Transcript of Record — Mitchell v. United States

Supreme Court brief1941

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. OCTOBER TERM, 1940

e ‘ es vs. =, s

ARTHUR W.-MITCHELL, APPELLANT: -

"SUPREME COURT OF THE UNITED STATES

| -, THE UNITED STATES OF AMERICA, INTERSTATE

COMMERCE COMMISSION, FRANK 0.

, ¥§T AL aus

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR

THE’ NORTHERN DISTRICT OF ILLINOIS

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trom-D-O-U-8., Nortifern ied ay arent ee =

Excerpts from complaint filed before Interstate Com-

ON a 6g 06 60.6 86a eT OSPR REDO IAD Cie eS

Excerpts from the answer of the Illinois Central....

Excerpts from the answer of the Rock Island......

Exhibit “A”—Proposed report of Examiner, Wm. A.

DIGGERS . ccc iveicenesss Kevkveedetons bivodbuckes ‘

, Exhibit “B’—Report of Commissions.............

Order of Commission dismisssing the complaint... .

Exhibit “C”—Order’ of Commission denying petition

for reliearing and reargument ..........+++++++:

Summons and return soeeebeees (Omitted in printing) ..

Answer of defendant, United States of America........

Pe ; mission veeiekeceweveevneeeuen avkbendessna va eae oA

Sie as tec Sse ae a

é Excerpts from the answer of the Pullman Company

LOWDEN,

—_— Print

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26 18

44 33

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Record from D. C. Uv. 's., Northern District of Illinois—Con-

tinued é

Answer of defendants, Frank O. Lowden, et al., Trustees

‘Exhibit No.3—Time table—Illinois Central....

Exhibit No.4—Time table—Rock Island.......

Exhibit Na, 5—Arkansas separate coach law...

Proposed report of examiner (copy) (omitted in

MOTRIN: in oi cadnoevesschiincounieewise oe

| Report and order of Commission (copy) (omitted

: in printing) ........... Wide ree cUewsneaew aces cos

Order denying petition for réhearing and reargu-

ment (copy) (omitted in printing)..............

Defendants’ Exhibit No. 1-—Reply of Frank O, Lowden,

et al., Trustees of Chicago, Rock Island & Padffie Rail-

Original

— of@Chicage, Rock Island & Pacific Railway Co........ 66

~ Answer of defendant, The Pullman Company........ oe ae

, Answer of defendant, Illinois Central Ratlroad-Co...... . 78

Order setting cause for hearing before three-judge court. 82

Findings of fact and conclusions of law:...*.., aoe aes oe

Order dismissing cause for lack of jurisdiction. ”...... 86

Notice of appeal...../......+..- te eee gees gg erage teeeds -88

Petition for appeal ..... Gb wd béVA pa detesaguceds veiee *

Assignment ofserrors ..........+.. eieaeeG eka heceaies 91

Order granting appeal ......2....... ST See SEM eae 98

Citation and service thereof..... Goalita in printing).. 100

Appeal bond” ..... aiwadewbicae .. (omitted in printing).. 103

Order approving appeal bond..... PPE Rats YR es aE i ¢. 107

Order extending time to docket ely to November 21,

Order granting leave to,use ettstea’ hibits ayer ode eee. eee

Order re transcript of testimony had on ae 27 , 1940,

before District Court ....:...,... ebebesear’ wiseave ae

Appellant’s praecipe and proof of MB go ice ce de "186

Plaintiff's Exhibit No. 1—Proteedings before Interstate ;

Comnférce Commission, Docket No. 27844........ voes «6180

Complaint (copy) .........(omitted in printing).. 140 ~

Transcript of notes of hearing ........«.%.;.+..-+- 150

’ Caption and appearances .........-..+005- con > ae

Proceedings ....+++s+++.- ebbaseqncees eecneces. oe

- Testimony of Arthur W. Mitchell............. 157

Thomas J..Price .........0%%eeee

Edward H. Carry ..........-...

William Harrison svabcstecees -

ee Sevecvevegee.

