Mays v. Southern Railway Company Exceptions on Behalf of Complainant to Report Proposed by Examiner

    BEFORE T H E

Interstate (Enmutrrrr CEmnmtsston
B e n ja m in  E. M ays ,

Complainant,

v.

S o u th ern  R ailw a y  C o m pan y ,
Defendant.

Docket No. 29299

EXCEPTIONS ON BEHALF OF COMPLAINANT  
TO REPORT PROPOSED BY FRANK C. WEEMS, 

EXAMINER.

JG¥

T hurgood M arsh all ,
20 West 40th Street,
New York, New York,

Attorney for Complainant.
W illiam  H . H astie ,

Washington, D. C.,
S pottswood W. R obinson , III,

Richmond, Virginia,
R obert L. Carter,

New York, New York,
Of Counsel.

December 31, 1945.

oral argum ent  is requested by  t h e  co m plain an t .



I N D E X .

PAGE

Exceptions on behalf of complainant--------------------  1
Argument in support of exceptions---------------------  7

I. A  Clear Cut Violation of the Interstate 
Commerce Act Has Been Established------ 7

II. Defendant’s Buies and Regulations With 
Respect to Service in Its Dining Cars Are 
Not Applicable to Complainant-------------  9

III. The South Carolina Statute Requiring
the Separation of the Races Can Validly 
Operate Only on Intrastate Commerce 
and Has No Application to Interstate 
Commerce ______________________    13

IV. The Interstate Commerce Act Requires
Equality of Treatment--------------------------  19

V. Conflicting Testimony as to Time Is Un­
important Since Complainant Could Have 
Been Accommodated When He Applied 
for Service in the Diner------------------------- 16

VI. No Greater Diligence or Foresight Is 
Required of Colored Passengers Seeking 
Dining Car Facilities Than Is Required 
for White Passengers----------------------------  22

VII. Defendant’s Action Subjected Complain­
ant to an Undue and Unreasonable Prej­
udice --------------------------------------------- -—  25

Conclusion -------------------   25



Table of Cases.

PAGE

Anderson v. Louisville & N. R. Co., 62 Fed. 46 
(1894) ___________________ -___________________  9

Britton v. Atlanta & Charlotte Airline Rv. Co., 88 
N. C. 536, 43 Am. Rep. 749 (1883)_____________  9

Carrey v. Spenser, 36 N. Y. S. 886 (1895)------------  9
Chesapeake & Ohio Ry. Co. v. Kentucky, 179 U. S.

388, 21 S. Ct. 101, 45 L. Ed. 244 (1900)_________  15
Chicago R. & I. & Co. v. Carroll, 108 Tex. 378, 193

S. W. 1068 (1917) ____________ -________— ------ 13
Chicago & Northwestern Railway Co. v. Williams,

55 111. 185 (1870)-_____________________________ 9
Chiles v. Chesapeake & D. Ry. Co., 125 Ky. 299

101 S. W. 386 (1907)______________________ -___ 15
Chiles v. Chesapeake & D. Ry. Co., 218 U. S. 71, 30 

S. Ct. 667, 55 L. Ed. 936 (1910)_______________  15
De Beard v. Camden Interstate Ry. Co., 62 W. Ya.

41, 57 S. E. 279 (1907)_______________________  12
Dunn v. Grand Trunk Ry. Co., 58 Me. 187 (1870)— 13
Edward v. Nashville C. & St. Louis R. R. Co., 12 

I. C. C. Rep. 247-249_________________________  20
Georgia R. & B. Co. v. Murden, 86 Ga. 434,12 S. E.

630 (1890) ________________________    13
Gibbons v. Ogden, 9 Wheat 1 (1824)--------------------  14
Hall v. DeCuir, 95 U. S. 485, 24 L. Ed. 547

(1877) _____________________________________ 14,16
Hart v. State, 100 Md. 596, 60A. 457 (1905)______ 15
Hickman v. International Ry. Co., 97 Misc. 53, 180

N. Y. S. 994 (1916)__________________________ 13
Hufford v. Grand Rapids & I. R. Co., 64 Mich. 631,

31 N. W. 544 (1887)—-________________________  13

ii



1X1

Lake Shore & M. S. R. Co. v. Brown, 121 111. 162,
14 N. E. 197 (1887)___________________________ 13

Louisville, N. 0. & T. Ry. Co. v. Mississippi, 133 
I T .  S. 587, 10 S. Ct. 348, 33 L. Ed. 784 (1890).-.-: 15 

Louisville, N. 0. & T. Ry. Co. v. State, 66 Miss. 662,
6 S. 203 (1889)_______________________________  16

Louisville & N. R. Co. v. Turner, 100 Tenn. 213, 47 
S. W. 233, 43 L. R. A. 140 (1898)______________  12

McCabe v. Atchison, T. & S. F. Ry. Co., 235 U. S.
151, 35 S. Ct. 69, 59 L. Ed. 169 (1914)__________  15

McCabe v. Atchison, T. & S. F. Ry. Co., 186 Fed.
966 (1911) __________________    15

McGowan v. New York City Ry. Co., 99 N. Y. S.
835 (1906) ___________________________________  13

Mitchell v. United States, 313 U. S. 80, 61 S. Ct.
873, 85 L. Ed. 1201 (1941)_________________ 8,20,24

Ohio Valley R y ’s Receiver v. Lander, 104 Ky. 431
47 S. W. 344 (1898)__________________________  16

O’Leary v. Illinois Central R. Co., 110 Miss. 46, 69 
S. 713 (1915) _______________-________________ 9,15

Renaud v. New York, N. H. & H. R. Co., 210 Mass.
553, 97 N. E. 98, 38 L. R. A. (NS) 689 (1912)—  12

South Covington & C. Ry. Co. v. Commonwealth,
181 Ky. 449, 205 S. W. 603 (1918)__________ __  15

Southern Kansas Ry. Co. v. State, 44 Tex. Civ.
App. 218, 99 S. W. 166 (1906)--------------------------  15

Southern Pacific Co. v. Arizona, 65 S. Ct. 1518
(1945) ______________________________________  15

State ex rel. Abbott v. Hicks, 44 La. Ann. 770, 1 S.
74 (1892)____________________________________  16

State v. Galveston, H. & S. A. Ry. Co., 184 S. W.
227 (1916) __________________________________9,15

State v. Jenkins, 124 Md. 376, 92A. 773 (1914)------ 15

PAGE



IV

Union Traction Co. v. Smith, 70 Ind. App. 40, 123 
N. E. 4 (1919)________________________________  12

Virginia Elec. & P. Co. v. Wynne, 149 Va. 882, 141 
S. E. 829 (1928)______________________________ 12

Washington B. & A. Elec., R. Co. v. Waller, 53 
App. D. C. 200, 289 Fed. 598 (1923)________9,12,15

Constitutions.

