Henderson v. US Interstate Commerce Commission Briefs and Amicus

    ELMER W. 
flllDERSON

u. c. if, icc,
& SOUTBEKi 

RAILWAY 
COMPANY

B R I E F S

AM I CO



J&rl;

tm







.



(





SUPREME COURT OF THE UNITEO STATES

OCTOBER TERM, 1948

No. 570

ELMER W. HENDERSON,
Appellant,

vs.

THE UNITED STATES OF AMERICA, INTERSTATE 
COMMERCE COMMISSION a n d  SOUTHERN RAIL­
W AY COMPANY

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF MARYLAND

STATEMENT AS TO JURISDICTION

B. V. L awson, 
Counsel for Appellant.

Lawson, M cK enzie & W indsor,
Josiah F. H enry,

Of Counsel.





INDEX

Subject Index
Page

Statement as to jurisdiction..........................................  1
Statutory provision................................................  2
The statute of a state or statutes or treaty of the 

United States, the validity of which is in­
volved .................................................................... 2

Date of the judgment or decree sought to be re­
viewed and the date upon which the applica­
tion for appeal was presented...........................  2

Nature of the case and the rulings below.............  2
Cases sustaining the Supreme Court’s jurisdic­

tion of the appeal................................................  5
Opinions and d ecree ......................................................  5
Appendix “ A ” — Opinion of the District Court of

December 17, 1945......................................................  7
Appendix “ B ” — Opinion of the District Court of

September 25, 1948 ....................................................  25
Appendix “ C ” — Dissenting opinion of Soper, J .......  39

Table of Cases Cited

Alton R.R. Co. v. U. S., 287 U. S. 229........................... 5
Henderson v. U. S., 2581.C.C. 413, 63 F. Supp. 906... . 2, 3, 5
Mitchell v.U .S., 313 U. S. 80......................................... 5
Plessy v. Ferguson, 163 U. S. 537................................. 4
Rochester Telephone Corp. v. U. S., 307 U. S. 125 .... 5

Statutes Cited

Constitution of the United States, 14th Amendment. . 4
United States Code, Title 28, Section 1253 (Act of 

June 25,1948, C. 646, 62 Stat. — ) .............................  2
United States Code, Title 49:

Section 1(4) ............................................................  2
Section 3(1) ............................................................

—1191



.

.

■ ; . , -r ■ :



UNITED STATES DISTRICT COURT 
FDR THE DISTRIET DF MARYLAND

Civil Action No. 3829

ELMER W. HENDERSON,
Plaintiff, 

vs.

UNITED STATES OF AMERICA

AND

INTERSTATE COMMERCE COMMISSION
Defendants,

SOUTHERN RAILW AY COMPANY,
Intervenor.

STATEMENT AS TO JURISDICTION UNDER RULE 12 
OF THE REVISED RULES OF THE SUPREME 
COURT OF THE UNITED STATES.

Elmer W. Henderson, plaintiff in the above entitled cause, 
respectfully presents the following statement disclosing the 
basis upon which it is contended that the Supreme Court 
of the United States has jurisdiction upon appeal to review 
the judgment or decree in the above-entitled cause sought 
to be reviewed.



2

A. Statutory Provision

The statutory provision believed to sustain the jurisdic­
tion is IT. S. C. Title 28, Section 1253 (Act of June 25, 
1948, C. 646, 62 Stat. — ).

B. The Statute of a State, or the Statutes or Treaty of the 
United States, the Validity of Which Is Involved

The validity of a statute of a State, or of a statute or 
treaty of the United States, is not involved.

0. Date of the Judgment or Decree Sought to Be Reviewed 
and the Date upon Which the Application for Appeal 
W as Presented.

The decree sought to be reviewed was entered on October 
28,1948. The petition for appeal was presented and allowed 
on November 17, 1948, together with the assignment of 
errors.

D. Nature of the Case and the Rulings Below

This is an appeal from the decree of the United States 
District Court for the District of Maryland, entered Oc­
tober 28, 1948, dismissing the complaint. The suit was 
brought to enjoin, set aside and suspend an order of the 
Interstate Commerce Commission entered September 5, 
1947, dismissing the complaint in the proceedings known as 
Henderson v. Southern Railway.

These proceedings had their origin in a complaint filed 
before the Interstate Commerce Commission on October 
10,1942, known as Henderson v. Southern Railway, in which 
it was alleged that the Southern Railway, intervener, vio­
lated the provisions of 49 U. S. C. 1(4) and 49 U. S. C. 3(1) 
in refusing to serve the plaintiff at tables allegedly reserved 
for Negroes where there were vacant seats, although pro­
viding service there for white passengers, and in the use of



3

a curtain around the tables allegedly reserved for Negro 
passengers. The complaint prayed that the railroad be 
ordered to desist from the alleged unlawful acts, that it be 
required to discontinue the practice of using curtains 
around the tables reserved for Negroes, and for damages. 
The Commission issued its report finding plaintiff had 
been subjected to undue and unreasonable prejudice and dis­
advantage, that there was no necessity for an order for the 
future, and by its order of May 13,1944 dismissed the com­
plaint. (258 I. C. C. 413.)

An appeal was taken to the District Court of the United 
States for the District of Maryland to set aside the Com­
mission’s action. The Court held that racial segregation 
of interstate passengers is not per se forbidden by the Con­
stitution, the Interstate Commerce Act, nor any other Act 
of Congress and has been approved by the Supreme Court; 
that the railroad’s dining car regulation did not provide 
substantial equality of treatment; and by its decree of Feb­
ruary 15, 1946 remanded the case to the Commission for 
further proceedings in light of the principles outlined in 
its opinion. (Henderson v. U. S., 63 F. Supp. 906.)

After further hearing before the Commission at which 
was presented the railroad’s amended dining car regulation 
providing for the absolute reservation of one table for 
Negro passengers-next to the kitchen, opposite the stew­
ard’s office, and separated from the remainder of the din­
ing car by a 5 foot wooden partition, the Commission found 
that the new regulation is not violative of any provision 
of the Interstate Commerce Act; that an order for the 
future is not necessary; and by its order of September 5, 
1947 dismissed the complaint.

An appeal from this order was taken to the District Court 
of the United States for the District of Maryland which 
held, in its opinion of September 26, 1948 (Henderson v.



4

U. 8., —- F. Supp. — ), that the amended dining car regu­
lation removed the inequality found to exist prior thereto; 
that the present provision for dining car service does not 
permit an unjust discrimination against Negro passengers; 
that there is a very definite distinction between segregation 
in interstate buses and interstate dining car accommoda­
tions; that racial segregation of interstate passengers is 
not forbidden by the Constitution, the Interstate Com­
merce Act, or any other Act of Congress, provided there 
is no real inequality of treatment of passengers; that allot­
ment of seats by race of passengers, if equality of service is 
proportionately fair, is not per se real inequality; and that 
refusal to seat and serve a passenger at any vacant seat in 
the dining car, when the table or tables provided for per­
sons of his race are occupied, is no more unjust or inequi­
table than the wait necessary for all passengers when all 
seats in the dining car are occupied. By its decree of Oc­
tober 28, 1948 the complaint was dismissed.

The questions presented by this appeal are substantial 
ones. In 1896 the Supreme Court, in Plessy v. Ferguson, 
163 U. S. 537, held that a state law requiring segregation by 
race of intrastate passengers was not an abridgement of a 
colored passenger’s privileges and immunities, a deprival 
of property (the reputation of belonging to the dominant 
race) without due process of law, nor a denial of equal 
protection of the laws, under the 14th Amendment. That 
decision constituted a precedent which, the plaintiff be­
lieves, has erroneously been used in numerous cases to up­
hold segregation, giving rise to the doctrine of separate 
but equal, which has been adhered to by the Commission 
and the District Court in this case. Experience has shown 
in every area where segregation is practiced that separa­
tion is enforced but the proviso of equality is never com­
plied with.



5

This case involves the question of whether segregation 
is discrimination, because inequality invariably accompa­
nies segregation, because the doctrine of substantial equality 
should not apply to fundamental, constitutional, personal 
rights, and whether segregation is discrimination per se. 
Second, there is presented the question whether a vacant 
seat may be denied any passenger solely because of his 
race. Third, with respect to national uniformity in inter­
state travel regulations, there is a conflict between the ap­
proved practice of racial segregation on interstate dining 
cars and the Supreme Court’s prohibition of racial segre­
gation in interstate motor travel as a burden on interstate 
commerce. Fourth, it involves the question whether allot­
ment of seats according to race, based on the comparative 
volume of traffic, affords equality of treatment to the indi­
vidual passenger. Fifth, there is involved the extent of the 
Commission’s and the District Court’s power and author­
ity in approving a regulation, based solely on race, restrict­
ing plaintiff’s liberty by enforced segregation, in the light 
of the national policy against racial distinctions and classi­
fications, as expressed in the United States Constitution, 
treaties of the United States, Acts of Congress, and judi­
cial decisions.

E. Cases Sustaining the Supreme Court’s Jurisdiction of
the Appeal

Mitchell v. U. S., 313 U. S. 80;
Alton Rrd. Co. v. U. S., 287 U. S. 229;
Rochester Telephone Corp. v. U. S., 307 U. S. 125.

F. Opinions and Decree

Appended to this statement are a copy of the opinion 
in this case on the first appeal (Henderson v, U. 8 63 F.



6

Supp. 906) and o f the opinion and decree of the District 
Court here sought to be reviewed.

We, therefore, respectfully submit that the Supreme Court 
has jurisdiction of the appeal.

Dated November 17, 1948.

B. Y. Lawson, Jr., 
Counsel for Appellant. 

Lawson, M cK enzie & W indsor,
200111th St., N. W., Wash., D. C.

Josiah F. H enry,
22 St. Paul Street, Baltimore, Md.,

Of Counsel.



7

APPENDIX “A ”

Filed 17th December, 1945

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE DISTRICT OF MARYLAND

No. 2455. Civil Docket

We concur: Morris A. Soper, U. S. Circuit Judge; W. 
Calvin Chesnut, U. S. District Judge.

Argued September 24,1945. Decided Dec. 17,1945.

E lm e r  W. H en derson , Plaintiff,
v.

U n ited  S tates  of A m erica  a n d  I n terstate  C o m m erce  
C o m m is sio n , Defendants

Before Soper, Circuit Judge, and Coleman and Cbesnut,
District Judges

Opinion of the Court

C o le m a n , District Judge:

This is a suit under the provisions of 28 U. S. C. Secs. 
41 (28), 43-48, 792, and 49 U. S. C. A. Sec. 17 (9), whereby 
the plaintiff seeks to set aside an order of the Interstate 
Commerce Commission, entered May 13, 1944, with respect 
to dining car service on the Southern Railway.

On October 10th, 1942, the plaintiff filed a complaint with 
the Commission alleging (as amended at the original hear­
ing) that the Southern Railway, on May 17th, 1942, had, 
with respect to its dining car service, unjustly discriminated 
against him in violation of the provisions of Section 3(1) of 
the Interstate Commerce Act (49 U. S. C. A. sec. 3 (1)), and 
Section 2, Par. 1 of Article IV  of the Constitution of the 
United States, by failing to furnish him dining car service 
equal to that furnished white passengers. The complaint 
prayed that the Commission require the carrier to cease and



8

desist from tlie alleged discrimination; in the future to 
afford complainant and other interested Negro passengers 
dining car facilities and such other services and facilities 
as the Commission might deem reasonable and just, equal 
to those accorded its white passengers, and asked also for 
damages to be assessed against the carrier because of the 
alleged discrimination.

The Southern Railway answered the complaint, denying 
that it had violated any Constitutional provision or any 
provision of the Interstate Commerce Act or of any other 
law. The complaint, according to the usual procedure, was 
referred by the Commission to an examiner for the purpose 
of conducting a hearing, which was held on February 24th,
1943. At this hearing, complainant alone testified in his 
own behalf and six witnesses were heard for the railroad.

The examiner filed his report on May 28th, 1943, recom­
mending that the Commission should find that complainant 
had been subjected to unjust discrimination and prejudice, 
but that the situation had been corrected for the future and 
that, therefore, the complaint should be dismissed. Com­
plainant excepted to the examiner’s report, alleging that 
the Virginia segregation statute (Virginia Code 1942 
(Micliie), Secs. 3962-68), upon which the examiner relied 
in part, was inapplicable; that segregation of races is con­
trary to the Federal Constitution and the Interstate Com­
merce Act; that damages should be assessed, and that the 
alleged discrimination and prejudice had not been corrected 
for the future. Thereupon, the complainant was granted 
a hearing before Division # 2  of the Commission, briefs 
were filed and oral arguments submitted, and on May 13th,
1944, that Division filed its report (258 I. C. C. 413), making 
detailed findings of fact and conclusions based thereon, all of 
which are substantially in accord with the examiner’s report 
and recommendations.

The material facts as found by the Commission and set 
forth in its report, are not disputed by the parties in the 
present proceeding, and are as follows: On May 17th, 1942, 
the complainant, a Negro, citizen of the United States, left 
Washington at approximately 2 P. M. aboard the Southern 
Railway’s Train #35, for Atlanta, Ga., traveling as a first 
class Pullman passenger. The train consisted of 1 combi-



9

nation baggage-passenger car, 6 coaches, 2 Pullman ears 
and 1 dining car with seats for 36 persons. It carried 
approximately 300 passengers, about 100 more than the 
usual number, which necessitated the use of 3 extra coaches. 
The Pullman cars were in the rear of the dining car, thus 
making it necessary for Pullman passengers desiring dining 
car service to enter the diner alongside the kitchen of the 
dining car. From this end the tables on the left side of the 
diner accommodated 4 persons and those on the right side, 
2 persons. The diner was equipped with curtains which, 
when drawn, separated the two tables nearest the kitchen 
from the other tables, these curtains extending, when drawn, 
from the sides of the diner to but not across its center aisle, 
nor along the aisle side of either of these end tables.

When the diner was opened about 5 :30 P. M. on May 17th, 
1942, and as the train was proceeding through the State of 
Virginia, a number of passengers were waiting to enter. It 
filled promptly. When all tables other than the two tables 
at the kitchen end of the car had been occupied, no Negro 
passenger having appeared, white passengers were seated 
at the end tables. Some of the passengers who were in line 
when the diner was opened, remained standing when the car 
was filled. Complainant did not take a position in the line 
but walked past people who were waiting to be served in 
turn. At least one seat at one of the end tables at the 
kitchen end of the diner was empty when complainant first 
demanded service but neither then nor later was either of 
these end tables entirely vacant. The diner was filled con­
tinuously, passengers from the line taking seats as soon as 
others vacated them, and from time to time diner patrons 
were served dinner until it became necessary to decline fur­
ther service, in order that the car would be clear of patrons 
when the train reached Greensboro, North Carolina. Com­
plainant was tendered and declined service in his Pullman 
car space without charge therefor in addition to the regular 
dining car prices. The service offered him differed from 
that furnished in the dining car only as respects the place 
of service. The steward did not send for complainant as he 
had promised to do because at no time during the meal 
period was there available space in which complainant could 
be served in the diner in a compartment separated from



10

tables that were occupied by white passengers. Complain­
ant was one of many passengers who sought dining car 
service and who had not been served when the car was 
removed from the train at approximately 9 :00 P. M.

For many years, it was defendant’s practice to serve 
meals to passengers of different races at different times. 
Negro passengers, being in the minority, were served either 
before or after the white passengers had eaten. The in­
crease in passenger traffic in 1941, due to defense activities, 
made necessary some plan whereby both races could be ac­
commodated at the same time. It was found that the length 
of time required for serving white passengers would extend 
into the time for the next meal, leaving no time in which 
to serve Negro passengers. The installation of curtains 
was designed to correct that situation. Since the time of 
complainant’s journey, defendant’s dining cars have been 
equipped with 4-seat tables on both sides, thereby increasing 
to 48 the capacity of the car, and to 8 the number of seats 
at the end tables.

In July, 1941, defendant issued to its passenger depart­
ment employees a circular of instructions concerning ac­
commodations for passengers of different races, which con­
tains the following:

“ Dining Car Regulations

“ Meals should be served to passengers of different races 
at separate times. If passengers of one race desire meals 
while passengers of a different race are being served in the 
dining car, such meals will be served in the room or seat 
occupied by the passenger without extra charge. I f the 
dining car is equipped with curtains so that it can be divided 
into separate compartments, meals may be served to pas­
sengers of different races at the same time in the compart­
ments set aside for them. ’ ’

On August 6, 1942, these instructions were supplemented 
as follows:

“ Effective at once please be governed by the following 
with respect to the race separation curtains in dining cars:



11

Before starting each meal pull the curtains to service posi­
tion and place a “ Reserved”  card on each of the two tables 
behind the curtains.

‘ ‘ These tables are not to be used by white passengers until 
all other seats in the car have been taken. Then if no 
colored passengers present themselves for meals, the curtain 
should be pushed back, cards removed and white passengers 
served at those tables.

“ After the tables are occupied by white passengers, then 
should colored passengers present themselves they should 
be advised that they will be served just as soon as those 
compartments are vacated.

“  ‘ Reserved’ cards are being supplied you.”

As passengers enter the dining car when it is opened for 
meal service, it is defendant’s practice to seat some of them 
at each waiter’s “ station” , or group of tables so that all 
the waiters may be engaged promptly and service expedited. 
If any Negro passengers are present, they are seated and 
served at the end tables. Relatively few Negro passengers 
use the dining car, and for that reason the end tables are 
not absolutely reserved for their exclusive use; but white 
passengers are not seated at them until the other tables are 
filled. Then, if no Negro passengers present themselves, the 
end tables are used for white passengers. If a Negro pas­
senger requests service when both end tables are fully or 
partially occupied by white patrons, the practice is to offer 
him service in his Pullman space or at his coach seat, using 
a portable table, without the extra charge usually made for 
that service. When so served, the passenger receives the 
same food and waiter service that is furnished dining car 
patrons, and the dishes, silverware, and linens are those 
used in the dining car. Negro civilians are served in the 
dining car simultaneously with white passengers only at 
the end tables. White and Negro soldiers are served to­
gether, without distinction.

On these facts the Commission made three ultimate find­
ings, (1): That defendant’s treatment of complainant with 
respect to dining car service subjected him to undue and 
unreasonable prejudice and disadvantage in violation of



12

Section 3 of the Interstate Commerce Act; but that (2):  
The defendant’s dining car rules and regulations in effect 
at the time in question, when considered with defendant’s 
supplementary rules and regulations issued on August 6th, 
1942, are adequate, and therefore no order in respect to 
these rules was necessary for the future; and (3): That 
complainant had sustained no compensable damage as a 
result of the disadvantage caused him by defendant. Ac­
cordingly, the Commission issued its order on May 13, 
1944, dismissing the complaint. Thereafter, complainant 
petitioned for a hearing before the full Commission, but this 
was denied by order entered September 18, 1944 and on 
January 26,1945, the present proceeding was instituted. In 
the complaint it is alleged that the treatment given the com­
plainant with respect to dining car service violated (1) Sec­
tion 3(1) of the Interstate Commerce Act (49 U.S.C.A. Sec. 
3 (1)) ;  (2) the national transportation policy as defined in 
that Act (49 U.S.C.A. Sec. 1, note); and (3) the Civil Rights 
Act, 8 U.S.C.A. Sec. 41, 43, enforcing Section 1 of the 
Fourteenth Amendment of the Constitution of the United 
States.

The specific form of injunctive relief sought is that the 
Commission order the Southern Railway Company to cease 
and desist from the form of treatment with respect to 
dining car service given the complainant, and to establish 
and enforce in the future, for the benefit of complainant and 
other Negro passengers, dining car facilities and services 
unconditionally identical with those established and en­
forced for white passengers, including the discontinuance of 
the Railway Company’s present practice of using curtains 
around dining car tables provided for Negro passengers. 
The complainant concedes that the Commission’s denial of 
damages is not reviewable by this Court. See Standard Oil 
Co. v. U. S., 283 U. S. 235; George Allison & Co. v. United 
States, 296 U. S. 546; Ashland Coal & Ice Co. v. United 
States, — Fed. (2d) — , affirmed per curiam, — U. S. — .

For a proper understanding of what the Commission de­
cided apart from the matter of damages, we quote the fol­
lowing from its opinion (258 I.C.C. 413, at pages 418-419):



13

‘ ‘ The Interstate Commerce Act neither requires nor pro­
hibits segregation of the races. The regulations of a car­
rier requiring separation of white and Negro passengers 
have been held not unlawful when applied to interstate 
passengers. See Chiles v. Chesapeake & 0. Ry. Co., 218 
U. S. 71, and cases therein cited. Section 3(1) of the act 
provides that it shall be unlawful for any common carrier 
subject thereto to make, give, or cause any undue or un­
reasonable preference or advantage to any particular per­
son in any respect whatsoever; or to subject any particular 
person to any undue or unreasonable prejudice or disadvan­
tage in any respect whatsoever. In Mitchell v. United 
States, 313 U. S. 80, 97, the Court said that while the supply 
of particular facilities may be conditioned upon there being 
a reasonable demand therefor, if facilities are provided, 
substantial equality of treatment of persons traveling under 
like conditions cannot be refused. Thus it is seen that 
substantial equality of treatment only is required of the 
carrier.

“ It is clear that complainant returned to his seat after 
his various appearances in the dining car with the distinct 
impression or understanding conveyed to him by the stew­
ard that in a short time space would be available for serv­
ing him in the dining car and that he would be notified. 
The steward could have consummated his understanding 
with complainant by not allowing additional white passen­
gers to be seated at the end tables. I f that procedure had 
been followed, an end table would have been entirely 
vacated as soon as the white passengers, initially seated 
there, had completed their meals. As above indicated, com­
plainant stresses the failure to seat him at an end table and 
to notify him as promised. In our opinion, the circum­
stances afford sufficient basis for a finding in favor of 
complainant.

“ As far as the record is concerned, the occurrence com­
plained of was but a casual incident, brought about by bad 
judgment of an employee of the defendant who had an 
overload of work to be done in a limited space and short 
time. The difficulties encountered were, no doubt, due to



14

a large extent to the overcrowding of the train, resulting 
from war-time conditions. The record does not disclose 
that the defendant’s general practice, as evidenced by its 
present instructions, will result in any substantial inequality 
of treatment as between Negro and other passengers seeking 
dining-car service.

“ We find that complainant was subjected to undue and 
unreasonable prejudice and disadvantage in the respect 
already stated. As defendant’s present instructions to its 
employees seem adequate, the entry of an order for the 
future in this respect would serve no useful purpose.”

The questions presented for our determination in this 
proceeding are basically two, as evidenced by complainant’s 
contentions, and may be summarized as follows: (1) Is any 
form of racial segregation of interstate passengers in dining- 
cars a preference, prejudice or discrimination in and of 
itself in violation of the Civil Rights Act, or the Interstate 
Commerce Act, or both; and (2) even if a certain degree of 
such segregation be valid, are the present rules and regula­
tions of defendant respecting its dining car service never­
theless invalid because they do not provide substantial 
equality of treatment in that (a) curtained tables are 
required for Negroes and not for white; and (b) service at 
such tables may be refused even though there be empty seats 
at such tables?

The position of the Interstate Commerce Commission is 
that (1) although it has found that in the particular in­
stance complainant had been subjected to undue and un­
reasonable prejudice and disadvantage, it further found 
that such was the result of a casual incident and not of the 
Railroad’s general practice, and therefore the entry of an 
order for the future would serve no useful purpose, and the 
decision of the Commission in this respect being founded 
upon a rational basis, should not be disturbed; and (2) to 
order the Commission to require the railroad to do more 
would be, in effect, to order that segregation cease, whereas 
neither the Commission nor this Court has jurisdiction in 
the present proceeding to determine whether or not segre-



15

gation in and of itself is a discrimination forbidden by the 
Constitution, the Interstate Commerce Act, or any other 
Federal statute.

The Southern Railway, as intervening defendant, con­
tends that the finding that its existing rules are adequate, 
is a determination of fact within the exclusive jurisdiction 
of the Commission, and therefore may not be upset by this 
Court.

The Government has not seen fit to he represented sepa­
rately and to take part in any phase of this litigation from 
its inception, as it has the statutory right to do. This, 
however, does not foreclose the intervening defendant, the 
Southern Railway, from challenging the action of the Com­
mission. Interstate Commerce Commission v. Oregon- 
Washington Railroad Co., 288 U. S. 14.

At the outset we must determine whether there is any 
merit in the jurisdictional question raised hy the Commis­
sion, namely, that this Court may not alter the Commission’s 
finding of equality of treatment since that is a determina­
tion of fact exclusively within the jurisdiction of the Com­
mission.

The Commission’s position, it will be seen, is tantamount 
to saying that in a case of this kind judicial review of the 
Commission’s action is completely foreclosed, even as 
respects the question of whether it may have exceeded its 
statutory or constitutional authority in entering a par­
ticular order. We do not understand that such is the law. 
The Supreme Court said in Rochester Telephone Corp. v. 
United States, 307 U. S. 125,139, that two specific doctrines 
limiting judicial review of orders of the Interstate Com­
merce Commission have been evolved. “ One is the primary 
jurisdiction doctrine, firmly established in Texas & Pacific 
Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426. Thereby 
matter which call for technical knowledge pertaining to 
transportation must first be passed upon by the Interstate 
Commerce Commission before a court can be invoked. The 
other is the doctrine of administrative finality. Even when 
resort to courts can be had to review a Commission’s order, 
the range of issues open to review is narrow. Only ques­
tions affecting constitutional power, statutory authority, and



16

the basic pre-requisites of proof can be raised. If these 
legal tests are satisfied, the Commission’s order becomes 
incontestable. Interstate Commerce Comm’n. v. Illinois 
Central R. Co., 215 U. S. 452, 470; Interstate Commerce 
Comm’n. v. Union Pacific R. Co., 222 U. S. 541.”  (Italics 
inserted).

The complainant is directly asserting in this proceeding 
that to allow the Commission’s order here under review to 
stand, would be tantamount to approving a rule or practice 
on the part of the Southern Railway that is violative of 
complainant’s constitutional rights and not within the 
statutory power of the Interstate Commerce Commission 
to approve, so we are called upon not merely to review the 
correctness of a factual situation upon which the Commis­
sion has ruled, in a field exclusively within its province,— 
as for example, one involving rates or other charges by 
an interstate carrier,—but to rule upon questions, the deter­
mination of which has not been, and cannot be exclusively 
delegated to any administrative body, hut must remain 
subject to judicial review. The fact that the Commission’s 
order is negative in form, i.e., that it dismissed the com­
plaint, makes no difference. Rochester Telephone Corpo­
ration v. United States, supra; Mitchell v. United States, 
313 U. S. 80.

We turn then to a consideration of the first of complain­
ant’s two basic contentions: namely, that any form of racial 
segregation of interstate passengers in dining cars should 
be declared to be, in and of itself, a form of discrimination 
forbidden by the Federal Constitution and the Interstate 
Commerce Act.

We must at the very outset recognize the distinction be­
tween segregation and equality of treatment. The equal 
rights clause of the Constitution, Article IV, Section 2, does 
not import that a citizen of one State carries with him into 
another State any fundamental privileges or immunities 
which come to him necessarily by the mere fact of his citizen­
ship in the State first mentioned, hut simply that in any State, 
every citizen of every other State shall have the privileges 
and immunities which the citizens of that State enjoy. In 
short, this provision merely prevents a State from discrimi-



17

nating against citizens of other States in favor of its own 
citizens. Downham v. Alexandria Council, 10 Wall. 173; 
Chambers v. Baltimore & Ohio R. R. Co., 207 U. S. 142; 
LaTourette v. McMaster, 248 U. S. 465; Chalker v. Bir­
mingham & N. W. Rwy. Co., 249 U. S. 522; Shaffer v. Car­
ter, 252 U. S. 37; United States v. Wheeler, 254 U. S. 281; 
Douglas v. New York, New Haven and Hartford Ry. Co., 
279 U. S. 377; Whitfield v. Ohio, 297 U. S. 431; Hague v.
C. I. 0., 307 U. S. 496. Similarly, the Fourteenth Amend­
ment created no rights in citizens of the United States, but 
merely secured existing rights against State abridgment. 
The Slaughterhouse Cases, 16 Wall. 36. And it has been 
repeatedly declared by the Supreme Court that race segre­
gation by State law is not per se an abridgement of any 
constitutional right secured to the citizen. See Plessy v. 
Ferguson, 163 U. S. 537; McCabe v. Atchison T. & S. F. 
Ry. Co., 235 U. S. 151; Missouri ex rel. Gaines v. Canada, 
305 U. S. 337. By virtue of the Commerce Clause of the 
Constitution, Congress might legislate specifically with 
respect to segregation in interstate travel, but Congress 
has not done so. However, Section 3, paragraph 1 of the 
Interstate Commerce Act makes it unlawful to subject any 
person in interstate commerce to any undue or unreason­
able 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 facili­
ties in interstate commerce. Stamps v. Chicago R. I. & P. 
Ry. Co., 253 I. C. C. 557; LeFlore & Crishon v. Gulf, M. & 
O. R. R. Co., 262 I. C. C. 403; Barnett v. Texas & P. Ry. Co., 
— I. C. C. — . Furthermore, the right to a particular ac­
commodation or facility does not depend upon the volume 
of traffic, because although the supply of particular ac­
commodations or facilities may be conditioned upon there 
being a reasonable demand therefor, if such accommoda­
tions or facilities are in fact provided, substantial equality 
of treatment of persons traveling under like conditions 
cannot lawfully be withheld. Mitchell v. United States, 
supra. Thus, while inaction of Congress as respects segre­
gation in interstate travel is equivalent to a declaration 
that interstate carriers can separate Negro and white pas-



18

sengers, they may do so only if they afford substantial 
equality of treatment to members of both races when travel­
ing under like conditions. Hall v. deCuir, 95 U. S. 485; 
Louisville, etc., Railway Co. v. Mississippi, 133 U. S. 587; 
Plessy v. Ferguson, supra; Chesapeake & Ohio Ry. Co. v. 
Kentucky, 179 U. S. 388; Chiles v. C. & 0. Ry. Co., 218 U. S. 
71; McCabe v. Atchison T. & S. F. Ry. Co, supra. There­
fore, although the Supreme Court of Appeals of Virginia 
has held, since the Commission decided the present case, in 
Morgan v. Commonwealth, 34 S. E. (2d) 491, that the 
Virginia segregation laws with respect to public motor 
carriers, which are kindred to that State’s segregation laws 
with respect to rail carriers— all of which laws were in 
effect at the time the discrimination against the present 
complainant is alleged to have occurred,— apply to inter­
state as well as intrastate passengers, it is not necessary 
to approach the present case from this aspect, because, as 
we have said, the real question before us is not one of 
segregation, but of equality of treatment. Furthermore, 
the Commission in its opinion does not rely upon State 
statutes or decision; and likewise, the railway company 
does not rely upon them. As a matter of fact, the Virginia 
statute could not be successfully relied upon in the present 
case because it does not, at least in terms, purport to 
embrace dining car service. Virginia Code 1942 (Michie) 
Sec. 3962-3. These sections read: “ Sec. 3962. Separate 
Cars for W hite and Colored Passengers.— All persons, 
natural or artificial, who are now, or may hereafter be, 
engaged in running or operating any railroad in this State 
by steam for the transportation of passengers are hereby 
required to furnish separate cars or coaches for the travel 
or transportation of the white and colored passengers on 
their respective lines of railroad. Each compartment of 
a coach divided by a good and substantial partition, with 
a door therein, shall be deemed a separate coach within the 
meaning of this section, and each sepaarte coach or compart­
ment shall bear in some conspicuous place appropriate words 
in plain letters, indicating the race for which it is set apart.”  
“ Sec. 3963. Company to Make N o Discrimination in Qual­
ity" of A ccommodations for W hite and Colored Passengers.



19

—No difference or discrimination shall be made in the 
quality, convenience, or accommodation in the cars or 
coaches or partitions set apart for white and colored pas­
sengers under the preceding section.”  Note the above 
provisions, even if they could be said to embrace dining cars, 
have not been satisfied in the present case, because nothing 
meaning of this section, and each separate coach or compart­
ments ‘ ‘ divided by a good and substantial partition, with a 
door therein,”  would satisfy those provisions.

It therefore being clear that racial segregation of inter­
state passengers is not per se forbidden by the Constitution, 
the Interstate Commerce Act, or any other Act of Con­
gress, we turn to a consideration of complainant’s second 
contention, which is that, even though it be held that the 
defendant carrier may lawfully segregate complainant 
because of his race while affording him dining car facilities, 
the segregation actually still permitted by the defendant 
railroad’s present regulations which the Commission has 
approved is unlawful; because not affording him treatment 
substantially equal to that afforded white passengers under 
like conditions.

This contention brings us at once face to face with the 
necessity of passing upon the validity of the dining car 
regulations of the Southern Railway, in effect at the time 
in question, because although these regulations have not 
been promulgated by the Interstate Commerce Commis­
sion, they have been directly approved by it, as a result of 
its decision and order which is the basis of the present 
complaint. Therefore, they are to be treated, for the pur­
poses of this case, as in effect the Commission’s rules. 
This is obviously true for the further reason that the 
present complainant is contending that the Commission 
erred in not requiring the Southern Railway to cease and 
desist from applying these rules; or more specifically, that 
the Southern Railway should he required henceforth to 
abstain from adopting any rule or regulation with respect 
to its dining car service that imposes,— as it is claimed 
the present rules do,—upon Negro passengers, restrictions 
not imposed upon white passengers, under like conditions. 
Complainant’s right to complain does not depend upon



20

whether he intends to make a similar journey in the future. 
Mitchell v. United States, supra.

These dining-car regulations have been quoted in an 
earlier part of this opinion in their entirety. It is to be 
noted that what the present complainant is really seeking 
is that he shall be given an absolute right to—a guarantee 
of—the same service in every respect accorded to white 
passengers under like conditions. The defendant’s dining- 
car regulations in effect on May 17th, 1942, that is, at the 
time of the alleged discrimination against the complainant, 
contained only a very general provision with respect to 
service of meals in dining cars at one and the same time 
to Negro and white passengers. They merely provided 
that “ if the dining car is equipped with curtains so that 
it can be divided into separate compartments, meals may 
be served to passengers of different races at the same time 
in the compartments set aside for them.”
. As we have seen, applying his own interpretation to this 
rule, the dining car steward allowed white passengers to 
occupy the end seats allotted to colored passengers before 
the complainant appeared and applied for diner service; 
and that, since the train was crowded with white passangers, 
he, the steward, continued to allow additional white pas­
sengers to be seated and served at these end tables, with 
the result that there never was a time during the hours 
when the dining car was open to passengers, that meals 
could be served therein to the complainant or to any other 
Negro passengers, at any table at which there were not one 
or more white passengers. This, as we have seen, the 
Commission found resulted in an unjust, undue and unrea­
sonable prejudice and disadvantage to complainant in 
violation of Section 3 (1) of the Interstate Commerce Act. 
It is our opinion that this conclusion was correct. However, 
the Commission further found that the supplementary 
dining car regulations put into effect by the defendant 
carrier on August 6th, 1942, adequately provided against 
the recurrence of such prejudice and disadvantage as 
respects complainant or any other possible Negro passen­
gers on defendant’s lines, and therefore, the Commission 
deemed the entry of an order for the future would serve



21

no useful purpose. We are thus called upon to determine 
whether or not this interpretation by the Commission of 
the carrier’s rules now in effect is correct; that is to say, 
we must determine whether they do, in fact, afford sub­
stantial equality of treatment to both Negro and white 
passengers with respect to dining car service.

We requote the pertinent parts of these supplementary 
instructions as follows: ‘ ‘ Before starting each meal pull 
the curtains to service position and place a “ reserve”  card 
on each of the two tables behind the curtains.

“ These tables are not to be used by white passengers 
until all other seats in the car have been taken. Then if 
no colored passengers present themselves for meals, the 
curtain should be pushed back, cards removed and white 
passengers served at those tables. After the tables are 
occupied by white passengers, then should colored passen­
gers present themselves, they should be advised that they 
will be served just as soon as those compartments are va­
cated. ’ ’

It is to be noted that the above instructions do not in fact 
require the setting aside of the two tables referred to ex­
clusively for Negro passengers, but merely say that they 
“ are not to be used by white passengers until all other 
seats in the car have been taken. Then if no colored pas­
sengers present themselves for meals, the curtain should 
be pushed back, cards removed, and white passengers 
served at those tables. Obviously, the word “ then”  refers 
to any time during which meals are being served when there 
happen to be more white passengers applying for meals 
than can be accommodated at other than the reserved tables. 
At least if it does not mean this, it gives no indication to 
the steward as to how long he should wait before assuming 
that no Negro passengers will present themselves. Nothing 
is contained in the regulations requiring the steward to 
take steps to ascertain whether there be any such persons on 
the train. Furthermore, the regulations do not take into 
account the probability that a Negro passenger may not de­
sire a meal as soon as he boards the train and the dining 
car opens, or that he may board the train at an intermediate 
point after the dining car service has been begun and may



22

desire at that time or later to be served in the dining car. 
In none of these contingencies do the regulations offer any 
assurance that the Negro passenger will have a reasonable 
chance to be served in the dining car before his journey 
ends.

Therefore, we believe that the Commission erred in hold­
ing that the defendant’s general practice as evidenced by 
its current instructions, will result in no substantial in­
equality of treatment as between Negro and other passen­
gers seeking dining car service. In the case of the white 
passenger, he is merely required to wait his turn along with 
all other passengers, whereas in the case of the Negro 
passenger, he is given a like opportunity along with other 
Negro passengers only in the event that when he presents 
himself at the dining car, none of the seats conditionally 
reserved for Negro passengers’ use has been assigned to 
a white passenger; and if it has been so assigned, then, 
even when vacated, it nevertheless remains unavailable 
to him unless and until all of the other seats under the 
same conditional reservation are not in use by white passen­
gers. It seems obvious to us that this arrangement does 
not afford that substantial equality of treatment which 
the equality of ail citizens in the eye of the law requires. 
None of the methods of segregation have been employed 
which have heretofore been deemed to be within the law, 
such as the service of the races under like conditions at 
different times or the setting aside of a separate car or a 
portion of the car for the colored race; and while the great 
majority of the tables are set aside for the exclusive use 
of white passengers, none are set aside exclusively for 
Negro passengers.

We accept the Commission’s construction of the supple­
mental regulation and its finding that the general practice 
thereunder was that no further white passengers could he 
seated at the tables reserved for colored passengers after 
one of the latter applied for dining car service. But never­
theless in our opinion the regulation so construed, applied 
and practiced does not constitute substantial equality of 
treatment for white and colored passengers. We do not 
question the authority of the Commission to approve the



23

segregation of white and colored passengers by the reserva­
tion of particular tables for colored passengers; nor do we 
think it unreasonable, in view of the recently prevailing 
abnormal demands on the railroads for passenger and 
dining car transportation services, that white passengers 
should be seated at tables reserved for colored passengers 
when there are no colored passengers applying for service. 
But if white passengers are thus seated at the tables 
reserved for colored passengers, then equality of treatment 
requires that a colored passenger subsequently applying 
for service should be seated at any available vacant seat 
in the dining car, either in the compartment reserved 
for colored passengers, or if none there, elsewhere in the 
dining car.

The analogy of the Mitchell case is very close. There, 
Mr. Chief Justice Hughes, in the course of the Court’s opin­
ion, said (313 U. S. 80, at 96-97): “ It does not appear that 
colored passengers who have bought first-class tickets for 
transportation by the carrier are given accommodations 
which are substantially equal to those afforded to white pas­
sengers. The Government puts the matter succinctly: 
‘When a drawing room is available, the carrier practice of 
allowing colored passengers to use one at Pullman seat 
rates avoids inequality as between the accommodations 
specially assigned to the passenger. But when none is 
available, as on the trip which occasioned this litigation, the 
discrimination and inequality of accommodation become 
self-evident. It is no answer to say that the colored pas­
sengers, if sufficiently diligent and forehanded, can make 
their reservations so far in advance as to be assured of 
first-class accommodations. So long as white passengers 
can secure first-class reservations on the day of travel and 
the colored passenger cannot, the latter are subjected to 
inequality and discrimination because of their race. ’ * * *

“ While the supply of particular facilities may be con­
ditioned upon there being a reasonable demand therefor, 
if facilities are provided, substantial equality of treatment 
of persons traveling under like conditions cannot be 
refused.”