, , Elias A.. Morris . kivecsesed wens

Albert W. Jones .....c0...ce000s

WB BORE sic cc cvcsvcgepsccens

ad A. C. McGuife .....ccceccicccces

Arthur W. Mitchell (recalled)...

Exhibit No. 1—Railroad ticket ............. ‘ea

~ Exhibit No. 2—Pullman stub ........... revere

way ©o., filed June 4, 1988, before Interstate Com-

merce Commission COCSCHSHHHESCHHOTOSOHHTOSISGCAL CBOE

211

214

SaeegeeEe

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Record from D. C. U. 8., “Northern District of Illinois—Con-

tinued - ' Original - Print

Deg gg oh Re EAE SAR 438 220°

Caption and en sogexdeunsgavisetesevics Aa 220

Plaintiff's evidence ......ccdecccccccccecccscccccs

' Defendants’ evidence .........8......cceeeeeeeee,

oa _ Argument by Mr Mcrae

Argument by Mr. Westbrooks ......6.....-sese40+

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Sees

‘ ‘ Argument by Mr. Payne ..........seeseceeeeeeees “G11

. + Arguthent by Mr. Hughes .............+.....2+2-. 588

Defendants’ praecipe for transcript of record.......... 559 ~

Defendants’ Exhibit .No. 2—Exceptions. on behalf. of-

plaintiff to report of examiner, filed. Mhya26, 1938, . ec

‘before Interstate Commerce Commission............ 562 259

- Clerk’s certificate seeeeeesees+s (omitted in printing) .. 598

Statement of points to be relied upon and destgnation of: —

parts of record to be printed ..........sseeeeecceeeeeess 59O> 279

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DIVISION —ss—wt eo? bag Muy

. In Equity. No. 500 ene

ipso WwW. en Plaintiff, A ees

vs.

ie Srazes OF ieee Frank O. Lowpen, James E.

Gorman, and Joseph B. Fleming, Trustees of the Estate

of the Chicago, Rock Island and Pacific Railway Com-~

pany, a corporation ; Illinois Central Railway Company, -

‘a corporation; and aera Company, a: Aap atric

Defendants

_ Perrrion—Filged April 20, 1939 ie:

To the Besonshbe J udges of the District Court of the United‘

States for the Northern District of Illinois, Eastern Divi-

sicfit #2

Your petitioner, Asthar W. Mitchell, the plaintiff herein,

presents this his petition against the United States of

America, Fragk 0. Lowden, James E. Gorman, and Joseph

B. Fleming, trustees of the estate of the Chicago, Rotk

Island & Pacific Railway Company, a corporation, Illinois:

Central Railway ;,Company, a corporation and ‘Pullman’

Company,’a. corporation and Charenpor: Betihoner: eee

fully states: ce e

That sa now and wast the time of the _gribvances, ip-

juries and damages to him sustained by the acts, as hereis-.

after alleged, of certain of the defendants, a native born

citizen of the United States of Americs, a resident of Chi-

eago, County of Codk-and State of Illinois; is “a duly

_ licensed and practicing attorney-at-law, and is now and

-was a Representative in Congress of the First Congres-

sionalDistri¢t of the said State of Hale.

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“The defendants sad each of them, cabelas: the United

States of America, are duly organized and incorporated,

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severally, asrailroad and transportation corpérations under’

the laws:of the State of Illinois, with principal operating

offices at Chicago, Illinois, and within the jurisdietion ‘of

this Honorable Court. | a : 7

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Each of the defendant corporations, mentioned in Para:

graph IT hereof, is a common carrier engaged in.the trans-

portation of persons and property by. railroad, in inteystate

. commerce, between points-inter_alia, in the -States_of Hii-—

nois, Tennessee-and Arkansas as well as points in various }

other states of the United States and as such common car-

riets .were so engaged at the time of the grievances here-

inafter stated as having been suffered by the plaintiff from

the acts of the said defendants; that at the time of the said

» grievances tast mentioned and for many years prior thereto -

~as well as subsequently thereafter, continuously to the

present time, the said defendants were engaged in inter-

state commerce and are subject to the provisions of the

Interstate Commerce -Act and its supplements.

pS 5 ee eee

The withia suit is brought to set aside and annul an order

of the Interstate Commerce Commission, other than for

the payment of money, pursuant-to the provisions of the

Act of February 4, 1887, and all amendments and supple- .

ments thereto, known as the Interstate Commerce Act, the

laws of the United States designated as the Judicial Code

‘and Judiciary and under the general equity jurisdiction

_ of this court. : ware

2 a a

Defendant, United States of America, is made a party:

defendant to this suit as directed by the Congress of the

' United States (28 U. 8. C. A. See. 41, subsection 28 ; secs.