Fla. Const. Art. XVI______ _____________________  19
Miss. Const. Sec. 263_________________ i._________  19
N. C. Const. Art. XIV, Sec. 8____________________  19
Okla. Const. Art. XXIII, Sec. 11________________  18
Okla. Const. Art. XIII, Sec. 3___________________  18
S. 0. Const. Art. II, Sec. 33_______ ,_____________  19
Tenn. Const. Art. XI, Sec. 14___________________  19

Statutes.

Ala. Code, 1940, Tit. 48, Sec. 196-197_____   17
Ala. Code, 1940, Tit. 1, Sec. 2____________________  18
Ala. Code (Michie) 1928, Sec. 5001_____________ _ 18
Ark. Stat. (Pope) 1937, Sec. 1190-1201__________  17
Ark. Stat. (Pope) 1937, Sec. 1202-1207____   17
Ark. Stat. (Pope) 1937, Sec. 6921-6927__________  17
Ark. Stat. (Pope) 1937, Sec. 3290__________  18
Ark. Stat. (Pope) 1937, Sec. 1200_____ ___________  18
Cal. Civ. Code (Deering) 1941, Sec. 51-54________ 16
Colo. Stat., 1935, Ch. 35, Sec. 1-10________________  16
Conn. Gen. Stat. (Supp. 1933), Sec. 1160b________ 16
Fla. Stat., 1941, Sec. 352.03-352.06_______________  17
Fla. Stat., 1941, Sec. 352.07-352.15_______________  17
Fla. Stat., 1941, Sec. 1.01_______________________  19
Ga. Code, 1933, Sec, 18-206 to 18-210, 18-9901 to

18-9906 ____ __________________________________  17
Ga. Code, 1933, Sec. 68-616^.____________________  17

PAGE



V

Ga. Code (Michie Supp.) 1928, See. 2177-------------- 18
Ga. Laws, 1927, p. 272__________________________  18
111. Rev. Stat. 1941, Ch. 38, Sec. 125-128g-------------- 16
Ind. Stat. (Burns) 1933, Sec. 10-901, 10-902_„------  16
Ind. Stat. (Burns) 1933, Sec. 44-101--------------------  19
Iowa Code, 1939, See. 13521-13252-----------------------  16
Kan. Gen. Stat., 1935, Sec. 21-2424_______________  16
Ky. Rev. Stat. (Baldwin), 1942, Sec. 276.440--------  17
La. Gen. Stat. (Dart), 1939, Sec. 8130-8132----------- 17
La. Gen. Stat. (Dart), 1939, Sec. 8188-8189----------- 17
La. Gen. Stat. (Dart), 1939, Sec. 5307-5309----------- 17
Mass. Laws (Michie), 1933, Ch. 272, Sec. 98 as

amended 1934 -----------------------------------------------  16
Md. Code (Flack), 1939, Art. 27, Sec. 503, 508------ 17
Md. Code (Flack), 1939, Art. 27, Sec. 517-520-------  17
Md. Code (Flack), 1939, Art. 27, Sec. 445-------------- 19
Mich. Comp. Laws (Supp. 1933), Sec. 17, 115-146

to 147_______________________________________  16
Me. Rev. Stat., 1930, Ch. 134, See. 7-10----------------- 16
Minn. Stat. (Mason), 1927, Sec. 7321--------v-----------  16
Miss. Code, 1930, Sec. 1115, 6132------------------------- 17
Miss. Code, 1930, Sec. 6133-6135--------------------------  17
Miss. Code, 1930 (Supp. 1933), Sec. 5595-5599------ 17
Miss. Code, 1930, Sec. 2361______________________  19
Mo. Rev. Stat. 1939, Sec. 4651____________________  19
N. C. Code (Michie), 1939, Sec. 3494-3497------------  17
N. C. Code (Michie), 1939, Sec. 3536-3538------------  17
N. C. Code (Michie), 1939, Sec. 2613 p-----------  17
N. C. Code (Michie), 1939, Sec. 5384_________  18
N. C. Code (Michie), 1939, Sec. 2495, 4340------  19
N. D. Comp. Laws, 1913, Sec. 9583— -------------------  19
Neb. Comp. Stat., 1929, Ch. 23, Art. 1---------------—  16
N. J. Rev. Stat., 1937, Sec. 1 :1-1 to 10 :l-9------------  16
N. H. Rev. Laws, 1942, Ch. 208, Sec. 3-4, 6------------  16
N. Y. Laws (Thompson), 1937 (1942, 1943, 1944 

Supp.), Ch. 6, Sec. 40-42------------------------------ -—

PAGE

16



VI

Ohio Code (Throckmorton), 1933, Sec. 12940-12941 16
Okla. Stat, 1931, Sec. 9321-9330_______________ 17
Okla. Sess. Laws, 1931, Ch. 41___________ .._______  17
Okla. Stat,, 1931, Sec. 1677______________________ 18
Okla, Stat., 1931, Sec. 7034________________________18
Ore. Comp. Laws, 1940, Sec. 23-10111._..._________ 19
Ore. Code, 1930, Sec. 14-840________ _____________  19
Pa. Stat. (Pardon), Tit. 18, See. 1211, 4653 50 4655 16 
E. I. Gen. Laws, 1938, Ch. 606, Sec. 27-28, Ch. 612,