24

The alternative offered the Negro passenger of being 
served at his seat in the coach or in the Pullman car with­
out extra charge does not in our view afford service sub­
stantially equivalent to that furnished in a dining car. True, 
some passengers may prefer not to patronize a diner, and 
we will assume that the menu is the same and the service 
scarcely, if at all, less expeditious when meals are served 
in coaches or Pullman cars. Nevertheless, the Negro pas­
senger is entitled to dine with friends if he sees fit to do so, 
and should not be unnecessarily subjected to the incon­
venience of dining alone under the crowded conditions which 
service, especially in a coach or in a sleeper, may entail. 
Here again, the analogy to the Mitchell case is so close as to 
compel a like conclusion with respect to furnishing meals 
in Pullman cars or in coaches.

There remains to be considered one additional contention 
of the complainant, namely, that that part of the railroad’s 
regulations which requires tables for Negro passengers in 
dining cars to be curtained also violates the rule of sub­
stantial equality in that such means of separation causes 
Negro passengers humiliation and embarrassment to which 
white passengers are not subjected. Without minimizing 
the criticism directed at this feature of the service, we 
point out that the principle of segregation has been ap­
proved by the Supreme Court and that the method of carry­
ing it into execution is for the Commission to determine.

For the reasons given, herein the order of the Commis­
sion dismissing the complaint must be set aside and the case 
remanded to the Commission for further proceedings in the 
light of the principles outlined herein.

W illiam C. Coleman.



25

APPENDIX “B”

Opinion— Filed 25 September 1948

DISTRICT COURT OF THE UNITED STATES, 
DISTRICT OF MARYLAND

Civil No. 3829

Argued June 4th, 1948. Decided September 25, 1948

E lmer W . Henderson, Plaintiff, 
v.

Interstate Commerce Commission and the U nited States 
of A merica, Defendants

Lawson, McKenzie & Windsor (B. V. Lawson, Jr., of 
Washington, D. C .; Josiah F. Henry, Jr., of Baltimore), 
for plaintiff.

Daniel W. Knowlton and Allen Crenshaw for Interstate 
Commerce Commission.

Bernard J. Flynn, United States Attorney, and Charles 
Clark and A. J. Dixon, of Washington, D. C., for Southern 
Railway Co.

Before Soper, Circuit Judge, and Coleman and Chesnut,
District Judges

Order of Interstate Commerce Commission—Dining Car 
Service Afforded Negro Passengers on The Southern 
Railway—Alleged Discrimination— Complaint Dismissed.

Coleman, District Judge:
This suit is brought by the plaintiff, under the provi­

sions of 28 U. S. C. A. Secs. 41 (28), 43-48, 792, and 49 
U. S. C. A. Sec. 17 (9), to set aside an order of the Inter­
state Commerce Commission entered on September 5th, 
1947. The contested order involves dining car service af­
forded Negro passengers on the Southern Railway. This 
is the second time that the present plaintiff has litigated



26

the question before the Commission and this Court. The 
Southern Railway asked for, and was granted leave to 
intei’vene as a party defendant, it having been the sole 
defendant in the proceeding before the Commission which 
resulted in the issuance of the order which plaintiff now 
seeks to annul.

The facts involved in the prior proceeding, before both 
the Commission and this Court, which led up to the present 
suit may be summarized as follows: On October 10th, 1942, 
the plaintiff, a Negro, filed a complaint with the Interstate 
Commerce Commission alleging that on May 17th, 1942, 
while traveling as a first class passenger on the Southern 
Railway from Washington, D. C., to Atlanta, Georgia, that 
Railway subjected him to undue and unreasonable prejudice 
and disadvantage, in derogation of his rights under the 
Federal Constitution and the Interstate Commerce Act,
(1) by providing insufficient tables and service for Negroes 
in its dining car; (2) by the use of a curtain around the 
tables allegedly reserved for Negroes; and (3) by giving- 
preference and advantage to white persons, in that it 
failed and refused to serve plaintiff at tables in its dining 
car where there were empty seats, these tables and seats, 
although allegedly reserved for Negroes, being allowed to 
be used by white persons. The Commission was asked to 
require defendant to desist from such discrimination and 
in the future, to establish for the transportation of Negro 
interstate passengers over its lines equal and just dining 
car facilities, and such other services and facilities as the 
Commission might consider reasonable and just. Plain­
tiff also asked for damages by reason of the alleged dis­
crimination.

After due hearing, on May 13th, 1944, Division No. 2 
of the Commission rendered its report (258 I. C. C. 413) 
in which it found that while plaintiff had been subjected 
to undue and unreasonable prejudice and disadvantage, 
it, nevertheless, found that there was no basis for an award 
of damages by way of reparation, or necessity for an order 
for the future. The Commission said (258 I. C. C. 419): 
“ As far as the record is concerned, the occurrence com­
plained of was but a casual incident, brought about by bad



27

judgment of an employee (The dining car Steward) of the 
defendant who had an overload of work to be done in a 
limited space and short time. The difficulties encountered 
were, no doubt, due to a large extent to the overcrowding 
of the train, resulting from war-time conditions. The 
record does not disclose that the defendant’s general prac­
tice as evidenced by its present instructions, will result 
in any substantial inequality of treatment as between Negro 
and other passengers seeking dining car service.

“ * * * As defendant’s present instructions to its
employees seem adequate, the entry of an order for the 
future in this respect would serve no useful purpose.”  
Accordingly, the Commission dismissed the complaint.

On appeal to this Court to set aside the action of the Com­
mission, we held (Henderson v. United States, 63 F. Supp. 
906) that while racial segregation of interstate passengers 
is not per se forbidden either by the Federal Constitution, 
the Interstate Commerce Act or any other Act of Congress, 
the Commission, nevertheless, erred in holding that the 
Southern Railway’s general practice, as evidenced by its 
then current dining car regulations or instructions, would 
result in no substantial inequality of treatment between 
Negro and other passengers seeking dining car service. 
We so found for the reasons as stated in our detailed opin­
ion, as follows (63 F. Supp. 906 at 915-916): ‘ ‘ In the case 
of the white passenger, he is merely required (by the Rail­
way’s dining car regulations) to wait his turn along with 
all other passengers, whereas in the case of the Negro pas­
senger, he is given a like opportunity along with other 
Negro passengers only in the event that when he presents 
himself at the dining car, none of the seats conditionally re­
served for Negro passengers’ use has been assigned to a 
white passenger; and if it has been so assigned, then, even 
when vacated, it nevertheless remains unavailable to him 
unless and until all of the other seats under the same condi­
tional reservation are not in use by white passengers. It 
seems obvious to us that this arrangement does not afford 
that substantial equality of treatment which the equality 
of all citizens in the eye of the law requires. None of the 
methods of segregation have been employed which have



28

heretofore been deemed to be within the law, such as the 
service of the races under like conditions at different times 
or the setting aside of a separate car or a portion of a car 
for the colored race; and while the great majority of the 
tables are set aside for the exclusive use of white passen­
gers, none are set aside exclusively for Negro passengers.

“ We accept the Commission’s construction of the sup­
plemental regulation and its finding that the general prac­
tice thereunder was that no further white passengers could 
be seated at the tables reserved for colored passengers after 
one of the latter applied for dining car service. But, nev­
ertheless, in our opinion the regulation so construed, applied 
and practised, does not constitute substantial equality of 
treatment for white and colored passengers. We do not 
question the authority of the Commission to approve the 
segregation of white and colored passengers; nor do we 
think it unreasonable, in view of the recently prevailing 
abnormal demands on the railroads for passenger and 
dining car transportation services, that white passengers 
should be seated at tables reserved for colored passengers 
when there are no colored passengers applying for service. 
But if white passengers are thus seated at the tables re­
served for colored passengers, then equality of treatment 
requires that a colored passenger subsequently applying 
for service should be seated at any available vacant seat 
in the dining car, either in the compartment reserved for 
colored passengers or, if none there, elsewhere in the din­
ing car.

“ The analogy of the Mitchell case is very close. There, 
Mr. Chief Justice Hughes, in the course of the Court’s 
opinion, said (313 U. S. 80, at pages 96, 97, 61 S. Ct. 873, 
at page 877, 85 L. Ed. 1201): ‘ It does not appear that 
colored passengers who have bought first-class tickets for 
transportation by the carrier are given accommodations 
which are substantially equal to those afforded to white 
passengers. The Government puts the matter succinctly: 
“ When a drawing room is available, the carrier practice 
of allowing colored passengers to use one at Pullman seat 
rates avoids inequality as between the accommodations 
specifically assigned to the passenger. But when none is



29

available, as on the trip which occasioned this litigation, 
the discrimination and inequality of accommodation become 
self-evident. It is no answer to say that the colored pas­
sengers, if sufficiently diligent and forehanded, can make 
their reservations so far in advance as to be assured of 
first-class accommodations. So long as white passengers 
can secure first-class reservations on the day of travel and 
the colored passengers cannot, the latter are subjected to 
inequality and discrimination because of their race. ’

# # # * # * *

“  ‘ While the supply of particular facilities may be condi­
tioned upon there being a reasonable demand therefor, if 
facilities are provided, substantial equality of treatment 
of persons traveling under like conditions cannot be re­
fused.’

“ The alternative offered the Negro passenger of being 
served at his seat in the coach or in the Pullman car without 
extra charges does not in our view afford service substan­
tially equivalent to that furnished in a dining car. True, 
some passengers may prefer not to patronize a diner, and 
we will assume that the menu is the same and the service 
scarcely, if at all, less expeditious when meals are served 
on coaches or Pullman cars. Nevertheless, the Negro 
passenger is entitled to dine with friends if he sees fit to do 
so, and should not be unnecessarily subjected to the incon­
venience of dining alone under the crowded conditions which 
service, especially in a coach or in a sleeper, may entail. 
Here again the analogy to the Mitchell case is so close as 
to compel a like conclusion with respect to furnishing meals 
in Pullman cars or in coaches.”

With respect to the requirement in the Southern Rail­
way’s then current dining car regulations that tables for 
Negro passengers be curtained, we found that this did not 
violate the rule of substantial racial equality, and stated 
that the method of carrying out the principle of racial segre­
gation on interstate carriers was a matter for the Commis­
sion to determine. However, for the other reason just 
stated, by decree entered on February 15th, 1946, this



30

Court set aside the order of the Commission dismissing 
the complaint, and remanded the case to the Commission 
for further proceedings “ in the light of the principles out­
lined”  in our opinion. As a result, the Southern Railway 
thereupon issued, effective March 1st, 1946, the following 
new instructions for the regulation of its dining car serv­
ice, canceling the instructions previously in effect:

“ Subject: Segregation of White and Colored Passengers 
In Dining Cars.

T o : Passenger Conductors and Dining Car Stewards.
Consistent with experience in respect to the ratio between 

the number of white and colored passengers who ordinarily 
apply for service in available diner space, equal but sepa­
rate accommodations shall be provided for white and col­
ored passengers by partitioning diners and the allotment 
of space, in accordance with the rules, as follows:

(1) That one of the two tables at Station No. 1 located to 
the left side of the aisle facing the buffet, seating four per­
sons shall be reserved exclusively for colored passengers, 
and the other tables in the diner shall he reserved exclu­
sively for white passengers.

(2) Before starting each meal, draw the partition cur­
tain separating the table in Station No. 1, described above, 
from the table on that side of the aisle in Station No. 2, the 
curtain to remain so drawn for the duration of the meal.

(3) A ‘ Reserved’ card shall be kept in place on the left- 
hand table in Station No. 1, described above, at all times 
during the meal except when such table is occupied as pro­
vided in these rules.”

The Commission reopened the proceeding for further 
hearing; the Southern Railway presented additional evi­
dence, and on September 5th, 1947, the Commission filed a 
report (two Commissioners dissenting in part) in which it 
affirmed its prior findings to the effect that whereas com­
plainant had been subjected to undue and unreasonable 
prejudice and disadvantage on one particular occasion, no 
basis for an award of damages had been shown, and further



31

found that the new dining car regulations established by 
defendant, effective March 1st, 1946, and currently in force, 
which we have above quoted, were not in violation of Sec­
tion 3 or any other provision of the Interstate Commerce 
Act. Accordingly, the Commission refused to enter an 
order for the future, and dismissed the complaint, where­
upon the present suit was brought seeking to annul this 
latest action on the part of the Commission.

It will thus be seen that the precise question presented for 
decision is whether the Interstate Commerce Commission, 
by this second report and order, lias fully complied with 
the direction given to it by this Court when we reversed 
the earlier action of the Commission, dismissing the com­
plaint and remanded the proceeding to the Commission 
“ for further proceedings in the light of the principles”  
set forth in our opinion.

The sum and substance of the Commission’s position is 
that the same facts and issues are involved in this proceed­
ing as in the previous one, with the exception of the 
Southern Railway’s amended dining car regulations; that 
these amended regulations promulgated by the Railway as a 
result of our prior ruling, have removed the discrimination 
found by this Court to have been latent in the Railway’s 
previous regulations, namely, that the Railway now pro­
vides adequately and reasonably for the equality of service 
and treatment of Negroes and whites as required by our 
decision. We quote the following from the Commission’s 
report (269 I. C. C. 73 at — ) : “ The current regulations 
were designed by the defendant to meet the Court’s criti­
cisms, of those, set forth at page 415 of the prior report, 
which they superseded. By the new rules, defendant has 
abolished its former practice, condemned by the court, of 
permitting white patrons to be seated at the tables con­
ditionally reserved for colored passengers when all other 
tables had been occupied, and of refusing to permit a 
Negro, who applied for service after the tables so reserved 
for member of his race had been fully or partially occupied 
by white patrons, to take any vacant seat in the car. Its 
rules now provide for the absolute reservation of space 
for the use of Negro passengers exclusively. Under no



32

circumstances are white passengers served in such space; 
nor are colored passenger served elsewhere in the car. In 
these respects defendant’s present practice appears to 
conform with the opinion of the court.

“ Concerning the adequacy of the space reserved for 
Negro passengers, defendant’s Superintendent of Dining 
Cars presented in evidence the results of two tests made 
under his direction and supervision showing the number 
of meals served to white and Negro patrons, respectively, 
in dining cars operated by defendant between Washington,
D. C., and Atlanta, Ga. During the 11 days, May 14 to 24,
1945, a total of 37,615 meals were served, of which 446, 
or 1.19 per cent., were served to Negro civilians and 706, 
or 1.88 per cent., to Negroes in the miltary service. Of 
20,789 meals served during the first 10 days of October,
1946, 723 or 3.48 per cent, of the total, were served to Negro 
civilians and 149, or 0.72 per cent., to Negro service people. 
It is defendant’s practice to serve white and Negro sol­
diers together, without distinction. Under the current 
regulations setting apart four seats for Negroes, slightly 
more than 8 per cent, of the seating space in its dining 
cars is reserved unconditionally for the use of approxi­
mately 4 per cent, of the patrons. The capacity of the cars, 
now 48 seats, will be reduced to 44 seats as the offices for 
stewards are installed. A further fact disclosed by the 
described tests is that rarely is defendant requested to 
provide diner service for more than four Negroes at the 
same meal.

“ As stated, the ratio of the number of meals served 
Negro civilians to the total number served all patrons in­
creased from 1.19 per cent, during the May, 1945 test 
period to 3.48 per cent, during the October, 1946, period. 
Should the indicated trend continue, substantial equality 
of treatment may require the reservation of additional 
accommodations for Negroes in the future. On the record 
before us, however, the conclusion is inescapable that de­
fendant’s rules now provide an equitable and reasonable 
division between the races of its available dining-car space.”

With respect to the curtains separating the tables reserved 
for Negroes from the other tables, the Commission in its



33

report said (269 I. C. C. 73 at — ) :  “ At the time of the 
further hearing, the defendant had removed the curtains 
from one of its dining cars and had constructed in their 
stead permanent wood partitions approximately 5 feet 
high extending from the sides of the car to the aisle. The 
table which formerly occupied the space opposite the one 
now reserved exclusively for colored passengers, as de­
scribed in rule (1) of the foregoing regulations, has been 
removed and the space is utilized as an office for the stew­
ard. That position affords the best view of the entire car, 
including the entrance to the kitchen and pantry and from 
it the steward can best supervise the service. As its dining 
cars are sent to the shops for repairs, in the future, it is 
defendant’s intention to make similar structural changes 
in all of them.

The case is before us on the testimony presented to the 
Commission. The correctness of its factual analysis of 
this testimony as contained in its report is not questioned. 
Thus, it will be seen that the Railway’s amended dining car 
regulations, contrary to the prior regulations, require the 
setting aside of a table, seating four persons, exclusively 
for the use of Negro passengers. Also, the uncontradicted 
evidence presented to the Commission shows that up 
to the date of the Commission’s decision the number 
of Negro passengers seeking dining car service rarely 
if ever exceeded that number on any one trip. Should 
that happen, however, the situation would be no dif­
ferent from those instances not infrequently occur­
ring in interstate railroad transportation, where more 
white passengers seek dining car service than can be 
seated at one time. In short, the new regulations, the Com­
mission found, are designed to take into account, with all 
due regard to the density of Negro travel requiring dining 
car service, the probability that a Negro passenger may 
not desire a meal as soon as he hoards the train, or that he 
may board the train at an intermediate point after the din­
ing car service has been begun, and may desire at that time 
or later to be served in the dining car.

Next, as concerns the matter of curtains separating 
Negro dining car patrons from the white patrons, in our



34

prior opinion we stated (63 F. Supp. 906 at 916) that “ With­
out minimizing the criticism directed at this feature of the 
service, we point out that the principle of segregation has 
been approved by the Supreme Court and that the method 
of carrying it into execution is for the Commission to deter­
mine. ”  As above explained, the Railway Company is now 
in the process of abandoning the use of curtains as a means 
of separating the tables and, in their stead, is constructing 
in its dining cars permanent, wooden partitions, approxi­
mately five feet high, extending from the side of the car 
to the aisle. Also, it is removing from all of its dining cars 
the table which had formerly occupied the space directly 
opposite the table now exclusively reserved for colored 
passengers, and this space is being utilized as an office for 
the dining car steward. As also explained in its report, 
the Commission, in Mays vs. Southern Railway Company, 
268 I. C. C. 352, decided April 8, 1947, had before it this 
same question, under precisely the same dining car regu­
lations as those noAv before us, and found that there was 
no basis for holding this manner of separation of the dif­
ferent tables to be a forbidden discrimination.

We are satisfied, without further quoting from or analyz­
ing the report of the Commission, that the inequality which 
we found to exist in the Railway Company’s earlier dining 
car regulations, as respects the facilities afforded white 
and Negro passengers, has been removed by the Railway’s 
amended regulations. We also believe there is no sound 
basis for treating the matter of fixed partitions between the 
tables differently from our treatment of the use of cur­
tains. The same applies also to the location of the table 
allotted to colored passengers. We do not find that the 
Commission has permitted the Railroad to create an unjust 
discrimination by allotting to such passengers a table at the 
kitchen end of the dining car, directly opposite the space 
newly provided for the stewards office. The undesirability 
of this location compared with that of tables in other parts 
of the dining car, from the point of view of noise, heat, etc., 
as alleged by plaintiff, is, we think, non-existent. Therefore, 
it necessarily follows that this present complaint must be 
dismissed unless the Supreme Court has, in some decision



35

or decisions rendered since the date of our earlier decision, 
extended the principles which it had previously announced 
with respect to the matter of equality of treatment of the 
races when engaged in interstate transportation.

We turn then to a consideration of whether any perti­
nent decisions have been rendered hy the Supreme Court sub­
sequent to our earlier decision. We find only two cases, 
namely, Morgan vs. Virginia, 328 U. S. 373, and Bob-Lo 
Excursion Co. vs. Michigan, 333 U. S. 28, sufficiently re­
lated to invite attention. At the time of our previous opin­
ion the Morgan case had been decided by the Supreme 
Court of Appeals of Virginia, 184 Va. 24, but the appeal 
therein to the Supreme Court was still undecided. As 
pointed out in our previous opinion, that case involved the 
validity of a Virginia statute and State court action to 
enforce the same, and did not involve, as does the case 
here, the validity of the regulations of a common carrier. 
The Supreme Court reversed the State Court and held un­
constitutional, as a burden on interstate commerce, the 
Virginia statute which required separation of the races in 
motor buses. This requirement was described by the Su­
preme Court in its opinion as follows (328 U. S. 373 at 
361): “ On appellant’s journey, this statute required that 
she sit in designated seats in Virginia. Changes in seat 
designation might he made ‘ at any time’ during the journey 
when ‘ necessary or proper for the comfort or convenience 
of passengers.’ This occurred in this instance. Upon such 
change of designation, the statute authorizes the operator 
of the vehicle to require, as he did here, ‘ any passenger to 
change his or her seat as it may he necessary or proper.’ 
An interstate passenger must if necessary repeatedly shift 
seats while moving in Virginia to meet the seating require­
ments of the changing passenger group. On arrival at 
the District of Columbia line, the appellant would have had 
freedom to occupy any available seat and so to the end of 
her journey.”

In our consideration of the Morgan case in our earlier 
opinion, as that case then stood, we stated (63 F. Supp. 906 
at 913-914) that “ it is not necessary to approach the pres­
ent case from this aspect (the fact that Virginia’s segrega-



36

tion laws were applicable alike to interstate as well as 
intrastate rail transportation) because as we have said, 
the real question before us us is not one of segregation, 
but of equality of treatment. Furthermore, the Commission 
in its opinion does not rely upon State statutes or decisions; 
and likewise, the Railway Company does not rely on them. 
As a matter of fact, the Virginia statute could not be suc­
cessfully relied upon in the present case, because it does 
not, at least in terms purport to embrace dining car serv­
ice. * * *”  Then, after quoting the Virginia statute,
we said: “ Note the above provisions, even if they could 
be said to embrace dining cars, have not been satisfied in 
the present case because nothing short of race segregation 
in separate cars, or in compartments ‘ divided by a good and 
substantial partition, with a door therein,’ would satisfy 
those provisions.”

That the Supreme Court in the Morgan case very defi­
nitely recognized the distinction between the two types of 
cases, namely those involving the validity of a State statute 
and those involving the rule of a carrier requiring segre­
gation of interstate passengers is indicated by the following 
footnote on page 377 of its opinion: “ When passing upon 
the rule of a carrier that required segregation of an inter­
state passenger, this Court said, ‘ And we must keep in mind 
that we are not dealing with the law of a State attempting 
a regulation of interstate commerce heyond its power to 
make.’ Chiles vs. Chesapeake & Ohio R. R. Co., 218 U. S. 
71, 75.”  See also Simmons vs. Atlantic Greyhound Cor­
poration, 75 F. Supp. 166; Stamps vs. Louisville & Nash­
ville Railroad Co., I. C. C.

The Commission in its report now under review, clearly 
stated, we think the distinction between the two types of 
cases in the following language (269 I. C. C. 73 at — j : “ De­
fendant’s dining car regulations apply only to service in 
dining cars which cars are not permittel to leave its lines. 
They apply uniformly over defendant’s entire railroad 
system, embracing approximately 8,000 miles of lines ex­
tending into all southeastern States. Their enforcement 
cannot in any circumstances result in disturbance to pas­
sengers by forcing them to change seats upon crossing



37

State lines, a requirement of the Virginia statutes which the 
courts condemn as imposing an undue burden on interstate 
commerce. ’ ’

We turn then to the only other case decided by the Su­
preme Court since our earlier opinion in this px-oceeding was 
rendered, which likewise appears pertinent but actually is 
not, to the present issue, namely Bob-Lo Excursion Com­
pany vs. Michigan, supra. There, it was decided that a 
Michigan statute prohibiting Negro segregation in all pub­
lic service including transportation, was legally enforceable 
with respect to refusal of a Michigan corporation, engaged 
chiefly in the round-trip of passengers from Detroit to Bois 
Blanc Island, Canada, to sell a ticket to a Negro for trans­
portation to the latter resort which was reserved for white 
people, because, although the Michigan corporation was 
engaged in foreign commerce, application of the Michigan 
law to appellant was held not to contravene the commerce 
clause of the Federal Constitution.

In its opinion in the Bob-Lo Excursion Company case, the 
Supreme Court distinguished Morgan vs. Virginia, supra, 
and Hall vs. Decuir, 95 U. S. 485, saying (333 U. S. 28 at 
39-40): “ The regulation of traffic along the Mississippi 
River, such as the Hall case comprehended, and of inter­
state motor carriage of passengers by common carriers 
like that in the Morgan case, are not factually comparable to 
this regulation of appellant’s highly localized business, and 
those decisions are not relevant here.”

The even more recent decisions of the Supreme Court in­
volving deed covenants prohibiting sales of realty to 
Negroes, Shelley vs. Kraemer, — TJ. S. — ; Hurd vs. Hodge, 
— U. S. — ; McGhee vs. Sipes, — U. S. —, and Uricolo vs. 
Hodge, — U. S. — , obviously have no relation, directly or in­
directly, to the issue in the present case. Those decisions do 
not hold that race segregation in respect to deed covenants is 
forbidden. On the contrary, they recognize the legality of 
agreements to this effect. They merely hold that such 
agreements, although lawful, are not enforceable by court 
process. Thus, they have no relation to the principles 
governing the conduct of interstate transportation by com­
mon carrier.



38

Reliance is also placed by counsel for plaintiff upon Mat­
thews vs. Southern Railway Company, 157 F. (2d) 609. 
There, the only issue was the correctness of the trial judge’s 
charge to the jury in a race separation case. The Court 
of Appeals for the District of Columbia, in a footnote 
reference to the Morgan case, said (page 610) it could see 
“ no valid distinction between segregation in buses and in 
railroad cars.”  We believe that we have already addressed 
ourselves sufficiently to this point to indicate that, in our 
opinion, there is a very definite distinction from the as­
pect of dining car accommodations during railroad trans­
portation.

To summarize and conclude: (1) Racial segregation of 
interstate passengers is not forbidden by any provision of 
the Federal Constitution, the Interstate Commerce Act or 
any other Act of Congress as long as there is no real in­
equality of treatment of those of different races. (2) Allot­
ment of seats in interstate dining cars does not per se spell 
such inequality as long as such allotment, accompanied by 
equality of meal service is made and is kept proportionately 
fair. This necessity was recognized by the Commission in 
its report on which the order now approved by us is based, 
when it said (269 I. C. C. 73 at — ) :  “ Should the indicated 
trend continue, substantial equality of treatment may re­
quire the reservation of additional accommodations for 
Negroes in the future.”  To the argument that proportion­
ate allotment of tables is only just and equitable so long as 
persons may find seats at a table assigned to their respec­
tive races, and fails to meet the equality test when there 
is any empty seat in the dining car which a person of either 
race is forbidden to occupy, suffice it to say that this 
argument denies the very premise from which we start, 
namely, that racial segregation is not, per se, unconstitu­
tional. Since this is true, we fail to see that a situation such 
as that just referred to produces a result any more unjust 
or inequitable from a legal approach,—which must be this 
Court’s approach to the question,—than the no doubt com­
mon situation where both white and colored passengers may



39

be kept waiting to secure seats at tables allotted to tlieir re­
spective races, because, for the time being, every seat in the 
dining car may be occupied.

For the reason herein set forth the complaint must be 
dismissed.

I concur.
W . Calvin Chesnut,

U. S. District Judge.

APPENDIX “C”

Sopeb, Circuit Judge (dissenting):
Insofar as the opinion of the court sustains the Railroad 

Company’s dining car regulations on the ground that they 
made adequate provision for the number of Negro passen­
gers likely to apply for service, I am constrained to dis­
sent. The Railroad Company has found that less than 4 
per cent of its dining car patrons are Negroes, and it re­
serves 8 per cent of the available space for their exclusive 
use. This arrangement on its face seems fair to the Negro 
race, but it is based on the erroneous assumption that the 
rights which the Fourteenth Amendment is designed to pro­
tect are racial rather than personal in their nature. The 
regulations set aside one table in the dining car exclusively 
for Negroes and ten tables exclusively for whites, and the 
result is that occasionally a member of one race is denied 
service which is then available to a member of the other. 
Whenever this occurs, the Railroad Company discrimi­
nates against one passenger in favor of another because 
of his race, and deprives him of equality of treatment, and 
it is no answer to say that the Railroad Company has 
taken reasonable precautions to prevent the occurrence. 
It is true that segregation of the races is lawful provided 
“ substantial equality of treatment of persons traveling 
under like conditions”  is accorded; but the right belongs to 
the individual and not to the race, and segregation must 
be abandoned, or at least temporarily suspended, whenever 
its enforcement deprives the individual of treatment equal 
to that accorded to any other person at the same time.



40

Segregation in railroad traffic may be maintained if 
there are sufficient accommodations for all; but a vacant 
seat may not be denied to a passenger simply because of bis 
race. The decisions of the Supreme Court support this 
view. In McCabe v. A. T. & S. F. Ry. Co., 235 U. S. 151 
(1914), the court upheld an Oklahoma statute which re­
quired the Railroad Company to provide separate but 
equal accommodations for the two races in intrastate rail­
road travel, but struck down a section of the Act which 
permitted the carrier to provide sleeping cars, dining car, 
or chair cars to be used exclusively by either white or Negro 
passengers, separately but not jointly. It is not questioned 
that the meaning of this provision was that the carrier 
might provide these cars for white persons but need not 
provide similar accommodations for Negroes, because there 
were not enough Negroes seeking these accommodations 
to warrant the expense of providing them. Justice Hughes, 
in holding this section unconstitutional, said: (pp. 161-2) : 

“ This argument with respect to volume of traffic seems 
to us to be without merit. It makes the constitutional right 
depend upon the number of persons who may be dis­
criminated against, whereas the essence of the constitu­
tional right is that it is a personal one. Whether or not 
particular facilities shall be provided may doubtless be 
conditioned upon their being a reasonable demand therefor, 
but if facilities are provided, substantial equality of treat­
ment of persons traveling under like conditions cannot be re­
fused. It is the individual who is entitled to the equal 
protection of the laws, and if he is denied by a common 
carrier, acting in the matter under the authority of a state 
law, a facility or convenience in the course of his journey 
which under substantially the same circumstances is fur­
nished to another traveler, he may properly complain that 
his constitutional privilege has been invaded.”

It may be suggested that the McCabe case is distin­
guishable because in that case the Railroad Company made 
no provision for colored passengers desiring first class 
service, whereas the regulations under examination in the 
present case are designed to care for all colored passengers 
that may be reasonably expected to apply. The distinc-



41

tion, however, is one of degree and not of principle, for 
in both cases the arrangement is designed to take care of 
the demands of the race rather than those of the individual 
citizen. Moreover, in 1940, the Supreme Court in Mitchell 
v. United States, 313 U. S. 80, reiterated the ruling that 
constitutional rights are personal and not racial, in a case 
where the carrier contemplated the probability that Pull­
man service would be demanded by Negroes, but made in­
sufficient provision to meet the demand. Whenever that 
occurred, the court said, the Railroad Company was re­
quired to abandon the policy of segregation and seat the 
colored passenger in the car ordinarily reserved for whites. 
It had been the practice of the Railroad Company to ac­
commodate the occasional Negro applicant for a chair in a 
Pullman car by giving him a seat in a drawing room at 
the same rate as was charged for a seat in the body of the 
car, but to compel the passenger to take a place in an or­
dinary coach when no drawing room was available. Adopt­
ing the view of the Government which opposed the regula­
tion, Chief Justice Hughes, speaking for the court, said: 
(pp. 96-7)

“ The Government puts the matter succinctly: ‘ When a 
drawing room is available, the carrier practice of allowing 
colored passengers to use one at Pullman seat rates avoids 
inequality as between the accommodations specifically as­
signed to the passenger. But when none is available, as on 
the trip which occasioned this litigation, the discrimination 
and inequality of accommodation become self-evident. It is 
no answer to say that the colored passengers, if sufficiently 
diligent and forehanded, can make their reservations so 
far in advance as to be assured of first-class accommoda­
tions. So long as white passengers can secure first-class re­
servations on the day of travel and the colored passengers 
cannot, the latter are subjected to inequality and discrimina­
tion because of their race.’ And the Commission has recog­
nized that inequality persists with respect to certain other 
facilities such as dining car and observation-parlor car 
accommodations.

“ We take it that the chief reason for the Commission’s 
action was the ‘ comparatively little colored traffic.’ But



42

the comparative volume of traffic cannot justify the denial 
of a fundamental right of equality of treatment, a right 
specifically safeguarded by the provisions of the Interstate 
Commerce Act. We thought a similar argument with 
respect to volume of traffic to be untenable in the applica­
tion of the Fourteenth Amendment. We said that it makes 
the constitutional right depend upon the number of persons 
who may be discriminated against, whereas the essence 
of that right is that it is a personal one. McCabe v. 
Atchison T. & S. F. Ry. Co., supra. While the supply 
of particular facilities may be conditioned upon there being 
a reasonable demand therefor, if facilities are provided, 
substantial equality of treatment of persons traveling 
under like conditions cannot be refused. It is the in­
dividual, we said, who is entitled to the equal protection 
of the laws,—not merely a group of individuals, or a body 
of persons according to their numbers. Id. See, also, Mis­
souri ex rel. Gaines v. Canada, pp. 350, 351 (305 U. S. 337). 
And the Interstate Commerce Act expressly extends its 
prohibition to the subjecting of ‘ any particular person’ to 
unreasonable discriminations. ’ ’

The same principle was again approved by the Supreme 
Court in the recent case of Shelley vs. Kraemer, 68 S. Ct. 
836, which dealt with the validity of restrictive covenants in 
deeds designed to exclude Negroes from the ownership or 
occupancy of real property. The court held that covenants 
of this nature are unenforceable and, pointing out that the 
constitutional rule of equality is personal, declared that the 
denial of such a right to a Negro is not validated by the 
denial of the right under like circumstances to a white 
person. Chief Justice Vinson said: (p. 846)

“ Respondents urge, however, that since the state courts 
stand ready to enforce restrictive covenants excluding white 
persons from the ownership or occupancy of property 
covered by such agreements, enforcement of covenants ex­
cluding colored persons may not be deemed a denial of 
equal protection of the laws to the colored persons who 
are thereby affected. This contention does not hear scrutiny. 
The parties have directed our attention to no case in 
which a court, state or Federal, has been called upon to en-



43

force a covenant excluding members of the white majority 
from ownership or occupancy of real property on grounds of 
race or color. But there are more fundamental considera­
tions. The rights created by the first section of the Four­
teenth Amendment are, by its terms, guaranteed to the 
individual. The rights established are personal rights. It 
is, therefore, no answer to these petitioners to say that the 
courts may also be induced to deny white persons rights 
of ownership and occupancy on grounds of race or color. 
Equal protection of the laws is not achieved through indis­
criminate imposition of inequalities” .

The carrier in the pending case has undoubtedly made an 
earnest effort to meet the criticisms directed at its earlier 
regulation in the former opinion of this court, and conse­
quently instances of discrimination on account of race are 
less likely to occur under the regulation now prevailing. 
Nevertheless that regulation must also be condemned be­
cause it occasionally permits discrimination against mem­
bers of both races in the allotment of dining-room privileges; 
and the court should therefore hold that the practice of the 
carrier in segregating the races in its dining-cars must be 
suspended whenever its enforcement results in the denial to 
any individual of his constitutional right of equality of 
treatment.

(11911













ifavhJ-

N o .  2 5

Jtt the Cjourt b|  tht'tfoitefl plates
O ctober  T e r m ,  1949

E l m e r  W .  H e n d e r s o n ,  a p p e l l a n t

v.
T h e  U n it e d  S t a t e s  op A m e r ic a ,  I n t e r s t a t e  

C o m m e r c e  C o m m is s io n  a n d  S o u t h e r n  R a il ­

w a y  C o m p a n y

ON A P P E A L  PR O M  T H E  U N ITE D  ST AT E S D IS T R IC T  COURT  
F O R  T H E  D IS T R IC T  OF M AR Y L A N D

BRIEF FOR THE UNITED STATES





I N D E X

Page
Opinions below________________________________________  2
Jurisdiction-----------------------------------------------------------------  2
Statute involved_______________________________________  2
Question presented-------------------------------------------------------- 3
Statement____________________________________________  3
Summary of argument---------------------------------------------------  9
Argument:

The railroad’s dining car regulations, approved by the Inter­
state Commerce Commission, are unlawful because they 
subject passengers to discrimination and inequality of
treatment, solely on grounds of race or color__________  11

I. Passengers traveling on interstate carriers have the 
right to receive equal accommodations without 
being discriminated against because of race or
color_____________________________________  11

II. The regulations are unlawful because they permit 
discrimination against individual passengers, 
white as well as colored, solely on the basis of the
passenger’s race or color_____________________ 19

III. The regulations are unlawful because they compel 
passengers to be segregated according to their 
color; such enforced racial segregation, having the 
sanction of an agency of government, denies col­
ored passengers the equality of treatment which 
is their right under the law__________________  23

A. Racial segregation under compulsion of law
is not equality______________________  24

B. Segregation imports, and is designed to im­
port, the inferiority of the Negro race__  27

C. The “separate but equal” doctrine does not
control the issues before the Court in this 
case, but that doctrine, if it be deemed 
applicable here, should be reexamined and 
discarded__________________________  35

D. The harm to the public interest which has
resulted from enforced racial segregation 
argues against its extension to the field of 
interstate transportation______________ 49

1. Effect on Negroes_______________ 49
2. Effect on whites________________  55
3. Effect on the nation_____________  56

856861— 49-------1
(i)



Page

Conclusion____________________________________________ 66
Appendix: Railroad’s dining car regulations-----------------------  67

CITATIONS
Cases:

A nderson  v. Pantages Theatre Co., 114 Wash. 24-------------  35
A ppalachian  Coals, In c. v. United States, 288 U. S. 344----  39
Barnett v. Texas <fc Pacific B y. Co., 263 I. C. C. 171--------  19
Brown v. Atlantic Coast L in e R . R . Co., 256 I. C. C. 681- _ 19
Brown v. Southern R y. Co., 269 I. C. C. 711------------------  13
Buchanan v. W arley, 245 U. S. 60--------------------------  14, 20, 46
Chicago, Rock Island & Pac. R y . Co. v. A llison , 120 Ark. 54. 42
Chiles v. Chesapeake & Ohio Rw y. Co., 218 U. S. 71---------36, 37
Civil Rights Cases, 109 U. S. 3------------------------------------ 48
Collins v. Oklahoma State Hospital, 76 Okla. 229-----------  42
Currin v. W allace, 306 U. S. 1-----------------------------------  15
Detroit Bank v. United States, 317 U. S. 329---------------—  15
Edwards v. Nashville, C. & St. L . R y . Co., 12 I. C. C. 247- 13
Ferguson v. Gies, 82 Mich. 358-----------------------------------  27, 35
Flood v. News & Courier Co., 71 S. C. 112--------------------- 42
H all v. D e Cuir, 95 U. S. 485--------------------------------  13, 36, 37
H arm on v. Tyler, 273 U. S. 668______________________  24
H irabayashi v. United States, 320 U. S. 81---------- ----------15, 16
H urd  v. Hodge, 334 U. S. 24------------------------------ -------14, 29
Interstate Commerce Com m ission v. M echling, 330 U. S. 567- 2
Jackson  v. Seaboard A ir  L in e R y. Co., 269 I. C. C. 399----  19
Jones v. Kehrlein , 49 Cal. App. 646-----------------------------  35
Joyner v. M oore-W iggins Co., 136 N. Y. S. 578, affirmed,

211 N. Y. 522___________________________________  35
Korem atsu v. United States, 323 U. S. 214---------------------  16
LeFlore & Crishon v. Gulf, M obile & Ohio R. R . Co., 262

I. C. C. 403_____________________________________  19
Louisville & Nashville R. R. Co. v. Ritchel, 148 Ky. 701---- 42
M cCabe v. Atchison, T. & S. F. R y. Co., 235 U. S. 151----- 13,

19-20, 43
M a ys v. Southern R y. Co., 268 I. C. C. 352-------------------  19
M issouri ex rel Gaines v. Canada, 305 U. S. 337-------------- 17, 20
M issouri, K ansas & Texas R y. Co. v. Ball, 25 Tex. Civ. App.

