section, separately, and as a whole, were 
intended to accomplish was to make the Bill of
Rights, applicable in the States.^! _  __________

“ The historical context in which the Four­
teenth Amendment became a part o f the Con­
stitution should not be forgotten. Whatever else 
the framers sought to achieve, it is clear that 
the matter of primary concern was the estab­
lishment of equality in the enjoyment o f basic 
civil and political rights. . . .”  Shelley v. Kramer, 
68 Sup. Ct. 836 (1948).

After the people of the United States had extended 
to all persons here born or naturalized those unalien­
able rights (to secure which both State and National 
Governments had been instituted) and those privileges 
and immunities of citizens in the several States, and, 
by military rule where such was felt to be required 
had manifest their determination that such rights, privi­
leges and immunities should be denied to none, there 
began without constitutional authority therefor the re­
enactment of laws and the revival o f customs designed 
again to stigmatize and to impress deep and enduring 
marks of inferiority and degradation upon the Negro 
inhabitants of certain states. These laws— enacted under 
the theories of public policy, police power, States Rights 
— were all o f and more than a resumption o f the spe­
cial laws which citizens o f the slaveholding States had 
considered to be necessary for their own safety. These

4Another prime purpose was to make colored people entitled to full equal 
rights as citizens despite what this Court decided in the Dred Scott case. 
Scott v. Sanford, 60 U. S. 393, 19 How. 393, 15 L. Ed. 691.



[ 12]

laws— commonly called “ Jim Crow” laws— to meet the 
ingenious “ separate but equal” doctrine, had the fur­
ther vice of benyg applicable to citizens (without re­
gard to race) and, by reason of that vice, served to 
lower (we agree with Justice Taney that they could 
not be calculated to exalt) “ the character of an Ameri­
can citizen in the eyes of other nations.” The pre- 
Civil W ar counterpart o f the present “ Jim Crow” laws 
did not apply to citizens. It was the inalienable right 
o f a citizen to go where he pleased and to associate 
with whom he chose, without molestation. While it 
was true that Negroes (slave or free) knew the cus­
toms and regulations and, accordingly, unless invited, 
kept their place the citizens were without restriction 
and had the option to go where they willed and to 
associate with whom they chose. Before the influx of 
the post Civil W ar “ Jim Crow” laws, never in the 
history of the world had there been questioned in any 
land the right of a citizen of any sovereign nation to 
go where he pleased and to associate with whom he 
chose, without molestaion. The idea that this simpler 
fundamental, and inalienable right of citizenship might 
thus be curtailed was conceived and born in the “ land 
of the free”  and was tolerated and nurtured in “ the 
home of the brave” ; and this not until after the people 
o f the United States by constitutional amendment had 
secured to all persons here born or naturalized full 
rights o f citizenship by necessary implications, includ­
ing those which Justice Taney had found to be indis­
pensable attributes of such status.

These “ Jim Crow” legislative enactments and the



[ 13]

concomitant customs and usages became quite varied 
and complex in the several states and permeated the 
life o f America and for many years have been allowed 
to impress their pattern upon the minds and souls of 
the American people. They have from time to time 
and in divers places regulated and restricted the every­
day pursuits and activities o f the free American citi­
zens in marriage, the purchase and sale o f real estate, 
the location of their homes, accommodations and seat­
ing arrangements on boats, trains, street cars, busses, 
selection of jurors, exercise o f franchise, membership 
and attendance at churches, educational facilities and 
opportunities, public health services, recreational facili­
ties, hotel accommodations, restaurant service, frater­
nal organizations, labor union memberships, service in 
the Armed Forces, and service in the State Militia. 
These “Jim Crow” legislative enactments and other 
customs and usages designed to stigmatize and to im­
press deep and enduring marks of inferiority and degra­
dation upon Negro citizens have been proposed with 
ingenious appeal to racial prejudice and when challenged 
have been defended with ingenious sophistry; but when 
tested by the American citizen upon the touchstone of 
justice, truth and conscience and in the light o f the 
axioms which in infancy we learned in home, church 
and school, they have been found disturbing, to say 
the least.