Sec. 47-48 ___________________________________  16
S. C. Code, 1942, Sec. 8396-8400-2_______________  13
S. C. Code, 1942, Sec. 8396-8400-2_______________  17
S. C. Code, 1942, Sec. 8490-8498_______ ..._________ 17
S. C. Code, 1942, Sec. 8530-1____________________  17
Tenn. Code (Michie), 1938, Sec. 5518-5520________  17
Tenn. Code (Michie), 1938, Sec. 5527-5532______  17
Tenn. Code (Michie), 1938, Sec. 25, 8396_________  18
Tenn. Code (Michie), 1938, Sec. 8409____________ 19
Tex. Pen. Code (Yernon), 1936, Art. 1659-1660__  17
Tex. Pen. Code (Yernon), 1936, Sec, 493_________  19
Tex. Eev. Civ. Stat. (Yernon), 1936, Art. 6417____ 17
Tex. Eev. Civ. Stat. (Vernon), 1936, Art. 6417—.__ 18
Tex. Eev. Civ. Stat. (Vernon), 1936, Art. 4607____ 18
Va. Code (Michie), 1942, Sec. 3962-3968...________  17
Va. Code, 1942, Sec. 3978-3983___________________  17
Va. Code, 1942, Sec. 4097z-4097dd_______________  17
Va. Code, 1942, Sec. 4022-4026__________________  17
Va. Code (Michie), Sec. 67______________________  18
"Wash. Eev. Stat. (Eemington), 1932 Sec. 2686____ 16
Wis. Stat. 1941, Sec. 340.75_____________________  16

PAGE



BEFORE THE

Interstate (Enntmerre Cnmmissum
B e n ja m in  E. M ays , \

Complainant, I

v - \ Docket No. 29299

S o uth ern  R a ilw a y  C o m pan y , \
Defendant, j

EXCEPTIONS ON BEHALF OF COMPLAINANT  
TO REPORT PROPOSED BY FRANK C. WEEMS, 

EXAMINER.

Comes now the complainant, Benjamin E. Mays, in 
the above entitled proceeding and in the following 
particulars takes issue with, and excepts to the find­
ings and conclusions in the report proposed by Frank 
C. Weems, examiner.

I.
The complainant excepts to the statement in the 

proposed report (page 1, paragraph 2) which states:

“ No evidence was introduced tending to support 
the allegation of a violation of Section 2, nor in 
support of the allegation of the violation of sec­
tions 1 and 13.”

for the reason that complainant has shown in his com­
plaint, brief and oral testimony a clear violation of 
Sections 1, 2, and 13.



2

“ On July 3, 1941 defendant issued the following 
instructions to govern stewards on its dining 
cars

“ All Stewards:
Effective at once please be governed by the fol­

lowing 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 passen­
gers 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 these tables.

After the tables are occupied by white passen­
gers 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.”
for the reason that before defendant’s private rules 
and regulations can be held applicable to complainant, 
there must be a showing that such rules and regula­
tions are reasonable, and that steps were taken by 
defendant reasonably designed to acquaint complain­
ant with the contents of the rules and regulations 
relied on.

II.

The complainant excepts to the statement in the
proposed report (beginning page 1, paragraph 3)
which states:



3

“ At the time of the incidents complained of, the 
train on which complainant was a passenger was 
passing through the State of South Carolina. 
Separation of the races in passenger trains in that 
State is required by State law which is similar to 
the separation laws in other southern States.”

for the reason that the statutes of South Carolina 
requiring the separation of the races can have no ap­
plication to complainant or to the issues herein pre­
sented since complainant was admittedly an interstate 
passenger making an interstate journey on an inter­
state carrier.

III.

The complainant excepts to the statement in the
proposed report (page 2, paragraph 8) which states:

IV.

The complainant excepts to statement in the pro­
posed report (page 3, paragraph 1) which states:

“ Negro passengers having Pullman seats are 
served at their seats with meals if they so desire, 
without extra charge. White passengers are 
charged 25c extra per person for such service.”

for the reason that this has no bearing on the issue 
herein presented, since the fact that complainant 
might have been served at his seat, without extra 
charge, does not affect his right to service in defen­
dant’s dining car on an equal basis with white pas­
sengers holding like accommodations.



4

“ There is conflict in the testimony relating to the 
time complainant first presented himself, to be 
served dinner (approximately 7 :00 p. m., accord­
ing to complainant and between 6:00 and 6:30 
p. m., according to defendant) and was told to 
wait. That time is of some importance here be­
cause of its bearing upon the length of time during 
which complainant could have eaten a meal had 
he returned from his Pullman seat, upon being 
notified by one of the waiters that the steward 
was ready to have him served.”

for the reason that the rights of complainant are not 
to be adjudicated upon the basis of the situation if the 
curtained section were empty. Such rights must be 
determined on the basis of the situation wdiich con­
fronted him when he sought service in the dining car 
and the rules of the carrier as applied to that par­
ticular situation.

V.

The complainant excepts to the statement in the
proposed report (page 6, paragraph 4) which states:

VI.

The complainant excepts to the second finding in 
the proposed report (page 7, paragraph 2) which 
states:

“ Eight seats in the curtained space were kept 
reserved for use by Negro passengers for not less 
than 20 minutes; and no Negro passenger entered 
the dining car during that period.”



5

for the reason that the right to service in defendant’s 
dining car is a personal right of which a passenger, 
Negro or white, may avail himself at any time while 
the defendant holds such dining car open for service, 
and there is space available for service of such pas­
senger. There is no duty on the Negro passenger to 
seek service within defendant’s dining car within one 
minute, two minutes, or any other fixed period of time 
after the defendant opens the car to the general public. 
The right to service obtains as long as defendant 
keeps the dining car open for service to anyone. Fur­
ther, complainant excepts to the aforesaid finding be­
cause the time at which complainant presented himself 
for service is unimportant in view of the uncontro­
verted testimony that at such time, whenever it was, 
space was available in defendant’s diner wrhere com­
plainant could have been served. At the time that 
complainant presented himself for service, had he been 
a white passenger, he would have immediately been 
seated and served.

VII.
The complainant excepts to the seventh finding of 

the proposed report (page 7, paragraph 7) which 
states:

“ Throughout a period of about 50 minutes the 
steward was ready, willing and able to have com­
plainant served with a meal.”

for the reason that the fact that the steward was, for 
a period of fifty minutes or more, ready and willing 
to serve the complainant has no bearing on the issues



6

herein presented. As stated in Exception VI, supra, 
the question raised by complainant must be decided 
according to the situation in which he found himself 
when he sought service in defendant’s dining- car and 
was refused. At that time the wrong herein com­
plained of was committed, and the fact that the 
steward later sought to serve complainant in no way 
alleviated or diminished the injury sustained.