43-48.)

‘The facts Leonia eee leading to the order of the —

Intérstate Commerce Commission herein sought to be set /

_ aside and annulled, are as follows:

On or about, to-wit: September 2, 1937 the plaintiff duly

filed his written complaint with the Interstate Commerce

Commission charging the defendant igre se ith the

doing of certain acts as alleged in the said complaint, which

said acts the plaintiff charged, were in violation of the Inter-

state Commerce Act and the Fourteenth Amendment of the

United States Constitution...

The complaint filed by the olatatif was as duly verified and

in substance is as follows:

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“That the defendants, and each of them, are common

earriers engaged in the transportation of passengers and

. [fol.8] property, wholly by .railroad, between Chicago,

Illindis; and points in thé State of Arkansas, particd-

larly the city of Hot Springs, Arkansas; as well as points in

various other states of the United States, including the

State of Tennessee; and as such common carriers are sub-

Aect to the provisions of the sateretate Commerce Act.

That the sigan,» and each of them, in violation of

Section 1-of the Interstate Commerce Act, Clause 5 thereof,

on April/20, 1937, did make and receive a charge for

services rendered and to be rendered in connection with

the transportation of the complainant from Chicago, Illi-

nois, to Hot Springs, Arkansas, which was unjust, unreason-

able and unlawful; in this, that complainant on said ‘April

20, 1937, did purchase in Chicago, Dlinois, a first-class

round- trip. ticket to ene rom Hot Springs, Arkansas, over

the defendarit lines, and did pay therefor the rates de-

manded and received of first class passengers for first class

accommodations; yet defendaits failed to firmish com- |

plainant first class accommodations and instead thereof,

furnishe& him with second class accommodations over his

protest; which said action of the defendants in, charging»

for and receiving the fare for first class accommodations

and failing to provide ‘same; providing in jieu thereof,

~ second class accommodations, was whjust, unreasonable and

unlawful, in viclation of Section 1, Clause 5, of the Inter- a

E state Commerce Act.

te ay, : v

That the detentanke. and each of them, in vislation of

Section 2 of the Interstate — Act, on the date: afore-°

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said; did directly and indirectly charge, demand, collect, and

receive from’ this complainant a greater compensation for

service rendered in transporting him as a passenger, than

Beets was charged,.demanded, collected and received from other

persons (whose names are to complainant unknown) for do-

[fol. 9] ing for thenr a like and contemporaneops service,

'. and did thereby unjustly discriminate against complainant;

in this, that the defendants did charge this complainant-and

received from him the price of first class accommodations;

yet furnished to him: second class accommodations, while

furnishing first class accommodations to all others who had

purchased first class tickets for first class accommodations;

ee . ‘and such action of the defendants did thereby unjustly dis-

: criminate against complainant in violation of Section 2 of

the Interstate Commerce Act. __

bad 2

V . f

That the defendants, and each of them, in violation of

Section 3, Clause 1 of the Interstate Commerce Act, on the

date aforesaid, did give undue and unreasonable preference

and advantage to certain white persons (whose names are to

| _ this complainant unknown) in respect to transporting them

v } . from Chicago to Hot Springs aforesaid; and did subject

_ this*complainant to undue and unreasonable prejudice and

disadvantage in respect to transporting him as aforesaid ;

in this, that the aforesaid white persons holding first class

tickets. siniilar identically to the first. class ticket held by

this complainant, were transported in a first class car, said

- car being equipped with clean towels, clean washbowls,

‘comfortable seats with upholstered backs and foot rests;