Mr. Justice Frankfurter, in his opinion, in the case 
of Lane v. Wilson, 307 U. S. 268 (1939), succintly 
stated the proposition involved herein:

“ . . . The Amendment (15th) nullifies sophis-



[ 1 4 ]

ticated as well as simple-minded modes o f dis­
crimination. It hits onerous procedural require­
ments which effectively handicap the exercise of 
the franchise by the colored race although the 
abstract rights to vote may remain unrestricted 
as to race.”

The same proposition was well stated by Mr. Justice 
Holmes in the First Texas Primary Case (Nixon v. 
Herndon, 273 U. S. 536 (1927), 47 S. Ct. 446) when 
when he stated:

“ States may do a great deal o f classifying that 
it is difficult to believe rational, but there are 
limits, and it is too clear for extended argument 
that color cannot be made the basis o f a statu­
tory classification affecting the right set up in 
this case.”

In condemning a statute granting bus operators the 
authority to segregate persons on account of race the 
Supreme Court o f the United States had this to say:

“ Interstate passengers traveling via motors 
between the north and south or the east and 
west may pass through Virginia on through lines 
in the day or in the night. The large busses ap­
proach the comfort o f pullmans and have seats 
convenient for rest. On such interstate jour­
neys the enforcement of the requirements for 
reseating would be disturbing.”

Morgan v. Virginia, supra.



[ 1 5 ]

It is no less disturbing for a passenger to be required 
to move from time to time and from seat to seat on 
account of his race by reason of some rule or regula­
tion on pain of eviction for failure to do so than to be 
required to move by reason of a state law on pain of 
arrest.

In more recent years, as result o f long, uphill strug­
gles of citizens identified with minority groups, the 
Courts have frowned upon several o f such practices 
and, one by one, have revealed in their proper perspec­
tive an appreciable number of the fundamental free­
doms o f the individual as being beyond the reach of 
infringement by state or private action. Almost uni­
formly the Courts have held that Negroes are entitled 
to serve on grand and petit juries, Stauder v. West 
Virginia, 100 U. S. 303, 303 S. Ct. 312 (1880 ); Neal 
v. Delazvare, 103 U. S. 370 (1881) ; Brown v. Missis­
sippi, 297 U. S. 278, 56 S. Ct. 461 (1936 ); Powell v. 
Alabama, 287 U. S. 45, 53 S. Ct. 55 (1932 ); Patter­
son v. Alabama, 287 U. S. 45, 53 S. Ct. 55 (1932 ); 
that they have a constitutional right to vote for candi­
dates o f their choice, Smith v. Allwright, 321 U. S. 
649, 64 S. Ct. 757 (1944); Rice v. Elmore, 165 Fed. 
(2d) 387, certiorari denied April 19, 1948; and can­
not be discriminated against while traveling on rail­
road trains, Mitchell v. United States, 313 U. S. 80, 
61 S. Ct. 873. (1941), on busses, Morgan v. Virginia, 
328 U. S. 373, 66 S. Ct. 1050 (1946), or on steam­
boats, Bob-lo Excursion Co. v. Michigan, 68 S. Ct. 358 
(1948).



[ 16]

In the latter case Mr. Justice Rutledge, speaking for 
the majority of the Court relative to the constitutional­
ity o f the Michigan Civil Rights Act, stated:

“ The Supreme Court o f Michigan concluded 
that holding the provisions of the Michigan 
statute effective and applicable in the instant case 
results only in this, defendant will be required 
in operating its ships as ‘public conveyances’ to 
accept as passengers persons of the Negro race 
indiscriminately with others. Our review of 
this record does not disclose that such a require­
ment will impose any undue burden on defend­
ant in its business in foreign commerce. 317 
Mich. 686, 694, 27 N. W . 2d 139, 142. Those 
conclusions were right.”  (Italics ours)

In a series o f recent cases the court held to similar 
effect in questions involving equal educational opportuni­
ties for Negroes. Missouri Ex Rel Gaines v. Canada, 
305 U. S. 337, 59 S. Ct. 232; Sipuel v. Board of 
Regents of the University of Oklahoma, 332 U. S. 631, 
68 S. Ct. 299 (1948).