»

VIII.

The complainant excepts to the last paragraph of 
the proposed report (pages 7-8) which states:

“ The Commission should find that defendant’s 
regulations governing dining car service on its 
trains, and defendant’s action in applying them 
under the circumstances complained of, by which 
complainant was required to wait until a reserved 
table was again made available for his use, as a 
result of which complainant refused to accept ser­
vice, did not subject complainant to any undue 
prejudice or disadvantage or give any undue 
preferanee or advantage to other passengers or 
result in any violation of the interstate commerce 
act. ’ ’

for the reason that the statement on its face shows 
that complainant was subjected to undue prejudice, in 
that any white passenger presenting himself in the 
defendant’s dining car for service simultaneous with 
or after the complainant, would have been seated and 
served at the vacant table while defendant refused to 
seat and serve complainant.



7

BRIEF IN SUPPORT OF EXCEPTIONS.

I.
A  clear cut violation of the Interstate Commerce 

Act has been established.

Section 1 of the Interstate Commerce Act requires 
a carrier to exact only those charges which are just 
and reasonable. Section 2 prohibits the carrier from 
charging, collecting or receiving from any person 
greater or less compensation for any service rendered 
than charged, collected or received from any other 
person for a like or contemporaneous service. Section 
13 imposes on the Commission the duty to remove any 
undue, unjust or unreasonable discrimination found.

On October 7, 1944 complainant purchased from de­
fendant carrier a first-class round-trip ticket for an 
interstate journey from Atlanta, Georgia, to New 
York, New York, paying the same charges therefor 
which were paid by white passengers purchasing simi­
lar accommodations. Complainant thereupon became 
entitled to the same services and privileges which 
were afforded white passengers holding like accom­
modations. One of the privileges available to such 
white passengers was service in defendant’s dining 
car, which service the defendant denied to complain­
ant, although ample space was available wherein 
complainant could have received the service requested. 
(See Examiner’s Report, page 7, Finding No. 5.)

Defendant in charging complainant the full price of 
a ticket entitling him to first-class accommodations



8

and in refusing him dining car service, which is an 
incident thereto, violated Section 1 of the Interstate 
Commerce Act. In collecting from complainant the 
same fare collected from white passengers holding 
like accommodations, it was incumbent upon defendant 
under the provisions of Section 2 of Interstate Com­
merce Act to afford him the same services in his din­
ing car as were afforded white passengers therein. It 
is difficult to visualize a clearer violation of Sections 
1 and 2 of the Interstate Commerce Act than shown 
herein. As for Section 13, the United States Supreme 
Court has long since established the rule that unjust 
discrimination by a carrier in furnishing accommoda­
tions to a colored passenger is a proper subject or 
relief by the Interstate Commerce Commission. Mitch­
ell v. United States, 313 U. S. 80, 61 S. Ct. 873, 85 L. 
Ed. 1201 (1941).



9

Defendant’s rules and regulations with respect 
to service in its dining cars are not applicable to 
complainant.

There is no dispute that a carrier has the power and 
authority to promulgate and enforce reasonable rules 
and regulations with respect to the operation of its 
trains, but the question here presented is whether there 
was in fact a rule or regulation enforceable against 
complainant at the time he applied for and was re­
fused service in defendant’s dining car. The burden of 
establishing the existence of such valid rule or regula­
tion is upon the defendant. Washington, B. & A. Elec. 
R. Co. v. Waller, 53 App. D. C. 200, 289 Fed. 598 (1923). 
Numerous cases have held that in the absence of ap­
plicable statute, valid rule or regulation requiring the 
separation of the races, the carrier has no right to 
segregate.

Washington, B. & A. Elec. By. Co. v. Waller, 
supra;

State v. Galveston, H. & S. A. By. Co. (Tex. 
Civ. App. 184 S. W. 227 (1916);

O’Leary v. Illinois Central R. Co., 110 Miss. 
46, 69 S. 713 (1915);

Carrey v. Spencer, 36 N. Y. S. 886 (1895);
Anderson v. Louisville <& N. R. Co. (C. C. Ky.) 

62 Fed. 46 (1894);
Britton v. Atlanta <& Charlotte Air-Line Ry. 

Co., 88 N. C. 536, 43 Am. Rep. 749 (1883);
Chicago & Northwestern Ry. Co. v. Williams, 

55 111. 185 (1870).

II.



10

1. The alleged rules and regulations are 
unreasonable and therefore invalid.

The instructions issued by defendant to its steward 
on August 6, 1942 and quoted by the Examiner (page 2, 
Examiner’s Report) are unreasonable and discrimina­
tory. The instructions require the steward at each 
meal to pull the curtains and place a “ reserved”  card 
on each of the two tables behind the curtains. These 
tables are to be held for colored passengers only until 
the seats in the other part of the dining car are filled; 
then the steward is to draw the curtains back and seat 
white passengers at these tables. Thereafter, any 
colored passenger presenting himself for service re­
gardless of the number of seats vacant in the other part 
of the dining car cannot be served as long as any white 
passengers are in the curtained section but must wait 
until the entire section is vacated. If Negroes fill up 
the curtained section, other Negroes seeking service 
must wait until space becomes available in the curtained 
section and cannot be served at any of the other tables 
in the dining car.

Apparent on the very face of these rules and regula­
tions are their unreasonable and discriminatory nature. 
If the “ white”  section is filled up and the “ colored”  
section is unoccupied when a white passenger presents 
himself for service, the curtains are to be pulled back, 
and such white passengers may be served at these 
tables. If, however, the curtained section is filled and 
seats are vacant in the other part of the dining car 
when a Negro passenger presents himself for service, 
he cannot be seated at such vacant table but must wait



11

until such time as space becomes available within the 
curtained section. In short, no matter how long the 
dining car remains open, in order to assure themselves 
service, Negro passengers must be the first to present 
themselves for service in the dining car. Otherwise 
they face the danger of having the curtained section 
taken over by white passengers and being denied the 
use of the dining car.