clean smoking rooms, lounging rooms, observation space,

writing desks; writing paper, pen and ink, magazines and

other reading periodicals, regular and efficient porter serv- —

ice, pressing and: shoe shining service, stenographic serv-

ice, manicuring and barber shop service, bath service, valet

' service, radio, soap of high qaality, facilities for serving --

/ _ Meals in the car or the option of having meals in the dining

ie car; clean toilet facilities with running hot and cold water,

ee ae _ and water for flushing purposes with disinfectant, all free

of chargé to first class passengers, and many other services

too numerous to mention or to particularize more definitely ;

while this complainant, notwithstanding the fact that he

possessed a first class ticket entitling him to ride in a first -

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[fol. 10] class car possessing each and every one of the Jast

named facilities, was compelled by the. defendants by and

. . through their agents, servants, and employees and.ever pro- a:

test of this complainant, to ride in a second class car which |

- contrary said second class car did not contain clean. towels,y

nor clean washbowls; nor compartments, berths, sections,

drawingrooms, smoking rooms, lounging rooms, observation |

-. space, writing desks, paper, pen, ink, magazines, and-other 4 Bs

reading periodicals; nor porter service, soap, nor facilities _

for meals being served in said car; nor clean toilet facilities

with running hot and cold water for flushing purpeses and

disinfectant; and this complainant specifically charges that j

the second class car in which he was forced to ride as afore- : a as

: said did not contain the above facilities and. did not contain ;

any one or either of thém; but on the contrary the said

second class car was fil ¥ with filthy toilets, and so re-

mained during the entire time this complainant was com-

pelled to occupy it, which was for a period of more than four

hours and over a journey of about 160 miles; beginning at

a point just west of Memphis, Tennessee, and ne ei

on into Hot Springs, Arkansas.

And in this connection, complainant further tabi that

the first class car oecupied by the aforesaid white persons

holding tickets identically similar to the first class ticket

held by this complainant was large, comfortable, free from

Pager’ and odors, well ventilated, lighted, and air-condi-

tioned ; and always clean and sanitary ; while the second class

ear which this complainant was forced_to. complete his

journey in as outlined in the Cosas manasa was di-

vided by partitions and used jointly for carrying baggage,

train crew, and passengers; that said car was small, poorly

ventilated, filthy, filled with stafch and odors emitting from

the toilet, and otherwise filthy and indescribably unsanitary.

That said action of defendants in furnishing accommoda-

tions to the aforesaid white persons holding first class a

[ [fol. 11] tickets which were far superior to the accommoda- ;

_ tions furnished to this complainant on his first class ticket,

was unduly and u onably prejudicial to him,.and was

| unduly and unreasonably preferential to said white persons —

to the disadvantage of this complainant, in violation of Sec-

‘tion 3, Clause 1, aforesaid. ,

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See a

' That-the defendants, claiming to act under authority of ‘

the Arkansas Statute (Kirby’s Arkansas Statute, Sections .

6622 to 6632), did force and cgmpel this complainant to ride

in a second class car, notwithstanding the fact that complain-

ant held a first class ticket; that the second class car was the

_ car described in Paragraph Five hereof which by reference

is made a part of this paragraph. That the action of defend-

- ants was based on the fact that this complainant is a Colored .

: fered in transporting hia in the s@cond class car re-

ferred {6, while white persons holding identically similar

first cldss tickets were permitted to ride in the first class car

- described in Paragraph Five of this complaint, which by

‘ reference is made a part hereof, and said practice of the

defendants in furnishing such unequal accommodations to

* ~, persons holding similar first class tickets, under the afore-

; said Statute, causes undue and unreasonable advantage and

preference to white persons; and causes undue ang unreas-

onable prejudice to this complainant and all other Colored

persons who in the fiture will use, as interstate passengers,

the’ lines ofthe said defendants. |

The said unreasonable and undue advantage and prefer-

__ ence ‘to’ white persons aforesaid; and undue and unreason-

_ able prejadice to this complainant and all other Colored

persons who in the future will use defendant lines, only

arises between persons in intrastate commerce on the one

hand and persons-in interstate commerce on the other hand,

in this, that said practice under said law only arises after. »

Colored personS havegentered the State of Arkansas and

did not exist while this éomplainant-was traveling in Illinois;

[fol. 12] that said law’is not intended to and does ‘not operate

of beyond the territorial boundaries of said State. -

fhat said action, causing undue and unreasonable advan-

tage to. white persons, and causing undue and unreasonable —

prejudice to this complainant, being based on the State law

aforesaid, is in violation of Section 13, Clause 4, of the Inter- °

state Commerce Act.