Another forceful statement confirming this trend of 
decision was announced by Justice Edgerton in his dis­
senting opinion in the recent case of Hurd et al v. 
Hodge et al, in the United States Court o f Appeals for 
the District of Columbia, decided May 26, 1947, 82 
App. D. C. 180, 162 F. (2d) 233.

“ As Judge Ross, the donor of the American 
Bar Association’s Ross Essay Prize, said long 
ago in refusing to enforce by injunction a cove­



[ 17]

nant against transfers to Chinese: ‘It would be 
a very narrow construction of the constitutional 
amendment in question and of the decisions 
based upon it . . .  to hold that, while state and 
municipal legislatures are forbidden to discrimi­
nate against the Chinese in their legislation, a 
citizen o f the state may lawfully do so by con­
tract which the courts must enforce. . . . The 
courts should no more enforce the one than the 
other.’

“ All this is said with complete deference to 
the rule of the Cor rig cm case that the Consti­
tution does not make racial covenants void.”

There is nothing in the rule of the carrier relative 
to segregation o f passengers on account of race. It is 
only in its operation that its illegality is made apparent. 
Such segregation rules which operate differently in 
some States based upon some alleged local sentiment is 
just as obnoxious to the Federal Constitution as State 
laws would be in the same instance when its operation 
involves matters national in character. In a similar 
instance involving a State segregation law, the Supreme 
Court of the State of Maryland had this to say:

“ When the subject is national in its character 
and admits and requires uniformity or regula­
tion affecting alike all the states, the power is in 
its nature exclusive, and the state cannot act. 
The failure of Congress to act as to matters of 
national character is, as a rule, equivalent to a 
declaration that they shall be free from regula­



[ 18]

tion or restriction by any statutory enactment, 
and it is well settled that Interstate Commerce 
is national in its character.” Hart v. State, supra.

(b )  The Rule of the Defendant Corporation As Inter­
preted to Require the Appellant, Because of Her 

Race, to Move to the Rear Seat of the Bus—
Was Unreasonable

The rule filed on behalf o f the defendant corpora­
tion with the Interstate Commerce Commission reads 
as follows:

“ The carrier reserves to itself full control 
and discretion as to seating of passengers and 
reserves the right to change such seating at any 
time during the trip.”

It says nothing relative to segregation of passengers 
on account of race. It is only in its operation that its 
illegality is made apparent.

A  rule which merely states that the carrier reserves 
the right to change the seating of passengers on its 
vehicles would ordinarily be interpreted as meaning that 
such seating arrangements could and would be made 
only when necessary for the comfort and convenience 
o f the passengers. It could not be assumed by either 
the Interstate Commerce Commission or the general 
public that it was intended that the operator of the 
vehicle would have the right or privilege of ordering 
the passengers to change from one seat to another at 
the arbitrary whim of the operator, solely because of



[ 19]

the race of the passenger.
It has been uniformly held that a rule regulating 

commerce is reasonable only when it benefits the great 
majority o f passengers and does not conflict with any 
statutory or civil or common law right o f the pas­
sengers.

Hart v. State, 100 Md. 596 (1905)
Washington B. & A. Electric Railway Company 

v. Waller, 53 App. D. C. 200, 289 Fed. 598 
(1923)

The test of whether the rules or regulations of a 
carrier are reasonable is whether the benefits derived 
therefrom outweigh the burden imposed.

Southern Pacific Company v. Arizona, 525 U. S.
761, 65 S. Ct. 1515 

Morgan v. Virginia, supra

State laws requiring segregation of interstate pas­
sengers are unlawful because they are unreasonable.

It is a contention of appellant that any rule o f a 
common carrier, while within certain States and by 
reason of sentiments therein allegedly prevailing, to 
impose racial segregation upon its passengers, is not 
only an unconscionable rule, but is also an unreason­
able rule under principles o f common law and is an 
unlawful rule under Title 8, Section 43, and Title 18, 
Section 4 1 (1 ) and 41(14) o f the U. S. Code, as well 
as under the Fourteenth Amendment to the Federal 
Constitution.