This is exactly the situation which confronted com­
plainant. When he entered the diner white persons 
were in fact being accommodated in the curtained 
“ colored”  section (Finding No. 3, Examiner’s Report, 
p. 7). The carrier was offering to accommodate other 
white passengers at vacant seats in the remainder of 
the car and admits that had complainant been a white 
person he would have been served then and there (R. 
119). Yet, in this situation, a Negro could not be ac­
commodated anywhere in the diner (R. 119). To state 
these facts is to reveal patent and unreasonable dis­
crimination in violation of applicable law making de­
fendant’s rules and regulations, if such existed, illegal 
and void.

2. Complainant did not have the requisite 
legal notice of the aforesaid rules or regula­
tions.

The law is well settled that a carrier relying upon 
a rule or regulation must show that it took steps rea­
sonably designed to make such rule and regulation 
known to the public and to afford passengers means 
whereby they might conveniently advise themselves 
with respect thereto.



12

Union Traction Co. v. Smith, 70 Ind. App. 40, 
123 N. E. 4 (1919);

Renaud v. New York, N. II. & II. R. Co., 210 
Mass. 553, 97 N. E. 98, 38 L. E. A. (N. S.) 
689 (1912);

Louisville & N. R. Co. v. Turner, 100 Term. 
213, 47 S. W. 223, 43 L. E. A. 140 (1898).

In the instant case, however, no steps whatsoever 
were taken to acquaint the public with the regulations 
upon which the defendant now seeks to rely. Defen­
dant had instructed his employees to observe and en­
force the regulation cited by the examiner (page 2, 
Examiner’s Eeport), but there was no showing that 
any steps were taken to acquaint complainant with 
these regulations or that complainant had any actual 
knowledge of the aforementioned instructions. On the 
contrary, the steward admitted in his testimony that 
he had made no effort to acquaint the public with the 
rules and regulations in question (E. 117, 119). In­
structions to employees regarding the method in which 
they shall conduct the business of the carrier are not 
presumed to be known to the public and are not en­
forceable against a passenger unless brought home to 
him.

Washington, B. & A. Elec. Ry. Co. v. Waller, 
supra;

Virginia Elec. & P. Co. v. Wynne, 149 Va. 882, 
141 8. E. 829 (1928);

DeBeard v. Camden Interstate Ry. Co., 62 W. 
Va. 41, 57 S. E. 279 (1907);



13

Chicago, R. I. £  Co. Ry. Co. v. Carroll, 108 
Tex. 378, 193 S. W. 1068 (1917);

Hickman v. International Ry. Co., 97 Misc. 53, 
160 N. Y. S. 994 (1916);

McGowan v. New York City Ry. Co., 99 N. Y. 
S. 835 (1906);

Georgia R. S B . Co. v. Murden, 86 Ga. 434, 12 
8. E. 630 (1890);

Lake Shore S M. S. R. Co. v. Brown, 123 111.
162, 14 N. E. 197 (1887);

Hufford v. Grand Rapids & 1. R. Co., 64 Midi.
631, 31 N. W. 544 (1887);

Dunn v. Grand Trunk Ry. Co., 58 Me. 187 
(1870).

Therefore, the instructions referred to supra can have 
no application to complainant or to his present cause of 
action.

III.

The South Carolina statute requiring the separa­
tion of the races can validly operate only on intra­
state commerce and has no application to inter­
state commerce.

At the time when complainant sought service in 
defendant’s diner, the train was passing through South 
Carolina. A South Carolina statute required separa­
tion of the races on passenger trains.1 This statute

1 South Carolina Code, 1942, Sec. 8396-8400-2.



14

however could have no application to complainant, an 
interstate passenger making an interstate journey on 
an interstate carrier and is no defense to complainant’s 
cause of action. With Gibbons v. Ogden, 9 Wheat 1 
(1824), the plenary power of the federal government 
to regulate commerce was firmly established. The 
states were deemed without authority to impede the 
free flow of commerce between the various states, or to 
regulate those phases of national commerce which 
required uniformity of regulation.

Ever since Hall v. DeCuir, 95 U. S. 485, 24 L. Ed. 
547 (1877) it has been recognized that state statutes 
regulating the separation of the races on interstate car­
riers were a burden upon interstate commerce and 
therefore void. In that case a Louisiana statute was 
declared unconstitutional which required interstate car­
riers to afford to all persons traveling in Louisiana 
equal rights and privileges in all parts of their convey­
ances without discrimination on account of race.

The Court reasoned that to require interstate car­
riers to abide by various local regulations with regard 
to the accommodations of the races would create un­
necessary hardship and inconvenience, since the car­
rier would be required to observe one set of rules 
while passing through one state and a totally different 
and conflicting regulation while within another. Hence 
it was concluded that this type of regulation required 
uniformity of policy which could only emanate from 
the national government. Since that time courts have 
been almost unanimous in holding that local statutes



15

regarding the separation of the races were limited in 
operation to intrastate commerce.

Southern Pacific Co. v. Arizona, U. S. , 
65 S. Ct. 1518 (1945);

McCabe v. Atchison, T. £  S. F. By. Co., 235 
U. S. 151, 35 S. Ct. G9, 59 L. Ed. 169 (1914); 

Chiles v. Chesapeake £  0. By. Co., 218 U. S.
71, 30 S. Ct. 667, 54 L. Ed. 936 (1910); 

Chesapeake £  0. By. Co. v. Kentucky, 179 
U. S. 388, 21 S. Ct. 101, 45 L. Ed. 244 (1900); 

Louisville, N. O. £  T. By. Co. v. Mississippi, 
133 U. S. 587, 10 S. Ct. 348, 33 L. Ed. 784 
(1890);

Washington, B. £  A. Flee. B. Co. v. Waller, 53 
App. D. C. 200, 289 Fed. 598, 30 A. L. R. 50 
(1923);

South Covington £  C. By. Co. v. Common­
wealth, 181 Ky. 449, 205 S. W. 603 (1918); 

McCabe v. Atchison, T. £  S. F. By. Co. (C. C.
A., 8th), 186 Fed. 966 (1911);

State v. Galveston, H. £  S. A. By. Co. (Tex.
Civ. App.) 184 S. W. 227 (1916);

O’Leary v. Illinois Central B. Co., 110 Miss. 
46, 69 8. 713 (1915);

State v. Jenkins, 124 Md. 376, 92 A. 773 
(1914);

Chiles v. Chesapeake £  0. By. Co., 125 Ky.
299, 101 S. W. 386 (1907);

Southern Kansas By. Co. v. State, 44 Tex. Civ.
App. 218, 99 S. W. 166 (1906);

Hart v. State, 100 Md. 596, 60 A. 457 (1905);



16

Ohio Valley R y ’s Receiver v. Lander, 104 Ky. 
431, 47 S. W. 344 (1898);

Louisville, N. 0. <& T. Ry. Co. v. State, 66 
Miss. 662, 6 S. 203 (1889);

State ex rel. Abbott v. Hicks, 44 La. Ann. 770, 
11 S. 74 (1892).