VIL

_ That by reason of the facts stated in the foregoing para-

graph complainant has been subjected to the. payment of

fares for transportation which were when exacted and still -

are unjust and unreasonable in violation of Section 1 of the

Interstate Commerce Act; and said complainant has, been

‘ *

unjustly discriminated against in violation of Section 2 of

the Interstate Commerce Act; that said defendants have

- been unduly and unreasonably preferential to some persons

while at the same time being unduly and unréasonably preju-

diced against this complainant in violation of Section 3 of

the Interstate Commerce Act; that the action of defendants-

in operating under the Arkansas Law causes undue and un-

reasonable preference to some persons and undue and tn-

reasonable prejudice to complainant and other persons, in

‘violation of Section 13 of the Interstate Commerce Act, and

tion in denying to petitioner equal protection of the laws.

Wherefore, complainant prays that defendants and each

of them may be required to answer the charges herein; that

after due hearing and inyestigation an order be made com-

_ the Fourteenth be ES of the United States Constitu-

manding said defendants and each of them to cease and

desist from the aforesaid violations.of said act, and estab-

lish and put in force and apply in future to the transporta- |

tion of persons between the origin and destination points

named in paragraphs V and VI hereof, in lieu of the serv-

ices and facilities named in said paragraphs V and VI, and

such other services and facilities as the Commission may

[fol. 13] deem reasonable and just; and that such other.and

further order or orders be made as the Commission may

consider proper in the premises.”’’

The defendant, Frank ©. Lowden, James E. Gorman and

_ Joseph B. Fleming, trustees of the estate of the Chicago, .

Rock Island and Pacific Railroad Company, a corporation

and hereinafter called and referred to as the ‘‘ Rock Island,”’

filed an answer to the complaint above set forth, (1) it

admits that it was a common carrier engaged in the trans-

portation of passengers and property by railroad in inter-

state commerce on April 20, 1937, (2) it denies that the

facts charged in Paragraph III of the complaint were un-

just, unreasonable or unlawful and in violation of Sectién 1,

Clause 5. of the Interstate Commerce Act; (3) it denies the

_ charges contained in Paragraph IV Of the complaint and

further denies said acts contained in the said paragraph vio-

lated Section 2 of the Interstate Commerce Act; (4)st denies

each and every allegation contained in Paragraphs V-VI of

the complaint and denies that the acts charged in said para-

— " * *

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PAN SRS SO 45 <F PEF CO A ERS OS

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‘prayed to be dismissed. ~

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graphs violated Section 3, Clause 1 or Section 13, Clause 4

of the Interstate Commerce Act; (5) it denies the allega-

tions of Paragraph of the complaint and further denies

that the acts charged in? said paragrayh violated Sections 1,

2, 3, and 13 of the Interstate Comméfce Act and the Four-

teenth Amendment

ofthe United States Constitution and

VII

“~ he defendant, illinois Central Railroad Company, here-_

inafter referred to as the Illinois Central by and in its

[fol. 14] answer filed to the above mentioned complaint,

(1) denies that it owned or opérated any line of ,railroad

within the State of Arkansas; (2) -it denies each and every

allegation of Paragraphs ITI, IV, V, VI and the first para-

, graph of Paragraph VII of the complaint; (3) it further

enies that the acts or omissions towards the complaint vio-

lated Sections 1 (5), 2, ° (1) or 13 (4) of the Interstate

Commerce Act and prayed that the complaint be dismissed

as te it.