[ 20]

Morgan v. Virginia, supra
Washington B. & A. Electric Railway Company 

v. Waller, supra 
Hart v. State, supra
Henderson v. United States, 65 Fed. Supp. 907 
Matthews v. Southern Railway System, 157 Fed. 

(2d ) 609
Re Drummond Wren, 4 D. L. R. 674 (Ontario 

High Court, 1945)

Even had the intended effect o f the rule been such 
that the appellant could have been bound thereby, the 
carrier should show that the full purport o f the rule 
and the practice thereunder had been made known to 
the appellant when she contracted with the carrier for 
transportation.

In Washington, B. & A. Elec. R. Co. v. Waller, 53 
App. D. C. 200, 289 Fed. 589, 30 A. L. R. 50 (1923), 
the Court o f Appeals o f the District o f Columbia made 
this emphatic statement:

“ A  regulation of the character claimed, which 
would deprive the plaintiff as an interstate pas­
senger o f his right to sit in the front end of the 
car, and would justify his eviction if he de­
clined to move when requested, must be regarded 
as possessing the quality o f a law, binding at 
least upon all who had knowledge thereof, or 
to whom such knowledge might be imputed. It 
was not, o f course, because . the knowledge o f 
its existence was, so far as it appears, confined 
to conductors and trainmasters, possessed o f



[ 2 1 ]

the properties o f an applicable statute or o f the 
common law, which everyone is presumed to 
know, and there is nothing in the case that war­
rants the belief that, if such a regulation ex­
isted, knowledge thereof prior to his taking his 
seat in the car could be imputed to the plaintiff.”

This doctrine has been affirmed by the Supreme Court 
o f the State of Virginia (see Davis v. Commonwealth, 
182 Va. 760; Morgan v. Commonwealth, 184 Va. 24). 
It is thus seen that whether defendant company had 
such rule or regulation is immaterial and constitutes 
no defense since it was not brought to the attention 
of the appellant, and is given at this late date solely 
in an attempt to defend its action by reason of such 
undisclosed rule.

However, even though defendant did have such rule 
or regulation and even it it had been disclosed to the 
plaintiff, it would constitute no defense. Under the 
law, as plaintiff understands it, common carriers are 
permitted to adopt such reasonable rules and regula­
tions as are necessary for the operation of its vehicles, 
and for the comfort, safety and convenience of its pas­
sengers. By no stretch of the imagination can a rule 
or regulation of an interstate common carrier trans­
porting passengers in various states in the United 
States be said to be reasonable when its sole purpose 
is to segregate white and colored passengers on the 
basis of race and to require Negroes to sit on the rear 
inferior seat. So far as we know the Interstate Com­
merce Commission has never sanctioned such and the 
Supreme Court o f the United States has expressly con­



[ 2 2 ]

demned such when enacted into State law. Morgan v. 
Virginia, supra.

The Rule and the Intended Effect Thereof as Applied 
to the Case At Bar is Unreasonable Per Se

As applied in the case at bar, and stripped to its 
naked realities, the rule by which the carrier seeks to 
justify its action, required that Mrs. Day, solely be­
cause of her race, as the first person to board the bus, 
should occupy a part of the long seat at the rear of 
the bus which had neither an adjustable back, arm rest, 
foot rest, nor convenient access to a window and which 
might be shared with as many as four other persons—  
this being the only seat on the bus thus disadvan­
taged; and by the operation o f that rule, Mrs. Day 
would have been restricted to that seat until she ar­
rived at her destination which was Winterhaven, Flor­
ida. The next person who boarded the bus might have 
had a ticket for the same destination, but if o f differ­
ent racial origin, he would have been assigned to the 
seat nearest the front and would have shared none of 
the disadvantages to which Mrs. Day was subjected. 
Without a showing that the rule was reasonable and 
that appellant contracted with actual or constructive 
notice o f its existence and effect, the company cannot 
rely thereon to avoid the common law obligation o f a 
carrier to its passengers.