The confusion and inconvenience to commerce which 
would result if interstate carriers were required to 
abide by local statutes regarding the separation of the 
races is more apparent today than in 1877 when the 
opinion in Hall v. DeCuir was rendered. Legislation 
affecting the question is almost nation-wide. Each 
statute is different in content. Each state court has 
interpreted its particular state statute in a manner at 
variance with other state courts. Eighteen states have 
enacted “ Civil Rights Acts”  making it illegal to dis­
criminate on account of race or color.2 There are other 
states, however, requiring the segregation of the races

2 Cal. Civ. Code (Deering), 1941, Sec. 51-54; Colo. Stats., 
1935, Ch. 35, Sec. 1-10; Conn. Gen. Stat. (Supp. 1933), Sec. 
1160b; 111. Rev. Stat., 1941, Ch. 38, Sec. 125-128g; Ind. Stat. 
(Burns), 1933, Sec. 10-901. 10-902; Iowa Code, 1939, Sec. 
13521-13252; Kan. Gen. Stat., 1935, Sec. 21-2424; Mass. Laws 
(Michie), 1933, Chap. 272, Sec. 98, as amended 1934; Mich. 
Comp. Laws (Supp. 1933), Sec. 17, 115-146 to 147; Minn. 
Stat. (Mason), 1927, Sec. 7321, Neb. Comp. Stat., 1929, Ch. 
23, Art. 1; N. J. Rev. Stat., 1937, Sec. 1 :1-1 to 10:1-9; N. Y. 
Laws (Thompson), 1937, (1942, 1943, 1944 Supp.), Ch. 6, 
Sec. 40-42; Ohio Code (Throckmorton), 1933, Sec. 12940- 
12941; Pa. Stat. (Purdon), Tit. 18, Sec. 1211, 4653 50 4655; 
R. I. Gen. Laws, 1938, Ch. 606, Sec. 27-28, Ch. 612, Sec. 47-48; 
Wash. Rev. Stat. (Remington), 1932, Sec. 2686; Wis. Stat., 
1941, 'Sec. 340.75. See also Me. Rev. Stat., 1930, Ch. 134, 
Sec. 7-10; N. H. Rev. Laws, 1942, Ch. 208, Sec. 3-4, 6.



17

on railroads,8 street cars,3 4 5 motor vehicle carriers 6 and 
steamboats.6 Clearly these varying and diverse laws 
cannot be applied to interstate commerce without 
creating injurious results. If each state were per­
mitted to apply its own law, the interstate carrier 
would be required to observe the regulations of each 
state through which it passes and to put colored pas­
sengers in a separate coach or permit them to sit where

3 Ala. Code, 1940, Tit. 48, Sec. 196-197; Ark. Stat., 1937 
(Pope), Sec. 1190-1201; Fla. Stat., 1941, Sec. 352.03-352.06; 
Ga. Code, 1933, Sec. 18-206 to 18-210, 18-9901 to 18-9906; Ky. 
Rev. Stat. (Baldwin), 1942, Sec. 276.440; La. Gen. Stat. 
(Dart), 1939. Sec. 8130-8132; Md. Code (Flack), 1939, Art. 
27, Sec. 503, 508; Miss. Code, 1930, Sec. 1115, 6132; N. C. 
Code (Michie), 1939, Sec. 3494-3497; Okla. Stat., 1931, Sec. 
9321-9330; S. C. Code, 1942, Sec. 8396 to 8400-2; Tenn. Code 
(Michie), 1938, Sec. 5518-5520; Tex. Rev. Civ. Stat. (Ver­
non), 1936, Art. 6417; Tex. Pen. Code (Vernon), 1936, Art. 
1659-1660; Va. Code (Michie), 1942, Sec. 3962-3968.

4Ark. Stat. 1937 (Pope), Sec. 1202-1207; Fla. Stat., 1941, 
Sec. 352.07-352.15; Ga. Code, 1933, Sec. 18-206 to 18-210, 
construed to include street railways; La. Gen. Stat. (Dart), 
1939, Sec. 8188-8189; Miss. Code, 1930, Sec. 6133-6135; N. C. 
Code (Michie), 1939, Sec. 3536-3538; Okla. Stat., 1931, Sec. 
9321-9330; S. C. Code, 1942, Sec. 8490-8498; Tenn. Code 
(Michie), 1938, Sec. 5527-5532; Tex. Rev. Civil Stat. (Ver­
non), 1936, Art. 6417; Tex. Penal Code (Vernon), 1936, Art. 
1659-1660; Va. Code, 1942, Sec. 3978-3983.

5 Ark. Stat., 1937 (Pope), Sec. 6921-6927; Ga. Code, 1933, 
Sec. 68-616; La. Gen. Stat. (Dart), 1939, Sec. 5307-5309; Miss. 
Code, 1930 (Supp. 1933), Sec. 5595-5599; N. C. Code 
(Michie), 1939, Sec. 2613p; Okl. Sess. Laws, 1931, Ch. 41; 
S. C. Code, 1942, Sec. 8530-1; Va. Code, 1942, Sec. 4097z- 
4097dd.

6 Md. Code (Flack), 1939, Art. 27, Sec. 517-520; N. C. Code 
(Michie), 1939, Sec. 3494-3497; Va. Code, 1942, Sec. 4022- 
4026.



18

they pleased according to the requirements of the local 
statute then in force.