: : IX

The defendant, the Pullman Company, filed its answer

to the above mentioned complaint, by and in its answer,

(1) it admits the allegations of Paragraph I of the com-

plaint; (2) it denies tlie allegations of Paragraph IT? the

complaint in so far as it pertains to this defendant and

states that it is a Sleeping Car Company, subject to the pro-

visions of the Interstate Commerce Act, and furnishes sleep-

ing car accommodations to passengers traveling between

the points stated in Paragraph II of the complaint, wher

such, passenger- contract with it for such’ accommodations

_ in accordance with the provisions of its tariffs on file with

the Interstate Commerce Commission; (3) it Aenies the alle-

gations of Paragraph 3 of the complaint as applying to it

and states! that it furnished equal accommodations to the

plaintiff, for which the plaintiff had paid and that it had

no contract with the plaintiff for accommodations between

Memphis, Tennessee and Hot Springs, Arkansas; (4) it

denies the|alleg-‘ions of Paragraph IV of the complaint

‘and refers'to Paragraph II.of its answer concerning the

sleeping car accommodations; (5) it likewise denies the alle-

gations of Paragraph V of the complaint and states that it

did not own' or control the inferior accommodations in the

equipment which the plaintiff was compelled to occupy be-

tween Memphis and Hot Springs, and (6) it likewise denies |”

[fol. 15] the allegations of Paragraphs VI and VII of the

complaint as relating to the plaintiff sie Aes the dismissal

of the complaint as 3 to it.

Xx. ‘

The said complaint was assigned for hearing by the com-

mission by order dated December 4, 1937, of which due

notice was given to all parties.

A formal opener of the complaint was heard before the ..

commission represented by W. A. Disque, examiner, on

March 7, 1938. 2

XII

That on said last mentioned date, evidence, both oral and

- documentary, was introduced by the plaintiff and the defend- .

ant, Rock Island. A complete transcript of the evidence .

had and taken before the commission as aforesaid, is here-

by rhade a part of this petition, by reference thereto, as

though fully set out herein’ and will be offered on behalf of

the plaintiff on the hearing of ress petition.

XII

Thereafter, b?fefs were filed by. the plaintiff and by the

defendants, and in due course the examiner’s proposed

report was filed, recommending that the complaint should

be dismissed, which said proposed report is hereto attached

and marked ‘Exhibit ‘A’? and made a part hereof, and is

as Heras

10 ee 5 ; .

[fo.16) xm “A”

> “Tyrerstatr COMMERCE Gakic

: No. 27844

Pa eo Anravk W. Miron:

i se Cuicaco, Rock Isuanp & Pactrtco Ritiwar Company,

| : ek : : Trustees, et ad. : ee ;

Submitted erties Decided May 5th; 1938

Present accommodations for colored passengers traveling

_ in Arkansas over the lite of The Chicago, Rock Island and

Hie . Pacific Railway Company on through journeys from Chi-

e 8 Be cago, Ill., to Hot Springs, Ark., found not unjustly discri-

minatory or unduly prejudicial. Complaint dismissed.

Arthur W) Mitchell and Richard E. Westbrooks for com-

= plainant. A Cag Me re = ohiee ae

a Wallace 'T- Hughes, Daniel Taylor, E. A. Smith, Robert

Mitten, H. J. Deany, Erwin W. Roemer, Charles S. Willis-

ton, and-Lowell M. Greenlaw for defendants. Area

Report Proposed by Wm..A. Disque, Examiner

Complainant, a negro resident of Chicago, IIl., and a mem-

ber of the House of Representatives of the United States,

| * by complaint filed September 2, 1937, alleges, in effect, that

ass ° - defendants, in connection’ with their purported compliance

4 : with an Arkansas statute requiring.segregation of the races |

during transportation, do not provide as desirable accom-

modations for-colored as for white passengers traveling in

[fol. 17] Arkansas over the line of The Chicago, Rock Island

and Pacific Railway Company at first-class fares from Chi- __

cago, Tll., to Hot Springs, Ark., and that this results in un-

reasonable charges and@“unjust discrimination against, and

undue prejudice to, colored, passengers, in violation of

sections 1, 2, 3, and 13 of the Interstate Commerce Act, and .

_ the Fourteenth Amendment to the Cons itution of the United

. States. However, the only relief so#ht is removal and |

} avoidance in the future of thie alleged discrimination-and——<-

a prejudice in the furnishing o accommodations. The above- °

named cartier will be hereinafter called the Rock Island.