500______________________     42
M itchell v. United States, 313 U. S. 80----------—--------------  2, 7,

12,13, 14, 18, 20-21, 22, 23, 31, 35, 37, 38
M organ  v. V irginia , 328 U. S. 373______________  13,14, 32, 36
N ixon  v. Condon, 286 U. S. 73_______________________  17
N ixon  v. H erndon, 273 U. S. 536--------------------------------  17
P erez v. Lippold , 198 P. 2d 17 (S. C. Calif.)------------------  20
P erez v. Sharp, 32 Calif. 2d 711______________________  45

II



in

Plessy v. Ferguson, 163 U. S. 537_____________________  10,
12, 15, 25, 28, 38, 39, 40, 41, 42, 43, 63, 65

Railroad Co. v. Brown, 17 Wall. 445__________________  35
Shelley v. K raem er, 334 U. S. 1_________________  14, 20, 22, 29
Sim s v. Rives, 84 F. 2d 871, certiorari denied, 298 U. S. 682_ 15
Sipuel v. Board o f  Regents, 332 U. S. 631----------------------  17
Slaughter-House Cases, 16 Wall. 36____________________ 47
Smith v. Allwright, 321 TJ. S. 649-------------------------------- 17
Stam ps v. Chicago, Rock Island & Pacific R y . Co., 253

I. C. C. 557______ ____ - ............................................ 19
Stam ps & Pow ell v. Louisville & Nashville R. R. Co., 269

I. C. C. 789.................. ........ ........................................ 19
Standard Sanitary M anufacturing Co. v. United States,

226 U. S. 20________________ __________ _____ ___  13
Steele v. Louisville & Nashville R . R . Co., 323 U. S. 192__  14
Steward M achine Co. v. Davis, 301 U. S. 548------------------ 15
Strauder v. W est V irginia, 100 U. S. 303______ 14, 16-17, 46-47
Stultz v. Cousins, 242 Fed. 794_______________________  42
Takahashi v. Fish  and Came Com m ission, 334 U. S. 410-----14, 17
Truax v. Raich, 239 U. S. 33-------------------------------------  17
United States v. Interstate Com merce Com m ission, 337 U. S.

426_____________________________________ ______  7,37
United States v. Yount, 267 Fed. 861__________________  15
W olf v. Colorado, 338 U. S. 25_______________________  16, 65
W olfe v. Georgia Railw ay & Electric Co., 2 Ga. App. 499—  42
Y ick W o v. H opkins, 118 U. S. 356___________________  14, 17

Constitution, Statutes and United Nations Charter:
Fifth Amendent------------------------------------------------------ 15
Fourteenth Amendment__________________________ 39, 42, 49
Civil Rights Act of 1866, 14 Stat. 27--------------------------- 47
Civil Rights Act of 1875, 18 Stat. 335..------ -------------- - 47, 48
Interstate Commerce Act, 24 Stat. 379, as amended, 49 

Stat. 543, 54 Stat. 902, 49 U. S. C. 1 et seq.:
Sec. 1 (1)..................................... ................... ..........  3
Sec. 3 (1)_______________________ —  2, 10, 12, 21, 31, 39

Charter of the United Nations, 59 Stat. 1031----------------  62
Civil Rights Law of New York, Sec. 40------------------------ 13

Miscellaneous:
Berger, The Suprem e Court and Group D iscrim ination Since

1937, 49 Col. L. Rev. 201_________________________  45
The Bolshevik (U. S. S. R.) No. 15, 1948 (Frantsov, N a­

tionalism— The Tool o f  Im perialist Reaction)---------------  61
Bond, Education o f the Negro and the Am erican Social Order_ 41
Brophy, The L uxury o f  A nti-N egro Prejudice, 9 Public

Opinion Quarterly 456____________________________  67

Oases—Continued Faee



IV

Bunche, Education in  Black and W hite, 5 Journal of Negro
Education 351___________________________________  41

Cong. Globe, 39th Cong., 1st Sess------------------------------- 47
Cong. Globe, 42d Cong., 2d Sess_____________________  48
2 Cong. Rec. 4116, 4143-4145, 4167-4169, 4171-4174........ 48
3 Cong. Rec. 1010__________________________________ 48
Cooper, The Frustrations o f Being a M em ber o f  a M inority

G roup: What D oes I t  D o to the Individual and to H is  
Relationships W ith  Other Peoples?, 29 Mental Hygiene
189................ ................................................ 34, 50-51, 53-54

Department of State Publication 2497 (Conference Series 85)_ 63
Deutseher & Chein, The Psychological Effect o f Enforced Seg­

regation: A  Survey o f  Social Science O pinion, 26 Journal
of Psychology 259________________________________50, 55

Dollard, Caste and Class in  a Southern Town_ 27, 29, 41, 51-52, 56
Drake & Cay ton, Black M etropolis____________________ 43
Elack, A doption  o f  the Fourteenth Am endm ent___________ 47, 48
Fraenkel, Our Civil L iberties______________________  27, 35, 41
Frazier, Psychological Factors in  Negro Health, Journal of

Social Forces, vol. 3______________________________  54
Gillmor, Can the Negro Hold H is Job?, National Association 

for the Advancement of Colored People Bulletin (Sep­
tember 1944)____________________________________  58

H earings Regarding Com m unist Infiltration o f  M inority  
Groups, P art I , House Committee on Un-American
Activities, 81st Cong., 1st sess_____________________  59

Heinrich, The Psychology o f  a Suppressed P eop le________  41
Johnson, N egro Am ericans, What N ow ?________________ 34
Johnson, Patterns o f Negro Segregation___________  27, 29, 30, 41
Lee & Humphrey, Race R iot_________________________  57
The Literary Gazette (U. S. S. R.) No. 51, 1948, The Tragedy

o f Coloured Am erica, by Berezko____________________  62
McGovney, Racial Residential Segregation by State Court 

Enforcem ent o f  Restrictive Agreem ents, Covenants or Con­
ditions in  Deeds is  Unconstitutional, 33 Calif. L. Rev. 5-- 30, 42 

McLean, Group Tension, 2 Journal of American Medical
Women’s Association 479__________________________ 53

McLean, Psychodynam ic Factors in  R acial Relations, The 
Annals of the American Academy of Political and Social
Science (March 1946)_____________________________  54

Mangum, The Legal Status o f  the N egro________________ 32, 35
Moton, W hat the Negro Thinks_______________________ 41, 56
Myrdal, A n  Am erican Dilem m a, vols. I and II___ 27, 29, 32, 41,

43, 45, 55
Nelson, The Integration o f  the Negro into the United States

N avy (Navy Dept., 1948)_________________________  57

Miscellaneous—Continued Page



V

1948 R eport o f  Progress, New York State Commission
Against Discrimination___________________________  45

Note, 39 Columbia L. Rev. 986-------------------  27, 33, 35, 42
Note, 49 Columbia L. Rev. 629----------------------------  27, 42
Note, 34 Cornell Law Quar. 246__________________ 32
Note, 56 Yale L. J. 1059................................ .......... - 27, 42
Note, 58 Yale L. J. 472______________ ________ - - 32

Oppenheimer, N bn-D iscrim inatory H ospital Service, 29
Mental Hygiene 195---------------------------------------------  57

Pierson, Negroes in  B razil___________________________  57
Prudhomme, The Problem, o f  Suicide in  the Am erican Negro,

25 Psychoanalytic Review 187_____________________  51
Sancton, Segregation: The Pattern o f  a Failure, Survey

Graphic (Jan. 1947)---------------------------------------------  67
Simon, Causes and Cure o f  D iscrim ination, N. Y. Times

May 29, 1949, section 6-----------------------------------------  45
Stouffer, et al., Studies In  Social Psychology in  W orld W ar

I I ,  The Am erican Soldier, vol. I----------------------  29, 33, 55, 57
Sutherland, Color, Class, and Personality-----------------------  41
To Secure These Rights, Report of the President’s Committee

on Civil Rights____________________ 13,28, 34, 41, 57, 58, 60
United Nations, General Assembly, A d  H oc Political Com­

mittee, Third Session, Part II, Summary Record of the
Fifty-Third and Fifty-Fourth Meetings......................   61

Ware, The Role o f  Schools in  Education fo r  R acial Under­
standing, 13 Journal of Negro Education..................—  57

Washington, The Future o f the A m erican  N egro-------------- 34
Weaver, The Negro Ghetto___________________________  56
Yarros, Isolation  and Social Conflicts, 27 American Journal

of Sociology_____________________________________ 57

Miscellaneous—Continued Page



v:
-  V i ...............

__________-____-  -  *

................. ................................  ...................................... . .  ’

13
\ r-

■sZfi

iZ

.3



States
October Term, 1949 

No. 25

E lmer W . H enderson, appellant

v.

The U nited States or A merica, I nterstate 
Commerce Commission and Southern R ail­
w ay  Company

ON A P P E A L  F R O M  T H E  U N ITE D  ST AT E S D IS T R IC T  CO U RT  
F O R  T H E  D IS T R IC T  OF M A R Y L A N D

BRIEF FOR THE UNITED STATES

This proceeding was brought by appellant to 
set aside an order of the Interstate Commerce 
Commission. As required by statute,1 the United 
States was named as a defendant. The case is 
here on appeal from the judgment of the district 
court dismissing appellant’s complaint, and the 
United States is a nominal appellee. Since the 
United States is of the view, however, that the 
order of the Interstate Commerce Commission is 
invalid, this brief sets forth the grounds upon 
which it is submitted that the judgment of the

1 See Section 2322 of Title 28, United States Code.
(1)



2

district court is erroneous and should be reversed. 
See M itchell v. U nited S tates, 313 U. S. 80, 92; 
In tersta te  C om m erce Com m ission  v. M echling, 
330 U. S. 567, 574, note 6.

OPINIONS BELOW

The opinion of the specially constituted district 
court (R. 248) is reported in 80 F. Supp. 32. 
The report of the Interstate Commerce Commis­
sion (R. 4) appears at 269 I. C. C. 73. A prior 
opinion by the district court in this proceeding 
(R. 63) is reported in 63 F. Supp. 906, and a 
prior report of the Interstate Commerce Com­
mission (R. 184) appears at 258 I. C. C. 413.

JURISDICTION

The judgment of the district court was entered 
on October 28, 1948 (R. 265). The petition for 
appeal was filed and allowed on November 17,
1948 (R. 266, 269). The jurisdiction of this 
Court to review by direct appeal the judgment 
entered in this case is conferred by Title 28, 
United States Code, Section 1253. Probable ju­
risdiction was noted by this Court on March 14,
1949 (R. 278).

STATUTE INVOLVED

Paragraph (1) of Section 3 of the Interstate 
Commerce Act as amended, 24 Stat. 380, 54 Stat. 
902, 49 U. S. C. 3 (1), provides as follows:

It shall be unlawful for any common 
carrier, subject to the provisions of this



3

part2 to make, give, or cause any undue 
or unreasonable preference or advantage to 
any particular person, company, firm, 
corporation, association, locality, port, port 
district, gateway, transit point, region, 
district, territory, or any particular de­
scription of traffic, in any respect whatso­
ever; or to subject any particular person, 
company, firm, corporation, association, 
locality, port, port district, gateway, transit 
point, region, district, territory, or any 
particular description of traffic to any un­
due or unreasonable prejudice or disad­
vantage in any respect whatsoever: 
P rov id ed , how ever, That this paragraph 
shall not be construed to apply to discrimi­
nation, prejudice, or disadvantage to the 
traffic of any other carrier of whatever 
description.

QUESTION PRESENTED

Whether the railroad’s dining-car regulations, 
approved by the Interstate Commerce Commis­
sion, are unlawful because they subject passengers 
to discrimination and inequality of treatment, 
solely on grounds of race or color.

STATEMENT

On May 17, 1942, appellant, a Negro, was 
traveling as a first-class Pullman passenger on 
the Southern Railway from Washington, D. C.,

2 The words “this part” refer to part I of the Act (see 49 
Stat. 543), which applies to common carriers by railroad 
(49U.S.C.1 (1)).



4

to Birmingham, Alabama. He was making this 
trip as a field representative of the President’s 
Committee on Fair Employment Practices, War 
Manpower Commission, to investigate violations 
of Executive Order No. 8802 alleged to have 
occurred in war industries in the Birmingham 
area. (R. 90-91, 97-99.)

When appellant entered the diner on the day 
in question shortly after it wTas opened for service 
at 5:30 p. m., white passengers were sitting at 
the two end tables which the railroad condition­
ally reserved for Negroes but there was at least 
one vacant seat at these tables. The dining-car 
steward told him that he could not then be served, 
and promised to send him word in his Pullman 
car if the end tables became vacant. Appellant 
came back to the diner at about 7 p. m. and 
again at about 7:30 p. m. At both times white 
people were eating at the end tables, as well as 
throughout the car, and appellant was told that 
he could not be served.3 The steward never 
notified appellant that the end tables had become 
vacant, and at about 9 p. m. the diner was detached 
from the train. (R. 90-92,190.)

It had long been the railroad’s practice not to 
serve white and colored passengers at the same

3 Appellant testified that on his first or second trip to the 
diner the steward said to him, “I am supposed to ask you if 
you will be served in your Pullman seat” (R. 95). Appel­
lant declined the suggested tray service at his Pullman seat 
(R. 96).



5

time. The latter, “ being in the minority,” were 
served either before or after white passengers 
had eaten. With the increased passenger traffic 
in 1941 due to defense activities, one mealtime 
tended to run into the next, “ leaving no time in 
which to serve Negro passengers.” To meet this 
situation, the railroad installed curtains which 
might be drawn from the side of the car to the 
aisle so as to separate the two tables nearest the 
kitchen from the adjoining tables.4 The rail­
road’s regulations, as supplemented in August 
1942, provided for drawing the curtains into posi­
tion before mealtime and placing “ Reserved” 
cards on the two curtained tables.5 If all other 
seats had been taken before any colored passenger 
entered the diner, “ the curtain should be pushed 
back, cards removed and white passengers served 
at those tables.” 6 Any colored passenger appear­
ing later was to be advised that he would he served

4 One of the railroad’s waiters testified that this change 
permitted colored passengers to be served more readily, “Be­
cause before they had the curtains, they didn’t have no way 
to ‘Jim Crow’ them off from the whites” (R. 145).

6 The regulations which the railroad adopted in July 1941 
and the supplement thereto adopted August 6, 1942, are set 
forth in the Appendix, infra, pp. 67-68.

6 The railroad’s vice-president in charge of transportation 
and operation testified that these arrangements were made 
“so the Jim Crow end would be vacant until every other seat 
was taken in the dining car” (R. 167).



6

as soon as the end tables were “ vacated. ” 7 (R.
186-187.)

In October, 1942, appellant filed a complaint 
with the Interstate Commerce Commission charg­
ing that the railroad’s refusal to serve him solely 
because of his race discriminated against him in 
violation of the Constitution and Section 3 of the 
Interstate Commerce Act (R. 80-82). He asked 
that the railroad be required to provide in the 
future non-discriminatory dining car service for 
Negro passengers, and for an award of damages 
(R. 83). The Commission ruled that although 
appellant had been subjected to undue prejudice 
and disadvantage on the particular trip, the rail­
road’s dining car regulations met the require­
ments of the Act and that therefore no cease and 
desist order should be entered against the rail­
road (R. 190-192). On the question of damages, 
the Commission ruled that there could be no 
award because there had been no proof of 
“ pecuniary loss” (R. 193-194). It accordingly 
entered an order dismissing appellant’s com­
plaint (R. 195).

On suit to set aside the Commission’s order, 
the damage issue was eliminated from the cause 
by appellant’s concession that the Commission’s de­

7 Of course, if additional white passengers were seated at 
the end tables as fast as those eating there finished and left, 
as was done when appellant was seeking service, this pre­
vented Negro passengers from obtaining any dining car 
service (R. 75,125).



7

nial of damages was not reviewable (R. 68) .8 As 
to the primary issue in the ease, the validity of 
the railroad’s current dining car regulations, the 
court below (sitting as a three-judge district 
court) held that the regulations were unduly 
prejudicial under the principles laid down in 
M itchell v. U nited States, 313 U. S. 80, in that the 
curtained end tables were only conditionally re­
served for Negro passengers whereas all other 
seats in the car were unconditionally reserved for 
white passengers (R. 74-78). The court there­
fore set aside the order entered by the Commis­
sion and remanded the case to it for further 
proceedings (R. 79-80). 63 F. Supp. 906.

On the reopening of the Commission hearings 
the railroad introduced in evidence new dining 
car regulations which it had adopted effective 
March 1, 1946.9 They provide for reserving ex­
clusively for Negro passengers one of the end 
tables nearest the kitchen, that on the left side of 
the aisle facing the buffet and seating four pas­
sengers. The curtain separating this table from 
the next one is to remain drawn to the aisle while 
meals are being served and a “ Reserved” card

8 This concession was made prior to the recent decision in 
United States v. Interstate Commerce Commission, 337 U. S. 
426, holding that an order of the Commission dismissing a 
claim for damages may be reviewed by ordinary one-judge 
district courts but not by three-judge courts set up under the 
provisions of the Urgent Deficiencies Act of 1913.

9 The regulations are set forth in the Appendix, infra, p. 
68.



8

is to be kept on the table except when it is occu­
pied. All other tables are reserved exclusively 
for white passengers. (R. 198, 223.)

As to the table reserved for colored passengers, 
the railroad planned to install, in place of the 
curtain, a permanent partition about five feet high 
and to convert the space on the opposite side of 
the aisle into an office for the steward equipped 
with cash register and other needed supplies and 
materials (R. 199-201).10 At the time of the hear­
ing these changes had been made in only one 
diner11 but the alterations were to be made in 
other cars as they were sent to the shops for re­
pairs (R. 201). The railroad, in adopting the 
new regulations and in planning structural 
changes, had in mind conforming with both the 
decision of the district court condemning its prior 
regulations and the requirements of state segrega­
tion laws (R. 202, 205, 208).

The four seats set aside for Negroes represent 
8.33% of the 48 seats in the diner (R. 9). 
Studies made by the railroad, covering an 11-day 
period and a 10-day period, of the meals served 
in its diners on the run between Washington, 
D. C., and Atlanta, Georgia, showed that the 
meals served to Negroes constituted, for the

10 A similar five-foot partition was to separate his “office” 
from the next table (E. 199).

11 For illustrative photographs, see Exhibits 4—7, E. 224A- 
224D.



9

respective periods, 3.06 % and 4.22% of all meals 
served (R. 215, 217, 225, 237).

The Commission, with two members dissent­
ing, upheld the validity of the amended regu­
lations (R. 4-11) and the court below, with one 
judge dissenting, dismissed appellant’s suit to 
set aside the Commission’s order (R. 248, 261, 
265). The court held that neither the Constitu­
tion nor Section 3 of the Interstate Commerce Act 
prohibited segregated dining car service for 
Negroes if, as was the case, the segregated accom­
modations were proportionate to the demand for 
dining car service by members of the Negro 
race (R. 253-260).

SUMMARY OF ARGUMENT

The order of the Interstate Commerce Com­
mission approving the dining car regulations 
involved in this case is invalid on constitutional 
and statutory grounds. Both the Constitution 
and the Interstate Commerce Act give all persons 
traveling on interstate carriers the right 
to equal treatment, without being subject to 
governmentally-enforced discriminations based 
on race or color. Contrary to the holding 
below, the obligation of carriers to provide 
equality of treatment means equality as be­
tween individuals and not as between racial 
groups. The regulations are clearly unlawful in 
that they permit discrimination against individual 
passengers, white as well as colored, in situations



10

where available accommodations are denied solely 
on grounds of race or color. Beyond that, how­
ever, the Commission’s order is invalid because it 
attempts to place the sanction of law upon a system 
of compulsory racial segregation which denies 
colored passengers the equality of treatment to 
which they are entitled under the Constitution 
and the Interstate Commerce Act. This case does 
not involve segregation by private individuals. 
The decisive factor here is that the segregation 
regulations bear the approval of an agency of 
government.

Segregation as enforced by the regulations im­
ports the inferiority of the Negro race. Enforced 
racial segregation in itself constitutes a denial 
of the right to equal treatment. Equal treat­
ment means the same treatment. The issues 
before the Court in this case are not governed by 
the so-called “ separate but equal” doctrine of 
P lessy  v. F ergu son , 163 U. S. 537, and related 
cases. Even assuming, arguendo, that that doc­
trine retains some vitality for constitutional pur­
poses, it does not establish the validity, under 
Section 3 of the Interstate Commerce Act, of 
the railroad’s regulations. But if the Court 
should conclude that the issues here cannot be 
decided without reference to the “ separate but 
equal” doctrine, the Government submits that the 
legal and factual assumptions upon which 
P lessy  v. F ergu son  was decided have been



11

demonstrated to be erroneous, and that the doc­
trine of that case should now be re-examined and 
overruled. The notion that separate but equal 
facilities satisfy constitutional and statutory pro­
hibitions against discrimination is obsolete. The 
phrase “ equal rights” means the same rights.

ARGUMENT

THE RAILROAD’S DINING CAR REGULATIONS, APPROVED 
BY THE INTERSTATE COMMERCE COMMISSION, ARE 
UNLAWFUL BECAUSE THEY SUBJECT PASSENGERS TO 
DISCRIMINATION AND INEQUALITY OF TREATMENT, 
SOLELY ON GROUNDS OF RACE OR COLOR

I

PASSENGERS TRAVELING ON INTERSTATE CARRIERS HAVE THE 
RIGHT TO RECEIVE EQUAL ACCOMMODATIONS WITHOUT BEING 
DISCRIMINATED AGAINST BECAUSE OF RACE OR COLOR

The dining car regulations issued by the rail­
road and approved by the Interstate Commerce 
Commission are invalid, it is submitted, on both 
constitutional and statutory grounds. The prem­
ise of the Government’s argument is that the 
right of all persons to equality of accommodations 
while traveling on interstate carriers is a right 
which is specifically guaranteed by the Inter­
state Commerce Act and which cannot be denied 
by the Federal Government, or any of its agencies, 
without violating the Fifth Amendment to the 
Constitution.

The meaning and requirements of “ equality” 
are discussed in a later section of this brief,

8G6861— 49-------1



1 2

particularly in connection with the so-called 
“ separate but equal” doctrine of P lessy  v. 
F ergu son , 163 U. S. 537, and related cases 
arising under the Fourteenth Amendment. In 
our view, “ separate but equal” is as much a con­
tradiction in terms as “ black but white” : facilities 
which are segregated by law, solely on the basis 
of race or color, cannot in any real sense be re­
garded as equal. The point we desire to stress 
at the outset, however, is that the ultimate cri­
terion of legality, in assessing the validity of the 
regulations presented in this case, is the principle 
embodied in both the Interstate Commerce Act 
and the Constitution that all persons are entitled 
to equality of treatment, without being discrim­
inated against because of race or color or other 
irrelevant factors.

Section 3 of the Interstate Commerce Act 
(quoted in full, supra, pp. 2-3) makes it unlawful 
for any common carrier subject to the Act “ to 
subject any particular person * * * to any
undue or unreasonable prejudice or disadvantage 
in any respect whatsoever” . As was pointed out 
in M itchell v. U nited S ta tes, 313 U. S. 80, 95, this 
provision of the Act has consistently been re­
garded as imposing a duty upon carriers to pro­
vide equality of treatment with respect to 
transportation facilities and as forbidding dis­
crimination against colored passengers because 
of their race; colored persons must be furnished



13

with accommodations equal in comforts and con­
veniences to those afforded white passengers 
traveling on the same kind of ticket. See 
Edwards v. N ashville, C. & S t. L . B y . Co., 12
I. C. C. 247, 249, quoted in the M itchell opinion 
(ibid .) and other authorities there cited.

Section 3 represents action by Congress in 
furtherance of the fundamental constitutional 
principle that all men, regardless of their race 
or color, are entitled to equal treatment before 
the law.12 In M cCabe v. A tchison , T . & S. F . B y .

12 The laws and customs of the states in which the railroad 
operates do not modify or qualify the scope of the prohibi­
tions of Section 3 of the Interstate Commerce Act. This 
Court so held as to state law imposing requirements respect­
ing intrastate transportation inconsistent with those of Sec­
tion 3 (Mitchell case, supra, at pp. 91-92), and, a fortiori, 
the requirements of the Act do not vary with the customs 
of the area in which the carrier operates. This is so, not pri­
marily because of the need for prescribing a uniform na­
tional rule (see Morgan v. Virginia, 328 U. S. 373; Hall v. 
DeCuir, 95 U. S. 485), but because Section 3 applies equally 
to every carrier subject to part I of the Act and therefore 
may not be given one meaning in one community and a dif­
ferent one in another. I f  the segregation enforced in the 
railroad’s dining cars does not violate Section 3 in a state 
which requires segregation in intrastate transportation, it 
also would not violate that section when enforced by a carrier 
operating in a state where the laws prohibit racial separation 
on public carriers. See Civil Rights Law of New York, Sec. 
40, and compare Brown v. Southern By. Co., 269 I. C. C. 
711, 722; To Secure These Rights, Report of the President’s 
Committee on Civil Rights, p. 78.

As in the case of other general prohibitions applicable to 
interstate commerce, “The law is its own measure of right 
and wrong.” Standard Sanitary Manufacturing Co. v.



14

Co., 235 U. S. 151, 161, this Court recognized 
“ the constitutional right” of individuals to “ sub­
stantial equality of treatment of persons traveling 
under like conditions.” And in the compara­
tively recent M itchell case, Mr. Chief Justice 
Hughes’ opinion for the Court stated: “ The 
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 Amend­
ment”. (313 U. S. 80, 94.)

These holdings in the field of transportation 
are merely illustrative of the basic constitutional 
doctrine which condemns racial discriminations 
having the sanction of law or the support of an 
agency of government. See, e. g., S helley  v. 
K ra em er, 334 U. S. 1; H u rd  v. H od ge, 334 U. S. 
24; Takahashi v. F ish  and Gam e Com m ission, 
334 U. S. 410; S teele  v. L ouisville & N ashville  
R ailroad Co., 323 U. S. 192; Buchanan  v. W a rley , 
245 U. S. 60; Y ick  W o  v. H op kin s, 118 IJ. S. 356; 
S trauder v. W e s t  V irgin ia , 100 U. S. 303. These 
decisions, as well as others too familiar to re­
quire citation here, have given concrete applica­
tion to the principle of constitutional law elo­
quently expressed by Mr. Justice Harlan: “ Our

United States, 226 U. S. 20, 49. Though Congress has power 
to “devise a national policy with due regard to varying in­
terests of different regions,” (Mr. Justice Frankfurter con­
curring in Morgan v. Virginia, 328 U. S. 373, 389), it has 
not, in Section 3, done so.



15

Constitution is color-blind, and neither knows nor 
tolerates classes among citizens.” P lessy  v. 
Ferguson, 163 U. S. 537, 559 (dissent).

Racial discriminations effected by action of the 
Federal Government, or any agency thereof, are 
prohibited by the due process clause of the Fifth 
Amendment. To be sure, that Amendment con­
tains no equal protection clause. But the Court 
has in numerous cases indicated that a federal 
discrimination may be so arbitrary and injurious 
in character as to violate the due process clause 
of the Fifth Amendment. H irabayashi v. U nited  
States, 320 U. S. 81, 100; D etro it B an k  v. U nited  
States, 317 U. S. 329, 338; Currin  v. W allace, 
306 U. S. 1, 13; Stew ard M achine Co. v. D avis, 
301 U. S. 548, 585. And see Sim s v. R ives, 
84 F. 2d 871, 878 ( C. A. D. C.), certiorari de­
nied, 298 IT. S. 682; U nited  S tates v. Y ount, 267 
Fed. 861, 863 (W. D. Pa.). Mr. Justice Murphy’s 
concurring opinion in H irabayashi observed: 
“We have consistently held that attempts to 
apply regulatory action to particular groups 
solely on the basis of racial distinction or classi­
fication is not in accordance with due process of 
law as prescribed by the Fifth and Fourteenth 
Amendments. [Citations]” 320 U. S. at 111. 
In its most recent formulation of the require­
ments of due process of law, the Court has de­
scribed it as “ the compendious expression for all 
those rights which the courts must enforce be­



16

cause they are basic to our free society.” W o lf  
v. Colorado, 338 U. S. 25, 27.

There can be no doubt that the right to equal 
treatment before the law is basic to the free, 
democratic way of life established and protected 
by the Constitution of the United States. In 
H irabayashi v. U nited S tates, 320 U. S. 81, 100, 
Mr. Chief Justice Stone wrote for the Court: “ Dis­
tinctions between citizens solely because of their 
ancestry are by their very nature odious to a 
free people whose institutions are founded upon 
the doctrine of equality.” And in K orem atsu  
y. U nited States, 323 U. S. 214, 216, the Court’s 
approach to racial restrictions was described as 
follows: “ * * * all legal restrictions which 
curtail the civil rights of a single racial group are 
immediately suspect. That is not to say that all 
such restrictions are unconstitutional. It is to 
say that courts must subject them to the most rigid 
scrutiny. Pressing public necessity may some­
times justify the existence of such restrictions; 
racial antagonism never can.”

In S trauder v. W es t V irgin ia , 100 U. S. 303, 
306-307, the Court said:

It [the Fourteenth Amendment] was de­
signed to assure to the colored race the en­
joyment of all the civil rights that under 
the law are enjoyed by white persons, and 
to give to that race the protection of the 
general government, in that enjoyment, 
whenever it should be denied by the 
States. * * *



17

* * * What is this but declaring that
the law in the States shall be the same for 
the black as for the white; that all persons, 
whether colored or white, shall stand equal 
before the laws of the States, and, in re­
gard to the colored race, for whose protec­
tion the amendment was primarily de­
signed, that no discrimination shall be made 
against them by law because of their color ?

The Strauder case condemned the systematic ex­
clusion of colored persons from juries. Similarly, 
the right to qualify as a voter in primary or 
general elections may not be denied because of 
race or color. N ixon  v. H erndon , 273 U. S. 536; 
N ixon  v. Condon, 286 U. S. 73; Sm ith  v. A ll-  
wright, 321 U. S. 649. The Court has held that 
the Constitution prohibits denial to a person, be­
cause of his race or ancestry, of the right to pur­
sue his accustomed calling. Takahashi v. F ish  
and Gam e Com m ission, 334 U. S. 410; T ruax  v. 
Raich, 239 U. S. 33; Y ick  W o  v. H op kin s, 118 
U. S. 356. And all citizens, regardless of their 
color, are entitled to equality in the enjoyment 
of public educational facilities. M issouri ex  rel. 
Gaines v. Canada, 305 U. S. 337; S ipuel v. B oard  
o f R egen ts, 332 U. S. 631.

Clearly, therefore, appellant has the right, both 
under the Constitution and the Interstate Com­
merce Act, to enjoy equality of accommodations 
as a passenger on an interstate carrier, and to be 
free from governmentally-enforced discrimination



18

against Mm because he is a Negro. The question 
that remains for consideration is whether the 
dining car regulations approved by the Inter­
state Commerce Commission deprive him of that 
right.13

13 Certain questions collateral to that of illegal discrimina­
tion are set at rest by the decision in Mitchell v. United 
States, 313 U. S. 80. Although these questions appear to be 
undisputed, the following brief reference to them may con­
tribute to a more complete presentation of the case.

(1) Appellant has standing to bring this suit. The nega­
tive form of the Commission’s order is “not controlling” and 
appellant is “an aggrieved party.” It was not necessary for 
him to show, as a basis for his grievance against the regula­
tions governing future dining car service, that he intended 
again to be a passenger on the railroad. It is sufficient that 
he is an American citizen free to travel and, as such, entitled 
to have “ facilities for his journey without any discrimina­
tion against him which the Interstate Commerce Act for­
bids.” Mitchell case, pp. 92-93.

(2) The question of discrimination presented here does 
not call for exercise of “administrative or expert judgment” 
on a practical or technical problem of transportation as to 
which the Commission’s ruling, if not arbitrary or lacking 
evidentiary support, might be conclusive. The functions of 
the Interstate Commerce Commission are obviously not such 
as to endow it with expertise in dealing with questions of 
racial discrimination. The application of the statute to the 
facts of this case presents a question of law as to which the 
courts are not bound to defer to the administrative agency’s 
determination. Mitchell case, p. 97.

(3) The prohibitions of Section 3 apply to facilities for 
passengers, including dining car accommodations, and they 
bar discriminations as to such accommodations based on the 
race or color of the passenger. Mitchell case, pp. 94-95. (It 
may be noted that the Interstate Commerce Commission has 
uniformly recognized that these principles apply to dining 
car service but has, with equal uniformity, found no basis for



19

II
t h e  regulations are  u n l a w f u l  because  t h e y  p er m it  dis­

c r im in a t io n  AGAINST INDIVIDUAL PASSENGERS, WHITE AS 
WELL AS COLORED, SOLELY ON THE BASIS OF THE PASSENGER’S 
RACE OR COLOR

The court below upheld the validity of the rail­
road’s dining car regulations upon the ground 
that the law is satisfied if “ separate hut equal” 
accommodations are provided for colored pas­
sengers, and that such accommodations are 
“ equal” if they are proportionate to the average 
demand therefor by members of the Negro race 
(R. 260). We deal later with the court’s “ sep­
arate but equal ’ ’ ruling (in fra , pp. 23-49). In this 
section of the brief, we challenge the ruling that 
the constitutional and statutory obligation to 
treat all passengers alike requires equality of 
treatment, not as between individuals, but merely 
as between racial groups.

In M cC abe v. A tch ison , T. & S. F . B y . Co., 235 
U. S. 151, where a state law authorizing railroads 
to provide accommodations for white persons 
without providing similar accommodations for

an award of damages or for entry of an order requiring a 
change in the railroad’s practice. Stamps v. Chicago, Rock 
Island (& Pacific Ry. Co., 253 I. C. C. 557, 560; Brown v. At­
lantic Coast Line R. R. Co., 256 I. C. C. 681, 695; LeFlore & 
Crishon v. Gulf, Mobile <& Ohio R. R. Co., 262 I. C. C. 403, 
407; Barnett v. Texas dc Pacific Ry. Co., 263 I. C. C. 171; 
Mays v. Southern Ry. Co., 268 I. C. C. 352, 362; Jackson v. 
Seaboard Air Line Ry. Co., 269 I. C. C. 399, 403; Stamps da 
Powell v. Louisville do Nashville R. R. Co., 269 I. C. C. 789, 
795-796.)



2 0

Negroes was attacked as violating the equal pro­
tection clause of the Fourteenth Amendment, the 
Court said (p. 161) that “ the essence of the con­
stitutional right is that it is a personal one.” 14 
The Court further said (pp. 161-162):

It is the individual who is entitled to the 
equal protection of the laws, and if he is 
denied by a common carrier * * * a
facility or convenience in the course of his 
journey which under substantially the same 
circumstances is furnished to another 
traveler, he may properly complain that 
his constitutional privilege has been 
invaded.

M itchell v. U nited S tates, 313 U. S. 80, held 
that the right to equal treatment conferred by 
Section 3 of the Interstate Commerce Act is, 
like the right to equal protection of the laws 
guaranteed by the Fourteenth Amendment, per­
sonal to the individual. The Court held (p. 97) 
that equality of treatment is a right “ specifically 
safeguarded” by Section 3 and that the “ com­
paratively little colored traffic” cannot justify 
denial of this “ fundamental right” to even a 
single colored passenger. “ While the supply of 
particular facilities may be conditioned upon

14 The principle thus enunciated has subsequently been 
vigorously reaffirmed. Missouri ex rel. Gaines v. Canada, 
305 U. S. 337, 350-351; Shelley v. Kraemer, 334 U. S. 1, 22. 
See also Buchanan v. Warley, 245 TJ. S. 60, 80; Perez v. Lip- 
pold, 198 P. 2d 17,20 (Sup. Ct. Calif.).



21

there being a reasonable demand therefor, if 
facilities are provided, substantial equality of 
treatment of persons traveling under like condi­
tions cannot be refused” (ib id .). This is because, 
as was held in the M cC abe case with reference to 
the Fourteenth Amendment, it is the individual, 
“not merely a group of individuals, or a body 
of persons according to their numbers,” who is 
entitled to equality (ib id .).

Section 3, as was noted in the M itchell case 
(p. 97), makes it unlawful to subject “ any par­
ticular person” to unreasonable discrimination. 
Its language thus expressly indicates that its 
thrust is for the protection of individuals.

The test to be applied to the railroad’s regu­
lations is, therefore, whether they provide for 
service which is nondiscriminatory as between 
individual passengers, without regard to their 
race or color. The regulations clearly fail to 
meet this test. When a Negro passenger seeks 
service at a time when the table reserved for 
members of his race is fully occupied but there 
are vacant seats elsewhere in the dining car, 
service which is available to other passengers is 
denied to him solely because of his race. Simi­
larly, if a white passenger seeks service when 
there are vacancies only at the table reserved 
for colored passengers, service available to other 
passengers is withheld from him solely because 
of his color.



22

The fact that the discriminations may run 
equally against white as well as colored passengers 
does not give them sanction. The individual is 
entitled under the law to equality of protection, 
not equality of discrimination. Infringement of 
the rights of one individual is not condoned 
because the rights of another individual of a 
different race are similarly infringed. Concern­
ing the rights created by the first section of the 
Fourteenth Amendment, this Court said in 
S helley  v. K ra em er, 334 U. S. 1,22:

The rights established are personal rights. 
It is, therefore, no answer to these peti­
tioners to say that the courts may also be 
induced to deny white persons rights of 
ownership and occupancy on grounds of 
race or color. Equal protection of the laws 
is not achieved through indiscriminate im­
position of inequalities.

It is no defense that the unequal treatment 
permitted by the regulations may be infrequent 
or that it may entail delay in service rather than 
denial of all service. Under the carrier’s prac­
tice involved in the M itchell case, colored passen­
gers, “ if sufficiently diligent and forehanded,” 
could obtain equal accommodations,15 but the 
practice was nevertheless held to subject them

15 Although a Negro with a first-class ticket was denied an 
ordinary parlor car seat, he was given a drawing room com­
partment without extra charge provided one was available. 
See 313 U. S. 80, at pp. 90,91.



23

to inequality and discrimination forbidden by 
Section 3. See 313 U. S. 80, at p. 96. Further­
more, as the dissenting opinion of Judge Soper 
in the court below said (R. 262), any distinction 
between the situation presented here and that 
in the M itchell case “ is one of degree and not 
of principle, for in both cases the arrangement is 
designed to take care of the demands of the 
race rather than those of the individual citizens.”

I ll

THE REGULATIONS ARE UNLAWFUL BECAUSE THEY COMPEL PAS­
SENGERS TO BE SEGREGATED ACCORDING TO THEIR COLOR ; SUCH 
ENFORCED RACIAL SEGREGATION, HAVING THE SANCTION OF AN 
AGENCY OF GOVERNMENT, DENIES COLORED PASSENGERS THE 
EQUALITY OF TREATMENT WHICH IS THEIR RIGHT UNDER THE 
LAW

In Point II, supra, we have argued that the 
dining car regulations here involved are unlaw­
ful because they permit discrimination against an 
individual passenger, whether white or colored, 
in a situation where an available seat is denied 
him simply because it is reserved for a person 
of another race. We agree with Judge Soper, 
dissenting below, that the regulations as applied 
in such a situation clearly contravene the require­
ments of Section 3 of the Interstate Commerce 
Act. But a fundamental infirmity inheres in 
these regulations which goes much deeper and 
requires their invalidation for all purposes. The 
regulations, which carry the endorsement of an 
agency of government, compel colored passengers



24

to be segregated from other passengers solely 
because of their color. Such legally-enforced 
racial segregation in and of itself constitutes a 
discrimination and inequality of treatment pro­
hibited by the Constitution and the Interstate 
Commerce Act.