In those states having segregation laws the basis 
of division is whether the individual is a “ colored 
person”  or “ Negro.”  These terms however have no 
definite or uniform legal connotation. An examina­
tion of the law of the states where segregation is re­
quired reveals the diversity in the rules governing the 
proportion of Negro blood necessary to make a person 
a “ Negro”  or “ colored person”  within the meaning 
of the law.

The terms “ colored person”  and “ Negro”  have 
been defined in Alabama, Arkansas, Georgia, Ten­
nessee and Virginia as including all persons having in 
any ascertainable degree any quantum of Negro blood 
whatsoever.7 In Oklahoma and Texas these terms 
mean all persons of Negro or African descent.8 Ac­
cording to Maryland, North Carolina and Tennessee 
the persons affected are only those of Negro blood to

7 Ala. Code, 1940, Tit. 1, Sec. 2; Ala. Code (Michie), 1928, 
Sec. 5001; Ark. Stat. (Pope), 1937, Sec. 3290 (concubinage 
statute) ; Ark. Stat. (Pope), 1937, Sec. 1200 (separate coach 
law ); Ga. Laws, 1927, p. 272; Ga. Code (Michie Supp.), 1928, 
Sec. 2177; Tenn. Code (Michie, 1938), Sec. 25, 8396; Va. Code 
(Michie), 1942, Sec. 67. See also N. C. Code (Michie), 1939, 
Sec. 5384 (separate school law).

8 Okla. Const., Art. X X III, Sec. 11; Okla. Stat., 1931, Sec. 
1677 (Inter-marriage law); Okla. Const., Art. XIII, Sec. 3; 
Okla. Stat. 1931, Sec. 7034 (separate school law) ; Okl. Stat., 
1931, Sec. 9323 (separate coach law) ; Tex. Rev. Civ. Stat. 
(Vernon), 1936, Art. 2900 (separate school law) ; Tex. Rev. 
Civ. Stat. (Vernon), 1936, Art. 6417 (separate coach law) ; 
Tex. Rev. Civ. Stat. (Vernon), 1936, Art. 4607 (inter-mar­
riage law).



19

the third generation inclusive.9 In Florida persons 
are included to the fourth generation inclusive.10 In 
Oregon a colored person is one having Vitli Negro 
blood.11 In Mississippi, Missouri, North Dakota, and 
South Carolina only % or more of Negro blood is 
necessary for one to be classified as a “ Negro”  or 
“ colored person” .12 Thus a person making an inter­
state journey may be a Negro in one state and a white 
person in another. The resultant confusion and annoy­
ance to both the interstate carrier and to the passenger 
if forced to conform to these varying state regulations 
becomes clear and illustrates the wisdom of limiting 
the operative effect of these laws to intrastate 
commerce.

IV.

The Interstate Commerce Act requires equality 
of treatment.

Section 3 of the Interstate Commerce Act makes it 
unlawful for any common carrier subject to its pro­

9 Md. Code (Flack), 1939, Art. 27, Sec. 445 (intermar­
riage) ; N. C. Const., Art. XIV, Sec. 8 (Marriage) ; N. C. Code 
(Michie), 1939, Sec. 2495, 4340 (marriage law) ; Tenn. Const., 
Art. XI, Sec. 14 (Miscegenation); Tenn. Code (Michie), 
1938, Sec. 8409 (miscegenation). See also Tex. Pen. Code 
(Vernon), 1936, Sec. 493 (miscegenation).

10 Fla. Const., Art. X VI (Marriage).
11 Ore. Comp. Laws, 1940, Sec. 23-10111 (Intermarriage).
12 Miss. Const., Sec. 263, Miss. Code, 1930, Sec. 2361 (inter­

marriage) ; Mo. Rev. Stat., 1939, Sec. 4651 (intermarriage) ; 
N. D. Comp. Laws, 1913, Sec. 9583 (intermarriage) ; S. C. 
Const., Art. II, Sec. 33 (intermarriage). See also Fla. Stats. 
1941, Sec. 1.01; Ore. Code, 1930, Sec. 14-840 (intermarriage); 
Ind. Stat. (Burns), 1933, Sec. 44-101 (intermarriage).



20

visions to impose on any person using its facilities an 
undue or unreasonable prejudice. It is mandatory 
that the carrier afford colored passengers equality of 
treatment with regard to its transportation facilities. 
Those having first-class tickets “ must be furnished 
accommodations equal in comforts and conveniences 
to those afforded first-class white passengers”  Mitch­
ell v. United States, supra. The fact that complainant 
could have been served at his seat without extra 
charge was no answer to the specific question raised 
herein, since complainant had an undoubted right to 
the use of the defendant’s dining car facilities as long 
as such service was available to white passengers 
holding like accommodations. See Mitchell v. United 
States, supra; Edivards v. Nashville, C. <& St. Louis, 
R. R. Co., 12 I. C. C. Rep. 247-249, cited with approval 
in the Mitchell case, supra.

The situation which might have faced complain­
ant if he had decided to have dinner at his seat 
can in no manner be determinative of complainant’s 
rights in the situation which actually existed. Because 
complainant could have eaten in the Pullman, there can 
be no inference that he could not have or should not 
have sought the use of defendant’s diner. The situa­
tion which is important here is that which confronted 
complainant when he applied for service in defendant’s 
diner. On those facts and those facts alone can com­
plainant’s rights be determined.

Diners on the Southern Railway System had been 
originally designed to accommodate between thirty 
(30) and thirty-eight (38) persons (R. 35). Because



21

of the vast increase in travel the seating capacity was 
changed so as to accommodate forty-eight (48) persons 
(R. 35) but no additional waiters were placed in the 
diner. Passenger travel had so overtaxed railroad 
facilities that it was no longer possible to have a break 
between meals but breakfast, lunch and dinner had be­
come one continuous meal (R. 31). Prior to the war, 
diners carried an extra waiter whose sole duty was to 
serve meals outside the dining car. This extra waiter 
had now been dropped, and if a passenger desired ser­
vice outside the diner, such service would have to be 
rendered by one of the waiters assigned to a regular 
station in the diner. Admittedly this service was much 
slower than that in the diner. In fact, service outside 
the diner could be obtained only when the demand for 
service in the diner was such as to make it possible for 
a waiter to be spared from his station therein (R. 88- 
91). There is testimony that an offer was made to 
serve complainant at his seat, but complainant em­
phatically denies that any such offer was made. Yet 
the evidence does not disclose that any such offer was 
made when the steward notified complainant that the 
curtained “ colored”  section was empty and that he 
could then obtain service in the diner. The conclusion 
is inescapable that service outside the diner could not 
readily be obtained and that complainant had to seek 
service within the diner in order to obtain a regular 
dinner.