(c )  There is no Segregation Law in Virginia Appli­
cable to Persons Traveling in Interstate Commerce,
and the Court Should Have so Instructed the Jury



[ 2 3 ]

In the trial o f the case at bar, the Court should have 
instructed the Jury that there was no law in the State 
of Virginia requiring defendant company to segregate 
white and colored persons traveling in Interstate Com­
merce.

Since the years 1902-03-04, enactments of the Legis­
lature of Virginia have required the separation of the 
races on railroads, steamboats and electric trains; and 
since 1930 Virginia has had a statute requiring simi­
lar separation on passenger motor vehicle carriers. 
Until June 1946, when the United States Supreme 
Court decided, Morgan v. Commonwealth, supra, it 
was supposed that these enactments applied alike to 
interstate as well as to intrastate passengers (see Mor­
gan v. Commonwealth, 184 Va. 24 (1945). Not until 
March 1, 1948, when the Supreme Court o f Appeals 
o f Virginia decided Taylor v. Commonwealth, 187 Va. 
214, was the question put at rest that Section 4533a 
of the Code of Virginia,4" when read together with the 
rule of the carrier requiring interstate passengers to 
conform to the pattern of racial segregation. On June 
30, 1948, when this case was heard in the District 
Court, the members o f the jury should not have been 
expected to have divined that there had never been

4aSection 4533a Virginia Code—“Riotous or disorderly conduct on train or 
street car a misdemeanor.—If any person, whether a passenger or not, shall 
wrhile in any caboose, or in any part of a train carrying passengers or em­
ployees of any railroad or street passenger railway, behave in a riotous or 
disorderly manner, he shall be guilty of a misdemeanor. The agent or em­
ployees in charge of the train, car, or caboose, may require such person to 
discontinue his riotous or disorderly conduct, and if he refuses to do so may 
eject him with the aid, if necessary, of any other persons who may be called 
upon for the purpose.”



[ 2 4 ]

legal foundation for imposing upon interstate passen­
gers the restrictive pattern of segregation which, in 
deference to legislative action, they had followed 
throughout their lives.

Under the common law any passenger whether in­
terstate or intrastate on a common carrier had a civil 
right not to be molested on his journey by the agents 
and servants of said carrier. He had a right to be 
carried safely to his destination without interference 
by the carrier or its agents.

W e feel that this case is governed by the emphatic 
language of Justice Prettyman in the case of Matthews 
v. Southern Railway System, supra, involving the same 
situation on a railroad train, in which it is stated that:

“ This case is governed by the rules of law 
applicable to the obligations of a common car­
rier to its passengers and its liabilities for breach 
o f those obligations. A  common carrier is re­
quired to protect its passengers against assault 
or interference with the peaceful completion of 
their journey. New Jersey Steamboat Company 
v. Crockett, 1887, 121 U. S. 637, 7 S. Ct. 1039, 
30 L. Ed. 1049.”

Under long estarblished Federal rule the Federal 
Courts are obligated to adopt for themselves the rules 
o f procedure and o f evidence o f the States where the 
same do not conflict with any Federal law. The law 
in Virginia is definite and obligatory that the Court, 
and not the jury, is the proper instrument to determine 
the reasonableness o f such rules and regulations as set 
up in this case.



125 ]

“ It is well-settled law that a carrier has a 
right to make reasonable rules and regulations 
for the conduct o f its affairs, and that they are 
binding upon passengers and the public dealing 
with the carrier when brought to their notice . . . 
The reasonableness of the rules and regulations 
of a railroad company is a question o f lazu ad­
dressed to the court. N. & W. Ry. Co. v. 
Wysor, 82 Va. 250, at pages 260-1; Va. & S. 
W. Ry. v. Hill, 105 Va. 738, 54 S. E. 872, 6 
L. R. A. (N . S.) 899; N. & W. Ry. v. Brame, 
109 Va. 422, 430, 63 S. E. 1018.”

Virginia Railway & Power Company v.
O’Flaherty, 118 Va. 749 (1916)

Not only do the established and declared public pol­
icy of the United States of America and the law in 
force in the Commonwealth of Virginia guarantee in­
violate the personal right of the individual citizen 
herein sought to be protected, but in this age, world 
conscience cries out against such violations o f common 
decency and human dignity as in the case at bar were 
suffered by the appellant solely by reason of her race.