A. Racial segregation under compulsion of law is not
equality

Since these regulations bear the imprimatur of 
the Interstate Commerce Commission, they in 
effect lay down a rule of law that when a man 
travels on an interstate railroad, the color of his 
skin shall dictate where and with whom he is 
permitted to dine, no matter what his own desires 
may be. This case does not involve segregation 
by private individuals. These regulations estab­
lish a system of racial segregation enforced by 
and having the sanction of law. Cf. H arm on  v. 
T yler , 273 U. S. 668. The regulations do not 
merely permit voluntary segregation in the sense 
that they allow a passenger, if his prejudices so 
require, to refuse to eat at the same table or even 
in the same car with a passenger of another 
color. They go much further: a white passenger 
who has no prejudice against Negroes, or indeed, 
one who affirmatively desires the company of a 
colored person or persons, is forbidden by the 
regulations to have company of his own choice. 
The regulations compel such a passenger to yield 
to the prejudices of others. Under the regula­



25

tions here involved, persons traveling together, 
if they are of different color, cannot eat together 
regardless of their personal desires. Even if he 
so wishes, a white passenger is forbidden to sit 
at a colored table. In other words, the regula­
tions do not merely carry out the prejudices of 
some members of the community; they compel 
everybody else to abide by such prejudices.

We do not argue that individuals do not, or 
should not, have a legal privilege to exercise a 
personal preference against eating at the same 
table, or in the same section of the dining car, 
with Negroes. If the regulations are declared 
unlawful, that individual privilege would remain 
unimpaired. A passenger who prefers to forego 
or postpone a meal rather than take it while a 
person of another color is being served in the 
same car would be free to do so. A passenger who 
objects to dining at the same table with a person 
of another color would be free to decline a seat 
proffered at a table where such a person is being 
served. The decisive point here, however, is that 
it is one thing to permit an individual to act on 
his personal prejudices; it is something entirely 
different for the law to force such prejudices upon 
everyone else.

In P lessy  v. F ergu son , 163 U. S. 537, the first 
case holding that segregation does not violate the 
equal protection clause of the Fourteenth Amend­
ment, the Court expressed the view that the



26

alternative to segregation is “ an enforced com­
mingling” of the white and colored races. This 
observation, as we shall argue in a later section of 
this brief, was irrelevant to the constitutional 
issue before the Court. In determining the va­
lidity of legislation alleged to involve an invidious 
racial discrimination, the inquiry is not whether 
the enactment will eradicate racial prejudice or 
solve problems of racial antagonism; the issue is 
simply whether it enforces, supports, or other­
wise contributes to the denial of a constitution­
ally-protected right. But, in any event, the 
Court’s dictum rests on an obviously false prem­
ise. If “ commingling” between white and 
colored persons comes about as a consequence of 
nullifying segregation ordinances or regulations, 
such commingling is not “ enforced” by the law. 
It is the result of voluntary conduct of the indi­
viduals concerned, acting not under the coercion 
of the law but in response to their own 
desires.

The alternative to compulsory segregation, 
therefore, is n ot an “ enforced” commingling of 
the races. With non-segregated service, the indi­
vidual passenger is free to avoid any “ com­
mingling” which he considers objectionable. 
Some individuals may object to eating in the 
same car with a Negro. Others will “ draw the 
line” at eating at the same table with a Negro. 
Still others will feel that it makes no difference 
what the color of their fellow-passengers may be.



27

Whatever the individual’s personal preferences 
or code of social behavior, no departure from it 
is “ enforced” by anything except his own will.

It must be remembered, of course, that one who 
goes to a public place or rides a public conveyance 
necessarily surrenders some freedom of choice as 
to those with whom he will mingle. What was 
said in F ergu son  v. Gies, 82 Mich. 358, 367-368, 
deserves repetition:

The man who goes either by himself or 
with his family to a public place must ex­
pect to meet and mingle with all classes of 
people. He cannot ask, to suit his caprice 
or prejudice or social views, that this or 
that man shall be excluded because he does 
not wish to associate with them. He may 
draw his social line as closely as he chooses 
at home, or in other private places, but he 
cannot in a public place carry the privacy 
of his home with him, or ask that people 
not as good or great as he is shall step 
aside when he appears.

B. Segregation imports, and is designed to import, the 
inferiority of the Negro race

Segregation of Negroes, as practiced in this 
country, is universally understood as imposing 
on them a badge of inferiority.16 It “ brands the

“ Myrdal, An American Dilemma, vol. I, pp. 615, 640; 
Johnson, Patterns of Negro Segregation, p. 3; Fraenkel, Our 
Civil Liberties, p. 201; Dollard, Caste arid Class in a South­
ern Town, pp. 349-351; Note, 56 Yale L. J. 1059, 1060; Note, 
49 Columbia L. Eev. 629, 634; Note, 39 Columbia L. Eev. 
986,1003.

856861— 49-------3



28

Negro with the mark of inferiority and asserts 
that he is not fit to associate with white people” .17 
Forbidding this group of American citizens “ to 
associate with other citizens in the ordinary 
course of daily living creates inequality by im­
posing a caste status on the minority group.” 18 

More than fifty years of subsequent history con­
firm and give new emphasis to the views expressed 
by Mr. Justice Harlan in his dissent in P lessy  
v. F ergu son , 163 U. S. 537, 562. Fie declared that 
the “ arbitrary separation” of members of the 
Negro race when traveling in a public convey­
ance “ is a badge of servitude.” He further said 
(p. 560) :

What can more certainly arouse race hate, 
what more certainly create and perpetuate 
a feeling of distrust between these races, 
than state enactments, which, in fact, pro­
ceed on the ground that colored citizens 
are so inferior and degraded that they 
cannot be allowed to sit in public coaches 
occupied by white citizens'? That, as all 
will admit, is the real meaning of such 
legislation as was enacted in Louisiana.

That the type of segregation imposed by the 
railroad’s regulations is humiliating to those sub­
jected to it is so obvious as scarcely to need 
documentation. Myrdal has noted that “ the Jim

17 To Secure These Rights, Report of the President’s Com­
mittee on Civil Rights, 79.

18 Id., 82.



29

Crow car is resented more bitterly among Negroes 
than most other forms of segregation. ” 19 Johnson 
has described the trend among Negroes towards 
travel by automobile which “ is considered worth 
the extra cost” because of “ the emotional satis­
faction derived from escaping humiliating treat­
ment.” 20 Dollard has indicated that the Negro 
understands this type of segregation as marking 
him off as inferior, “ of not being worthy to par­
ticipate fully in American social life.” 21 See also 
appellant’s brief in the instant case, Appendix, 
pp. 94-106.

One wdio is compelled to live in a ghetto, because 
of his color or creed, does not enjoy “ equality”, 
no matter how luxurious his abode. Cf. S helley  
v. K raem er, 334 U. S. 1, and H urd  v. H od ge, 334 
IT. S. 24. The same principle applies here. A 
colored passenger who is set apart in a corner 
by himself is in no real sense being treated as an 
equal. The curtain or partition which fences 
Negroes off from all other diners exposes, naked 
and unadorned, the caste system which segre­
gation manifests and fosters. A Negro can 
obtain service only by accepting or appearing to 
accept, under the very eyes of his fellow passen­
gers, white and colored, the caste status which the

19 Myrdal, An American Dilemma, vol. 1, p. 635.
20 Johnson, Patterns of Negro Segregation, 270.
21 Dollard, Caste and Glass in a Southern Town, 350. See 

also Stouffer, et al., Studies in Social Psychology in World 
War II, The American Soldier, vol. I, p. 561.



30

segregation signifies and is intended to signify.
The effect of the railroad’s regulations and 

practice emphasizes that their single purpose is 
to foster maintenance of a caste system. One 
side of the segregated table adjoins the side of 
the car. Of the other three sides, the curtain 
shuts off only one. The table is exposed to the 
view of those passing in the aisle, to those sitting 
at the table immediately across the aisle,22 and 
to some extent to those sitting at other tables. 
One sociologist has commented that the curtain 
is “ exposed only enough to indicate the intent 
to segregate.” 23 Another commentator has de­
scribed this type of separation as “ merely a sym­
bolic assertion of social superiority, a ‘ceremonial’ 
separation.” 24

Concerning the five-foot high wooden partition 
which the railroad proposed to erect as a substitute 
for the curtain, the remarks of Judge Soper in

22 When the change to a wooden partition is made, the 
space across the aisle will be occupied by the dining car 
steward rather than by white passengers (supra, p. 8).

23 Johnson, Patterns of Negro Segregation, p. 321.
24 McGovney, Racial Residential Segregation by State 

Court Enforcement of Restrictive Agreements, Covenants 
or Conditions in Reeds Is Unconstitutional, 33 Calif. L. Rev. 
5,27 at n. 94.

The Railroad’s dining car steward testified that the cur­
tain hangs on hooks on a rod and if it is not properly hooked 
up and gets only half drawn he “has done the technical 
thing” and will not take the trouble to draw the curtain fully 
(R. 160).



31

the course of the argument in the court below 
are pertinent and illuminating (R. 38) :

Why do you put up these absurd parti­
tions ? They don’t conceal anything; they 
simply call attention of the white passen­
gers to the fact that the colored person 
is dining there. It seems to me that it is 
just unnecessary humiliation.

Counsel for the railroad answered the question 
as to the reason for the partition by saying: 
“ Simply to separate the two races.” (R. 39.) He 
added that “ it satisfies the white people, and it 
certainly is much less o ffensive to the negroes” 
(ibid., italics supplied).

Section 3 of the Interstate Commerce Act for­
bids “ undue or unreasonable prejudice or dis­
advantage in any respect whatsoever.” The pro­
hibition applies to “ any discriminatory action or 
practice of interstate carriers” which Congress 
had “ authority to reach.” M itchell case, p. 94. 
Under the broad and inclusive language of the 
section, the “ substantial equality of treatment” 
which it requires (id ., p. 97) is plainly not con­
fined to the physical elements of dining car 
service, such as food, tableware, etc. Manifestly, 
colored passengers would be discriminated against 
if the railroad’s rules required its waiters to say, 
when serving them: “ Don’t think, because we 
have to serve you, that we believe you’re as good 
as whites.” The wrong would be compounded if 
a loud-speaking device carried these words to



32

every diner in the car. But in substance, 
although the form may have been less offensive, 
these were the conditions under which the rail­
road furnished dining car service to colored 
passengers.

If ex-convicts were given dining car service 
only at a table barred off from others, but open 
to view, and carrying a card, “ Reserved for Ex- 
Convicts,” we have no doubt that the courts would 
be quick to recognize the gross inequality of treat­
ment. To make this analogy fit the facts of the 
present case, the traveling public would have 
to be informed that not only were ex-convicts 
thus segregated but also all descendants of ex­
convicts, to the third or fourth generation.25

25 For the varying statutory and judicial definitions of 
“ Negro” or “colored,” see Morgan v. Virginia, 328 U. S. 373, 
382-383; Mangum, The Legal Status of the Negro, ch. I ; 
Note, 34 Cornell Law Quar. 246, 247-251; Note, 58 Yale L. J. 
472, 480-481.

“Without any doubt there is also in the white man’s con­
cept of the Negro ‘race’ an irrational element which cannot 
be grasped in terms of either biological or cultural differ­
ences. It is like the concept ‘unclean’ in primitive religion. 
It is invoked by the metaphor ‘blood’ when describing an­
cestry. * * * The one who has got the smallest drop
of ‘Negro blood’ is as one who is smitten by a hideous dis­
ease. It does not help if he is good and honest, educated 
and intelligent, a good worker, an excellent citizen and an 
agreeable fellow. Inside him are hidden some unknown and 
dangerous potentialities, something which will sooner or later 
crop up. This totally irrational, actually magical, belief is 
implied in the system of specific taboos * * *.” Myrdal,
An American Dilemma, vol. 1, p. 100.



33

The colored passenger, paying the same price 
for his meal as other passengers, does not receive 
the same thing in return. True, he receives the 
same food, but the condition which is attached 
to receiving it is that he submit to having his mind 
bombarded with the message that he and all mem­
bers of his race are classified as inferior, as con­
stituting a lower social caste.26 This message of 
humiliation comes, not as a single voice, but with 
all the reverberations of the entire pattern of 
segregation and discrimination of which it is a 
part. And that is not a matter of small con­
sequence. The segregation which isolates the 
Negro from others in the community and marks 
him as ostracized, a kind of “ untouchable,” 
gravely affects his personality and causes serious 
psychological difficulties and disturbances (in fra , 
pp.50-54).

The Negro is plagued by the concept—evidence 
of which he constantly sees around him in his 
daily life—that he and his people are regarded 
as inferior.27 It remains one of the most devas­

26 “The fact that accommodations are identical in physical 
comfort does not make them really equal, since there is a 
social stigma attached to the position of the minority. To 
say that, since neither group can use the facilities reserved 
for the other, they are in an equal position is unrealistic; 
members of the minority know only too well the reasons for 
the segregation and are humiliated by it.” Note, 39 Col. 
L. Rev. 986, 1003.

27 “The word ‘segregation’ itself has come to represent to 
Negroes a crucial symbol of white attitudes of superiority.” 
Stouffer, et al., Studies in Social Psychology in World War 
II, The American Soldier, vol. I, p. 566.



34

tating frustrations of his life. Under its impact, 
he does not dare to be a person of his own dis­
tinct uniqueness and individuality.28 The per­
sistent effort of Negro leaders to develop attitudes 
aimed at maintaining the human dignity of the 
Negro tells its own story.29

It is bad enough for the Negro to have to en­
dure the insults of individuals who look upon 
him as inferior. It is far worse to have to sub­
mit to a formalized or institutionalized enforce­
ment of this concept, particularly when, as in 
this case, it carries the sanction of an agency 
of government and thus appears to have the seal 
of approval of the community at large. Such 
enforced racial segregation in and of itself consti­
tutes inequality.30 In this situation the phrase

28 Cooper, The Frustrations of Being a Member of a 
Minority Group; What Does It Do To The Individual And 
To His Relationships With Other People?, 29 Mental 
Hygiene 189, 190-191

29 “The pledge to myself which I have endeavored to keep 
through the greater part of my life is:

“I will not allow one prejudiced person or one million 
or one hundred million to blight my life. I will not let 
prejudice or any of its attendant humiliations and in­
justices bear me down to spiritual defeat. My inner 
life is mine, and I shall defend and maintain its in­
tegrity against all the powers of hell.”

James Weldon Johnson, Negro Americans, What Now?, 
p. 103. See also Washington, The Future of the American 
Negro, p. 26.

30 “No argument or rationalization can alter this basic 
fact: a law which forbids a group of American citizens to 
associate with other citizens in the ordinary course of daily 
living creates inequality by imposing caste status on the 
minority group.” [Italics supplied.] To Secure These



35

“separate but equal” is a plain contradiction 
in terms.
0. The “separate hut equal” doctrine does not control the 

issues before the Court in this case, but that doctrine, if 
it be deemed applicable here, should be reexamined and 
discarded
The segregated basis on which the railroad fur­

nished dining car service to colored passengers 
clearly constituted inequality of treatment con­
demned by Section 3 of the Interstate Commerce 
Act, unless it is to be interpreted as requiring 
only the trappings, not the substance, of equality. 
Such a narrow construction could not easily be 
squared with the “ sweeping prohibitions” of the 
Act. M itchell case, 313 U. S. at p. 94.31 The court
Rights, Eeport of the President’s Committee on Civil 
Eights, 82.

“The Court has never faced the reality that segregation 
necessarily implies inequality, for equals do not hesitate to 
mingle with each other in public places. Any traveler in 
lands where segregation is practiced, be it the South where 
the victim is the Negro, or Nazi Germany where it is the 
Jew, knows that segregation is a badge of one race’s claim 
to superiority over the other.” Fraenkel, Our Civil Liber­
ties., p. 201.

31 The prohibition of “any undue or unreasonable prejudice 
or disadvantage in any respect whatsoever” is certainly as 
broad as the prohibition of denial of “ full and equal accom­
modations,” the phrase generally used in state statutes pro­
hibiting discrimination. This prohibition has been uni­
formly held to apply to segregation. See, e. g., Jones v. 
Kehrlein, 49 Cal. App. 646; Ferguson v. Gies, 82 Mich. 358, 
363; Joyner y. Moore-Wiggins Co., 136 N. Y. S. 578, affirmed 
without opinion, 211 N. Y. 522; Anderson v. Pantages 
Theatre Co., 114 Wash. 24. See also Mangum, The Legal 
Status of the Negro, pp. 34-38; Note, 39 Col. L. Eev. 986, 
1003. Cf. Railroad Co. v. Brown, 17 Wall. 445, 451-453.



36

below has held, however, that the enforced segre­
gation of Negro passengers in railroad dining 
cars is not a denial of their right to equal accom­
modations, and in support of this holding has re­
lied on several decisions of this Court regarded as 
establishing the rule that “ separate but equal” 
facilities satisfy the requirements of the law. It 
is submitted, however, that (1) the authorities 
relied on do not control the issues presented by 
this case, and that (2) if the so-called “ separate 
but equal” doctrine be deemed applicable here, 
it should be reexamined and overruled.

(1) H all v. D eC uir, 95 U. S. 485, the earliest 
of the cases cited in support of the ruling below, 
held only that a state enactment infringes upon 
the federal commerce power when it regulates an 
interstate carrier with respect to separation or 
non-separation of white and colored passengers. 
This ruling obviously has no application to the 
issues here presented. Cf. M organ  v. V irgin ia , 
328 U. S. 373. Similarly, Chiles v. Chesapeake  
& Ohio R ivy. Co., 218 U. S. 71, merely held that 
when an interstate carrier provides separate cars 
or compartments for the exclusive use of white 
passengers and others for the exclusive use of 
colored passengers, it does not exceed the limits of 
its authority to establish reasonable regulations 
governing the transportation service which it per­
forms. This was implicitly held in the D e Cuir 
case, and the Chiles case was regarded as con­



37

trolled by the earlier decision.82 In the Chiles 
case the plaintiff did not at any stage of the pro­
ceeding rely upon any provision of the Interstate 
Commerce Act* 33 and the briefs filed in this Court 
did not even mention Section 3 of the Act. The 
Court, in assuming that Congress had taken no 
action respecting segregation in interstate travel, 
referred to what was said and held on this point 
in the D e Cuir case. See pp. 75-77. Since the 
Court’s assumption as to nonaction by Congress 
was based on a case decided ten years before pas­
sage of the Interstate Commerce Act, and since it 
was made without giving any consideration to the 
anti-discrimination provisions of Section 3 of that 
Act, the decision cannot possibly be deemed a con­
struction of the meaning or application of Sec­
tion 3.

In M itchell v. U nited S ta tes, 313 U. S. 80, the 
carrier had refused to give to the plaintiff, because 
of his race, any Pullman car accommodations.

3~ Of the portion of the opinion in the Chiles case setting 
forth the grounds of decision (pp. 75-78), over two-thirds 
is devoted to a discussion of the De Cuir case and its appli­
cation.

331 he plaintiff had not filed a complaint with the Inter­
state Commerce Commission and therefore was probably 
barred from relying upon any claim of violation of the 
Interstate Commerce Act. I f such a claim “necessarily in­
volves a question of ‘reasonableness,’ ” the Commission has 
“primary jurisdiction” and there can be no recovery in the 
absence of a ruling by the Commission on the question of 
violation. United States v. Interstate Commerce Commis­
sion., 387 U. S. 426,437.



38

The case therefore presented, as this Court said 
(p. 94), “not a question of segregation but one 
of equality of treatment.” To be sure, the 
Court’s opinion appeared to agree with the view 
that the carrier’s subsequent practice of furnish­
ing a compartment to a colored passenger for 
the price of a Pullman seat “ avoids inequality.” 
See p. 96. This aspect of the decision is not, 
however, presently apposite. The type of segre­
gation here involved is far more serious. When 
colored passengers are furnished dining car serv­
ice only at a table partially screened off as a 
symbol and token of their separate and inferior 
status, the segregation is open, explicit, and 
humiliating.

Finally, reliance is placed most heavily on 
P lessy  v. F ergu son , 163 U. S. 537, which ruled 
that state-enforced separation of white and 
colored persons under a statute requiring “ equal” 
accommodations does not necessarily infringe the 
command of the Fourteenth Amendment that no 
State shall deny to any person the equal protec­
tion of the laws. We submit that, even assuming 
arguendo that the “ separate but equal” doctrine 
retains some vitality for constitutional purposes, 
it does not establish the validity, under the Inter­
state Commerce Act, of the segregation enforced 
in the railroad’s dining cars.

In the first place, the language of the statute 
provides a possible basis for distinction. The



39

prohibition of Section 3, that no carrier shall 
subject any person to 11 any undue or unreasonable 
prejudice or disadvantage in any respect whatso­
ever” , is both precise and inclusive. This may 
conceivably be construed differently from the 
language of the “ equal protection of the laws” 
clause of the Fourteenth Amendment, which has 
“a generality and adaptability * * * found
to be desirable in constitutional provisions. ’ ’ 34 

In the second place, the statute and the con­
stitutional provision differ in background and, to 
some extent, in purpose. In the P lessy  case the 
Court gave as grounds for its ruling that the 
equal protection clause covers only “ civil and 
political” rights and that enforced separation of 
the white and colored races does not infringe 
such rights. See 163 U. S. 537, at pp. 544, 551. 
As we have stated, we believe this holding to be 
erroneous. But, even if it be accepted, the same 
conclusion does not necessarily follow where the 
question is whether giving service to the members 
of a race under conditions which publicly stig­
matize them as ostracized and inferior, when no 
such conditions attach to the service given others, 
is in conflict with the explicit statutory provision 
that no interstate carrier shall, in the course of 
the service which it renders, subject any person 
to “ any undue or unreasonable prejudice or dis­
advantage in any respect whatsoever.”

34 See Appalachian Coals, Inc. v. United States, 288 U. S. 
344,3C0.



40

In the third place, the present case comes 
within an exception to the “ separate but equal” 
doctrine stated or plainly indicated in the P lessy  
opinion. The Court there said (p. 544) that laws 
requiring the separation of the white and colored 
races “ do not necessarily  imply the inferiority of 
either race to the other” (italics supplied). In 
other words, if the separation required did imply 
the inferiority of one race, the accommodations 
would be “ separate” but they would not be 
“ equal.” While the P lessy  case held that en­
forced separation is not in and of itself inequality, 
it did not hold that, as a matter of law, similar but 
separate physical accommodations are always 
equal. And if the question is one of fact, the 
facts of the present case establish beyond all 
doubt that the segregation which is enforced here 
is the antithesis of equality (supra, pp. 28-34).

(2) If this Court should conclude that the is­
sues presented by this case camiot be considered 
without reference to the “ separate but equal” 
doctrine, the Government respectfully urges that, 
in the half-century which has elapsed since it 
was first promulgated, the legal and factual as­
sumptions upon which that doctrine rests have 
been undermined and refuted. The “ separate 
but equal” doctrine should now be overruled 
and discarded.

The decision in the P lessy  case appears to rest 
on two major premises. One is that laws re­
quiring separation of the white and colored races



41

do not imply the inferiority of the colored race. 
The other is that segregation infringes only 
“ social” rights and that these rights, as distinct 
from “ civil” or “ political” rights, are not within 
the ambit of the equal protection clause of the 
Fourteenth Amendment.

It is a question of fact what the community 
at large understands to be the meaning of sin­
gling out the members of the colored race for 
separation from all other citizens, whether it 
is in purchasing a bus ticket at the same ticket 
window, riding on the same street car or railroad 
coach, or going to the same restaurant, theatre 
or school. In the P lessy  case the Court concluded 
that this minority race is not stigmatized as 
inferior, as constituting a lower social caste, when 
law decrees that it shall ride apart, eat apart, or 
stand in line for tickets apart. We submit that 
the Court’s a p r io r i conclusion cannot stand 
today in the face of a wealth of evidence flatly 
contradicting it.35

35 In addition to the materials and authorities cited else­
where in this brief, see Myrdal, An American Dilemma, 100, 
628; Dollard, Caste and Class in a Southern Town, 62-63,266; 
Heinrich, The Psychology of a Suppressed People, 57-61; 
Sutherland, Color, Class, and Personality, 42-59; Johnson, 
Patterns of Negro Segregation, 270; Bond, Education of the 
Negro and the American Social Order, 384; Moton, What 
the Negro Thinks, 12-13, 99; Bunche, Education in Black 
and White, 5 Journal of Negro Education 351; To Secure 
These Rights, supra, 79, 82; Fraenkel, Our Civil Liber­
ties, 201.

See also McGovney, Racial Residential Segregation by



42

We likewise believe that there was error in 
the second premise of the “ separate but equal” 
doctrine enunciated in the P lessy  case, namely, 
that enforced separation of the races affects only 
“ social” rights not within the purview of the 
Fourteenth Amendment. The Amendment strikes 
at inequality without qualification. Certainly its 
language furnishes no basis for the distinction 
which the Court drew between “ social” rights

State Court Enforcement of Restrictive Agreements, Cov­
enants or Conditions in Deeds is Unconstitutional, 33 Calif. 
L. Rev. 5, 27, note 94; Note, 39 Columbia L. Rev. 986, 1003; 
Note, 56 Yale L. J. 1059, 1060; Note, 49 Columbia L. Rev. 
629, 634.

In Collins v. Oklahoma State Hospital, 76 Okla. 229, 231, 
the Court said: “In this state, where a reasonable regulation 
of the conduct of the races has led to the establishment of 
separate schools and separate coaches, and where conditions 
properly have erected insurmountable barriers between the 
races when viewed from a social and a personal standpoint, 
and where the habits, the disposition, and characteristics of 
the race denominate the colored race as inferior to the 
Caucasian, it is libelous per se to write of or concerning a 
white person that he is colored.” [Italics supplied.]

In Wolfe v. Georgia Railway <& Electric Co., 2 Ga. App. 
499,505, the court said: “It is a matter of common knowledge, 
that, viewed from a social standpoint, the negro race is in 
mind and morals inferior to the Caucasian. The record of 
each from the dawn of historic time denies equality.”

For other cases holding that applying the word “Negro” or 
“colored person” to a white man gives rise to an action for 
defamation see Flood v. News c& Courier Co., 71 S. C. 112; 
Stultz v. Cousins, 242 Fed. 794 (C. A. 6). See also Louisville 
<& Nashville R. R. Co. v. Ritchel, 148 Ky. 701, 706; Missouri, 
K. &. T. Ry. Co. v. Ball, 25 Tex. Civ. App. 500, 503; Chicago 
R. I. & P. Ry. Co. v. Allison, 120 Ark. 54, 60-61.



43

and those which are “ civil” or “ political.” 
Furthermore, the distinction drawn is, at best, 
nebulous and largely a matter of emphasis. “ In 
reality it is not possible to isolate a sphere of life 
and call it ‘social.’ There is, in fact, a ‘social’ 
angle to all relations.” 36 

It is one thing to define social equality in terms 
of integration into white social organizations; it 
is another to define as “ social” the right to 
equality in the use and enjoyment of public 
facilities.37 Travel is for business as well as for 
pleasure. This Court has held that the Four­
teenth Amendment requires “ substantial equality 
of treatment” as to the facilities afforded to those 
who travel by railroad. M cCabe v. A tch ison , T. 
& S. F . B y . Co., 235 U. S. 151, 161.

In the P lessy  case the Court also said (p. 551) 
that legislation is “ powerless to eradicate” racial 
prejudice. This observation, even if true, was 
irrelevant to the constitutional issue before the 
Court. It might properly have been made before 
a legislative body considering the merits of a bill 
to penalize conduct manifesting racial prejudice. 
But the Court was not called upon to make a 
judgment of policy as to whether racial prejudice 
can be eradicated by legislation; the only question 
was whether a particular statute created, en­

36 Myrdal, An American Dilemma, vol. 1, p. 642.
3‘ Drake & Cayton, Blench Metropolis, 121.

B56861— 19------- 4



44

forced, or supported the denial of a constitu­
tionally protected right. Statutes and ordinances 
may not in themselves remove racial antagonisms, 
but it is clear that they cannot constitutionally 
magnify such antagonisms by giving the sanction 
of law to what would otherwise be a private, in­
dividual act of discrimination. That is the basic 
vice of the Commission’s order in this case.

In any event, the Court’s observation is, at best, 
a half-truth. Although legislation cannot “ eradi­
cate” racial prejudice, experience has shown that 
it can create conditions favorable to the gradual 
disappearance of racial prejudice; or it can, on the 
other hand, strengthen and enhance it. Civil- 
rights and antidiscrimination statutes have been 
shown to have the former effect, and so-called Jim 
Crow laws the latter. A Commissioner of the New 
York State Commission Against Discrimination 
has recently written:

Critics of fair-employment laws used to 
claim that long-established habits of 
discrimination could not be changed by 
legislation. Their argument has been un­
mistakably answered today. Nearly four 
years’ experience in New York—and sim­
ilar experience in New Jersey, Massachu­
setts, Connecticut, Washington, Oregon, 
New Mexico and Rhode Island, all of which 
have passed anti-discrimination legislation 
modeled after the New York law—indicates



45

conclusively that wise legislation creates a 
climate of opinion in which discrimination 
tends to disappear.38

On the other side of the picture, “ Jim Crow” 
laws, which govern important segments of every­
day living, not only indoctrinate both white and 
colored races with the caste conception, but they 
solidify the segregation existing outside these 
laws and give it respectability and institutional 
fixity.39 As the Supreme Court of California has 
pointedly said, the way to eradicate racial tension 
is not “ through the perpetuation by law of the 
prejudices that give rise to the tension.” 40 In 
fields which “ Jim Crow” laws do not cover there 
has been “ a slow trend toward a breakdown of 
segregation” ; within the fields of their operation 
the laws “ keep the pattern rigid.” 41

38 Simon, Causes and Cure of Discrimination, New York
Times, May 29, 1949, section 6, p. 10, at p. 35. “Can this 
technique of eliminating discrimination by rooting out the 
fears that cause it be applied successfully on a large scale? 
Our New York experience insists that the answer is an un­
equivocal ‘Yes.’ * * * we have changed the entire pat­
tern of employment of the most populous state in the union 
in less than four years.” {Id., p. 36.) See 19f  8 Report of 
Progress, New York State Commission Against Discrimina­
tion, pp. 11-12.

39 Myrdal, An American Dilemma, vol. 1, pp. 579-580. 
See also Berger, The Supreme Court and Group Discrimina­
tion Since 1937,49 Col. L. 201, 204-205.

40 Peres v. Sharp, 32 Calif. 2d 711, 725.
41 Myrdal, An American Dilemma, vol. 1, p. 635.
In the South, segregation in privately operated public 

services “is often less rigid than in those operated by gov­
ernment” {id., p. 634).



46

We submit, moreover, that the Fourteenth 
Amendment, considered in the light of its history 
and purposes, furnishes no support for the “ sepa­
rate but equal ’ ’ doctrine. The Amendment was pri­
marily designed to establish Negroes as citizens 
and to protect them in the full enjoyment of 
rights concomitant to such status. This Court 
has said that “ the chief inducement to the passage 
of the Amendment was the desire to extend fed­
eral protection to the recently emancipated race 
from unfriendly and discriminating legislation 
by the States.” B uchanan  v. W a rley , 245 U. S. 
60, 76. It is “ to be construed liberally, to carry 
out the purposes of its framers,” and the effect 
of its prohibitions is to declare that “ the law in 
the States shall be the same for the black 
as for the white; * * * and, in regard to the 
colored race, for whose protection the amendment 
was primarily designed, that no discrimination 
shall be made against them by law because of their 
color.” S trauder v. W es t V irgin ia , 100 U. S. 
303, 307. It was designed to forestall state legis­
lation aimed at maintaining the subordinate status 
of those newly emancipated. When the Amend­
ment was adopted, “ it required little knowledge 
of human nature to anticipate that those who had 
long been regarded as an inferior and subject 
race would, when suddenly raised to the rank of 
citizenship, be looked upon with jealousy and 
positive dislike, and that State laws might be en­



47

acted or enforced to perpetuate the distinctions 
that had before existed.” Id ., p. 306. See also 
the Slaughter-H ouse Cases, 16 Wall. 36, 70-72, 
81.

Segregation does not appear to have been spe­
cifically discussed in the debates on the Amend­
ment itself. The apparent reasons for this were 
that the first section of the Fourteenth Amend­
ment was designed to secure the analogous provi­
sions of Section 1 of the Civil Rights Act of 1866, 
14 Stat. 27, by incorporating them into the Consti­
tution,42 and that the question of segregation had 
been fully considered during the debates preced­
ing passage of the Civil Rights Act of 1866. The 
opponents of the bill had repeatedly argued that 
it would require the abolition of separate 
schools.43 While a few advocates of the measure 
disputed this,44 it is far from clear that a majority 
of the bill’s supporters shared this view. Con­
temporaneous press comment reflects the general 
understanding that the bill would prohibit 
segregation.45

The debates preceding enactment of the Civil 
Rights Act of 1875, 18 Stat. 335, show even more 
clearly that the Amendment was understood to 
outlaw state-enforced segregation. The bill in

42 Flack, Adoption of the Fourteenth Amendment, 20, 81, 
94-95.

43 Cong. Globe, 39th Cong., 1st Sess., 499, 500, 1268.
44 Id., 1117-1118,1294.
45 Flack, supra, at 41, 44-45, 53-54.



48

its original form provided that all persons, with­
out distinction as to race or color, should be en­
titled to “ equal and impartial” enjoyment of any 
accommodation furnished by common carriers, 
public schools, innkeepers and the like.46 Both 
supporters and opponents of the measure con­
strued it as invalidating racial segregation.47 48 
Proposed amendments to permit local communi­
ties to provide equal but separate educational 
facilities were defeated in both branches of Con­
gress.43 While express reference to public schools 
was finally eliminated,49 its elimination was not 
because of doubt of the power of Congress under 
the Fourteenth Amendment, since the “ full and 
equal” requirement was retained as to other 
accommodations, advantages and facilities.

46 Cong. Globe, 42d Cong., 2d Sess., 244 (1871). The bill 
was first introduced by Senator Sumner as an amendment to 
another measure on December 20,1871. Each succeeding ses­
sion it was reintroduced with immaterial variations until its 
passage in 1875. The change from “equal and impartial” to 
“full and equal ‘ in the Act’s final form appears to be with­
out significance.

47 Cong. Globe, 42d Cong., 2d Sess., 763, 843-845, 3258-3262 
(1872) ; 2 Cong. Rec. 4116, 4143-4145, 4167-4169, 4171-4174 
(1874). See also Flack, supra, 250-276.

The Civil Rights Act of 1875 was eventually declared un­
constitutional upon the ground that it operated directly upon 
individuals, whereas the prohibitions of the Fourteenth 
Amendment run only against state action. Civil Rights 
Cases, 109 U. S. 3.

48 Cong. Globe, 42d Cong., 2d Sess., 3258-3262 (1872); 2 
Cong. Rec. 4167 (1864); 3 Cong. Rec. 1010 (1875).

40 3 Cong. Rec. 1010.



49

Since Section 5 of the Fourteenth Amendment 
authorizes Congress to enforce only the provi­
sions of the Amendment, the passage of prohibi­
tory legislation embracing racial segregation 
clearly shows that a majority of both branches of 
Congress thought that segregation came within 
the prohibitions of the Amendment.
D. The harm to the 'public interest which has resulted from 

enforced racial segregation argues against its extension to 
the field of interstate transportation

The effects of the segregation to which Negroes 
are subjected are not confined to those who are 
colored. They extend also to those who are 
white, and they bear vitally upon the interests of 
the Nation as a whole. We submit that the 
harmful effects to the public interest which have 
resulted from racial segregation furnish persua­
sive grounds for rejecting its extension to the 
field of interstate transportation. In addition, 
the materials referred to in this section of the 
brief conclusively refute the notion that facilities 
segregated on a racial basis can in any circum­
stances be regarded as equal.
1. Effect on Negroes

Segregation is a dominant factor in every as­
pect of the Negro’s life. It limits his physical 
movements and economic opportunities, and ad­
versely affects his personality and social develop­
ment. It is much more than jim-crowism in ve-



50

hides and public places. It is an ostracism 
symbolizing inferiority which colors his thoughts 
and action at almost every moment.50

Professional opinion is almost unanimous that 
segregation has detrimental psychological effects 
on those segregated. A questionnaire addressed 
to 849 representative social scientists was 
answered by 61% of those to whom it was sent.51 
Of those replying, 90.4% believed that enforced 
segregation has “ detrimental psychological ef­
fects” on those segregated if “ equal facilities” 
are provided, 2.3% expressed the opposite opin­
ion, and 7.4% did not answer the question or ex­

50 “Every time I think about it, I feel like somebody’s pok­
ing a red-hot iron down my throat. Look! we live here and 
they live there. We black and they white. They got things 
and we ain’t. They do things and we can’t. It’s just like 
living in jail. Half the time I feel like I ’m on the outside of 
the world peeping in through a knothole in the fence.” 
Cooper, The Frustrations of Being a Member of a Minority 
Group: What Does It Do to the Individual and to His Rela­
tionships with Other People? 29 Mental Hygiene 189, 193, 
quoting from Native Son by Richard Wright.

51 Deutscher & Chein, The Psychological Effect of En­
forced Segregation: A Survey of Social Science Opinion, 26 
Journal of Psychology 259, 261, 262. The questionnaire was 
sent to all members of the American Ethnological Society, 
to all psychologists who were members of the Division of 
Social Psychology and Personality of the American Psy­
chological Association, to all sociologists who were members 
of the American Sociological Society and listed race rela­
tions or social psychology as a major or dominant interest, 
and to sociologists who had published research on race rela­
tions during the period 1937-1947 (id., 260). Nearly two- 
thirds of those who replied gave personal professional ex­
perience as a basis for the opinion expressed (id., 271).



51

pressed no opinion.52 Those who elaborated their 
position with comments (55% of those replying) 
stressed that segregation induced feelings of in­
feriority, insecurity, frustration, and persecu­
tion, and that it developed, on the one hand, sub­
missiveness, martyrdom, withdrawal tendencies, 
and fantasy, and on the other hand, aggression.53

The resentment and hostility provoked by seg­
regation find various means of psychological “ ac­
commodation,” various forms of release.54 Medi­

52 Id., 261, 266.
53 Id., 272-277.
54 “A constant stream of stimuli bombarding the person­

ality with feelings of humiliation, must inevitably produce 
among others a state of continuously existing hatred, which 
unable to discharge itself directly on the offending stimulus, 
remains floating, to be released in a greatly exaggerated form 
on the first suitable object.” Prudhomme, The Problem, of 
Suicide in the American Negro, 25 Psychoanalytic Keview 
187, 200;

“Accommodation involves the renunciation of protest or 
aggression against undesirable conditions of life and the 
organization of the character so that protest does not appear, 
but acceptance does. It may come to pass in the end that the 
unwelcome force is idealized, that one identifies with it and 
takes it into the personality; it sometimes even happens that 
what is at first resented and feared is finally loved. In this 
case a unique alteration of the character occurs in the direc­
tion of masochism.” Dollard, Caste and Class in a Southern 
Town, 255.

“Even though their personalities seem well accommodated 
to the caste system, it should not be thought that the Negroes 
are too stupid to realize the nature of the situation. They 
understand it quite well, in fact much better than do mem­
bers of the white caste who naturally wish to disguise and 
extenuate it out of loyalty to our democratic theory which



52

ocrity is accepted as a standard because of the 
absence of adequate social rewards or acceptance.55 
Energy and emotion which might be construc­
tively used are lost in the process of adjustment 
to the “ Jim Crow” concept of the Negro’s charac-

does not countenance caste and class gains. * * * We 
may believe, then, that Negroes will perceive the caste and 
class distinctions as a chronic frustration situation. In such 
a situation we should expect aggression from them. What, 
in fact, do they do ?