22

V.
Conflicting testimony as to time is unimportant 

since complainant could have been accommodated 
when he applied for service in the diner.

As is pointed out by the Examiner (Examiner’s Re­
port, pp. 4, 5, 6) there is considerable conflict in testi­
mony as to the time when complainant applied for ser­
vice. Complainant places the time at 7 :00 p. m. when 
he entered defendant’s diner and was refused service. 
According to defendant complainant entered the diner 
between 6 :00 and 6 :30 p. m. The Examiner feels that 
the time has some importance on the issues presented 
because “ of its bearing upon the length of time during 
which complainant could have eaten a meal had he re­
turned from his Pullman seat, upon being notified by 
one of the waiters that the steward was ready to have 
him served’ ’ (Examiner’s Report, p. 6, par. 4). The 
Examiner, accepting the testimony of the defendant, 
found that complainant entered the diner between 6 :00 
and 6:30 p. m. and was refused service (Examiner’s 
Report, Finding 5, p. 7) that subsequently, just before 
7 :00 p. m. the tables in the curtained “ colored’ ’ section 
became empty, and the steward sent a waiter to inform 
complainant that he could be served (Examiner’s Re­
port, Finding 6, page 7).

Complainant contends that the testimony on this 
point, to which the Examiner devotes a large part of 
his report (Examiner’s Report, pages 4, 5, 6), is unim­
portant since whatever the exact time might have been 
when complainant entered defendant’s diner, he could



23

then have been served. Complainant was refused ser­
vice because the curtained ‘ ‘ colored ’ ’ section was occu­
pied by white persons. Although a table was available 
in the main part of the diner, defendant refused to give 
service to its colored passengers in any part of the car 
except within the curtained section. When this section 
again became empty, and at what time, or whether in 
fact defendant thereafter did notify complainant that 
he could return to the diner for service are not germane 
to the issues here under consideration. It must again 
be emphasized that the facts which actually occurred 
when complainant sought service in defendant’s diner 
are determinative here. Speculation as to other possi­
bilities which might have occurred are not helpful or 
relevant. Complainant sought and was refused service 
to which he was entitled in defendant’s diner though 
there was an empty table therein where defendant 
could have served complainant. The only basis for de­
fendant’s refusal to serve complainant was because 
complainant was a Negro (R. 119). Defendant’s ac­
tion under the circumstances constituted an unlawful 
violation of complainant’s rights.

» m
VI.

No greater diligence or foresight is required of 
colored passengers seeking dining car facilities 
than is reqiured for white passengers.

In the proposed report (p. 7) the Examiner seems 
to make much of the fact that curtained space was re­
served for the use of Negro passengers for about 20 
minutes in defendant’s dining car; that the complainant



24

was notified that dining car facilities were available as 
soon as the dining car was open; that during the 20 
minutes while the curtained space was kept reserved 
for Negro passengers none sought the use of defen­
dant’s dining car facilities. As the Court pointed out 
in Mitchell v. U. 8., supra:

“ It is no answer to say that colored passengers, 
if sufficiently diligent and forehanded can make 
their reservations so far in advance as to be 
assurred of first-class accommodations—so long 
as white passengers can secure first-class reserva­
tions on the day of travel and the colored passen­
gers could not, the latter are subjected to inequal­
ity and discrimination because of their race.”

This also is the answer to the inference in the Ex­
aminer’s Report (p. 7) that Negro passengers who 
desire the use of the dining car should have sought 
these facilities immediately upon being notified that 
the dining car was open. Complainant’s contention is 
that he was entitled to the use of defendant’s dining 
car facilities as a first-class passenger and that he 
was entitled to the use of those facilities as long as 
the defendant was making such facilities available to 
white passengers holding similar accommodatons. 
When complainant sought the use of defendant’s diner 
the evidence disclosed that space was available where 
he could have been served. Any white passenger 
entering the dining car at the same time or subse­
quent to the time that the complainant entered would 
have been seated and served. Complainant, however, 
was forcibly ejected from the dining car because the 
curtained space was no longer available for his use.



25

This action on the part of the carrier amounts to 
undue and unreasonable prejudice and does not meet 
the standards of equality of treatment required by the 
Interstate Commerce Act.

VII.

Defendant’s action subjected complainant to 
undue and unreasonable prejudice.

Complainant has clearly shown in other portions of 
this brief that defendant’s refusal to serve him in its 
diner when he applied for such service* while afford­
ing service to white persons, was highly discrimina­
tory. Defendant failed to afford complainant the 
equality of treatment required by the Interstate Com­
merce Act. A white person presenting himself in 
defendant’s diner at the time when complainant was 
refused service would have immediately been seated 
and served. Complainant was ejected from the diner 
and required to forego dinner solely because of his 
color. Complainant has been subjected to undue and 
unreasonable prejudice within the meaning of the 
Interstate Commerce Act by the action of defendant’s 
employees in refusing to serve him pursuant to 
defendant’s instructions.

Conclusion.

It is submitted that the Examiner’s report is in 
error both as to law and fact and therefore should be 
overruled and rejected in favor of an order of this 
body in accordance with the prayer of complainant.



26

Complainant, through his attorney, further requests a 
hearing before the entire Commission in order that the 
contentions herein may be orally presented.

Respectfully submitted,

T htjrgood M arsh all ,
20 West 40th Street,

New York, New York, 
Attorney for Complainant.

W illiam  H . H astie ,
Washington, D. C.

S pottswood W. R obinson , III,
Richmond, Virginia.

R obert L . Carter ,
New York, New York,

Of Counsel.

Dated: December 31, 1945.

Certificate of Service.

I hereby certify that I have this day served the fore­
going document upon all parties of record in this pro­
ceeding by mailing a copy therefor properly addressed 
to each party of record.

Dated this December 27, 1945.

T htjrgood M arsh all .

[4827] ,212

L awyers P ress, I nc., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300