(d ) The Rule Violates the United Nations Charter

By Articles 55 and 56 o f the United Nations Charter 
each member nation of that body is pledged to take 
joint and separate action to promote

“ universal respect for, and observance of hu­
man rights and fundamental freedoms for all 
without distinction as to race, sex, language or 
religion.”



[ 26 ]

This document was signed by the President at San 
Francisco and was duly ratified by the Senate (51 Stat. 
1031) on the 28th day of July, 1945. The treaty is, 
under Article V I, Section 2 of the Constitution, the

“ supreme law of the Land, and the Judges in 
every State shall be bound thereby, anything in 
the Constitution or laws of any State to the 
contrary notwithstanding.”

The responsibility o f the United States under the 
Charter is clearly and specifically defined by its terms:

“ All members pledge themselves to take joint 
and separate action in cooperation with the or­
ganization for the achievement o f the purposes 
set forth in Article 55.” 5

“ All members, in order to insure to all of 
them the rights and benefits resulting from 
membership, shall fulfill in good faith the obli­
gations in accordance with the present Charter.” 6

The only meaning which this solemn obligation of 
our nation can have is that our government will exer­
cise all its power to prevent the deprivation o f human 
rights and fundamental freedoms.

In 1945, in a case involving covenants, restricting 
the sale or use of certain land to white Protestants, 
the High Court o f Ontario, Canada, after considering

5United Nations Charter, Article 56.

6Ibid., Article 2, paragraph 2. This section follows immediately the sec- 
tion recognizing the sovereignty of member nations and its clear intention is 
to avoid the use of such sovereignty to vitiate obligations which require 
changes in domestic policy.



[ 27 ]

numerous relevant sources, including the San Fran­
cisco Charter, speeches of President Roosevelt, Winston 
Churchill, and General Charles de Gaulle, and the Con­
stitution of the Union o f Soviet Socialist Republics, 
held the restriction void, saying:

“ How far this is obnoxious to public policy 
can only be ascertained by projecting the cover­
age of the covenant both with respect to the 
classes of persons whom it may adversely a f­
fect and the lots or subdivisions of land to 
which it may be attached. So considered, the 
consequences of judicial approbation of such a 
covenant are portentious. If sale o f a piece 
of land can be prohibited to Jews, it can equally 
be prohibited to Protestants, Catholics, or other 
groups or denominations. If the sale of one 
piece of land can be so prohibited, the sale of 
other pieces of land can likewise be prohibited. 
In my opinion, nothing could be more calculated 
to create or deepen divisions between existing 
religious and ethnic groups in this province, or 
in this country, than the sanction o f a method 
of land transfer which would permit the segre­
gation and confinement of particular groups to 
particular business or residential areas, or con­
versely, would exclude particular groups from 
particular business or residential areas.

“ Ontario and Canada too, may well be termed 
a province and a country, or minorities in re­
gard to religious and ethnic groups which live 
therein. It appears to me to be a moral duty,



[2 8]

at least, to lend aid to all forces of cohesion, 
and similarly to repel all fissiparous tendencies 
which would imperil national unity. The com­
mon law courts have by their actions over the 
years, obviated the need for rigid constitutional 
guaranties in our policy by their wise use of 
the doctrines of public policy as an active agent 
in the promotion weal. While courts and emi­
nent judges have, in view of the powers of our 
legislatures, warned against inventing new heads 
of public policy, I do not conceive that I would 
be breaking new ground were I to hold the re­
strictive covenant impugned in this proceeding 
to be void as against public policy. Rather 
would I be applying well-recognized principles 
o f public policy to a set of facts requiring their 
invocation in the interest of a public good.

“ My conclusion therefore is that the cove­
nant is void because offensive to the public pol­
icy of this jurisdiction. This conclusion is rein­
forced, if reinforcement is necessary, by the 
wide official acceptance of international policies 
and declarations frowning on the type of dis­
crimination which the covenant would seem to 
perpetuate.”

Re Drummond Wren, supra.