“There seem to be five possibilities of action on the part 
of the Negroes in the face of these gains [since slavery]. 
They can:

“ (1) Become overtly aggressive against the white caste; 
this they have done, though infrequently and unsuccessfully 
in the past.

“ (2) Suppress their aggression in the face of the gains 
and supplant it with passive accommodative attitudes. This 
was the slavery solution and it still exists under the caste 
system.

“ (3) Turn aggression from the white caste to individuals 
within their own group. This has been done to some extent 
and is a feature of present-day Negro life.

“ (4) Give up the competition for white-caste values and 
accept other forms of gratification than those secured by the 
whites. This the lower-class Negroes have done.

“ (5) Compete for the values of white society, raise their 
class position within the Negro caste and manage aggression 
partly by expressing dominance within their own group and 
partly by sheer suppression of the impulse as individuals. 
This is the solution characteristic of the Negro middle class.” 
Dollard, supra, 252-253.

55 “The middle-class Negro tries to maintain allegiance to 
the dominant American standards and then experiences the 
bitter fact that this allegiance is not rewarded as it is in the 
white caste; instead he is ignominiously lumped with per­
sons in his own class whose behavior standards are inferior 
to his own.” Dollard, supra, 424.

“In order for any individual to mature, that is, to be will-



53

teristics and his inferior status in society.50 Psy­
chosomatic disease is induced by the tensions en-

ing to assume responsibility in work and in personal rela­
tions, he must feel that there is some hope of attaining some 
of the satisfactions of maturity. * * * White society
gives him [the Negro] little share in any of the mature grat­
ifications of creative work, education, and citizenship. It 
would not be remarkable if, deprived of all mature gratifica­
tions, he lost zest for responsible action.” McLean, Group 
Tension, 2 Journal of American Medical Women’s Associa­
tion 479,482.

56 “One of the most devastating frustrations that plague 
the Negro is the majority concept that the Negro people are 
inferior; that always they remain infantile or childlike; that 
their smiling, happy faces are but conclusive evidence that 
they are not capable of seriousness of purpose or of sustained 
intellectual participation. * * * All of us know the
terrific impact that constant repetition has upon the 
psyche. * * * The Negro is born into a culture that
stubbornly refuses to accept him as an equal. Custom and 
tradition force the majority concept of his inferiority into 
his consciousness and keep it there.

“Let us next consider the frustrations involved in the 
process of never being allowed to be one’s self, never daring 
to be a person in one’s own distinct uniqueness and indi­
viduality. * * * Negroes when in contact, casual or pro­
longed, with other Negroes, invariably turn the conversation 
to a discussion of race, its implications and methods of solv­
ing the problem, either through individual or through 
collective action. When Negroes are in the company of 
white persons, the conscious awkwardness, the studied care­
fulness, the restraint, the unconscious tones and undertones— 
all these are a constant reminder to the Negro that he is a 
Negro and that his status is that of a dispossessed minority. 
Imagine, if you will, the tremendous emotional energy ex­
pended in the process of never being able to be unaware of 
one’s self. Imagine, if you can, the tragedy of the diffused 
and dissipated energy that is lost in the process of having



54

gendered by segregation and other forms of racial 
discrimination.* 57

The extensive studies made of Negro troops 
during the recent war furnished striking example 
of how racism, of which segregation is the sharp­
est manifestation, handicaps the Negro. The 
most important single factor affecting integration 
of the Negro into Army life was that he had to 
carry the burden of race prejudice in addition to

constantly to think of one’s designated and specifically lim­
iting minority role.” Cooper, The Frustrations of Being a 
Member of a Minority Group: What Does It Do to the Indi­
vidual and to His Relationships with Other People?, 29 
Mental Hygiene 189,190-191.

57 “The high incidence of hypertension among southern 
Negroes is probably one indication of an unconscious at­
tempt at mastery of the hostility which must be controlled. 
The chronic rage of these individuals produces the hyper­
tension which initially is fluctuating in character. Even­
tually the pathological changes resulting from this overload 
on the cardiovascular renal system lead to a consistently 
high blood pressure. All available evidence from clinicians 
indicates that functional (that is, psychosomatic) disease is 
markedly on the increase in the Negro.” McLean, Psycho­
dynamic Factors in Racial Relations, The Annals of the 
American Academy of Political and Social Science (March 
1946), 159, 161.

“The psychology of the Negro developed in the repressive 
environment in which he lives might be described as the 
psychology of the sick * * * It is impossible to estimate 
what are the pathological results of the above outlook on life. 
It must certainly mean a reduction in that energy that char­
acterizes healthy organisms.” Frazier, Psychological Fac­
tors in Negro Health, Journal of Social Forces, vol. 3, p. 488.



55

all of the other problems faced by the white 
soldier.58

For a general discussion of the effects of the 
caste system, which segregation supports and ex­
emplifies, on Negro personality and behavior, see 
Myrdal, A n  A m erican  D ilem m a, vol. 2, pp. 757- 
767.

2. Effect on Whites

Segregation also detrimentally affects the 
dominant white group.59 “ Segregation and dis­
crimination have had material and moral effect on 
whites, too. Booker T. Washington’s famous 
remark, that the white man could not hold the 
Negro in the gutter without getting in there 
himself, has been corroborated by many white 
Southern and Northern observers.” Myrdal, A n  
Am erican D ilem m a, vol. I, pp. 643-644. The 
white person must adjust himself, consciously or 
unconsciously, to the hypocrisy of a double 
standard violating the American creed which 
he professes to follow. Feelings of guilt are 
generated and moral values weakened; the basic 
realities of the racial problem are diverted into 
the mechanism of segregation:

Those who segregate others soon become 
frightened, insecure people forced to ac­

58 Studies in Social Psychology in World War II, vol. I, 
chap. 10. See particularly pp. 502, 504, 507.

59 Deutscher & Chein, supra, 26 Journal of Psychology 261, 
267.



56

cept and invent prejudice to justify their 
actions. They become hyprocrites who 
either close their eyes to stark reality or 
invent slogans to hide fundamental issues. 
The master classes, no less than the sub­
jected, become victims of the system.80

Segregation and practices allied to it promote 
the master-race psychology, thus sowing the seeds 
for oppressive individual and collective action.
3. Effect on the Nation

Segregation is part of a vicious cycle. It pre­
vents groups from knowing each other. This 
lack of knowledge engenders distrust and antago­
nism. They in turn stimulate the demand for 
sharp cleavage between races and maintenance 
of a system of segregation. Thus groups within 
the Nation are kept asunder.81 60 61

60 Weaver, The Negro Ghetto, 270.
61 From these natural causes the white man’s knowledge of 

Negro life is diminishing and the rate is accelerated by the 
present-day policy of segregation. This operates practically 
to make an ever-widening gulf between the two races which 
leaves each race more and more ignorant of the other. With­
out contact there cannot be knowledge; segregation reduced 
the contacts, and so knowledge and understanding decrease. 
With decreasing knowledge comes increasing distrust and 
suspicion, and these in turn engender prejudice and even 
hatred. So a vicious circle is established whose ultimate 
effect, unless counteracted, must be a separation of the races 
into more or less opposing camps, with results as disastrous 
to the spirit of American institutions as to the genuine prog­
ress of both races.” Moton, What the Negro Thinks, 5. See 
also Dollard, Caste and Class in a Southern Town, supra, 73.



57

Experience and informed opinion are in agree­
ment that normal contacts between the races 
diminish prejudice while enforced separation in­
tensifies it.62 Race relations are improved by 
living together,63 working together,64 serving to­
gether,65 going to school together.66 The absence 
of a color line in certain countries goes far to 
show that racial prejudice is not instinctive or 
hereditary, but is rather kept alive by man-made 
barriers such as segregation.67

The experience of the Sperry Gyroscope Com­
pany is noteworthy. Its employment of Negroes 
began in 1941 and steadily progressed until, by 
1944, one-third of its Negro employees were in 
highly skilled occupations, one-third in semi­

62 Sancton, Segregation: The Pattern of a Failure, Survey- 
Graphic (Jan. 1947), p. 10; Yarros, Isolation and Social Con­
flicts, 27 American Journal of Sociology, 211.

83 To Secure These Rights, Report of the President’s Com­
mittee on Civil Rights, 85-86. Lee & Humphrey, Race 
Riot, 17.

e4Brophy, The Luxury of Anti-Negro Prejudice, 9 Public 
Opinion Quarterly 456; Oppenheimer, Non-Discriminatory 
Hospital Service, 29 Mental Hygiene 195.

65 Studies in Social Psychology in World War II, vol. I, 
pp. 594-595; Nelson, The Integration of the Negro into the 
United States Naxy (Navy Dept., 1948), 71-72.

66 Race Riot, supra, p. 17; Ware, The Role of Schools in 
Education for Racial Understanding, 13 Journal of Negro 
Education, 421-424.

67 Pierson, Negroes in Brazil, 336, 344-350.



58

skilled, and one-third in other jobs.68 In the 
words of the president of the company:

The initial employment of Negroes and 
each subsequent extension of their employ­
ment into new categories was received with 
doubt by the supervisors, and, in some 
cases, by rumblings and even threats of 
trouble from some groups of white workers. 
The threats never materialized, the doubts 
disappeared and were succeeded by friend­
liness and cooperation in helping the Negro 
to learn his new job and to progress to a 
better one. I know of no instance now 
where the Negro worker is not judged en­
tirely on the basis of his competency and 
without consciousness of his race.

A marked change in attitude occurred in white 
soldiers who served in combat with Negro troops. 
Two out of three admitted that at first they had 
been unfavorable to serving with Negro troops. 
Three out of four stated their feelings had 
changed after service with them in combat. And 
a survey of opinion of white servicemen on the 
question of including Negro and white platoons 
in the same company showed that their willing­
ness to accept such integration was in direct ratio 
to their closeness to actual combat experience with 
Negro troops.69

65Gillmor (president of Sperry Gyroscope Co.), Gan the 
Negro Hold His Job?, National Association for the Ad­
vancement of Colored People Bulletin (Sept. 1944) 3-4.

69 Report No. ETO-82, Research Branch, European The­
atre of Operations of the Army, as summarized in To Secure 
These Rights, supra, 83-85.



59

Rebellion against constituted authority (pa­
rental, school or state) is, for the adolescent, a 
normal manifestation of growth toward inde­
pendence. But, in the case of many, the apparent 
hypocrisy of a society professing equality but 
practicing segregation and other forms of racial 
discrimination furnishes justification and reason 
for the latent urge to rebel, and frequently leads 
to lasting bitterness or total rejection of the 
American creed and system of government.

Recently a Congressional committee summoned 
“Jackie” Robinson, the Negro baseball star, as a 
witness to rebut certain widely publicized state­
ments which had questioned the loyalty of large 
numbers of the Negro race. He testified: 70

Just because Communists kick up a big 
fuss over racial discrimination when it 
suits their purposes, a lot of people try to 
pretend that the whole issue is a creation 
of Communist imagination.

But they are not fooling anyone with 
this kind of pretense, and talk about “ Com­
munists stirring up Negroes to protest,” 
only makes present misunderstanding 
worse than ever. Negroes were stirred up 
long before there was a Communist Party, 
and they’ll stay stirred up long after the

70 Hearings Regarding Communist Infiltration of Minority 
Groups, Part / ,  House Committee on Un-American Activi­
ties, 81st Congress, 1st Sess., p. 479.

856861— 49-------5



60

party has disappeared—unless .Tim Crow 
has disappeared by then as well.

In our foreign relations, racial discrimination, 
as exemplified by segregation, has been a source 
of serious embarrassment to this country. It has 
furnished material for hostile propaganda and 
raised doubts of our sincerity even among friendly 
nations. A letter from Mr. Dean Acheson, then 
Acting Secretary of State, to the Fair Employ­
ment Practice Committee on May 8,1946, stated :n

* * * the existence of discrimination
against minority groups in this country has 
an adverse effect upon our relations with 
other countries. We are reminded over 
and over by some foreign newspapers and 
spokesmen, that our treatment of various 
minorities leaves much to be desired. 
While sometimes these pronouncements are 
exaggerated and unjustified, they all too fre­
quently point with accuracy to some form 
of discrimination because of race, creed, 
color, or national origin. Frequently we 
find it next to impossible to formulate a 
satisfactory answer to our critics in other 
countries; the gap between the things we 
stand for in principle and the facts of a 
particular situation may be too wide to 
be bridged. * * *

I think it is quite obvious * * * 
that the existence of discriminations against 
minority groups in the United States is a 71

71 Quoted in To Secure These Rights, supra, 146-147.



61

handicap in our relations with other 
countries.

Recent remarks of representatives of foreign 
powers in a subcommittee of the United Nations 
General Assembly typify the manner in which 
racial discrimination in this country is turned 
against us in the international field.72 The refer­
ences to this subject in the unfriendly foreign 
press are frequent and caustic.73

72 In discussing a Bolivian proposal concerning aboriginal 
populations of the American continent, the Soviet repre­
sentative said:

Guided by the principles of the United Nations Char­
ter, the General Assembly must condemn the policy and 
practice of racial discrimination in the United States 
and any other countries of the American continent where 
such a policy was being exercised. (United Nations, 
General Assembly, Ad Hoc Political Committee, Third 
Session, Part II, Summary Record of the Fifty-Third 
Meeting (May 11,1949), p. 12.)

Another Soviet representative stated:
In the southern states, the policy of racial discrimina­

tion was actually confirmed by law and most strictly 
observed in trains, restaurants, cinemas, and elsewhere 
(id., Summary Record of Fifty-Fourth Meeting (May 
13, 1949), p. 3).

The Polish representative said:
The representative of Poland did not, however, be­

lieve that the United States Government had the least 
intention to conform to the recommendations which 
would be made by the United Nations with regard to 
the improvement of living conditions of the coloured 
population of that country (id., p. 6).

73 Thus an article in The Bolshevik, (U. S. S. R.) No. 15, 
1948 (Frantsov, Nationalism—The Tool of Imperialist Reac­
tion), contain the statement: “The theory and practice of 
racial discrimination against the Negroes in America is 
known to the whole world. The poison of racial hatred has



62

Our opposition to racial discrimination has been 
affirmed in treaties and international agreements. 
The Charter of the United Nations has been 
approved as a treaty (59 Stat. 1213). By Article 
55, the United Nations agree to promote “ univer­
sal respect for, and observance of, human rights 
and fundamental freedoms for all without dis­
tinction as to race, sex, language, or religion” 
(59 Stat. 1046).

At the Inter-American Conference on Problems 
of War and Peace at Mexico City in 1945, this 
country joined with the other participants in 
adopting Resolution No. 41, which reaffirms the 
principle of equality of rights and opportunities 
for all men “ regardless of race or religion” and 
recommends that the Governments of the Ameri­
can Republics make every effort to prevent in 
their respective countries “ all acts which may

become so strong in post-war America that matters go to 
unbelievable lengths; for example a Negress injured in a 
road accident could not be taken to a neighbouring hospital 
since this hospital was only for ‘whites.’ ” Similarly, in the 
Literary Gazette (U. S. S. R.) No. 51, 1948, the article The 
Tragedy of Coloured America, by Berezko, states “It is a 
country within a country. Coloured America is not allowed 
to mix with the other white America, it exists within it like 
the yolk in the white of an egg. Or, to be more exact, like a 
gigantic ghetto. The walls of this ghetto are invisible but 
they are nonetheless indestructible. They are placed within 
cities where the Negroes live in special quarters, in buses 
where the Negroes are assignd only the back seats, in hair­
dressers where they have special chairs.”



63

provoke discrimination among individuals because 
of race or religion.” 74

Racial segregation enforced by law hardly com­
ports with the high principles to which, in the 
international field, we have subscribed. Our posi­
tion and standing before the critical bar of world 
opinion are weakened if segregation not only is 
practiced in this comitry but also is condoned by 
federal law.

Mr. Justice Harlan said in his memorable dis­
sent in the P lessy  case (163 U. S. at 562):

We boast of the freedom enjoyed by our 
people above all other peoples. But it 
is difficult to reconcile that boast with a 
state of the law which, practically, puts the 
brand of servitude and degradation upon 
a large class of our fellow-citizens, our 
equals before the law. The thin disguise 
of “ equal” accommodations for passengers 
in railroad coaches will not mislead any 
one, nor atone for the wrong this day done.

Various subterfuges have been employed dur­
ing the years since the adoption of the Thirteenth 
and Fourteenth Amendments to evade and nullify 
the effects of their provisions. The emancipation 
of an entire race has proved a most complicated 
task. More than three-quarters of a century has 
not been enough time within which to break down 
the barriers surrounding the enslaved, and to

74 Department of State Publication 2491 (Conference Se­
ries 85) p. 109.



bring them to the full dignity and stature of free 
citizens. Discrimination, political, economic, and 
social, is still widespread. However, there are in­
dications that the process of education, of lessen­
ing the incidence of unreasoning prejudice, lagging 
for so many years, is increasing in momentum.

Racial antagonisms become acute in localities, 
and it is there that discriminatory acts are 
practiced, legislation is enacted and on occa­
sion validated by courts unwittingly respond­
ing to their environment. And so this Court 
has been faced through the years with one 
controversy after another in which efforts were 
made to obtain approval of measures cleverly 
calculated to keep the Negro in bondage, to pre­
vent him from enjoying his full rights as a 
citizen, and to pervert the true intent and mean­
ing of the Thirteenth and Fourteenth Amend­
ments. This Court has stricken down acts of 
local law-making bodies and officials depriving the 
Negro of the right to vote, to serve on petit and 
grand juries, and of the right to acquire and 
use property. More recently, it has restrained 
judicial enforcement of racial restrictive conve- 
nants on real property. In other fields, this Court 
has acted to compel local authorities to provide 
the Negro with opportunities for education pre­
viously denied him.

The evasions and violations of the Constitution 
are being gradually eliminated. One handicap is

64



65

the approval, given in another day and genera­
tion, to the proposition that the Constitution could 
be satisfied and friction removed by the establish­
ment of “ separate but equal” facilities. Ex­
perience has shown that neither the Constitution, 
nor the laws enacted under its authority, nor the 
individuals affected, are given the required re­
spect and status under such an arrangement. 
“Equal” facilities, if separate, are rarely if 
ever equal, even in a physical sense. In most 
situations they have been used to cloak glaring 
inequalities. And the very idea of separate fa­
cilities, or separate rights, is in itself a negation 
of the full and complete possession of privileges 
and immunities of citizenship.

So long as the doctrine of the P lessy  case 
stands, a barrier erected not by the Constitution 
but by the courts will continue to work a denial 
of rights and privileges and immunities an- 
tagnostic to the freedoms and liberties on 
which our institutions and our form of govern­
ment are founded. “ Separate but equal” is a con­
stitutional anachronism which no longer deserves 
a place in our law. The Court has said that “ It 
is of the very nature of a free society to advance 
in its standards of what is deemed reasonable and 
right. Representing as it does a living principle, 
due process is not confined within a permanent 
catalogue of what may at a given time be deemed 
the limits or the essentials of fundamental 
rights.” W o lf  v. Colorado, 338 U. S. 25, 27. It



66

is neither reasonable nor right that colored citi­
zens of the United States should be subjected to 
the humiliation of being segregated by law, on the 
pretense that they are being treated as equals.

CONCLUSION

It is respectfully submitted that the judgment 
of the district court should be reversed and that 
the Interstate Commerce Commission should be 
directed to enter an order prohibiting the rail­
road from furnishing dining car service to 
passengers segregated on a basis of race or color.

P h i l i p  B .  P e r l m a n ,
S olicitor  General. 

H er ber t  A. B er g so n , 
A ssistant A tto rn ey  G eneral. 

C h a r l e s  H .  W e s t o n ,  
P h i l i p  E l m a n ,

S pecial A ssistants to the A tto rn ey  General.

O ctober  1949.



APPENDIX

r a il r o a d ’s d in in g  car  r e g u l a t io n s  

R egulations adopted  in  Ju ly  1941

Meals should be served to passengers of dif­
ferent races at separate times. If passengers of 
one race desire meals while passengers of a differ­
ent race are being served in the dining car, such 
meals will be served in the room or seat occupied 
by the passenger without extra charge. If the 
dining car is equipped with curtains so that it 
can be divided into separate compartments, meals 
may be served to passengers of different races at 
the same time in the compartments set aside for 
them. [R. 186.]'

S upplem entary regulations adopted A ugust 6,
1942

Effective at once please be governed by the 
following with respect to the race separation cur­
tains in dining cars:

Before starting each meal pull the curtains to 
service position and place a “ Reserved” card on 
each of the two tables behind the curtains.

These tables are not to be used by white pas­
sengers until all other seats in the car have been 
taken. Then if no colored passengers present 
themselves for meals, the curtains should be 
pushed back, cards removed and white passengers 
served at those tables.

(67)



68

After the tables are occupied by white pas­
sengers, then should colored passengers present 
themselves they should be advised that they will 
be served just as soon as those compartments are 
vacated.

“ Reserved” cards are being supplied you. [R. 
186-187.]’

R egulations e ffective  on and a fter  M arch  1, 1946

Consistent with experience in respect to the 
ratio between the number of white and colored 
passengers who ordinarily apply for service in 
available diner space, equal but separate accom­
modations shall be provided for white and col­
ored passengers by partitioning diners and the 
allotment of space, in accordance with the rules, 
as follows:

(1) That one of the two tables at Station No. 1 
located to the left side of the aisle facing the 
buffet, seating four persons, shall be reserved ex­
clusively for colored passengers, and the other 
tables in the diner shall be reserved exclusively 
for white passengers.

(2) Before starting each meal, draw the parti­
tion curtain separating the table in Station No. 1, 
described above, from the table on that side of 
the aisle in Station No. 2, the curtain to remain 
so drawn for the duration of the meal.

(3) A “ Reserved” card shall be kept in place 
on the left-hand table in Station No. 1, described 
above, at all times during the meal except when 
such table is occupied as provided in these rules.

(4) These rules become effective March 1, 1946, 
[R. 7-8.]'

U. 1 .  GOVERNMENT PRINTING OFFICEj 1949











IN THE

Supreme Court of the United States
October Term, 1949

No. 25

E lm er  W . H en derson ,

v.
Appellant,

T he U n ited  S tates  of A m e rica , I n terstate  C om m erce  
Co m m issio n  and  S o u th e r n  K a il w a y  C o m p a n y .

On Appeal from the United States District Court 
for the District of Maryland

MOTION AND BRIEF OF AMERICAN JEWISH 
CONGRESS AS AMICUS CURIAE

W ill  M aslo w ,
1834 Broadway,
New York 23, N. Y.,

Attorney for American Jewish Congress 
Amicus Curiae.

Shad P o lier ,
Joseph B. R obison ,
Philip Baum ,

of Counsel.



TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE .............................. 1

BRIEF ..............................................................................  4

S t a t e m e n t  of t h e  Case  ...............................................  4

T h e  Q u estio n  to W h ic h  T h is  B rief  I s A ddressed .... 5

S u m m a r y  of A r g u m e n t  ............................................................. 6

A rg u m en t  .........................................................................................  8

I. The Doctrine of Plessy v. Ferguson, 163 U.
S. 537, that Separate but Equal Facilities 
Satisfy Requirements of Equal Treatment, 
Should Be Overruled .....................................  8
A. The Framers of the Fourteenth Amend­

ment Intended Thereby to Prohibit Seg­
regation .......................................................  11

B. The Legal Principles Which Formed the
Basis of the Plessy Decision Were Erro­
neous ............................................................  15

C. The Factual Assumptions Made in the
Plessy Decision Were Erroneous ............  17

1. Segregated facilities necessarily have
a lower value ........................................  18

2. Even if the facilities are in all re­
spects equal in value, segregation is 
discriminatory because of the adverse 
effects which it has on the Negro com­
munity ..............................................  22

PAGE



11 Index

II. A Requirement of Equality Can Never Be 
Satisfied By Segregated Facilities Because 
the Official Act of Segregation of Itself 
Gives Superior Value to the Facilities As­
signed to the Dominant Group ......................  26

A. An Official Policy of Segregation Would 
Be Unconstitutional If Maintenance of 
Racial Superiority Were Proclaimed as
Its Purpose .................................................  27

B. The Placing of a Racial or Religious
Group in an Inferior Status by Segrega­
tion Can Be Accomplished Without an 
Express Declaration of Such Status ..... 28

C. The Segregation of Negroes Maintains
an Officially Declared Status of Inferior­
ity and Also a Previously Established 
Status of Social Inequality ......................  31

1. Official declarations of inferiority ..... 31

2. The previously established social in­
equality .................................................  34

III. The Separate But Equal Doctrine Has 
Never Been, and Should Not Now Be, Ap­
plied to Section 3(1) of the Interstate Com­
merce Act by This Court ................................  36

Conclusion  .....................................................................   37

PAGE



Index iii

TABLE OF AUTHORITIES

Decisions
PAGE

Anderson v. Pantages Theatre Co., 114 Wash. 24
(1921) ......................................................................... 35

Atlanta Journal Co. v. Farmer, 48 Ga. App. 273
(1934) ......................................................................... 32

Axton Fisher Tobacco Co. v. Evening Post, 169 Ky.
64 (1916) ...................................................................  36

Bailey v. Alabama, 219 U. S. 219 (1911) ....................  28
Baylies v. Curry, 128 111. 287 (1889) ............................. 35
Bolden v. Grand Rapids Operating Co., 239 Mich.

318 (1927) .................................................................  35
Buchanan v. Warley, 245 U. S. 60 (1917) .....................15,16

Chicago, R. I. and P. Ry. Co. v. Allison, 120 Ark.
54 (1915) ...................................................................  33

Chiles v. Chesapeake & Ohio R. R. Co., 218 U. S.
71 (1909) .............................. :...................................  36

Clark v. Directors, 24 Iowa 67 (1868) ........................... 35
Collins v. Oklahoma State Hospital, 76 Okla. 229

(1919) ......................................................................... 32,33
Connolly v. Union Sewer Pipe Co., 184 U. S. 540

(1902) .......................................................................... 15
Connor v. Board of Commissioners of Logan County,

Ohio, 12 F. (2d) 789 (1926) ..................................... 28
Councill v. Western & Atlantic R. R. Co., 1 I. C. C.

339 (1887) .................................................................  8
Crosswaith v. Bergin, 95 Colo. 241 (1934) ..................  35

Dobbins v. Los Angeles, 195 U. S. 223 (1904) ........... 28

Edwards v. Nashville, C. & St. L. Ry. Co., 12 I. C. C. 
247, 249 (1907) ......................................................... 9



iv Index

Ferguson v. Gies, 83 Mich. 358 (1890) ........................  35
Flood v. News and Courier Co., 71 S. C. 112 (1905) .. 32
Guinn and Beal v. United States, 238 U. S. 347 (1915) 28
Gulf, Colorado and Santa Fe Railway Co. v. Ellis,

165 U. S. 150 (1897) ...............................................  15
Hall v. De Cuir, 95 U. S. 485 (1877) ............................ 36
Hargrove v. Okla. Press. Pub. Co., 130 Okla. 76

(1928) ...................................................................   32
Heard v. Georgia R. R. Co., 1 I. C. C. 428 (1888) ..... 8
Henderson v. Mayor, 92 U. S. 259 (1875) ..................  28
Hill v. Texas, 316 U. S. 400 (1942) .............................. 15
Hirabayashi v. U. S., 320 U. S. 81 (1943) ..................  14
Hurd v. Hodge, 334 U. S. 24 (1948) ............................  13

Jackson v. Seaboard Airline Ry. Co., 269 I. C. C.
399 (1948) .................................................................  8

Jones v. Kehrlein, 194 P. 55 (Cal., 1920) ...................  35
Jones v. Polk & Co., 190 Ala. 243 (1913) .................  32
Joyner v. Moore-Wiggins Co., Ltd., 152 App, Div.

266 (N. Y., 1912) .....................................................  35

Kansas City Southern Railway Co. v. Kaw Valley
Drainage District, 233 U. S. 75 (1914) ..................  16

Louisville and N. R. R. Co. v. Ritchel, 148 Ky. 701
(1912) ......................................................................... 33

McCabe v. A., T. & S. F. R. R. Co., 235 U. S. 151
(1914) .......    36

M. K. T. Railway Co. of Texas v. Ball, 25 Tex. Civ.
App. 500 (1901) .......................................................  33

Mitchell v. United States, 313 U. S. 80 (1941) .............9, 36
Morgan v. Commonwealth of Virginia, 328 U. S. 373

(1946) ......................................................................... 16,36
Myers v. Anderson, 238 U. S. 368 (1915) ....................  28

Neal v. Delaware, 103 U. S. 370 (1881) .........................  28

PAGE



Index v

PAGE

O’Connor v. Dallas Cotton Exchange, 153 S. W. 2d
266 (Tex., 1941) .......................................................  33

Oyama v. California, 332 U. S. 633 (1948) 15,19
Penn. Coal Co. v. Mahon, 260 U. S. 393 (1922) 28
People v. Board of Education of Detroit, 18 Mich.

400 (1869) ................................................................. 35
Pickett v. Kuchan, 323 111. 138 (1926) ..........................  35
Plessy v. Ferguson, 163 U. S. 537 (1896).......8,10,11,14,

15,17, 27, 34,37
Poindexter v. Greenhow, 114 U. S. 270 (1884) ........... 28
Prowd v. Gore, 207 P. 490 (Cal., 1922) ........................  35
Railroad Company v. Brown, 17 Wall. 445 (1873) ...11,37 
Randall v. Cowlitz Amusements, 194 Wash. 82 (1938) 35
Roberts v. Boston, 5 Cush. 198 (1850) ........................  14

Shelley v. Kraemer, 334 U. S. 1 (1948) 15,16,17
Slaughter House Cases, 83 U. S. 36 (1872) ................  12
Southern Railway v. Greene, 216 U. S. 400 (1910) 15
Stamps & Powell v. Louisville & Nashville R. R. Co.,

269 I. C. C. 789 (1948) ...........................................  8
State v. McCann, 21 Ohio St. 198 (1872) ....................  14
Strauder v. West Virginia, 100 U. S. 303, 306 (1879) 31
Stultz v. Cousins, 242 P. 794 (C. C. A. 6th, 1917) ..... 32
Takahashi v. Fish & Game Commission, 332 U. S.

410 (1948) .................................................................  15
Tape v. Hurley, 66 Col. 473 (1885) ..............................  35
United States v. Carolene Products, 304 U. S. 144

(1938)   30
Uptown v. Times-Democrat Pub. Co., 104 La. 141 

(1900) .......................................................................   32
Village of Euclid v. Ambler Realty Co., 272 U. S. 

365 (1926) ................................................................. 28



VI Index

PAGE

Williams v. Riddle, 145 Ky. 459 (1911) ......................  32
Wolfe v. Georgia Railway Electric Co., 2 Ga. App.

499 (1907) ............................................................... 32
Wright v. F. W. Woolworth Co., 281 111. App. 495

(1935) ........................................................................  32
Wysinger v. Crookshank, 23 P. 54 (1890) .................. 35

Yick Wo v. Hopkins, 118 U. S. 356 (1886) ................15,28

Statutes

General Laws under the Seventh Legislature of the
State of Texas, Chapter 121 .................................. 31

Laws Passed by First Legislature of the State of 
Texas, An Act to Regulate Proceedings in a
District Court, Section 65 ...................................... 31

Laws Passed by the First Legislature of the State 
of Texas, An Act to Provide for the Enumera­
tion of the Inhabitants .......................................... 31

Polizeiverordnung ueber die Kennzeichnung der 
Juden vom 1 September 1941, RGBI, I. S. 547,
Ausgeg. am 5. IX. 1941 .......................................... 21

14 Stat. 27 ......................................................................... 13
49 II. S. C. A. 3(1) .........................................................  8, 37

Miscellaneous

Bond, Education of the Negro in the American Social
Order (1934) .......................................................... 17

Congressional Globe, 39th Congress, First Session .... 12
Congressional Globe, 42nd Congress, Second Ses­

sion .............................................................................13,14
2 Cong. Rec. 3452 (43rd Cong., 1st Sess.) ................  14

Davis and Dollard, Children of Bondage (1940) .... 17,20



Index vu

PAGE

Deutscher and Chein, The Psychological Effect of 
Enforced Segregation: A Survey of Social Sci­
ence Opinion, 20 The Journal of Psychology, 259
(1948)  22,23,26

Dollard, Caite and Class in a Southern Town (1987) 25,85 
Doyle, The Etiquette of Race Relation* (1937) . 19
Du Boll, Dusk of Dawn (1940) 24
Du Bols, Black Resonstruetlon (1935) 24

Gallagher, American <Junto and the Negro College
(1988) i i i M i M l i i i i M M m i M l H m i i i M i m  i n i M m i t i r i H i i i l l l l i i m i i i i i i t M i  17

In Racial Segregation Con*intent With Equal Pro­
tection of the Uuwst 49 Columbia L, It, (1291
( 1949) ....................... I T : :  H I ......................  ............. : • • 1 1 1 ............... ........................: : !

Jenkins, Pro Slavery Thought in the Old South 
( 1935) 21

Johnson, The Autobiography of an Ex Colored Man 
( 1927)

Johnson, Patterns of Negro Segregation (1943) 19,20,
24, 84

Maognm, The I,age I Status of I lie Negro (1940) 32
MeCovney, Ifonal Itasldenllal Segregation hy Slide 

Courl Enfoi'cemenl of Iteslricllve Agreements, 
Covenants or Conditions in Demin In Unconsti­
tutional, 33 Calif, Uaw, Rev, ft (194ft) 35

McPherson, Political History of the United Slates
During (lie Reconstruction (IH75) 12

McWilliams, Race Discrimination and the Uaw, Sci­
ence and Society, Vol. IX, No. I (1945) 34

Moton, What the Negro Thinks (1929) 11,20
Myrdal, An American Dilemma (1944) 24,34

Reid, Southern Ways, Survey Graphic (Jan., 1947) 24
Report of the President’s Committee on Civil Rights,

To Secure These Rights (1947) 11,30

24



Indexviii

PAGE

Restrictive Covenants and Equal Protection 
New Rule in Shelley’* Case, 21 Ho, Cal. 
S58 (1948) .........................................

—  The 
L. It.

............15,1(5

Segregation in the Public Schools A Violation of 
“ Equal Protection” , 50 Yale L. J. 1059 (1947) 17

Stone, The Common Law in the United States, 50
Harvard L. B. 4 (1936) ............................... 28

HtonO'er, Studies In Social Psychology in World War 
ii. Volume I (1949) ...................................... 20

Tuck, Not with the Fist (194(1) .............................. 24

Woof ter, The Maids of Racial Adjustment (1925) 17



IN THE

Supreme Court of the United States
October Term, 1949

No. 25

E l m e r  W . H enderson ,

v.
Appellant,

T h e  U n ited  S tates  of A m e rica , I n tersta te  C ommerce 
Co m m issio n  and  S o u th e r n  R a il w a y  C o m p a n y .

On Appeal from the United States District Court 
for the District of Maryland

MOTION OF AMERICAN JEWISH CONGRESS 
FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

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

The undersigned, as counsel for the American Jewish 
Congress and on its behalf, respectfully moves this Court 
for leave to file the accompanying brief as amicus curiae.

The American Jewish Congress is an organization 
committed to the principle that the destinies of all Ameri­
cans are indissolubly linked and that any act which un­



2

justly injures one group necessarily injures all. Out of 
this firmly held belief, the American Jewish Congress 
created its Commission On Law and Social Action in 1945 
in part “ To fight every manifestation of racism and to 
promote the civil and political equality of all minorities 
in America.”

Believing as we do that Jewish interests are insepara­
ble from the interests of justice, the American Jewish 
Congress cannot remain impassive or disinterested when 
persecution, discrimination or humiliation is inflicted upon 
any human being because of liis race, religion, color, 
national origin or ancestry. Through the thousands of 
years of our tragic history we have learned one lesson 
well: the persecution at any time of any minority portends 
the shape and intensity of persecution of all minorities. 
There is, moreover, an additional reason for our interest. 
The special concern of the Jewish people in human rights 
derives from an immemorial tradition which proclaims 
the common origin and end of all mankind and affirms, 
under the highest sanction of faith and human aspirations, 
the common and inalienable rights of all men. The strug­
gle for human dignity and liberty is thus of the very sub­
stance of the Jewish tradition.

We submit this brief amicus because we are convinced 
that the policy of segregation has had a blighting effect 
upon Americans and consequently upon American demo­
cratic institutions. We believe that the doctrine of “ sepa­
rate but equal”  has engendered hatred, fear and igno­
rance. We recognize in this triumvirate our greatest 
enemy in the struggle for human freedom. But our con­
cern must not be construed as limited to minorities alone. 
The treatment of minorities in a community is indica­
tive of its political and moral standards and ultimately 
determinative of the happiness of all its members. Our 
immediate objective here is to secure unconditional equal­



3

ity for Americans of Negro ancestry. Our ultimate objec­
tive in this case, as in all others, is to preserve intact the 
dignity of all men.

We have sought the consent of counsel for the four 
parties to the filing of this brief. Counsel for appellant, 
the United States and the Interstate Commerce Commis­
sion have consented. Counsel for the Southern Railway 
Company has refused consent.

Dated, New York, New York, October 17, 1949.

W il l  M aslo w ,
Attorney for American Jewish Congress.



IN THE

Supreme Court of the United States
October Term, 1949

No. 25

E l m e r  W . H en derson ,

v.
Appellant,

T h e  U n ited  S tates op A m erica , I n tersta te  C o m m erce  
C o m m issio n  and  S o u th e r n  R a il w a y  C o m p a n y .

On Appeal from the United States District Court 
for the District of Maryland

BRIEF OF AMERICAN JEWISH CONGRESS 
AS AMICUS CURIAE

The American Jewish Congress respectfully submits 
this brief, as amicus curiae, in support of appellant. Our 
interest in the issues raised by this case is set forth in 
the motion for leave to file annexed hereto.

Statement of the Case

This proceeding originally arose out of the refusal of 
the Southern Railway, on May 17, 1942, to serve appellant, 
a Negro, in one of its dining cars. The various steps in 
the subsequent proceedings are fully set forth in the

[4]



5

appellant’s brief. Because the railroad subsequently 
changed its rules, the issue presently before this Court 
is sufficiently revealed by the following facts:

The railroad’s most recent rules, effective March 1, 
1946, provide that, after certain structural changes are 
made in its diners, one of the thirteen tables in each diner 
will be reserved absolutely for Negroes, and will be sep­
arated from the rest of the car by a five-foot partition. 
No white passengers will be served at this one table and 
no Negro passengers will be served at the other twelve 
tables.

On September 5, 1947, the Interstate Commerce Com­
mission held that this rule satisfied Section 3(1) of the 
Interstate Commerce Act. Henderson v. Southern Rail­
way, 269 I. C. C. 73. That decision was upheld by a 
three-judge District Court (Henderson v. Southern Rail­
way, 80 F. Supp. 32, D. C. Md., 1948), Judge Soper dis­
senting, and the present appeal is from the decision of 
that Court.

The Question to Which this Brief Is Addressed

This brief is addressed solely to the question whether 
the requirements of equality contained in either the Fifth 
and Fourteenth Amendments to the United States Con­
stitution or Section 3(1) of the Interstate Commerce Act, 
49 U. S. C. 3(1), are satisfied by affording “ separate but 
equal”  facilities to Negro and white passengers on inter­
state railroads.



6

Summary of Argument

I. In holding that a requirement of equal treatment 
can be satisfied by providing segregated facilities, the 
decision in Plessy v. Ferguson was wrong historically, 
legally and factually.

A. The Court erred historically in finding that 
the Fourteenth Amendment was not “ intended to 
abolish distinctions based on color.”

B. The Court erred as a matter of law in holding 
that segregation laws could be sustained either as an 
exercise of the police power or on the theory that 
physically equal facilities were necessarily equal in 
the Constitutional sense.

C. Assuming that segregated facilities can be 
equal, the Court erred as a matter of fact in conclud­
ing that officially imposed segregation does not place 
a badge of inferiority on the Negro race.

(1) Segregated facilities necessarily have an 
inferior value if they are assigned to a group in 
the community which the dominant group regards 
as inferior. In determining the value of a particu­
lar piece of property, the law examines not only 
its physical characteristics but also any other in­
tangible factors which are given weight by the com­
munity at large. When the facilities are used ex­
clusively by a group which the community regards 
as inferior, they become inferior in value.

(2) Even if the facilities are in all respects 
equal in value, segregation is discriminatory be­
cause of the adverse effect which it has on the 
Negro community. Recent studies reveal unanim­
ity of opinion among students of race relations



7

that segregation causes psychological damage to the 
individual members of the Negro community which 
they would be spared if segregation were not im­
posed.

II. A requirement of equality can never be satisfied 
by segregated facilities because the official act of segrega­
tion of itself gives superior value to the facilities assigned 
to the dominant group,

A. An official policy of segregation would unques­
tionably be unconstitutional if the official body which 
imposed it simultaneously proclaimed that mainte­
nance of racial superiority was its purpose.

B. The placing of a racial or religious group in 
inferior status by segregation can be accomplished 
without such an express declaration of status. Other­
wise it would be easy to evade the constitutional 
restraint. The implicit declaration of inferiority can 
be made either in other official acts or by incorporat­
ing in the segregation policy a previously existing 
social stratification.

C. The segregation of Negroes does in fact main­
tain an officially declared status of inferiority as well 
as a previously established status of social inequality.

(1) Official declarations of inferiority are found 
in various statutes and in judicial decisions holding, 
for example, that it is libelous per se to call a white 
man a Negro and that a white man required to ride 
in a Negro coach may recover damages.

(2) The previously established social inequality 
is shown by the unanimous findings of students of 
race relations.



8

III. The separate but equal doctrine has never been, 
and should not now be, applied to Section 3(1) of the 
Interstate Commerce Act by this Court. This case can be 
decided in favor of appellant without overruling the hold­
ing in Plessy v. Ferguson that segregated facilities may 
be provided without violating the Fourteenth Amendment.

A R G U M E N T  

POINT I

The doctrine of Plessy v. Ferguson, 163 U. S. 537, 
that separate but equal facilities satisfy requirements 
of equal treatment, should be overruled.

Subsection 1 of Section 3 of the Interstate Commerce 
Act provides that:

“ It shall be unlawful for any common carrier sub­
ject to the provisions of this chapter to make or give 
any undue or unreasonable preference or advantage 
to any particular person, company, firm, corporation, 
or locality, or any particular description of traffic, in 
any respect whatsoever, or to subject any particular 
person, company, firm, corporation, or locality, or any 
particular description of traffic, to any undue or un­
reasonable prejudice or disadvantage in any respect 
whatsoever.”

Since the question was first raised, the Interstate 
Commerce Commission has consistently held that this pro­
vision forbids discrimination against Negro passengers 
because of their race. Councill v. Western & Atlantic R. 
R. Co., 1 I. C. C. 339; Heard v. Georgia R. R. Co., 1 I. C. 
C. 428; Jackson v. Seaboard Air Line Ry. Co., 269 I. C. C. 
399; Stamps & Powell v. Louisville & Nashville R. R. Co.,



9

269 I. C. C. 789. See also Mitchell v. United States, 313 
U. S. 80, 95. In Edwards v. Nashville, C. <& St. L. Ry. Co., 
12 I. C. C. 247, 249, the principle was thus stated:

“ If a railroad provides certain facilities and ac­
commodations for first-class passengers of the white 
race, it is commanded by the law that like accommo­
dations shall be provided for colored passengers of 
the same class. The principle that must govern is 
that carriers must serve equally well all passengers, 
whether white or colored, paying the same fare. Fail­
ure to do this is discrimination and subjects the 
passenger to ‘ undue and unreasonable prejudice and 
disadvantage.’ ”

Section 3(1) of the I. C. C. Act, however, is not the 
only prohibition of discrimination which has been invoked 
here. The United States Government, in its brief as a 
party to this case, suggests that the Fifth Amendment to 
the United States Constitution also applies because the 
alleged discrimination was approved by an agency of the 
Federal Government, the I. C. C. (U. S. Brief, pp. 14-15). 
We agree. Indeed, the Court below itself recognized 
that the railroad’s regulations were “ directly approved 
by”  the I. C. C., and hence “ are to be treated, for the 
purposes of this case, as in effect the Commission’s rules.”  
63 F. Supp., at page 914.

We suggest further, however, that the equal protection 
clause of the Fourteenth Amendment also applies. Rail­
roads enjoy a monopolistic position protected by both the 
State and Federal governments. We believe that any 
such governmentally protected monopoly is forbidden by 
the Constitution from engaging in racial discrimination. 
It is true that this Court has never so held but that is 
only because virtually all such monopolies are subject to 
common law or statutory prohibitions of discrimination. 
It is unthinkable that, if these prohibitions were removed 
by statute, a railroad could refuse to serve any passenger 
solely because of race.



10

We shall not elaborate on these points because this 
brief is restricted to a single question which is common to 
all these prohibitions of discrimination; namely, whether 
they are satisfied when “ separate but equal”  facilities 
are offered. In the Plessy case, this Court held that they 
were, at least with respect to the Fourteenth Amendment. 
While the present case can probably be decided without 
overruling the Plessy case, as we show below, the factual 
premises and legal conclusions of that decision can not 
be ignored altogether. We turn first, therefore, to an 
examination of those premises and conclusions.

The result in the Plessy case rested on what we believe 
to have been a series of errors. First, the Court made 
the startling assumption that “ in the nature of things it 
[the Fourteenth Amendment] could not have been in­
tended to abolish distinctions based on color”  (162 U. S., 
at 544). We show below that this statement is histori­
cally false (pp. 10-14). The Court then held that seg­
regation could be legally justified as an exercise of the 
police power or on the ground that the facilities offered 
are in fact equal and thus satisfy the constitutional require­
ment of equality. We discuss this argument at pages 
15-16. Finally, the Court recognized that the require­
ment of equality could not be satisfied by a system of 
segregation which created or maintained inequality. The 
Court declared that “ Every exercise of the police power 
must be reasonable and extend only to such laws as are 
enacted in good faith and for the promotion of the public 
good and not for the annoyance or oppression of a par­
ticular group.”  163 U. S., at 550. In finding, however, 
that a law requiring segregation on railways was consti­
tutional, it made the factual and sociological assumption 
that such segregation would “ not necessarily imply the 
inferiority of either race to the other.”  Id., at 544. We 
show below (pp. 17-26) that this assumption has been 
exploded in the 50 years which have elapsed since it was 
made.

\



11

The net effect of the Plessy decision was to measure 
the constitutional command of equality mechanically in 
terms of physical dimensions and quantity. As a result 
it has infused rigid, caste stratifications into our laws, our 
institutions, our conduct and our habits of perception 
until “ the Negro is segregated in public thought as well 
as public carriers.”  Moton, What the Negro Thinks, 
1929, page 55. We submit that what the President’s Com­
mittee on Civil Rights called “ the ‘ separate but equal’ 
failure”  (Report, To Secure These Rights, 1947, p. 79) 
should be reexamined by this Court and that Plessy v. 
Ferguson should be overruled.

A. The Framers of the Fourteenth Amendment Intended 
Thereby to Prohibit Segregation

Plessy v. Ferguson cannot be squared with the temper 
and philosophy of the 1860’s which created the Fourteenth 
Amendment. See Note, Is Racial Segregation Consistent 
With Equal Protection of the Laws? 49 Columbia L. R. 629. 
It is in fundamental conflict, for example, with Railroad 
Co. v. Brown, 17 Wall. 445. In that case, Brown, a Negro, 
sued for damages for exclusion from a railroad car in 
the District of Columbia. The Federal statute, 12 Stat. 
805, enacted in 1863, in the midst of the Civil War, author­
ized the railroad to operate and provided that “ no person 
shall be excluded from the cars on account of color.”  The 
railroad ran two identical cars on a train, one for Negroes 
and the other, from which it excluded Brown, for whites. 
The trial Court specifically refused to instruct, as the rail­
road requested, that if the cars were “ really safe, clean 
and comfortable,”  the railroad should prevail. In the 
trial court the plaintiff was awarded substantial damages 
for the exclusion. This Court affirmed, terming the segre­
gation “ an ingenious attempt to evade compliance with 
the obvious meaning of the requirement.”  It held that



12

to force Negro passengers into separate cars was dis­
crimination incompatible with the equality demanded by 
Congress. Thus, this Court held that separate but equal 
accommodations have the same legal effect as the total 
exclusion of Negroes from transportation.

That those responsible for the enactment of the Four­
teenth Amendment rejected segregation was further evi­
denced by the passage of the Civil Eights Act of 1866. 
Like the Amendment itself, this Act was designed to 
eliminate the distinctions contained in the Black Codes 
passed by the Southern State governments during the 
post-Appomattox months of 1865. Slaughter Rouse Cases, 
83 U. S. 36, 70. These codes, among other provisions, 
placed limitations on Negro rights to own property, to 
institute law suits or to testify in any proceedings. They 
applied greatly different penalties to Negroes than to 
whites for the same offenses. See McPherson, Political 
History of the United States During Reconstruction, 
Chapter 4. To prevent these distinctions, a civil rights 
bill was introduced forbidding these and related practices 
and forbidding also, in a general phrase, any discrimina­
tion as to civil rights. S. 61, 39th Congress, First Session. 
Senator Howard, who had participated in drafting the 
Thirteenth Amendment, supported the bill, declaring that 
“ in respect to all civil rights, there is to be thereafter 
no distinction between the white race and black race.”  
Congressional Globe, 39th Congress, First Session, 504. 
Senator Trumbull, who introduced the civil rights bill, 
asserted * * the very object of the bill is to break 
down all discrimination between the black men and white 
men.”  Ibid., page 599. The bill passed the Senate but 
ran into difficulties in the House, partly because it was 
felt that “ civil rights”  encompassed a scope too broad to 
be supported by the Thirteenth Amendment. The final 
bill, therefore, was limited to the elimination of the named 
abuses with the general and vague reference to civil rights



13

omitted. 14 Stat. 27. The significance of this statute, in 
the interpretation of the Fourteenth Amendment, has re­
cently been described by this Court (Hurd v. Hodge, 334 
U. S. 24, 32, footnotes omitted):

“ Both the Civil Rights Act of 1866 and the joint 
resolution which was later adopted as the Fourteenth 
Amendment were passed in the first session of the 
Thirty-Ninth Congress. Frequent references to the 
Civil Rights Act are to be found in the record of the 
legislative debates on the adoption of the Amendment. 
It is clear that in many significant respects the statute 
and the Amendment were expressions of the same 
general congressional policy.”

Almost immediately following ratification of the Four­
teenth Amendment and pursuant to the grant of authority 
contained in its fifth section, Senator Sumner of Massa­
chusetts introduced a proposal expanding and articulating 
the rights implicit in the new amendment. During argu­
ment on this bill, which later became the Civil Rights Act 
of 1875, Sumner enunciated his attitude toward racial 
segregation. He spoke as one of the leaders who had 
achieved the passage of the Fourteenth Amendment and 
who might be supposed to know it best; he was supported 
by what he believed was the unavoidable intention of the 
Amendment. Sumner lashed out at what he called the 
“ excuse, which finds Equality in separation”  by declaring 
(Cong. Globe, 42nd Cong., 2nd Sess., 382-383):

“ Separate hotels, separate conveyances, separate 
theaters, separate schools, separate institutions of 
learning and science, separate churches, and separate 
cemeteries — these are the artificial substitutes for 
Equality; and this is the contrivance by which a 
transcendent right, involving a transcendent duty, is 
evaded. * * * Assuming what is most absurd to as­



14

sume, and what is contradicted by all experience, that 
a substitute can be an equivalent, it is so in form only 
and not in reality. Every such attempt is an indig­
nity to the colored race, instinct with the spirit of 
Slavery, and this decides its character. It is Slavery 
in its last appearance.”

In the debates which ensued, Sumner’s views were 
upheld and the leading cases on which this Court subse­
quently relied in Plessy v. Ferguson, although pressed 
upon Congress, were rejected as unsound. Roberts v. 
Boston, 5 Cush. 198 (1850), and State v. McCann, 21 Ohio 
St. 198 (1872), both of which defend segregation prac­
tices, were mentioned by name and expressly refuted. See 
Congressional Globe, 42nd Cong., 2nd Sess., at 3261, and 
2 Congressional Record 3452 (43 Cong., 1st Sess.). Yet, 
in concluding that, “ in the nature of things,”  the Four­
teenth Amendment was not “ intended to abolish distinc­
tions based upon color”  (163 U. S., at 544) this Court 
explicitly relied upon the Roberts case!

Nor may the Plessy theory that the Fourteenth Amend­
ment was not intended to abolish race distinctions be 
squared with the recent decisions of this Court. In 
Eirabayashi v. U. S., 320 U. S. 81, 100 (1947), it was 
said:

“ Distinctions between citizens solely because of 
their ancestry are by their very nature odious to a 
free people whose institutions are founded upon the 
doctrine of equality. For that reason, legislative 
classification or discrimination based on race alone 
has often been held to be a denial of equal protec­
tion.”

Except for the decisions which rely uncritically upon 
Plessy v. Ferguson, this Court has consistently maintained 
that the Fourteenth Amendment prevents States from



15

establishing racial distinctions as a basis for general 
classifications. Takahashi v. Fish <& Game Commission, 
332 U. S. 410, 420; Oyama v. California, 332 U. S. 633, 
640, 646; Shelley v. Kraemer, 334 U. S. 1, 20, 23; Yick Wo 
v. Hopkins, 118 U. S. 356, 373, 374; Buchanan v. Warley, 
245 U. S. 60, 82; Hill v. Texas, 316 U. S. 400, 404. These 
cases merely embody the basic constitutional principle 
applicable in all other areas that governmental classifica­
tions must be based upon a significant difference having 
a reasonable relationship to the subject matter of the 
statute. Southern Railway Co. v. Greene, 216 U. S. 400, 
417; Gulf, Colorado & Santa Fe Railway Co. v. Ellis, 165 
U. S. 150, 155; Connolly v. Union Sewer Pipe Co., 184 U. 
S. 540, 559, 560.

More specifically, the Plessy segregation principle can­
not be squared with Buchanan v. Warley, supra, and 
Shelley v. Kraemer, supra, in both of which this Court 
refused to apply the separate but equal doctrine to hous­
ing. It did so not on the theory that land and houses are 
sui generis, but on the broad ground that “ equal protec­
tion of the law is not achieved through the indiscriminate 
imposition of inequalities.”  Shelley case, 334 U. S., at 22. 
This terse holding, as has been cogently argued, com­
pletely destroys the basis of the Plessy decision. Restric­
tive Covenants and Equal Protection—The New Rule in 
Shelley’s Case, 21 So. Cal. L. R. 358 (1948).

B. The Legal Principles Which Formed the Basis of 
the P lessy  Decision Were Erroneous

The Plessy decision sought to justify state segregation 
statutes both as exercises of the police power and on the 
theory that, since they restricted all races alike, they sat­
isfied the constitutional requirement of equality (163 U. 
S., at 544, 546). Neither theory bears examination today.

Particularly vulnerable is what this Court recently 
called the “ convenient apologetics of the police power.”



16

Morgan v. Virginia, 328 U. S. 373, 380, citing Kansas 
City Southern Railway Co. v. Kaw Valley Drainage Dis­
trict, 233 U. S. 75, 79. In Buchanan v. Warley this Court 
said (245 U. S., at 74): . the police power, broad
as it is, cannot justify the passage of a law or ordinance 
which runs counter to the limitations of the Federal Con­
stitution . . . ”  See also Shelley v. Kraemer, 334 U. S., 
at 21.

With the elimination of the police power, the Plessy 
doctrine must rest on the sole groun that segregation 
operates with equal stringency on the groups doing the 
segregating as well as the groups being segregated. In­
deed, it has been noted that “ the inclusion of both bases 
in a single sentence [in the Plessy opinion] leads one to 
wonder whether Mr. Justice Brown ever intended to 
enunciate the police power basis as an independent propo­
sition sufficient alone to support the statute or whether 
the basis under which the statute was upheld as a valid 
exercise of the police power did not rest on the conclusion 
that the statute did in fact operate equally on all races.”  
Rote, 21 So. Cal. L. R. 358, 369.

This same article goes on to observe:

“ Despite Mr. Justice Brown’s allusion to the State 
police power, subsequent decisions of the Court 
clearly indicated that it was the fact of equality of 
application upon which it would rely. The question 
next arose with respect to the Oklahoma ‘ Separate 
Coach Case.’ There the statute, in addition to impos­
ing the requirement of equal but separate accommo­
dations for Negroes and whites, provided that the 
carrier might maintain sleeping and dining cars for 
white passengers and not for Negroes, if there should 
not be sufficient demand for such facilities by Negroes 
to make their maintenance practicable. The Court 
upheld the statute insofar as it provided for segrega­
tion into equal accommodations, but held that the



17

statute could not authorize discrimination in the 
maintenance of luxury facilities, since the discrimina­
tion could be maintained only if it applied equally to 
all races. Again, equality of application was made 
the sine qua non of validity, without reference to any 
reasonable police power basis.”

But the “ equality”  theory has also been destroyed by 
recent decisions by this Court. In particular, it runs afoul 
of the statement in the Shelley case that equality is not 
achieved by “ indiscriminate imposition of inequalities” 
{supra, p. 15). If this obvious principle is consistently 
applied, the Plessy doctrine must fall.

C. The Factual Assumptions Made in the P lessy  
Decision Were Erroneous

The Plessy decision itself recognized that segregation 
would be unconstitutional if it was designed to or did 
create a caste system. However, it made the basic factual 
assumption that it was a “ fallacy [to assume] that the 
enforced separation of the two races stamps the colored 
race with a badge of inferiority”  (163 U. S., at 551).

The best that can be said for this statement is that it 
was handed down over fifty years ago at a time when the 
results of applying the separate but equal doctrine could 
only be surmised. In the ensuing decades, the failure of 
that prediction has become manifest. If proof of this 
were necessary, it has been supplied by the developed 
techniques of the social scientists, all of whom are agreed 
that segregation has profoundly adverse effects on the 
Negro community. Segregation In Public Schools — A 
Violation of “ Equal Protection,”  50 Yale L. J. 1059, 1061; 
Gallagher, American Caste and the Negro College (1938); 
Davis and Dollard, Children of Bondage, 1940; Woofter, 
The Basis of Racial Adjustment (1925); Bond, The Edu­



18

cation of the Negro in the Americcm Social Order (1934). 
Surely this Court cannot continue to extend judicial ap­
proval to a notion which has been thoroughly discredited 
in that laboratory which is the nation itself.

(1 )  S egregated F acilities  N ecessarily  H ave  
a  L ow er  V alu e

In other areas less controversial and perhaps less sig­
nificant, our legal system has recognized that mere iden­
tity of physical facilities does not necessarily amount to 
equality either in the economic, political or legal sense. 
The law would not hold, for example, that an estate has 
been divided equally between two children each receiving 
one of the two identical houses comprising the estate, if 
one of the houses were located in a busy banking district 
and the other 50 miles from the nearest railroad station. 
The result would be the same even if the two identical 
houses were located on the same street opposite each 
other, but if, for some reason, one side of that street were 
fashionable and sought after, the other neglected and re­
jected. Equality is determined in fact and in law not by 
the physical identity of things assigned in ownership, use 
or enjoyment but by the identity or substantial similarity 
of their value.

These legal principles apply not only to property 
rights but also to political and civil rights. American law 
demands, in the enjoyment by persons of government- 
furnished facilities, an equality not less real and substan­
tial than the one it exacts for the protection of heirs, 
partners or stockholders. “ In approaching cases, such as 
this one, in which federal constitutional rights are as­
serted, it is incumbent on us to inquire not merely whether 
those rights have been denied in express terms, but also 
whether they have been denied in substance and effect. 
We must review independently both the legal issues and 
those factual matters with which they are commingled’ 5



19

(Oyama v. California, 332 U. S. 633). In calling for 
“ equal protection” , or for “ equal facilities” , or for the 
outlawing of “ undue or unreasonable prejudices or dis­
advantages” , the Constitution and the laws of the United 
States call for genuine equality of protection and not for 
a merely formal or physical identity of treatment.

The important factors to be considered in assessing 
the equality of the treatment accorded various groups in 
our society are the ideas or expectations which are stimu­
lated by that treatment, and the conception conveyed to 
each minority of the role it is being called upon to play. 
It is undeniably true that in the South, when the Negro 
was considered chattel property, any relation of the most 
intimate degree between white and Negro could be entered 
into with impunity. Even today Negro servants still may 
approach as close as necessary to the white persons being 
served without untoward social consequence. Yet it is 
equally true that merely “ shaking a black hand may be 
very repulsive to a white man if he surmises that the 
colored man conceives of the situation as implying equal­
ity.”  Johnson, Patterns of Negro Segregation, 1943, page 
208. Clearly it is the social definition of the situation that 
accounts for the difference. Those who insist upon the 
caste system in our society freely and unstintingly agree 
to the ritual of equal physical facilities so long as some­
how there is also an accompanying communication that 
inferiors are to remain inferiors.

Segregation provides the ready vocabulary for that 
communication. It is a vocabulary effectively understood 
by all. Segregation provides a graphic and literal re­
sponse to the demand of the white world that Negroes be 
kept “ in their place.”  To the whites the enforced sepa­
ration of races is clearly understood as a symbolic affirma­
tion of white dominance, dominance which, to keep itself 
alive, demands as tribute the continuous performance of 
the racial etiquette. See Doyle, The Etiquette of Race



20

Relations (1937). Similarly, Negroes appreciate the im­
plications of segregation (Stouffer, Studies in Social Psy­
chology in World War II, Vol. 1, p. 566), resent its slur 
(Moton, supra, pp. 238-239), and resist it as a none too 
subtle mechanism for anchoring them in inferiority (Davis 
and Dollard, Children of Bondage [1940], p. 245).

A  Southern attorney has observed of Negroes, “ I 
don’t object to their having nice things, but they would 
not be satisfied with the finest theatre in the world . . . 
They don’t want things for themselves.”  Johnson, op. 
cit., supra, at page 217. This is, of course, both accurate 
and perceptive. Negroes desire access to the world of all, 
not to one just as good.

It is, therefore, easy to understand the general belief 
in both the white and Negro communities that the facili­
ties relegated to the segregated group are made inferior 
by the very act of separation. We have long known that 
the value and desirability of many objects, facilities, traits 
or characteristics may depend not so much upon their 
intrinsic qualities or defects, advantages or shortcomings 
as upon their association with, or use by, persons enjoying 
a certain reputation. The desirability of a beautiful re­
sort may be lessened by its being visited by people deemed 
of “ low”  social standing. If a group considered “ infe­
rior”  by the prevailing community sentiment adopts any 
given color of garment, accent of speech, or place of 
amusement, that color, accent or place will automatically 
be shunned by the majority and become less desirable or 
valuable.

I f the Nazis, while proclaiming the essential inferiority 
of the “ Jewish Race” , had compelled Jews to wear clothes 
of one color while reserving another to the master race, 
it could not have been said that Jews received equal cloth­
ing facilities. Nor would the discriminatory and humiliat­
ing character of the measure depend on whether the colors 
were brown for the Jews and black for the others, or vice



21

versa. The exclusive allocation of a given color, any 
color, to a race declared “ inferior”  would make that color 
less desirable. The inferiority thus transmitted from the 
wearer to the garment would destroy the genuine “ equal­
ity”  of the furnished facilities. The Nazis understood 
this fully; they achieved much the same effect when they 
imposed on Jews the wearing of the Yellow Star of David. 
Polizei-verordnung uber die Kennzeichnung der Juden 
vom 1., September, 1941, RGBI, I. S. 547, Ausgeg. am 5. 
IX. 1941.

We do not agree that the physical facilities furnished 
segregated groups are ever in fact equal (infra, pp. 29-30). 
But even assuming, arguendo, that those enforcing the 
segregation policy were lavish in their expenditures, they 
would not thereby attain real equality of treatment. The 
five-foot partition in the present case dividing the dining 
car into Negro and white portions serves a more funda­
mental purpose than the mere physical separation of white 
from Negro and the elimination of any likelihood of phys­
ical contact. It serves as a ceremonial separation of the 
dominant from the subordinate and it marks the outside 
limits beyond which tolerance is impermissible. Under 
these circumstances the quality of the silverware, glass­
ware, or linen becomes irrelevant. Separation stamps the 
trappings of equality with the unmistakable sign of infe­
riority.

In sum, segregation is the artifice by which a dominant 
group assures itself of its own worth by insisting on the 
inferiority of others. Segregation, like slavery, has as 
its function “ the fact that it raises white men to the same 
general level, that it dignifies and exalts every white man 
by the presence of a lower race” . Jefferson Davis, quoted 
in Jenkins, Pro-Slavery Thought in the Old Soivth (1935), 
at page 192.



22

(2 ) E ven  ip  t h e  F ac ilitie s  A e e  in  A ll, R espects  E qual  
in  V a l u e , S egregation  I s  D iscrim in a to ry  B ecause  of 
t h e  A dverse E ffects  W h ic h  I t  H as  O n  t h e  N egro 
C o m m u n it y

The unconstitutional inequality of segregation may he 
shown without reference at all to the facilities provided. 
The inequality appears in the depressing effect which it 
has on the individual members of the Negro community.

A survey of professional sociological, anthropological 
and psychological opinion on this subject has been con­
ducted by Drs. Max Deutscher and Isadore Chein of the 
Commission on Community Interrelations of the Ameri­
can Jewish Congress. Eight hundred and forty-nine 
social scientists were polled, including the entire member­
ship of the American Ethnological Society, the Division 
of Personality and Social Psychology of the American 
Psychological Association, and all of the members of the 
American Sociological Society who listed race relations 
or social psychology as their major field of interest. Re­
turns were received from 517, or 61% of the number sent. 
90% of the respondents indicated their opinion that en­
forced segregation has detrimental psychological effects 
on segregated groups even though equal facilities are 
provided. 4% failed to answer the item and only 2% indi­
cated that segregation is free of such detrimental effects. 
Deutscher and Chein, The Psychological Effects of En­
forced Segregation: A Survey of Social Science Opinion, 
26 The Journal of Psychology 259 (1948).

On the basis of what they have seen and know, these 
social scientists united in rejecting the separate but equal 
doctrine as a serviceable formula. In responding, many 
of them amplified their answers with additional comment. 
Those who conducted the survey remark that “ the gist 
of these comments was the emphasis on the essential 
irrelevance of the physical attributes of the facilities fur­



23

nished” . Deutscher and Chein op. tit., supra, at page 
280. The comments are quoted extensively in the article.

The detrimental psychological effect is not hard to ex­
plain. Bearing the approval of this Court, the “ separate 
but equal”  doctrine has supplied the rationale for a de­
tailed and exhaustive oppression of the Negro population 
of the South. Dr. Beid has shown that where racial seg­
regation is established:

“ . . . every aspect of life is regulated by the laws 
on race and color. From birth through education and 
marriage to death and burial there are rules and reg­
ulations saying that you are born ‘white’ or ‘ colored’ ; 
that you may be educated, if colored, in a school sys­
tem separated on the basis of race and ‘ as nearly 
uniform as possible’ with that available for whites; 
that you may marry a person of your choice only if 
that person is colored, this being the only celebration 
of marriage a colored minister of the gospel may per­
form; and that when you die (in Atlanta, at least) 
you may not be buried in a cemetery where whites are 
interred.

“ But that isn’t all. Between birth and death col­
ored persons find that the law decrees that they shall 
be separated from white persons on all forms of 
transportation, in hotels or inns, eating places, at 
places of recreation or amusement, on the tax books, 
as voters, in their homes, and in many occupations.

“ To be specific, it is a punishable offense in 
Georgia for a barber shop to serve both white and 
colored persons, or for Negro barbers to serve white 
women or girls; to bury a colored person in a ceme­
tery in which white people are buried; to serve both 
white and colored persons in the same restaurants 
within the same room, or anywhere under the same 
license. Restaurants are required to display signs 
reading Licensed to serve white people only, or



24

Licensed to serve colored people only. The law also 
declares that wine and beer may not be served to 
white and colored persons ‘ within the same room at 
any time’. Taxis must be marked For White Passen­
gers Only, or For Colored Passengers Only. There 
must be white drivers for carrying white passengers 
and colored drivers for carrying colored passengers”  
(Ira de A. Reid, Southern Ways, Survey Graphic, 
Jan. 1947, p. 39).

Dr. Reid’s list, of course, is not exhaustive. See, for 
example, the first six chapters of Johnson, op cit., supra. 
Myrdal asserts that no one can yet estimate the extent 
of discriminatory practices in the United States. Myrdal, 
An American Dilemma (1944), at 1359.

This carefully contrived web of deprivation and dis­
tinction confronts the Negro at every turn. The “ thou­
sand and one precepts, etiquettes, taboos and disabilities 
[which] * * * express the subordinate status of the Negro 
people and the exalted positions of the whites”  (Myrdal, 
op. cit., supra, 66) have a shattering effect upon the Negro 
personality. DuBois, Dusk of Dawn (1940), pages ISO- 
131. “ The Negro in America and in general is an average 
and ordinary human being who under a given environment 
develops like other human beings.”  Black Reconstruction 
(1935), Foreword. He is, therefore, understandably warped 
by living in a world which blatantly advertises its convic­
tions of the Negroes’ inferiority. Segregation stimulates 
a variety of unhealthy responses. It may tend to induce 
withdrawal, thus extending the isolation of Negroes in 
America and widening the gap between the racial com­
munities. Myrdal, op. cit., supra, page 28. “ The Negro 
genius is imprisoned in the Negro problem”  (Ibid.). See 
also Johnson, An Autobiography of an Ex-Colored Man 
(1927), p. 21; Tuck, Not With The Fist (1946), p. 107.

Segregation has equally devastating effects when it 
induces submission rather than rebellion—when it leads to



25

acceptance of the inferior status defined in the institutions 
of the dominant community. This attitude invariably 
stultifies Negro growth and encourages indifference, 
apathy and unwillingness to compete.

“ Accommodation involves the renunciation of pro­
test and aggression against undesirable conditions of 
life and the organization of character so that protest 
does not appear but acceptance does. It may come to 
pass in the end that the unwelcome force is idealized, 
that one identifies with it and takes it into the per­
sonality, that some time it even happens that what is 
at first resented and feared is finally loved. In this 
case a unique alteration of the character occurs in the 
direction of masochism” . Dollard, Caste and Class 
in a Southern Town, at page 255.

Finally, the deleterious effects of segregation find in­
exorable expression in a deep sense of personal insecur­
ity. Fear of his own inadequacy turns the Negro against 
the whites who have inflicted his frustration, against his 
own people for providing a heritage of pain or against 
himself in an over-weaning guilt for his own secret wishes 
to be free of his burden.

One psychologist has noted particularly the deep re­
sentment induced by the discrepancy between the vaunted 
American creed that all are created equal and the bitter 
fact of subjugation through segregation:

“ The effects of this enforced status on the level of 
self-esteem, on feelings of inferiority and personal 
insecurity, the gnawing doubts and the compensatory 
mechanisms, the blind and helpless and hard to han­
dle more or less suppressed retaliatory rage, the dis­
placed aggression and ambivalence toward their own 
kind with a consequent sense of isolation and of not 
belonging anywhere— all of these and much more are 
bad enough, but the ambiguity of status created by



26

a society which insists on the fact that all men are 
born free and equal, and then turns about and acts 
as if they were not is even worse. The constant 
reminder—and even boasting—of this equality acts 
like salt upon a raw wound and, more basically, places 
them in a profoundly ambiguous and unstructured 
situation. Human beings simply cannot function effi­
ciently in such situations if they have strong feelings 
and are strongly motivated—as many, if not most or 
all, members of discriminated against minority groups 
are—with regard to these situations.”  Deutscher and 
Ohein, op. cit., supra, at page 272.

Psychic injury always accompanies segregation. We 
think it patent that as between a system which imposes 
such penalties and one which does not, there can be no 
talk of equality.

POINT II

A  requirement of equality can never be satisfied by 
segregated facilities because the official act of segrega­
tion of itself gives superior value to the facilities as­
signed to the dominant group.

We have shown above that the separate but equal doc­
trine has in fact resulted in inequality and the creation of 
a caste system. We show here that that is an inevitable 
result of officially imposed segregation and that since the 
discrimination flows from official action, it is unconstitu­
tional.

While the segregation in the present case was origi­
nally formulated by a private agency, the railroad, it has 
the same status before this Court as governmentally im­
posed segregation. We have stated the reasons for this



27

equivalence above (p. 9 ); namely, that the railroad’s regu­
lation was approved by the I. C. C. and that the railroad 
is a state-created monopoly which may not discriminate.

A. An Official Policy of Segregation Would Be Unconsti­
tutional if Maintenance of Racial Superiority Were 
Proclaimed as Its Purpose

It can hardly be disputed that an official regulation pro­
viding for the confinement of any racial or religious group 
to separate cars or to certain portions of a single car upon 
the declared theory that the group is inferior would be 
discrimination. That much is virtually conceded in the 
Plessy decision (supra, p. 17). The official declaration 
of inferiority would of itself establish an inferiority of 
value substantial enough to have constitutional signifi­
cance (supra, p. 18). While the declaration of inferiority 
alone might be immune to constitutional attack it becomes 
subject to judicial restraint when accompanied by action 
having a discriminatory effect. The formal assignment of 
separate areas based on a formal statement of inferiority 
would be an assignment of facilities inferior per se regard­
less of their physical identity with the facilities assigned 
to the dominant group.

The situation as here described would not be mere 
social inequality. We may assume that social inequality 
has antedated the official ruling. But the accompanying 
declaration of that pre-existing social inferiority and the 
ensuing action of assignment of facilities, inferior because 
segregated, amount to the creation of a legally sanctioned 
inequality.



28

B. The Placing of a Racial or Religious Group in an 
Inferior Status by Segregation Can Be Accomplished 
Without an Express Declaration of Such Status

We do not have here, of course, an express statement 
by the Southern Railway Co. or the Interstate Commerce 
Commission that the purpose of the segregation is to 
maintain inequality. Nevertheless, the same results must 
be reached if that is in fact its purpose or effect. A  regu­
lation may not accomplish by indirection what it may not 
achieve directly. Poindexter v. Greenhow, 114 U. S. 270, 
295; Tick Wo v. Hopkins, 118 U. S. 356, 373; Guinn and 
Beal v. United States, 238 U. S. 347, 364; Myers v. Ander­
son, 238 U. S. 368; Need v. Delaware, 103 U. S. 370.

The failure of a statute or regulation expressly to 
declare a legal inferiority does not protect it from the 
scrutiny of the courts. When the reasonableness of a 
classification endorsed by any governmental body as a 
basis for action is in question, the courts will look behind 
the apparent intention to determine whether or not, in fact, 
an unlawful classification has been made. Henderson v. 
Mayor, 92 U. S. 259, 268; Bailey v. Alabama, 219 U. S. 
219, 244; Penn Coal Co. v. Mahon, 260 U. S. 393, 413.*

* Any classification adopted by a governmental body as the basis of official 
action must be viewed not in the abstract but realistically ir. the social set­
ting in which it operates. The judge “must open his eyes to all those con­
ditions and circumstances . . .  in the light of which reasonableness is to be 
measured . . .  In ascertaining whether challenged action is reasonable, the 
traditional common law technique does not rule out but requires some in­
quiry into the social and economic data to which it is to be applied. Whether 
action is reasonable or not must always depend upon the particular facts and 
circumstances in which it is taken.” Harlan F. Stone in SO Harvard Law 
Review, pp. 4, 24 (1936). See also P oindexter v. Greenhow, supra; Village 
of Eticlid v. Am bler Realty Co., 272 U. S. 365, 387-388; Connor v. Board o f  
Commissioners o f  Logan County, Ohio, 12 F. (2d) 789, 795. Furthermore, 
this Court has declared that “where the facts as to the situation and the 
conditions are such as to oppress or discriminate against a class or an indi­
vidual the courts may consider and give weight to such purpose in consider­
ing the validity of the ordinance.” Dobbins v. L os Angeles, 195 U. S 223, 
240. Yick W o  v. H opkins, 118 U. S. 356, is the classical application of this 
approach to prevent racial discrimination.



29

The implicit rather than the explicit declaration of 
inferiority may be made in at least two ways: First, the 
inferiority may have been established in other official acts. 
Thus, if statutes, judicial decisions or other official pro­
nouncements declare that a particular race is inferior, the 
assignment of separate facilities becomes an assignment 
of inferior facilities. We shall show below that such inde­
pendent declarations of inferiority have in fact been made.

Second, the regulations may incorporate an already 
established social stratification. Formal adoption of social 
classifications of necessity implies the adoption of the 
meaning inherent in, and inseparable from, the classifica­
tions themselves, that of the respective inferiority and 
superiority of the groups. Whenever law adopts a social 
classification based on a notion of inferiority, it trans­
forms the pre-existing social inequality into official in­
equality. What ensues is official discrimination, a denial 
of equality before the law, whether or not the statement 
of inferiority is made openly by the government or in­
heres in the classification upon which official action is 
based.

The reason that constitutional inhibitions attach when 
governments give official sanction to pre-existing social 
inequalities is that such action causes a change in both 
the degree and nature of the inequality. Once a social 
classification based on group inferiority is formally 
adopted, the ensuing official inferiority will in its turn 
intensify and deepen the social inequality from which it 
stems. The actual operation of segregation statutes illus­
trates this oppressive function of the law. It is well 
known, for instance, that the doctrine of “ separate but 
equal”  facilities has proved to be a mere legal fiction in 
most cases, that invariably segregation has been accom­
panied by gross discrimination, and that absolute equality 
seldom, if ever, exists. For example, the President’s Com­
mittee on Civil Rights found that the “ separate but



30

equal”  doctrine “ is one of the outstanding myths of 
American history for it is almost always true that while 
indeed separate these facilities are far from equal”  ( “ To 
Secure These Rights,”  pp. 81-82).

This situation involves at the same time another kind 
of vicious circle. The effect of segregation laws makes 
their spontaneous repeal or amendment a practical im­
possibility. When a more or less inarticulate social feel­
ing of racial superiority is clothed with the sanction of 
official regulation, that feeling acquires a concreteness 
and assertiveness which it did not possess before. The 
stricter the regulation, the stronger and the more articu­
late the feeling of social distance. And the stronger that 
feeling, the stricter the regulation and the more difficult 
its amendment or repeal. In such a setting, the demo­
cratic processes themselves are threatened and no reliance 
can be placed on their correcting effect. It is this situa­
tion which Chief Justice Stone had in mind when, in 
sustaining an economic measure as presumptively valid, 
he warned that the decision did not foreclose the question 
whether “ legislation which restricts those political proc­
esses which can ordinarily he expected to bring about 
repeal of undesirable legislation, is to be subjected to 
more exacting judicial scrutiny under the general pro­
hibitions of the Fourteenth Amendment than are most 
other types of legislation”  and whether “ similar consider­
ations enter into review of statutes directed at particu­
lar religious . . .  or national . . .  or racial minorities.”  
Accordingly, he noted that “ prejudice against discrete 
and insular minorities may be a special condition, which 
tends seriously to curtail the operation of those political 
processes ordinarily to be relied upon to protect minori­
ties, and which may call for a correspondingly more 
searching judicial inquiry.”  United States v. Carotene 
Products, 304 U. S. 144, 154, footnote 4.

We shall show in the following sections that the sys­
tem of segregation is in fact designed to maintain in­
equality.