It is significant that the Court pointed out that the 
“ opinion as to the public policy applicable to this case 
in no way depends on the terms of the Racial Dis­
crimination Act 1944 (Ont.) c51, save to the extent 
that such Act constitutes a legislative recognition of



[ 2 9 ]

the policy which I have applied * *
The courts do not permit individuals, by contract or 

other private act, to abridge personal rights of citizens 
which the Constitution places beyond the pale o f legis­
lative curtailment.

“ Any result inhibited by the Constitution can 
no more be accomplished by the contracts o f in­
dividual citizens than by legislation and the Court 
should no more enforce the one than the other/’ 

Gondolfo v. Hartman, 49 Fed. 181.

In 1917 the Supreme Court o f the United States held 
to be unconstitutional state statutes and municipal ordi­
nances requiring racial segregation in property owner­
ship and occupancy. Buchanan v. Warley, 245 U. S. 
60, 38 S. Ct. 16 (1917). For more than thirty years 
thereafter, the legal effect o f this decision was circum­
vented by covenants running with the land purporting 
permanently to prevent ownership or occupancy by 
persons of specified races. In 1948 the Supreme Court 
of the United States in the case of Shelly v. Kramer, 
supra, held that the enforcement of such covenants by 
.State Courts was State action of the kind forbidden 
by the Federal Constitution. And thus was finally 
re-established the inalienable right of the individual to 
buy property from whomsoever wished to sell and to 
sell property to whomsoever wished to buy.

Likewise, in the case o f Morgan v. Virginia, supra, 
it was held that State laws reguiring segregation of 
interstate passengers violated the Commerce Clause of 
the Constitution; and in the case o f Taylor v. Com­



[30]

monwealth, supra, the Virginia Court denied the use 
of the criminal courts in the enforcement of the car­
rier’s rule requiring racial segregation o f interstate 
passengers.

Thus, was it clearly re-established that the States 
may not alienate the right of a citizen o f the United 
States when an interstate passenger to disregard and 
ignore the “Jim Crow” custom and usages requiring 
racial segregation on common carriers (a right which 
Justice Taney had considered indispensable to citizen­
ship). As in the covenant cases it was found that 
individuals could not by contract infringe upon indi­
vidual citizenship rights expressly protected against 
adverse State action, so we here contend that the car­
rier’s rule( inferentially made a part of its contract 
for passage) is effectual in alienating the right of an 
interstate passenger not to be molested during her trip 
by reason o f her race.

That Federal Courts are likewise bound to protect 
personal rights o f the citizen.fjfiid in cases properly 
brought before them to redress private wrongs com­
mitted in violation of personal rights, we refer to the 
recent case of Hurd v. Hodge, supra, wherein it was 
held that the act o f the United States District Court 
and Circuit Court o f Appeals for the District o f Colum­
bia, in upholding and giving validity to restrictive cove­
nants was “ judicial action contrary to public policy of 
the United S t a t e s ((Italics ours)

Cases in which the individual freedom of contract 
has been substantially curtailed by treaty or the over­
riding necessity of the Federal Government in the field 
o f international relations are particularly applicable to



[ 3 1 ]

the instant case. Thus, in Kennett v. Chambers7 and 
Mayer v. White/  the Supreme Court refused to enforce 
contracts between parties to equip an army to fight 
Mexico at a time when such action was in violation 
o f the neutrality o f the United States; and contracts 
between citizens in aid o f the Confederate Government 
were not enforced.9

CONCLUSION

It would be chimercial for this Court to hold that, 
while National, State and Municipal legislatures are 
forbidden to discriminate against Negroes in their leg­
islation, a public service corporation of the State may 
lawfully do so by rule or regulation which the Courts 
must enforce. The Courts should no more enforce the 
one than the other.

It is therefore submitted that the judgment herein 
complained of should be reversed.

Respectfully submitted,

M a r t in  A. M a r t in  

O liv e r  W . H il l  

S pottswood  W . R o b in so n , III 
Counsel for Appellant

755 U. S. 38.

s65 U. S. 317.

’Montgomery v. V, S., 82 U. S. 395 ; Hanauer V. Doane, 79 U. S. 342.