31

C. The Segregation of Negroes Maintains an Officially 
Declared Status of Inferiority and Also a Previously 
Established Status of Social Inequality

1. O f fic ia l  D eclarations  of I n ferio rity

State imposed segregation stems directly from a ves­
tigial theory of the superiority and inferiority of races 
inherited as a remnant of the institution of slavery. With 
the freeing of slaves, attempts were made by the dominant 
white group to preserve its position of ascendancy by the 
enactment of discriminatory legislation. “ It required little 
knowledge of human nature to anticipate that those who 
had long been regarded as an inferior and subject race 
would, when suddenly raised to the rank of citizenship, 
be looked upon with jealousy and positive dislike and that 
state laws might be enacted or enforced to perpetuate the 
distinctions that had before existed.”  Strauder v. West 
Virginia, 100 U. S. 303, 306 (italics supplied). Thus, in 
the post-slavery period, Negroes were punished with 
greater severity than whites for identical offenses. See 
General Laws under the Seventh Legislature of the State 
of Texas, Chapter 121. And Negroes were made incom­
petent as witnesses in proceedings against white persons. 
Laws passed by First Legislature of the State of Texas, 
An Aot to regulate proceedings in a District Court, Sec­
tion 65. In the State of Texas the abiding conviction of 
the inferiority of the Negro race is manifest even in its 
assessment statutes. “ Assessors shall receive 3  ̂ each 
for each white inhabitant residing in the county * * * 2<f 
for each white inhabitant in a town or city and l<j for 
each slave or free person of color.”  Laws passed by the 
First Legislature of the State of Texas, An Act to Pro­
vide for the Enumeration of the Inhabitants.

These official declarations of inferiority have by no 
means been abandoned by the Southern states. They are 
maintained and reiterated in the many decisions holding



32

that the word “ Negro”  or “ colored person”  if applied 
to a white person gives rise to a cause of action for 
defamation. Flood v. News and Courier Co., 71 S. C. 112; 
Stultz v. Cousins, 242 F. 794. Every court which has 
considered the question has held that writing that a white 
man is a Negro is libelous per se. Upton v. Times-Demo- 
crat Pub. Co., 104 La. 141, 28 So. 970; Collins v. Okla­
homa State Hospital, 76 Okla. 229, 184 Pac. 946; Hargrove 
v. Okla. Press Pub. Co., 130 Okla. 76, 265 Pac. 635; Flood 
y. News and Courier Co., 71 S. C. 112, 50 S. E. 637; Stultz 
v. Cousins, 242 Fed. 794 (C. C. A. 6). It is believed that 
Alabama, Georgia, Illinois, and Kentucky would concur 
because of expressions in the opinions of their courts. 
Jones v. Polk & Co., 190 Ala. 243, 67 So. 577; Atlanta 
Journal Co. v. Farmer, 48 Ga. App. 273, 172 S. E. 647; 
Wright v. F. W. WoolworthCo., 281 111. App. 495; Williams 
v. Riddle, 145 Ky. 459, 140 S. W. 661. See Mangum, The 
Legal Status of the Negro, 1940, at p. 18.

The attitudes of these courts is clear. “ It is a matter 
of common knowledge that, viewed from a social stand­
point, the Negro race is in mind and morals inferior to 
the Caucasian. The record of each from the dawn of 
historic time denies equality.”  Wolfe v. Georgia Railway 
Electric Co., 2 Ga. App. 499. Similarly, the highest court 
of Oklahoma has declared: “ In this state, where a rea­
sonable regulation of the conduct of the races has led 
to the establishment of separate schools and separate 
coaches, and where conditions properly have erected un- 
surmountable barriers between the races when viewed 
from a personal and social standpoint, and where the 
habits, the disposition, and characteristics of the race 
denominate the colored race as inferior to the Caucasian, 
it is libelous per se to write of or concerning a white 
person that he is colored. Nothing could expose him to 
more obloquy, or contempt, or bring him into more dis­
repute, than a charge of this character.”  Collins v. Okla­



33

homa State Hospital, 76 Okla. 229. A Texas court has 
ventured the opinion that, “ Although we have no Texas 
case holding that to falsely charge a white person as 
being a Negro would be slanderous, yet in view of the 
social habits, social customs, traditions and prejudices 
prevalent in this state in regard to the status of whites 
and blacks in this state, we think such a charge would 
be slanderous.”  O’Connor v. Dallas Cotton Exchange, 
153 S. W. 2, 266.

Even more direct proof that the segregation statutes 
rest on doctrines of racial superiority may be found in 
the courts ’ attitude when the statutes are misapplied. 
Their consistent holding that it is humiliating to require 
a white passenger to ride in a Jim Crow car betrays offi­
cial recognition that the facilities are not equal even in 
the eyes of the law.

Thus, in a Texas case, the court declared, “ To with­
hold from a white lady the right to ride in a coach such 
as the law requires to be provided for her race and to 
compel her and her children to ride in one occupied by 
Negroes for whom under law it is provided exclusively 
constitutes such a violation of law and breach of duty 
as to render it liable for damages for such discomfort 
and humiliation as are proximately caused from such 
breach of duty.”  M. K. T. Railway Co. of Texas v. Ball, 25 
Tex. Civil App. 500, 61 S. W. 327. Similar decisions were 
reached in Louisville and N. R. Co. v. Ritchel, 148 Ky. 701; 
Chicago, R. I. and P. Ry. Co. v. Allison, 120 Ark. 54.

Consistently with these cases, a white passenger could 
recover damages if he were now required to sit at the 
dining car table which the railway assures us is now avail­
able to appellant. If the law recognizes damage in such 
a case, how can it, in any sense, view the facilities as 
equal?



34

2. T h e  P revio u sly  E stablish ed  S ocial  I n eq u ality

“ Supremacy”  is not “ equality.”  That proposition 
needs no elaboration. Yet it is easy to show that the 
doctrine of segregation is irrevocably linked with the 
equally widely held, though admittedly unconstitutional, 
doctrine of “ white supremacy.”  At the very least, it has 
led to that doctrine, as Justice Harlan predicted in his 
dissenting opinion in Plessy v. Ferguson, 163 U. S. at 559- 
564.

It is consequently not strange that students of segrega­
tion statutes uniformly find that they rest on notions of 
superiority. By segregation “ racial and cultural differ­
ences between southern whites and slaves were translated 
into terms of unquestionable superiority and inferiority.”  
Johnson, op. cit. p. 158. “ Systematic discrimination 
against a racial minority usually assumes the form of 
segregation. The subordinate status of the group may, 
in fact, be inferred from the modes of segregation to 
which it is subjected.”  McWilliams, Race Discrimination 
and the Law, Science and Society, Vol. IX, No. 1 (1945). 
Indeed, the entire pattern of mores governing Negro-white 
relationships is inexplicable except in the terms that “ In 
the magical sphere of the white man’s mind, the Negro is 
inferior, totally independent of rational proofs or dis­
proofs. And he is inferior in a deep and mystical sense. 
The ‘ reality’ of his inferiority is the white man’s own 
indubitable sensing of it, and that feeling applies to every 
single Negro . . . the Negro is believed to be stupid, im­
moral, diseased, lazy, incompetent, and dangerous—dan­
gerous to the white man’s virtue and social order.”  Myr- 
dal, op. cit. p. 100. Under these conditions “ it is falla­
cious to say . . . that the intention and effect [of segrega­
tion] is not to impose any badge of inferiority. . . . When 
a Negro workingman or woman is seated in the third seat 
of a street car on St. Charles Avenue in New Orleans 
and when a white man and woman is seated on the fourth



35

seat, separated only by a bit of wire mesb ten inches 
high on the back of the third seat this is a ‘ separation’ 
that is merely a symbolic assertion of social superiority, 
a ‘ ceremonial’ celebration.”  McGovney, Racial Residen­
tial Segregation by State Court Enforcement of Restric­
tive Agreements, Covena/nts or Conditions in Deeds is Un­
constitutional, 33 Calif. L. Rev. 5 at p. 27 (1945).

It is equally important that those States which have 
rejected the theory of inferiority by passing laws pro­
hibiting racial discrimination have uniformly interpreted 
those laws as prohibiting segregation. Joyner v. Moore- 
Higgins Co., 152 App. Div. 266 (N. Y .) ; Ferguson v. Gies, 
82 Mich. 358; Rolden v. Grand Rapids, 239 Mich. 318; 
People v. Board of Education of Detroit, 18 Mich. 400; 
Crosswaith v. Berger, 95 Colo. 241; Jones v. Kehrlein, 
194 P. 55 (Cal.); Prowd v. Gore, 207 P. 490 (Cal.); 
Wysinger v. Crookshank, 23 P. 54 (Cal.); Tape v. 
Hurley, 66 Col. 473; Anderson v. Pantages, 114 Wash. 
24; Randall v. Cowlitz Amusements, 194 Wash. 82; Baylies 
v. Curry, 128 111. 287; Pickett v. Kuchan, 323 HI. 138; 
Clark v. Directors, 24 Iowa 67.

In short, the sole importance of segregation is to give 
whites—no matter how low on the social scale—a sense 
of power and importance. Dollard, Caste and Class in a 
Southern Town (1937), page 98. This is reflected in the 
candid admission of a Kentucky court considering statutes 
requiring segregation In transportation facilities within 
that State. “ It is also beyond dispute that the sentiment 
reflected in this legislation and in these opinions does not 
find the end or the perfection of its purpose in mere race 
separation alone. It goes much further in that, as is 
shown in the general feeling everywhere prevailing, the 
Negro, while respected and protected in his place, is not 
and cannot be a fit associate for white girls or the social 
equal of the white race. To conditions like these that are 
everywhere about them as a part of the social order and



36

domestic economy of the state, courts cannot shut their 
eyes. They must . . . notice . . .  the position of the races 
and the attitude of the white race toward the Negro.”  
Axton Fisher Tobacco Co. v. Evening Post, 169 Ky. 64.

POINT III

The separate but equal doctrine has never been, 
and should not now be, applied to Section 3(1) of the 
Interstate Commerce Act by this Court.

This Court has never ruled that the prohibition of dis­
crimination incorporated in Section 3(1) of the Interstate 
Commerce Act was satisfied hy separate but equal facili­
ties. Hall v. Be Cuir, 95 U. S. 485 and Morgan v. Virginia, 
328 U. S. 373 held that state statutes forbidding or com­
pelling segregation are unconstitutional insofar as they 
apply to interstate carriers because they intrude upon 
federal control of interstate commerce. McCabe v. A. T. & 
S. F. R. R. Co., 235 U. S. 151, held that a state law requir­
ing discrimination was unconstitutional because it vio­
lated the Fourteenth Amendment. Chiles v. Chesapeake & 
Ohio R. Co., 218 U. S. 71, sustained segregation self- 
imposed by a carrier; but the complainant in that case 
failed to rely on Section 3(1) and this Court did not refer 
to it.

Thus, the only case in which this Court has considered 
racial discrimination under Section 3(1) is Mitchell v. 
U. S., 313 U. S. 80. There it held that the denial of cer­
tain accommodations was clearly discriminatory and 
hence illegal. Declining to go further, it noted specifically 
that it was considering “ not a question of segregation hut 
one of equality of treatment”  (313 U. S. at 94).

We submit that this Court can hold here that segre­
gated facilities do not satisfy Section 3(1) without over­
throwing the application of the Plessy doctrine to the



37

Fourteenth Amendment. The language of Section 3(1) 
unequivocally prohibits any carrier from subjecting any 
person “ to any undue or unreasonable prejudice or dis­
advantage in any respect whatsoever.”  Obviously this 
sweeping injunction to be distinguished from the more 
general provision that no person shall be deprived of 
“ equal protection of the laws.”

Indeed we believe that the language of Section 3(1) 
is closer to that of the statute invoked in R. R. Co. v. 
Brown, discussed above (pp. 11-12). The Brown case was 
distinguished in the Plessy decision on the ground that 
the statute there invoked prohibited “ exclusion”  from the 
cars (163 U. S., at 546). Clearly that statute is closer 
in language to the equally explicit terms of Section 3(1) 
than the “ equal protection”  clause of the Fourteenth 
Amendment. We submit that the Brown case is a more 
direct precedent for the present case than the Plessy case 
and requires reversal of the judgment below.

CONCLUSION

It is respectfully submitted that for the reasons 
stated above the judgment below should be reversed.

A m e rica n  J e w is h  C ongress, 
Amicus Curiae,

W il l  M a slo w , Attorney.

S h ad  P olier , 
J oseph  B . R obison , 
P h il ip  B a u m , 

of Counsel.

October 17, 1949



AMERICAN JEWISH CONGRESS
1834 Broadway, New York 23, N. Y.

Stephen S. W ise, President *
Irving Miller Chairman Joachim  Prinz Chairman

Executive Committee Administrative Committee
Alfred J. Marrow Treasurer Samuel Caplan Secretary

Joseph R. A pfel 
Nathan L. Edelstein 
Leo Lowitz 
Mae Nussbaum

Vice-Presidents

New York 
Philadelphia 

Chicago 
Los Angeles 

IsmoR T eitelbaum,

Justine W ise Polier 
Shad P olier 
Simon E. Sobeloff 
David Stoneman # 
New York

New York 
New York 
Baltimore 

Boston

David W. Petecorsky, Executive Director 
Isaac T oubin, Assistant Director

COMMISSION ON LAW  AND SOCIAL ACTION

NATIONAL ADVISORY BOARD 
Shad Polier, Chairman, Executive Committee

Thurman A rnold 
Bernard Bernstein 
Louis B. Boudin 
D. A ngus Cameron 
Bartley C. Crum 
Hubert T. Delany 
T homas I. Emerson 
James L. Fly 
A be Fort as 
Elmer Gertz 
Roland B. Gittelsohn 
Frank P. Graham  
Jerome R. Hellerstein 
Charles H. H ouston 
A lvin Johnson 
J. Donald K ingsley 
Freda K irchwey 
Joseph P. Lash 
Max Lerner 
Constance S. Lindau

Edwin J. Lukas 
T hurgood Marshall 
Carey M cW illiams 
Jerome M ichael 
Mathilda D. M iller 
R obert R. Nathan 
Charles P oletti 
Daniel A. P oling 
Anne P ollock 
Ira De A. R eid 
Jacob R obinson 
Malcolm R oss 
A rthur H. Schwartz 
Harry Shulman 
Edward S. Silver 
Simon Sobeloff 
R oderick Stephens 
M ichael Straight 
Harold T aylor 
Jacob J. W einstein

W ill M aslow, Director 
Leo Pfeffer, Assistant Director 

Byron S. M iller, Midwest Director

*  deceased.



AMERICAN JEWISH CONGRESS

Reprinted by

American Jewish Congress 

1834 Broadway 

New York 23, N. Y.

4



IN  THE

Supreme Court of the United States
October Term, 1949

No. 25

ELMER W. HENDERSON,

vs.
Appellant,

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

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OP MARYLAND

MOTION AND BRIEF FOR THE NATIONAL ASSO­
CIATION FOR THE ADVANCEMENT OF COLORED 

PEOPLE AS A M IC U S  C U R IA E .

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

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





TABLE OF CONTENTS

PAGE

Motion for Leave to File Brief as Amicus Curiae.......  1

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

The Opinions B elow _________________________________ 3

Jurisdiction_________________________________________  3

Statutes Involved __________________________   4

Statement of the C ase______________________________  4

Summary of Argument _____________________________  6

Argument:

I. The present regulation violates the Interstate
Commerce A ct___________________________  7

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

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

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

Conclusion__________________________________________  24

«



1 1

Table of Cases Cited
PAGE

Adelle v. Beaugard, 1 Mart. 183_____________________  16
Bob Lo Excursion Co. v. Michigan, 333 U. S. 2 8 ______ 20
Chicago R. I. & P. Rv. Co. v. Allison, 210 Ark. 54, 178

S. W. 401 (1915) _________________________________ 17
Ex Parte Endo, 323 U. S. 283 ________________________  20
Gibbons v. Ogden, 9 Wheat. 1 ________________________  20
Hall v. DeCuir, 95 U. S. 485 _________________________  21
Ilirabayashi v. United States, 320 U. S. 8 1 ____ __20, 21, 22
Hurd v. Hodge, 332 U. S. 2 4 _______________________ 21, 22

.Korematsu v. United States, 323 U. S. 214_______20, 21, 22
Lee v. New Orleans G. N. Ry., 125 La. 236, 51 S. 182___ 16
Louisville & N. R. R. v. Ritchel, 148 Ky. 701, 147 S. W.

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

151_______________________________________________9,11
Missouri K. & T. Ry. Co. of Texas v. Ball, 25 Tex. Civ.

App. 500, 61 S. W. 327 (1901) _____________________  17
Mitchell v. United States, 313 U. S. 80____9,10,11,13,18, 20
Morgan v. Virginia, 328 U. S. 373 ------------------------------  15
Pennsylvania v. West Virginia, 262 U. S. 553, 596, 597 20 
Plessy v. Ferguson, 163 U. S. 537 ___________________22, 24
Shelley v. Kraemer, 334 U. S. 1 --------------------------- 10, 21, 22
Sipuel v. Board of Regents, 332 U. S. 631 ----- -----------  11
Skinner v. Oklahoma, 316 U. S. 535 ----------------------------- 21
State v. Treadway, 126 La. 300, 52 So. 500-------------------  16
Steele v. Louisviile & N. R. Co., 323 U. S. 192----------- 20
Takahashi v. Fish and Game Commission, 332 U. S. 410 21
Truax v. Corrigan, 257 U. S. 312--------------------------------  21
Tunstall v. Brotherhood of Locomotive Firemen and 

Enginemen, 323 U. S. 210 - --- -------------------------20, 21, 22
United States v. Screws, 325 U. S. 9 1 ------ ------ ------------- 21



Ill

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

1(5), 3(1), 49 U. S. C. A. Secs. 1(5), 3 (1)____4,15,19, 20
Interstate Commerce Act 10A, F. C. A., Title 49, Secs. 

1(13), 1(14), 49 U. S. C. A. Secs. 1(13), 1(14)____18,19
Interstate Commerce Act, 10 F. C. A., Title 46, Sec. 815,

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

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

Other Authorities
To Secure These Rights, The Report of the President’s 

Committee on Civil Rights, U. S. Government Print­
ing Office, Washington, D. C., 1947_______________  23





IN THE

Supreme Court of the United States
October Term, 1949

No. 25

E l m e r  W . H enderson ,
Appellant,

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

state  C o m m erce  C o m m issio n  and  T h e  
S o u th e r n  R a il w a y  C o m p a n y ,

Appellees.

M O T IO N  FO R  L E A V E  T O  FILE BRIEF AS  
AMICUS CURIAE.

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

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



2

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

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

Robert L. Carter 

Thurgood Marshall

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



IN' THE

Supreme Court of the United States
October Term, 1949

No. 25

E l m e r  W . H en derson ,
Appellant,

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

state  C o m m erce  C o m m issio n  and  T h e  
S o u th e r n  R a il w a y  C o m p a n y ,

Appellees.

BRIEF FOR THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE AS 

A M IC U S  C U R IA E .

The Opinions Below.

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

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

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

3



4

Statutes Involved.

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

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

Statement of the Case.

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

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

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



5

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

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

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



6

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

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

Summary of Argument.

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

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



7

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

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

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

A R G U M E N T .

I.

The present regulation violates the Interstate Com­
merce Act.

The present regulation sets aside a table for the exclu­
sive occupancy of Negroes at the kitchen end of the dining 
car while the train is going through those states where 
segregation is required. From Washington to New York,



8

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

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

3 “Transportation Department Circular No. 142. Cancelling in­
struction on this subject, dated July 3, 1941, and August 6, 1942. 
S u b j e c t : Segregation of White and Colored Passengers in Dining 
Cars. To: Passenger Conductors and Dining Car Stewards. Con­
sistent with experience in respect to the ratio between the number of 
white and colored passengers who ordinarily apply for service in avail­
able diner space, equal but separate accommodations shall be provided 
for white and colored passengers by partitioning diners and the allot­
ment of space, in accordance with the rules, as follows: (1) That one 
of the two tables at Station No. 1 located to the left side of the aisle 
facing the buffet, seating four persons, shall be reserved exclusively 
for colored passengers, and the other tables in the diner shall be re­
served exclusively for white passengers. (2) Before starting each 
meal, draw the partition curtain separating the table in Station No. 1, 
described above, from the table on that side of the aisle in Station No. 
2, the curtain to remain so drawn for the duration of the meal. (3) A 
“Reserved” card shall be kept in place on the left-hand table in Sta­
tion No. 1, described above, at all times during the meal except when 
such table is occupied as provided in these rules. (4) These rules 
become effective March 1, 1946. R. K. McClain, Assistant Vice- 
President.”



9

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

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

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

5 See first opinion of lower court in this case (R. 76).
6 M cC a b e  v. A tch ison , T . &  S . F . R y . C o., 235 U. S. 151.
7 M itchell v. United States, 313 U. S. 80.



10

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

Nor is it an answer to say that whites also have to wait 
for seats on some occasions.711 The inquiry does not stop 
at the situation where all seats in the dining car are taken, 
or where both Negro and white passengers are standing; 
the character of the right possessed by the Negro passenger 
who stands while all whites are seated, and while there is 
space for him in the “ white”  section, clearly makes the 
difference.8 Equal protection is not met by saying to the 
Negro passenger applying for accommodations in a sleeper,

7a Equality of treatment is not granted because there is between 
whites and Negroes an “indiscriminate imposition of inequalities.” 
S h elley v. K ra em er, 334 U. S. 1, 22.

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



11

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

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

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

9 M itchell v. United S tates, supra, at page 97.
10 Sipuel v. Board of R egen ts, 332 U. S. 631.
31 M cC a b e  v. A tch ison  T . &  S . F . R y . C o., su p ra ; M itchell v. 

U nited S tates, supra.



1 2

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

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

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



13

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

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

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

14 See M itchell v. United States, supra.



14

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

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



15

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

II.

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

The same factors which influenced this Court in declar­
ing that the states are without authority to require the sepa­
ration of races in interstate commerce are at work with 
equal force when the effect of a carrier regulation enforcing 
such segregation is considered. In Morgan v. Virginia,15 16 
this Court found that one of the main vices of giving effect 
to local statutes enforcing segregation in interstate com­
merce was the difficulty of identification.1'* That difficulty 
is no less when the separation is attempted under a carrier 
regulation rather than under a state statute.

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

15 328 U. S. 373.
16 Ibid  at pages 382, 383.



16

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

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

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

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

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

19 S. C. Const., Art. Ill, Sec. 33 (intermarriage). If the trip were 
continued to New Orleans, Louisiana, the rule is not clear. It was 
first held that all persons, including Indians, who were not white were 
“colored". A d d le  v. Bedugard, 1 Mart. 183. In 1910 it was held that 
anyone having an appreciable portion of Negro blood was a member 
of the colored race within the meaning of the segregation law. L e e  v. 
N e w  O rleans G . N . R y ., 125 La. 236, 51 S. 182. In the same year, 
however, it was decided that an octoroon was not a member of the 
Negro or black race within the meaning of the concubinage law (La. 
Act, 1908, No. 87). State v. Treadaw ay, 126 La. 300, 52 So. 500. 
Shortly after the latter decision, the present concubinage statute was 
enacted substituting the word “colored” for “ Negro”. La. Acts, 1910, 
No. 20$, La. Crim. Code (Dart), 1932, Arts. 1128-1130. The effect 
of the change is yet to be determined.



37

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

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

20 See L ouisville &  N . R . R . v. R itchel, 148 Ky. 701, 147 S. W. 
411 (1912); M isso u ri K .  &  T . R y . Co. of T ex a s  v. Ball, 25 Tex. Civ. 
App. 500, 61 S. W. 327 (1901); Chicago R . I . &  P . R y . Co. v. 
A llison, 210 Ark. 54, 178 S. W. 401 (1915) where punitive damages 
were afforded white persons for mistaken placement in colored coaches. 
Regardless of the definition used the carrier will be liable in damages 
unless its definition is a correct one as determined by the law of the 
applicable forum.



18

such incidents and to protect respondent’s propei'ty.20a 
National interests in maintaining commerce free of burdens 
and obstructions, must prevail over carrier regulations as 
well as state statutes. Hence under the rationale of the 
Morgan case, it must logically follow that neither a state 
nor a carrier has authority to burden interstate commerce 
by the enforced segregation of passengers in interstate 
commerce.

III.

Sanction of this regulation by the Interstate Com­
merce Commission constitutes governmental action 
within the reach of the Fifth Amendment.

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

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

20a yfor may we acjq js ^ere any reason to anticipate trouble. The 
Southern Railway is no local carrier but operates over one of the 
main arteries of travel connecting the North and South. People from 
states having civil rights statutes as well as those from states which 
practice segregation use its facilities. Negro passengers, at least since 
M itch ell v. United States, supra, have used its Pullman facilities with­
out segregation and without any infractions of the law taking place. 
Service in its diner without segregation will not force any white per­
son who does not desire to sit down and eat with a Negro.



19

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

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

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

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

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

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

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



2 0

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

23 M itchell v. United States, supra, at pages 96, 97.
24 This has been the rule since G ibbons v. O gden, 9 Wheat 1. In 

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



2 1

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

It is the duty of the Commission to say whether a regula­
tion provides equality of treatment, and the carrier regula­
tions dealing with this subject matter are of no force or ef­
fect without the sanction of the Commission. They can 
only exist with the sanction of the government. In this case, 
the Commission specifically approves the present regula­
tion and this is clearly governmental action within the 
meaning of the Fifth Amendment.25

IV.

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

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

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

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

27 See T ru a x  v. Corrigan, 257 U. S. 312; Skinner v. Oklahom a, 
316 U. S. 535; Takahashi v. F ish  and Gam e C om m ission , 332 U. S. 
410; S h elley v. K ra em er, 334 U. S. 1 ; H irabayashi v. United States, 
320 U. S. 81; K orem a tsu  v. U nited States, 323 U. S. 214; See also 
H u rd  v. H o d g e , 334 U. S. 24; Tunstall v. B roth erh ood  of L o c o m o ­
tive F irem en  and E n gin em en , 323 U. S. 210.



2 2

are made as between persons or groups, such distinctions 
must have a rational basis in order to avoid conflict with 
either the Fourteenth or Fifteenth Amendments. This 
Court has consistently held that governmental distinctions 
between persons based upon race or color are arbitrary and 
unreasonable and cannot stand under the Constitution.28 
Although the Fifth Amendment contains no equal protec­
tion clause, it is no longer open to doubt that the United 
States government is as limited in making race a basis for 
a legislative enactment as are the states under the Four­
teenth Amendment.28*1 It is also now clear from the deci­
sions of this Court that the government cannot be a party 
to the enforcement of racial distinctions and classifications 
which are privately promulgated.29 Although Hurd v. 
Hodge was decided without reaching this constitutional 
question, it seems certain that this Court will find the fed­
eral government bound by the same constitutional limita­
tions which is found applicable to the states in Shelley v. 
K) ■aemer.

Only under the rationale of Plessy v. Ferguson 30 could 
a contrary decision be reached. That decision gave birth 
to the much criticized “ equal but separate”  doctrine, under 
which enforced racial separation is declared permissible 
as long as the facilities available for Negroes are equal or

28 See cases supra, in note 27.
28a H irdbayashi v. United States, su p ra ; K orem a tsu  v. United  

States, su pra} and Tunstall v. B roth erh ood  of L ocom otive  F irem en  
and E n gin em en , supra.

29 S h elley  v. K ra em er, 334 U. S. 1.
30 1 63 U. S. 537.



23

substantially equal to those available to whites.81 Of course 
there can be no question of equal facilities in this case when 
under the carrier’s present regulations a passenger who is 
a Negro is forced to eat in isolation behind a wooden barrier 
as if he were unclean or an untouchable.31 32 But for more

31 T h e R ep o rt o f the P residen t's Com m ittee on Civil R igh ts at 
page 81. “This judicial legalization of segregation was not accom­
plished without protest, justice Harlan, a Kentuckian, in one of the 
most vigorous and forthright dissenting opinions in Supreme Court 
history, denounced his colleagues for the manner in which they inter­
preted away the substance of the Thirteenth and Fourteenth Amend­
ments. In his dissent in the P lessy  case, he said: ‘Our Constitution 
is color blind, and neither knows nor tolerates classes among citi­
zens. * * * ‘We boast of the freedom enjoyed b}' our people above 
all other peoples. But it is difficult to reconcile that boast with a 
state of the law which, practically, puts the brand of servitude and 
degradation upon a large class of our fellow citizens, our equals before 
the law. The thin disguise of ‘equal’ accommodations * * * will not 
mislead anyone, or atone for the wrong this day done. I f  evidence  
beyon d  that of dispassionate reason w as needed to ju stify  Justice 
Harlan s statem ent, history has provided it. Segregation has become 
the cornerstone of the elaborate structure of discrimination against 
some American citizens. Theoretically this system simply duplicates 
educational, recreational and other public services, according facilities 
to the two races which are ‘separate but equal'. In  the C om m ittee ’s 
opinion this is one of the outstanding m yth s of A m erican h istory for  
it is  alm ost always true that while indeed separate, these facilities are 
far from  equal.’ ”  (Italics supplied.)

32 T h e R ep ort of the P residen t’s C om m ittee on Civil R igh ts at page 
79. “ Mention has already been made of the ‘separate but equal’ policy 
of the southern states by which Negroes are said to be entitled to the 
same public service as whites but on a strictly segregated basis. The 
theory behind this policy is complex. On one hand, it recognizes 
Negroes as citizens and as intelligent human beings entitled to enjoy 
the status accorded the individual in our American heritage of free­
dom. It theoretically gives them access to all the rights, privileges, 
and services of a civilized, democratic society. O n  the other hand, it 
brands the N e g r o  w ith the mark of inferiority and asserts that he is 
not fit to associate w ith w hite people.”  (Italics supplied.)



24

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

Conclusion.

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

Robert L. Carter 

Thurgood Marshall 

Attorneys for Amicus Curiae.







IN  THE

Supreme Court of the United States
O ctobeb T e r m , 1949.

No. 25

ELMER W. HENDERSON,
Appellant,

VS.

THE UNITED STATES OF AMERICA, 
INTERSTATE COMMERCE COMMIS­
SION and SOUTHERN RAILROAD 
COMPANY,

On Appeal from the 
United States Dis- 

> trict Court for the 
District of Maryland.

Appellees.,.

BRIEF AMICUS CURIAE ON BEHALF OF THE CIVIL  
RIGHTS COMMITTEE OF THE NATIONAL  

BAR ASSOCIATION.

JOSEPH R. BOOKER, President, National 
Bar Association

RICHARD E. WESTBROOKS, Chairman, Civil 
Rights Committee, National Bar Association

GEORGE N. LEIGHTON 
ZEDRICK T. BRADEN 
LUCIA T. THOMAS 
WILLIAM A. BOOKER 
GEORGIA JONES ELLIS 
EARL B. DICKERSON 
JOSEPH E. CLAYTON, JR.

Members, Civil Rights Committee,
National Bar Association

RICHARD E. WESTBROOKS 
GEORGE N. LEIGHTON 

Of Counsel

The Scheffer Press, Inc.—Financial 6-269+









SUBJECT INDEX.

Brief Amiens Curiae on behalf of the Civil Rights
Committee of the National Bar Association............... 1

Questions Presented .......................................................... 2
Statement .............................................................................  2
Summary of Argument...................................................... 3
Argument:

I. The Dining Car Regulations adopted by the 
Southern Railway Company are void because 
their effect was to engraft on the Interstate Com­
merce Act a provision which the Congress of the 
United States has no power to enact or adopt.......  3

II. Under the exclusive power granted it by the Con­
stitution of the United States, Congress has pro­
vided a broad and comprehensive plan for the 
regulation of interstate commerce by enacting the 
law known as the Interstate Commerce Act.
This Act, as amended, precludes any state, pub­
lic utility, person or body of persons from adding 
to, taking away from, limiting the scope of or 
restricting or interfering with the exercise of 
congressional power over interstate commerce.....  9

III. The regulations or rules of the Southern Rail­
way Company, effective on and after March 1, 
1946 are void because they are vague, indefinite
and uncertain..............................................................  20

IV. The dining car regulations adopted by the South­
ern Railway Company are void because they vio­
late Section 3 (1) of the Interstate Commerce 
Act.................................................................................  24

Conclusion ...........................................................................  26



PAGE
T able  of Cases .

Atlantic Pipeline Co. v. Brown County, D . C. T e x ., 12
Fed. Supp. 642, 647 ........................................................ 15

Chiles v. Chesapeake & Ohio Railway Company, 218 
U. S. 71-72-74, 54 L. Ed. 936, 30 Sup. Ct. 667 ...........26-27

Connally v. General Construction Co., 269 U. S. 385,
46 Sup. Ct. 126-129 ........................ ................................. 23

Decuir v. Benson, 27 La. Ann. 1 -6 ..................................  25
Elks Hotel Co. v. United Fuel Gas Co., 83 S. E. 884;

88 W. 924; 73 W. Va. 200 ..........................................  15
Gibbons v. Ogden, 9 Wheat. 196......................................  13
Henderson v. Interstate Commerce Commission, 80 

Fed. Supp. 3 2 ...................................................................  14
Hines, et al. v. Davidowitz, 312 U. S. 52, 62, 63, 7 0 .......  19
Houston y. Moore, 5 Wheat. Rep. 1, 21, 22 (5 L. Ed.

19) .....................................................................................  11
Howitt v. United States, 328 U. S. 189,192, 389 ............. 17
Joseph v. Bidwell, 28 La. Ann. 382, 383 ..........................  23
Kentucky Traction and Terminal Co. v. Murray, 195 

S. W. 1119,1120, 76 Ky. 593 ..........................................  13
Lehigh Valley R. Co. v. Public Service Commission, 272 

Fed. 758, A ffd; 257 U. S. 591........................................  19
Lindenburg v. American Express Co., 106 S. S. 884;

88 W. Va. 439 ........................................................................15
Mitchell v. United States, 313 U. S. 80 .........................3-24
Morgan v. Virginia, 328 U. S. 373, 382 ..........................  17
Pike v. Walker, 121 F. (2d) 37 ............................................  6
Plessy y. Ferguson, 163 U. S. 537, 538, 540,16 Ct. 1138,

41 L. Ed. 936, 30 Sup. Ct. 667 ...................................... 26-27
Prigg v. Commonwealth of Pennsylvania, 16 Pet. 535,

617; 10 L. Ed. 1060, 1090 ................................................ 10
Railroad Co. v. Illinois, 118 U. S. 557 ............................. 6
Robinson v. Southern Pacific, 105 Cal. 526, 38 Pac. 722,

723 ...................................................................................... 25
Rochester Telephone v. United States, et al., 307 U. S. 

125 ............................................................ 7



PAGE

State Freight Tax, 15 Wall (82 U. S.) 232 ....................... 16
State y. Treadway, 126 La. 302 ........................................  17
Southern Pacific v. Arizona, 325 U. S. 761..................... 21
Texas and Pacific Ry. Co. v. Interstate Commerce, 116 

U. S. 197; 16 S. 666,116 Law. Ed. 940..........................  19
U. S. v. Capital Traction Co., 34 App. D. C. 592 ........... 23
U. S. v. Cohen Grocery Company, 225 U. S. 81, 89;

41 Sup. Ct. 298, 300.........................................................  23
U. S. v. F. W. Darby Lumber Co., et al., 312 U. S. 100,

113, 114 ........................................................................... 12-19
U. S. v. Reese, 92 U. S. 214, 219, 220 ..............................  23
U. S. v. Simmons, 96 U. S. 360 ..........................................  23
Wimberly v. Georgia Southern and F. R. Co., 163 S.

E. 2931; 5 Ga. App. 263 ................................................  15

C o n st it u t io n  of t h e  U n ited  S tates .

Article One, Sec. 8 .............................................................  16
Fifth Amendment...............................................................  5
Tenth Amendment .............................................................. 16

S t a t u t e s .

Civil Rights Act, Title 8, U. S. C. A., Chap. 3 ............... 22
Interstate Commerce Act, as amended, Title 49 U. S.

C. A.
Sec. (3) .............................................. 3, 9,12,15,17, 20, 24
Sec. 3 (11) ...................................................................... 24

B ooks an d  P eriodicals .

Address by Cardinal Stritch ..............................................  20
Carriers, 3 Moore, 1705 ........................................................  16
“ Sex and Race”  by J. A. Rogers, Yol. II, pp. 2, 3 .......  38
The Federalist No. 7, Alexander Hamilton.....................  17

iii





nr the

Supreme Court o f the U nited States
O ctober  T e r m , 1949.

ELMER W. HENDERSON,
Appellant,

vs.
THE UNITED STATES OF AMERICA, 

INTERSTATE COMMERCE COM­
MISSION and SOUTHERN RAIL­
ROAD COMPANY,

Appellees.

>-

y

On Appeal from the 
United States Dis­
trict Court for the 
District of Maryland.

BRIEF AMICUS CURIAE ON BEHALF OF THE CIVIL  
RIGHTS COMMITTEE OF THE NATIONAL  

BAR ASSOCIATION.

Now comes The National Bar Association, Inc., by 
Joseph R. Booker, president; Lucia T. Thomas, assistant 
secretary; Richard E. Westbrooks, chairman of the Civil 
Rights Committee of The National Bar Association; George 
N. Leighton; William A. Booker, Zedrick T. Braden, 
Georgia Jones Ellis, Earl B. Dickerson, and Joseph E. 
Clayton, Jr. as counsel for and members of said Civil 
Rights Committee of the aforesaid organization, for and 
on behalf of themselves and more than 3000 other lawyers, 
who are American citizens of color, and having first ob­
tained the consent of all parties of record to this cause, 
files this, its Brief Amicus Curiae as provided by the rules 
of this court as amended.

The National Bar Association has among its mem­
bers, American Citizens of color who must utilize all



facilities of Railroads and Common carriers in the pur­
suit of their professions as members of the bar of all 
States and federal courts. Said railroads and the 
common carriers are subject to the jurisdiction of the 
Interstate Commerce Commission when that commission 
exercises the powers vested in it by the provisions of 
Title 49, U. S. C.

In our view the fundamental question presented on ap­
peal by the appellant in this case affects the rights of 
every member of the National Bar Association. The inter­
ests of The National Bar Association and its members stem 
from the affect on the rights of these members of the 
rulings in the case at bar by the tribunals below. As 
American Citizens of color, the members of The National 
Bar Association share the conviction that the questions 
presented for review by this court will be more adequately 
considered if the brief amicus curiae be supported by 
argument and authorities which have been obtained by 
research of its Civil Rights Committee.

Further, the members o f The National Bar Association 
respectfully call the attention of this Honorable Court to 
the fact that in addition to the rights of the members of 
the National Bar Association, and the appellant herein, 
the question presented on review touches the basic rights 
of more than 15,000,000 American citizens of color.

QUESTIONS PRESENTED.

We adopt the statements of the Questions Presented as 
they appear in the Briefs of the appellant and of the 
United States.

—  2 —

STATEMENT.

We adopt the Statement of the case as contained in the 
Briefs of the appellant and the United States Government.



—  3 —

SUMMARY OF ARGUMENT.

ARGUMENT.

POINT I.

The Dining Car Regulations adopted by the Southern Rail­
way Company are void because their effect was to engraft 
on the Interstate Commerce Act a provision which the 
Congress of the United States has no power to enact or 
adopt.

As amicus curiae, we are constrained at the outset to 
emphasize the pervasive effect of the Dining Car Regula­
tions of March 1, 1946, which were adopted by the South­
ern Railway. With commendable candor the railroad 
company admits that these regulations are designed to 
furnish the basis for a race segratory system by which 
American citizens who are passengers in interstate travel 
would be furnished accommodations in accordance with 
their race or color. The ultimate result of these regula­
tions is racial segregation of all American citizens when­
ever they embark on interstate travel.

The particular statute that protects American citizens 
from discriminatory practices in interstate travel is para­
graph 1 of sec. 3 of the Interstate Commerce Act. In 
Mitchell v. United States, 313 U. S., 80, this court con­
strued this section of the Interstate Commerce Act and 
held that it prohibited the denial of railroad facilities to 
an American citizen solely upon the fact that he is a 
Negro. In that case the passenger, purchased a round- 
trip ticket from Chicago, Illinois to Hot Springs, Arkansas. 
In Memphis, Tennessee the passenger tendered payment 
for a Pullman seat from Memphis to Hot Springs, 
Arkansas. The train conductor took up the Memphis-Hot



Springs, Arkansas portion of the ticket but refused to ac­
cept payment for the Pullman seat from Memphis and, 
in accordance with custom, compelled the colored pas­
senger to move into the car provided for colored pas­
sengers. As in the case at bar, the accommodations which 
the railroad company in that case contended it had the 
right to give the passenger were allocated pursuant to a 
system by which passengers in interstate travel were sold 
accommodations in accordance with their race and color. 
Mr. Chief Justice Hughes, in condemning the treatment 
of this American citizen of color as being unjust said:

“ The denial to appellant of equality of accommoda­
tions because of his race would be an invasion of a 
fundamental individual right which is guaranteed 
against State action by the 14th Amendment (McCabe 
v. Atchinson, T. & S. F. Ry., 235 U. S., 151, 160-162; 
Missouri ex rel Gaines v. Canada, 305 U. S., 337, 344, 
345) and in view of the nature of the right and of 
our Constitutional policies it can not be maintained 
that the discrimination as it was alleged was not 
essentially unjust.”

Even a cursory reading of the Dining Car Regulations 
adopted by the Southern Railway Company (See appendix, 
brief for the United States) reveals without doubt that 
the appellee railroad company intends to treat all Ameri­
can citizens who come upon its trains in interstate com­
merce as was the appellant in the Mitchell case. Under 
these regulations an American citizen who tenders the 
proper fare for dining car service and who otherwise 
would be entitled to such service would be denied facilities 
because of his race or color. It is exactly this treatment 
that this court has said is “ essentially unjust.”  Mitchell 
v. United States, supra.

This being so, we respectfully submit that the Dining 
Car Regulations adopted by the Southern Railroad ef­

—  4 —



fectuates a result which even the Congress of the United 
States is without power to create. We contend that if all 
the provisions of these Dining Car Regulations were care­
fully incorporated into a statute adopted by the Congress 
of the United States such a statute would contravene the 
limits of Congressional power defined in the 5th amend­
ment to the Constitution of the United States.

The Fifth Amendment to the Constitution o f the United 
States, in the third clause thereof, provides that no person 
shall “ be deprived of life, liberty, or property without 
due process of law” . This clause has been construed to 
prohibit the adoption by the Congress of the United States 
of any statute that will be discriminatory or arbitrary in 
character. Therefore, we contend, that if the Dining Car 
Regulations adopted by the Southern Railroad Company 
were enacted into law by Congress, such a statute would 
be so arbitrary and injurious in character as to violate 
the provisions of this clause of the Fifth Amendment to 
the Constitution of the United States. U. S. v. Petrillo, 
D. C. 111., 1946, 68 F. Supp. 845.

It is the admitted objective of the appellee railroad 
company to provide a system under which American 
citizens in interstate travel would be given railroad serv­
ices depending upon their race or color. Again we say, 
if these regulations were incorporated into law, such a ' 
law would have the same objectives. In other words, of 
American citizens similarly situated in interstate travel, 
one group, being Negroes because of their color, would 
be sold dining car services under one circumstance, and 
the other group, being white, also because of their 
color would be sold different accommodations. These 
regulations in effect deny to American citizens in inter­
state travel equality of dining car facilities because of 
their race. I f these regulations were enacted into law

—  5 —



such a statute would result in railroad services being 
sold to one group of American citizens while it be denied 
to another. This result, The United States Court of Ap­
peals for the District of Columbia said in Pike v. Walker, 
121 F. 2d, 37 could not be done by the Congress of the 
United States in the exercise of its power over postal 
services. In that case the appellant appealed from an 
order dismissing his complaint to restrain and enjoin 
the Postmaster General of the United States from en­
forcing a fraud order issued against the appellant. The; 
court said:

“ It may be safely stated, therefore, that no one 
can claim the right to use the mail for the transmis­
sion of matter which Congress has properly declared 
to be nonmailable, but we think it is equally clear, 
and is so stated in the Coyne case, that even Con­
gress is without power to extend the benefits of the 
postal services to one class of persons and deny them 
to another of the same class.”

The authority of the Interstate Commerce Commission 
and of the railroad to designate the treatment and the 
services to be accorded passengers in interstate travel 
has its sanction in the exclusive jurisdiction of Congress 
over the transmission of persons or property from state 
to state. Railroad Co. v. Illinois, 118 U. S. 557. But 
such power of designation and exclusion must be consist­
ent with the rights of the people as reserved by the con­
stitution. Pike v. Walker, supra.

We attach great interest to the fact that the exercise of 
this power affects more than the appellant in this case; 
the system instituted by the appellee railroad by its Dining 
Car Regulations will touch and affect the rights of every 
American citizen who needs the services sold by this rail­
road and others that follow its policies. The Dining Car 
Regulations, approved by the Interstate Commerce Com­

—  6  —



mission in its order below, become a part of the laws of 
the United States in the exercise of its power over inter­
state commerce. We submit, that this is an instance in 
which the exercise of power over an area in which Con­
gress has exclusive jurisdiction has been effected incon­
sistent with the rights of the people.

By apt analogy we find support in the case of Esquire 
v. Walker, 151 F (2d) 49. There, the plaintiff filed an 
action to enjoin the enforcement of a decision of the 
Postmaster General revoking its second-class mailing 
privileges. The court in reversing an order denying the 
injunction used language which appears to us appropriate 
to this occasion:

‘ ‘ But mail is not a special privilege. It is a highway 
over which all business must travel. The rates charged 
on this highway must not discriminate between com­
peting businesses of the same kind. If the Interstate 
Commerce Commission were delegated the power to 
give lower rates to such manufacturers as in its judg­
ment were contributing to the public good the exercise 
of that power would be clearly unconstitutional. * * * ”

It is our contention that the order of the Interstate Com­
merce Commission in this case had the effect o f an af­
firmative act of the Commission adopting the regulations. 
Cf. Rochester Telephone v. United States, et al 307 U. S. 
125. And we submit that the act of the Commission is an 
act of the Congress of the United States since the Com­
mission is the administrative agency to which regulation 
of interstate commerce has been delegated. In approv­
ing these Dining Car Regulations the Commission effec­
tively abetted the creation of a discriminatory system by 
which railroad services are sold an American citizen in ac­
cordance with his race or color American citizens of color, 
under such system will be denied full return from the 
moneys they pay for interstate travel service.

—  7 —



—  8  —

We note with approval that the Government of the 
United States in its Brief has cited numerous standard 
authorities dealing with the sociological effects of race 
discrimination and segregation. We adopt these authorita­
tive citations and join in the request of the Government 
that this court reexamine and reconsider the doctrine of 
“ separate but equal accommodations.”  We earnestly sub­
mit to this court that the oft cited principle which pre­
sumes public accommodations can be separate but equal 
is a theory devised in other days to avoid imagined un­
pleasantries in American race relations. Social studies by 
both foreign and American social scientists have estab­
lished the fact that separate accommodations in public 
places are never equal. And we contend that equality in 
such instances is a physical impossibility. I f the motive 
for urging separation of the races in public places is ex­
amined carefully, it will be seen that the opposite of equal­
ity is the objective sought by such practices. Equality that 
must be separate will destroy the inequality which is pre­
sumed by those who insist on separating the races in public 
accommodations. I f  such could be imagined, two Waldorf 
Astorias on opposite sides of the street would not only 
be physical impossibilities, but their existence would of­
fend those who desire to exclude members of certain 
American minorities from the elegance now dispensed at 
the one we know exists. Segregation of the races in public 
places is one of the great evils which have been imposed on 
the American people from an era now outdistanced by our 
democratic instincts. Segregation, we submit, is by its 
very nature discrimination. For an agency of the Ameri­
can Government to adopt by approval a system of race 
segregation having these results in interstate travel is to 
deny to this appellant in particular, and to the American 
people in general, a basic right reserved in the people:



the right to equality of treatment by the Government, the 
right to be free from a governmental act that is arbitrary 
and injurious in character. United States v. Petrillo, 
supra.

—  9 —

n.
Under the exclusive power granted it by the Constitution 

of the United States, Congress has provided a broad and 
comprehensive plan for the regulation of interstate com­
merce by enacting the law known as the Interstate Com­
merce Act. This Act, as amended, precludes any state, 
public utility, person or body of persons from adding to, 
taking away from, limiting the scope of or restricting or 
interfering with the exercise of congressional power over 
interstate commerce.

By enacting the Interstate Commerce Act in 1887 the 
Congress of the United States declared the national 
policy with regard to treatment of American citizens in 
interstate travel or shipments. Title 49, U. S. C. We 
respectfully submit, therefore, that in addition to the 
reasons stated in the briefs for the appellant, and for 
the United States, we urge the following to demonstrate 
that the Dining Car Regulations of March 1, 1946 adopted 
by the Southern Railway Company are void:

1. Under the authority granted by the Constitution, 
the Congress of the United States in 1887 promulgated a 
full, comprehensive and uniform plan for the regulation 
of interstate commerce. The exclusive power of Congress 
over interstate commerce can be added, detracted or 
abrogated only by Congress.

2. Under the exclusive jurisdiction of Congress over 
interstate commerce, neither the states nor bodies of 
persons have power to impose restrictions upon the trans­
mission of persons or property from state to state.



— 1 0 ^

3. Under the authority delegated to a common carrier 
by the Interstate Commerce Act to adopt just and rea­
sonable rules and regulations, the Southern Railway Com­
pany does not have power to adopt the Dining Car Regu­
lations of March 1, 1946 because they contravene and vio­
late the provisions of Section 3(1) of the Act.

This court has had occasion to rule on the principle 
we urge in the case at bar. In Prigg v. Commonwealth of 
Pennsylvania, 16 Pet. 535, 617; 10 L. Ed. 1060, 1090, 
speaking through Mr. Justice Story, this court struck 
down a Pennsylvania statute by which the state attempted 
to regulate fugitive slaves—a matter within the exclusive 
jurisdiction of Congress. The court said, 10 Pet. 535 at 
617, 618:

“ In a general sense, this act may be truly said 
to cover the whole ground of the Constitution, both 
as to fugitives from justice, and fugitive slaves; that 
is, it covers both the subjects in its enactments; not be­
cause it exhausts the remedies which may be applied 
by Congress to enforce the rights, if the provisions 
of the act shall in practice be found not to attain the 
object of the Constitution; but because it points out 
fully all the modes of attaining those objects, which 
Congress in their discretion, have as yet deemed 
expedient or proper to meet the exigencies of the 
Constitution. I f this be so, then it would seem, upon 
just principles of construction, that the legislation of 
Congress, if constitutional, must supersede all State 
legislation upon the same subject; and by necessary 
implication prohibit it. For, if Congress have a 
constitutional power to regulate a particular subject, 
and they do actually regulate it in a given manner, 
and in a certain form, it (618) cannot* be that the 
State Legislatures have a right to interfere, and, as 
it were, by way of complement to the legislation of 
Congress, to prescribe additional regulations, and 
what they may deem auxiliary provisions for the



1 1 —

same purpose. In such case, the legislation of Con­
gress, in what it does prescribe, manifestly indicates 
that it does not intend that there shall be any farther 
legislation to act upon the subject matter. Its silence 
as to what it does not do is as expressive of what 
its intention is as to the direct provisions made by 
it. This doctrine was fully recognized by this court 
in the case of Houston v. Moore, 5 Wheat. Rep. 1, 
21, 22, (5 L. Ed. 19) where it was expressly held that 
where Congress have exercised a power over a par­
ticular subject given them by the Constitution, it is 
not competent for State legislation to add to the pro­
visions of Congress upon that subject; for that the 
will of Congress upon the whole subject is as clearly 
established by what it had not declared as by what it 
has expressed.”

As was stated by Mr. Justice Story, when Congress 
enacts laws concerning a subject over which it has ex­
clusive power, it was not intended by the Constitution 
that the states, corporate public utilities, persons or body 
of persons shall have power to interfere with Congression­
al jurisdiction. Governmental or quasi-governmental ac­
tion in the same matter is void because it is presumed 
that if additional rules, regulations or laws materially 
affecting the subject were necessary, Congress would ex­
pressly delegate that power to subsidiary bodies to 
exercise. Therefore, when the Southern Railway Com­
pany and the Interstate Commerce Commission argue in 
the instant case that Congress has not expressly pro­
hibited race segregation of American citizens in inter­
state travel, the obvious answer is because it has not 
expressly authorized such practices, any rule or regula­
tion of a common carrier having such profound effect on 
the rights of American citizens is void because it invades 
important spheres of Congressional jurisdiction.

But we do not concede that Congress has failed to 
expressly prohibit race segregation in interstate travel.



— 12 —

We contend that the language of Section 3 (1) of the 
Act does condemn race segregation when it explicitly 
provides:

“ That it shall be unlawful for any common carrier 
subject to the Act to subject any particular person 
* * * to any undue or unreasonable prejudice or dis­
advantage in any respect whatsoever. 49 U. S. C. 3 ”  
Mitchell v. United States, 313 U. S. 80, at 93.

We do not believe that strained construction of this 
provision is necessary to show that the plain intent of 
Congress was to prevent just the form of discrimination 
that appellant complains of in the case at bar. Where the 
discrimination—the difference of treatment of persons 
similarly situated—is based on race distinctions, it is to 
be particularly considered repugnant to the mandate of 
Congress as expressed in Section 3 (1) of the Act. We 
respectfully submit that the power of Congress over 
interstate travel cannot be infringed upon by the rule 
or regulation of a common carrier in the manner at­
tempted here.

The late and revered Mr. Justice Stone stated well the 
principle we think controls the instant case. He said in 
United States v. Darby, 312 U. S. 114 at 115:

“ The power of Congress over interstate commerce 
‘is complete in itself, may be exercised to its utmost 
extent, and acknowledges no limitations other than 
are prescribed in the Constitution’. Gibbons v. 
Ogden, Supra, 196 (9 Wheat. 1, 196.) That power can 
neither be enlarged nor diminished by the exercise 
or non-exercise of state power. Kentuck Whip and 
Collar Co. v. Illinois Central R. Co., Supra. (299 U. S. 
334). Congress, following its own conception of 
public policy concerning the restrictions which may 
appropriately be imposed on interstate commerce, 
is free to exclude from the commerce articles whose 
use in the state for which they are destined it may



— 13 —

conceive to be injurious to the public health, morals 
or welfare, even though the state has not sought to 
regulate their use.”  (Citing cases)

The exclusive power of Congress to regulate interstate 
commerce has never been doubted. Since the decision 
in Gibbons v. Ogden, 9 Wheat., 196, rendered by Chief 
Justice Marshall it has been the law, supported by a 
long unbroken line of decisions. When Congress has 
spoken by enacting a law governing subjects which admit 
of national uniform application, the states, for example, 
have no power to alter, amend, limit, restrict, extend, or 
in any manner place a burden upon interstate commerce 
by any law, rule or regulation. If Congress had desired to 
supplement the Interstate Commerce Act with any rule 
providing for race segregation of certain American 
citizens, it would no doubt have so declared. By its 
specific prohibition against discrimination, Congress de­
clared that it was unlawful to subject “ * * * any particular 
person * * * to any undue or unreasonable prejudice or dis­
advantage in any respect whatsoever.”  49 U.S.C. 3. We 
contend that any discrimination based upon an arbitrary 
racial classification of American citizens is undue or un­
reasonable prejudice or disadvantage in respect to those 
citizens.

Many decisions have been given by this Honorable 
court striking down laws, rules and regulations by what­
ever name they might have been called when the sum 
total amounted to discrimination in interstate commerce. 
Unjust discrimination by a common carrier has been de­
fined “ as a failure to treat all alike under substantially 
similar conditions” . Kentucky Traction and Terminal 
Co. v. Murray, 195 S.W. 1119, 1120, 76 Ky. 593. We do 
not believe it can be seriously contended that it is not 
unjust discrimination to permit first class passengers of



— 14 —

the white race to enjoy dining car facilities without 
restrictions, and yet compel American citizens of color 
because of their race to be partitioned in little spaces 
separated from all other persons who had paid the same 
fare, and refuse them unrestricted service under similar 
conditions. By the Dining Car Regulations which the 
Commerce Commission has approved, all other persons, 
except the American citizens of color, are allowed the 
range of the dining car, allowed to select seats most com­
fortable to them. White passengers are not compelled 
to sit apart from other passengers, he shut off, cooped 
and enclosed with one table for service, or be refused ser­
vice in the more spacious parts of the diner. It is 
admitted that American citizens of color were permitted 
the equal facilities of the dining cars without restrictions 
when they traveled as members of the armed forces and 
that they were not subjected to the humiliation of being 
segregated in a certain particular place and treated dif­
ferently from all other American citizens similarly situated. 
(See: Henderson v. Interstate Commerce Commission, 80 
Fed. Supp. 32.) Is it not time that America sustain the 
rights, privileges and immunities of its American citizens 
of color and that courts speak their denunciation of dis­
crimination, segregation and denial of equal rights and 
privileges to this segment of the nation? Is it not time 
that we be consistent with our preachments to the world 
concerning equal treatment and opportunity to all man­
kind? Can America continue to be inconsistent when it 
preaches one doctrine to the world and practices another 
at home? We submit, it is time to be fair with ourselves 
and our fellow man and to make a realism “ the brother­
hood of man and the fatherhood of God.”

“ Discrimination”  has again been held synonymous 
with “ distinction” . It is the antithesis of fairness. In



15 —

Atlantic Pipeline Co. v. Brown County, D. C. Tex. 12 
Fed. Supp. 642, 647, it is stated:

“ Transportation in interstate commerce should be 
uniform and in accordance with contract made, fare 
charged and paid by each passenger.”

As the white passenger pays a first class fare and is 
permitted the dining car facilities without restriction as 
to where he should sit then the American citizens of color 
who pay the same fare under the same contract should 
be given the same privilege. And if he be denied this, his 
rights are violated under the Interstate Commerce Act as 
an “ unjust discrimination.”  He is treated differently 
from all other first class passengers. Wimberly v. Georgia 
Southern and F. R. Co., 63 S. E. 2931; 5 Ga. App. 263. 
We do not believe that from the evidence in this case it 
can be honestly said there was no difference in treatment 
of the dining car facilities different from the treatment 
of all other persons. This violates the Interstate Com­
merce Act when the journey is in interstate commerce.

It is again stated that “ unjust discrimination”  results 
from different treatment of persons of the same class 
under similar conditions. Lindenburg v. American Ex­
press Co., 106 So. E. 884; 88 W. Va. 439; Elks Hotel Co. 
v. United Fuel Gas Co., 83 S. E. 922, 924; 73 W. Va. 200. 
We believe it will be conceded that when two persons 
pay the same fare they become members of the same class 
under similar conditions, and distinctions based solely 
on the color of one of the passengers result in unjust dis­
crimination. Differences of treatment based solely upon 
race, color or national origin are unjust, unreasonable 
and discriminatory.

It has been said that undue and unjust discrimination 
or unreasonable advantage or preference by a public ser­
vice corporation under the Interstate Commerce Com­



- 1 6 -

mission Act or at common law, result from allowing to 
one person what is denied to another under exactly the 
same circumstances and conditions. 3 Moore on Carriers, 
1705. To allow every other first class passenger traveling 
in interstate commerce the privilege of full dining car 
facilities and to deny the same privilege to an American 
citizen of color traveling under similar conditions can­
not reasonably be deemed other than discriminatory. 
Segregation, solely on account of race, color or national 
origin in interstate commerce is discrimination of the 
worst sort. These are the results where public utilities 
attempt to change the Interstate Commerce Act, without 
authority of law solely for the purpose of appeasing in­
tolerance, hatred, prejudice, undemocratic and unAmeri- 
can customs.

In the case of the State Freight Tax, 15 Wall (82 U. S.) 
232, this Court held, (P. 239)

“ The right of citizens of the United States to 
pass from point to point of the National territory, 
unrestricted by State regulation was emphatically as­
serted” . See Crandall v. the State of Nevada, 6 Wall 
25.

It was held that if taxing interstate commerce is not 
regulating it, it is not easy to imagine what would be and 
that a state had no power to tax or regulate interstate 
commerce. As a state has no power to tax or regulate 
interstate commerce then a Railroad Company has no 
such power because of powers not delegated to the United 
States by the Constitution, nor prohibited by it to the 
states, are reserved to the states respectively or to the 
people. Amendment X, United States Constitution. The 
power to regulate commerce with foreign nations, and 
among the several states, etc. was specifically delegated 
to Congress by the United States Constitution, Article I,



— 17 —

Section 8, because it is a subject matter which requires 
uniformity as said by Alexander Hamilton in the “ Federal­
ist”  No. 7. In that historic essay one of the founders of 
our country depicted the injurious consequences of per­
mitting the several states to regulate commerce.

The principle of uniformity in regulating interstate 
commerce is succinctly restated in Howitt v. United States, 
328 U. S. 189, 192, in the following language, (p. 192):

“ It is well established that one of the primary aims 
of the Interstate Commerce Act and the amendments 
to it was to establish uniform treatment of users of 
transportation facilities. See Mitchell v. United 
States, 313 U. S. 80, 94, 95. The Act again and again 
expressly condemns all kinds of discriminatory prac­
tice.”

In Morgan v. Virginia, 328 U. S. 373, 382, this court 
held that race segregation rules of a bus company which 
Avere in conformity with the separate coach law of Vir­
ginia were void because they burdened interstate com­
merce. The court held the law as well as the rules void 
and of no effect. In the case at bar we find the same 
situation. Through the geographical area served by the 
Southern Railway Company there are states which have 
different laws defining the term Negro or Colored person. 
In State v. Treadaway, 126 La. 302, an Octoroon was held 
not to be a Negro. The court exhaustively considered 
the judicial and statutory definitions of Negroes, Colored 
Persons, Mulattoes, Octoroons, Quadroons and various 
other persons who were neither Colored, Negroes or 
White. Other 'classifications of persons are discussed in 
the opinion showing the necessity in this regard of a uni­
form act such as the Interstate Commerce Act to govern 
interstate commerce without any additions or alterations 
by common carriers.



—  18 —

There are many persons traveling within the jurisdic­
tion of the United States with dark skins and of a mixture 
of darker races. Many would be considered Colored per­
sons by the Agents of the Railroad company although 
they are natives of foreign lands. See Sex and Race by 
J. A. Rogers, Vol. II, p. 2, 3.:

“ So mixed Avere the Portuguese that in 1492 there 
was already a Negro strain in its royal family. The 
same was true in less degree of the Spanish royal 
family. As for Italy, it had not only once been over­
run by the Moors, but Negro slaves in great numbers 
had been brought in, principally between the thir­
teenth and fifteenth centuries by the Venetians. The 
Pisanos and Genoese also imported a considerable 
number from Nubia, Ethiopia, Sudan, and Morocco, 
and sold them to the noble families, AArho used them 
as servants, grooms, and favorites, and even amal­
gamated with them. So little Avas the prejudice 
against color in Europe that in the Sixteenth century 
the son of a Negro female slave, or servant, rose 
to be the head of the most distinguished royal family 
of the time.

This may be considered extraordinary noAv but it 
Avas not so then. The southern Europeans had been 
accustomed for centuries to having dark-skinned men 
among their rulers, in fact, Avhole series of them. As 
Roy Nash says, ‘Many North Americans profess 
horror at the marriage of white and colored types, 
which is so common in South America. Mark Avell, 
then, that the first contact of the Portuguese and 
Spaniards Avith a dark-skinned people Avas the con­
tact of the conquered Avith the broAvn-skinned con­
querors. And the darker man Avas the more cultured, 
the more learned, and the more artistic. He lived in 
the castles and toAvns. He was the rich man and the 
Portuguese became serfs upon his land. Under such 
conditions it would be deemed an honor for the white 
to mate or marrj7 with the governing class, the broAvn 
man, instead of the reverse. Nor Avas it only the



—  19 —

Portuguese peasantry whose blood mingled with the 
Moors. Alphoi._,:o VI, who united Castille and Leon 
and Galicia in 1073, to cite hut one of many instances 
of marriages between Christian and Arab nobles, 
chose a Moorish princess the daughter of the Emir 
of Seville, to be the mother of his son, Sancho’. ”

The mixture and blending of Negro people with the 
inhabitants of the United States, Mexico, Central and 
South America, Europe and Asia is so evident that we 
feel it unnecessary to demonstrate its results.

We submit that the proposition of law urged in this 
brief concerning the comprehensiveness of the plan gov­
erning interstate commerce in the Interstate Commerce 
Act is supported in numerous cases and we feel it only 
necessary to cite a few, Texas and Pacific By. Co. v. Inter­
state Commerce, 162 U. S. 197; 16 S. 666 ; 40 L. Ed. 940. 
See (162 U. S. 197, 209). Lehigh Valley R. Co. v. Public 
Service Commission, 272 Fed. 758, A ffd; 257 U. S. 591; 
Hines et al v. Davidowitz 312 U. S. 52, 62, 63, 70; U. S. 
v. F. W. Darby Lumber Co. et al., 312 U. S. 100, 113, 114, 
in which last case this court states (p. 113):

“ The power to regulate commerce is the power to 
‘prescribe the rules by which commerce is governed’. 
Cibbons v. Ogden, 9 Wheat. 1, 196. It extends not 
only to those regulations which aid, foster and pro­
tect commerce but embraces those which prohibit it. 
(cases cited).”

In Texas and Pacific Ry. Co. v. Interstate Commerce 
Commission, 162 U. S. 197, 211, 212, the court at p. 211 
states:

“ the scope or purpose of the Act is, as declared in 
its title, to regulate commerce. It would, therefore, in 
advance of an examination of the text of the Act, be 
reasonable to anticipate that the legislation would 
cover, or have regard to the entire field of interstate



20 —

commerce and that its scheme or regulation would not 
be restricted to a partial treatment of the subject” .

What right has a public utility to make or attempt to 
adopt a regulation having such effect in interstate com­
merce? The regulations are unreasonable burdens on 
interstate commerce.

In the words of Cardinal Stritch, which we take liberty 
to quote:

“ The work you are engaged in has very close con­
nection with religion and religion is interested in 
your work. That law describes justice and the right 
compensation for those who do honest work. You are 
engaged in building a democracy that is based upon 
justice and charity. The people of our democracy 
have given you power. That power has brought re­
sponsibilities. You are intrusted today in a large 
measure with the preservation of our free institu­
tions. In our nation, freedom is under God’s law. 
Your decisions will determine what the future of the 
United States is to be” .

It is respectfully contended that the uniform law 
promulgated by Congress known as the Interstate Com­
merce Act, is full and complete. The Southern Railway 
has no power to add to it, detract from it, extend it, 
or amplify it.

m .

The regulations or rules of the Southern Railway Company, 
effective on and after March 1, 1946 are void because 
they are vague, indefinite and uncertain.

We have in mind the fact that this brief is addressed 
to the highest court in our land. This court is composed 
of lawyers selected not only for their natural judicial 
abilities but also for their demonstrably fair and impar­
tial judgment. We invoke the principle often expressed 
by this Honorable Court, that it has been left to the



— 21 —

Courts to formulate the Rules interpreting the Commerce 
clause in its application. Southern Pacific v. Arizona, 325 
U. S., 761. We see destructive consequences to the Com­
merce of the nation if the protective influences of the 
courts are withdrawn. We are confident, too, that 
members of this Honorable Court are fully aware of the 
contribution to the progress of this nation made by 
American Citizens of Color on our historic battlefields 
from Bunker Hill to Okinawa.

Considering the contribution to our national culture 
of American citizens of color, we believe that this Honor­
able Court will decide this case, fairly, and in accordance 
with the Constitution and laws of our country—laws 
under which all American citizens are alike. American 
citizens of color today, as this court will recognize, 
by their merits demonstrated to the world that they are 
entitled to the same treatment in public accommodations 
as other American citizens.

Fifteen million persons who form a part of the popu­
lation of this great country are colored. This Honorable 
Court will take judicial notice of the great mass of per­
sons of varying complexions who constitute the popula­
tion of this nation. There is but one God; there is but 
one American Nation. When a railway company by reg­
ulation attempts to separate American citizens in ac­
cordance with their race or color it contravenes cardinal 
facts of human existence.

There are American citizens of this Commonwealth, 
for example, whose complexions range from the darkest 
black to the lightest hue. By what standard or test is 
the steward of the dining car or the conductor of the 
train to determine the race to which these American 
citizens belong? We know that there are persons com­
monly called white persons, who are darker in color than



— 22 —

many American Negroes. There are many white persons 
from the Balkan countries who are dark in color and 
complexion. Practically it is impossible for an agent of 
the railway company to do more than guess the ethnical 
group to which an American citizen belongs. Liberty and 
freedom are too dear to citizens of our country when their 
enjoyment must depend on such vague, uncertain and 
indefinite regulation as the Dining Car Regulations here 
attacked.

We call the attention of this Court to Chapter 3, Sec. 41 
(Title 8 U.S.C., 5) designated as a part of the Civil 
Rights Act, enacted by Congress in 1866 and reenacted 
in 1870 which provides that all persons within the juris­
diction of the United States shall have the same rights 
in every state and territory to the full and equal benefit 
of all laws and proceedings for the security of person and 
property as is enjoyed by white citizens, etc. White citizens 
of America have never been segregated because of the 
color of their hair, the color of their eyes, the size of 
their ears, the length of their nose, the texture of their 
skin or other biological classification.

American citizens of color have availed themselves of 
the educational advantages afforded by the best schools 
of the nation. There are among them graduates of Har­
vard, Yale, Columbia University, the University of Chi­
cago, Northwestern University, University of Pennsyl­
vania, Dartmouth College, University of New York City, 
University of Michigan, University of Illinois, Howard 
University and all universities and schools to which they 
have been admitted. Many have been graduated with 
honors. Men and women, American citizens of color, have 
graduated from the law schools of these universities and 
have been taught the basic premises of the Constitution of 
the United States. They know that laws made pursuant



23 —

thereto are not idle words. They are enacted into law 
for the protection of the substantial aspects of life, for all 
persons within the jurisdiction of the United States.

We do not believe that this Honorable Court with its 
members of great learning will permit discrimination and 
segregation to continue against American citizens of 
color when Liberty and Freedom and the principles of 
Democracy are lived and enjoyed by the peoples of every 
other race.

It was stated in Joseph v. Bidwell, 28 La. An. 382, 383, 
that, “ * * * the Constitution does not enumerate a mere 
abstraction but it guarantees substantial rights. To 
facilitate the enforcement of these rights the General As­
sembly has enacted laws. It is the duty of the courts 
when called upon, to enforce them.”

We believe this to be a fair, frank and important state­
ment of real Democracy. This court in numerous cases 
has condemned laws which are vague, indefinite and un­
certain particularly when they affect the rights and 
liberties of American citizens. It is only necessary to 
call the attention of this Honorable Court to a few of the 
cases without extensive quotations therefrom. U. S. v. 
Colien Grocery Company, 225 U. S. 81-89; 41 Sup. Ct., 
298, 300, U. S. v. Reese, 92 U. S. 214-219-220, U. S. v. 
Simmons, 96 U. S. 360, U. S. v. Capital Traction Co., 34 
App. D. C. 592, Connally v. General Construction Co., 269 
U. S., 385, 46 Sup. Ct. 126-129 and numerous other cases 
well known to this Honorable Court.

Although the regulations or rules of The Southern 
Railway Company were not enacted by any legislative 
department of any government, they have been approved 
by the Interstate Commerce Commission, an agency of the 
Government. These regulations have further been ap­
proved by the United States District Court. They have



—  24—

the effect of laws for which disobedience subjects the 
offenders to public prosecution. Such administrative and 
judicial sanction should not be allowed to stand.

IV.
The dining car regulations adopted by the Southern Rail­

way Company are void because they violate Section 3 (1)
of the Interstate Commerce Act.

In creating the Interstate Commerce Commission the Con­
gress of the United States declared it the duty of every 
carrier subject to the act to “ establish, observe, and en­
force just and reasonable rules, regulations, and practices 
with respect to car service * * *”  Title 49 U.S.C., Sec. 
1 (11). In the same section Congress declared that “ every 
unjust and unreasonable rule, regulation, and practice with 
respect to car service is prohibited and declared unlawful.”

We have already pointed out that in Section 3(1) of the 
Interstate Commerce Act Congress declared it “ unlawful 
for any common carrier subject to the Act to subject any 
particular person * * * to any undue or unreasonable prej­
udice or disadvantage in any respect whatsoever.”  This 
court has construed this section as prohibiting all kinds 
of discriminatory practices. Howitt v. United States, 328 
U. S. 189. And in Mitchell v. United States, 313 U. S. 80, 
this court held that the denial to a colored passenger of 
railway services because of the requirements of race sepa­
ration was “ unjust.”  We respectfully submit that the 
treatment of Appellant in the instant case, and the con­
templated treatment of other American citizens who are 
subjected to the Dining Car Regulations here attacked are 
similarly unjust and unreasonable.

Thus, we contend, the Dining Car Regulations of March 
1, 1946, adopted by the Southern Railway Company, are 
void because they violate an important provision of the 
Interstate Commerce Act.



— 25—

The rule we invoke has been frequently applied. In 
Robinson v. Southern Pacific Company, 105 Cal. 526, 38 
Pac. 722, 723, Mr. Chief Justice Beatty in giving the opin­
ion of the court applied the doctrine we assert here and 
said:

“ It is said that the ticket is not the contract; that 
it is a mere token or voucher, and that it is the duty 
of the passenger to inform himself of the rules and 
regulations of the carrier. This is, perhaps true to a 
certain extent. But the passenger is not bound to take 
notice of any rule or regulation which contravenes the 
law of the land * * *”

Mr. Chief Justice Ludeling, speaking for the court in 
Decuir v. Benson, 27 La. Ann. 1 at page 6, said:

‘ ‘ That a common carrier may make reasonable rules 
and regulations for the government of passengers on 
hoard his boat or vessel is admitted, but it cannot be 
pretended that a regulation which is founded on prej­
udice and which is in violation of laiv is reasonable

Now turning to the Dining Car Regulations of the in­
stant case we submit that they were conceived out of race 
prejudices. They are based on the rather erroneous as­
sumption that every American citizen of color is so ob­
noxious a person that he must he relegated to a small por­
tion of a railway diner. They also presuppose that every 
white American citizen desires to avoid association with 
colored passengers. The fact that often American citizens 
of all races mingle on business and professional levels is 
completely ignored in order that race prejudices shall 
predominate. Small categories of race classifications are 
made without standards or tests to guide those who must 
administer the rules. Admittedly, the employees of the 
appellee railway company are not qualified to apply tests 
of race classifications if such were included in the rules. 
Yet, by these Dining Car Regulations ordinary laymen



- 2 6 -

will be required to do that which has baffled anthropolo­
gists and social scientists: that is, the task of finding an ac­
curate ethnic category for average American citizens on ap­
pearances alone. In this manner, one American citizen who 
to the railway employee appears to be a colored person will 
be given service behind a partitioned section of the car— 
the limited space area reserved for colored passengers; the 
other American citizen who to the railway employee ap­
pears to be a white person—and who paid the same first 
class fare—will be served in the spacious, well apportioned 
section of the diner. If this is not abhorrent discrim­
ination we have great difficulty in finding a better descrip­
tion for such practices. And we earnestly submit to this 
court, that such practices have no place in interstate travel 
that is subject to the jurisdiction of the federal govern­
ment, a government that has been modeled under an or­
ganic document that has inspired men the world over. We 
ask this court, therefore, to declare these regulations void, 
and to reverse the judgments below.

CONCLUSION.

The briefs of the appellant and of the United States 
of America have ably discussed the cases of Plessy v. 
Ferguson, 163 U. S. 537, 538, 540, 16 Ct. 1138, 41 L. Ed. 
256 (1896), and Chiles v. Chesapeake <& Ohio Railway 
Company, 218 U. S. 71, 72, 74 (1910), 54 L. Ed. 936, 30 
S. Ct. 667, in refutation of the claim by the Southern 
Kailway Company, and the Interstate Commerce Com­
mission that these cases were authority for the actions of 
the Southern Railway Company and the Interstate Com­
merce Commission in the promulgation of such un- 
American rules, which discriminate and segregate Amer­
ican citizens of color in interstate commerce, solely by



—  27 —

reason of their color or race. We believe it is necessary 
to quote from the opinion of these cases to show that the 
issues involved do not concern interstate commerce, and 
therefore are not authorities in the case at bar.

In Plessy v. Ferguson, 163 U. S. 537, 538, this honor­
able court states the issue involved, and merely reading the 
case demonstrates its inapplicability. On page 538 this 
court states:

“ That on June 7, 1892, he engaged and paid for a 
first class passage on the East Louisiana Railway 
from New Orleans to Covington in the same State, 
etc. ’ ’

This clearly shows that any question raised or decided 
must necessarily relate to intrastate transportation, and 
not interstate.

Unless we set aside, annul and disregard all funda­
mental principles of American procedure, it is perfectly 
apparent that any attempt to discuss interstate commerce 
where the sole issue involved is intrastate commerce, 
such discussion is obiter dicta.

In Chiles v. Chesapeake & Ohio Railway, 218 U. S. 71, 
72, 74, a cursory reading of this opinion will also clearly 
show that the issue involved does not deal with interstate '  
commerce, but was solely limited to interstate commerce, 
such was the finding of the Court of Appeals, the court 
of last resort of the State of Kentucky, and of this Hon­
orable court.

The fact that the question of interstate commerce was 
not considered by either of the courts is well stated on 
page 74 of the opinion of this court:

“ There is a statute of Kentucky which requires 
Railroad Companies to furnish separate coaches for 
the white and colored passengers, but the Court of 
Appeals of the state put the statute out of considera-



—  28 —

tion, declaring that it had no application to INTER­
STATE TRAINS, and defendant in error does not 
rest its defense upon that statute, but upon its rules 
and regulations.”

We submit that this quotation from the opinion of this 
honorable court is conclusive, that no question of inter­
state commerce was involved, and therefore this case is 
no authority for any issue involving interstate commerce.

Equality of all American citizens without regard to 
race, color or national origin is proclaimed to the world 
by this, our country. Is it to be made real by the de­
cision of this court, or is it to be used as a mockery 
against the administrators of our government? The doc­
trine of equal rights and equal opportunities are daily 
taught in the schools, homes, colleges and universities of 
the United States, and these fundamental principles of 
American Government are heralded upon the floors of 
Congress and constantly enunciated by the Chief Execu­
tive of this nation.

We do not condone the un-American activity evidenced 
in certain parts of our native land, and insist that the 
principles enunciated by the Constitution and laws made 
pursuant thereto be upheld.

The issues involved in this case are limited to interstate 
commerce, over which Congress has exclusive jurisdiction, 
a principle so well settled as to be axiomatic. When we 
consider the indisputable fact, judicially known, that in 
interstate commerce, chickens, cows, pigs, horses and 
animals of every color are transported from state to 
state without being discriminated against by segregation, 
solely on account of their color, it is indeed startling that 
in this day and age human beings who are American 
Citizens of color are the only persons segregated and dis­
criminated against in interstate commerce.



29 —

We respectfully submit there is no justification for such 
undue and unfair discrimination by segregation as ap­
pears in this case. We expect this honorable court to 
perform its duties, as learned men of law and whose 
hearts are filled with the Christian spirit of justice and 
equal rights in its fullest sense, to American Citizens 
regardless of race, color or national origin which are God 
given qualities.

Respectfully submitted,
J oseph  R. B ooker , President, National 

Bar Association
R ic h ard  E . W estbrooks, Chairman, Civil 

Rights Committee, National Bar Association 
G eorge N. L e ig h to n  
Z ed rick  T. B raden  
L u c ia  T. T h o m a s  
W il l ia m  A. B ooker 
G eorgia J ones E l lis  
E arl  B. D ic k e r so n ,
J o seph  E . C l a y to n , Jr.

Counsel for and Mmembers of the Civil 
Rights Committee, National Bar Associa­
tion

R ic h ard  E . W estbrooks 
G eorge N. L e ig h to n  

Of Counsel

Dated this the 24th day of 
January, A. D. 1950.

Member of the Supreme Court of 
the United States.