It is the principal defendant.

Docket No. 27844—Sheet 2 | ’

Defendants question our jurisdiction to give the: relief,

: on the ground that the sections of the act invoked relate

only to rates and charges. They take the position that the

only provisions which give this Commission power over the

. furnishing of equipment and facilities of transportation be-

- gin with section 1 ( 10), which says that the term ‘car service’

as used in those provisions ‘shall include the use, control,

supply, movement, * * * and return of * * * cars * * *

used in the transportation of.property * * *.’ (Italics ts

——gurs.)—However sectiot 3-1) makes it uniawfatto abject .__ as, peer

any particular person * * *, or any particular description — ,

of traffic to any undue or unreasonable prejudice or disad- —

vantage in any_respect whatsoever.’ In view of the conclu- : 4

si0} ed the question raised is not im ortant, but it: a

appears to be set at rest by Interstate Commerce Commis- f

sion v. Illinois Central R. Co., 215 U. S. 452, and Pennsyl- — | wes

vania R. Co. v. Clark Bros. Coal Mining Co., "238 U.S. 456, : ;

where the Supreme Court held that this “Commission had eat Ks

jurisdiction to deal with discrimination i in the distribution

of coal cars.

The complaint mentions but a single incident of. éllewed y

discrimination and prejudice, the ‘one hereinaftér described :

fol. 18] in which complainant was involved. . Although

here is an allegation that ‘said practice of the defendants

in furnishing su¢h unequal accommodations * * * causes

* * * undue and unreasonable prejudice to this complain- :

ant and all other colored } persons who in the future will use :

* * * the lines of said defendants’, defendants upon brief .

urge that the complaint:is sufficient te raise any issue as. to

practice, on the ground that one incident does not amount to 5 a

—+—x practice, and moye that all testimony that does not relate a

to this particular incident be stricken. Plainly, however, 4

the incident was mentioned as representative of an alleged 2

practice that was'expécted to continue. Phe prayer is that ; ‘my

an order be entered: requiring defendants to cease and desist :

ket No. 27844—Sheet 3

from the alleged iolations of the act and provide lawful ac-

commodations i the future ner colored passengers from and ‘

_ to the points involved. Defendants are taking an unduly

technical position. They have long understood that a com-

plaint is not to he narrowly construed. They were well

aware of the kind of accommodations they were furnishing

. and were not taken by surprise, but came to the hearing with —

a full array of witnesses adequately informed respecting all

the facts. They objected at the hearing to the receipt of any |

testimony not ¢ ed to the incident mentioned, but their

objections were overruled by fhe examiner.

‘At-the hearing complainant moved that the Rock Island’s

answer be stricken, contending that it violated Rule IV, (),

(e) of the Rules of Practice, because it did not state fully,

completely and with partieularity the nature and grounds of

the defense. Paragraph (e) of the rule deals specifically

with answers to allegations under sections 2 and 3 of the

act. However, there is nogindication that complainant was

put to any material disadvantage by defendaiit’s failure and

the matter may be passed, as it calls only for a reprimand.

[fol. 19] The case is built mainly on an unpleasant experi-

ence complainant had a little over.a year ago. On the éve-

ning of April 20,°1937, he left Chicago for Hot ‘Springs,

over the lines of the ‘Tllinois Central Railroad Company

to, Memphis, Tenn., and the Rock Island beyond, traveling

on a first-class round-trip ticket he had purchased from the

initial carrier’s ticket agent in Chicago. He had requested

a bedroom on defendants’ through Chicago-Hot Springs

; et ° : a Pullman sleeping car, but none being available, the ticket

. : i a a 3 agent provided him with a compartment,as far as Memphis

me hy in the ‘sleeper destined to New Orleans, La. Just be-

. fore the train reached Memphis, on the morning after .

leaving Chicago, he had a Pullman porter transfer him, to-

Docket No. 27844—Sheet. 4

7 ’ aS gether with bis hand-tiega and other ational Fects;

ie ; ee to the Chicago-Hot Springs sleeper then on the same train,

\,! but which was to leave Memphis at 8:30 a.m., on Rock

\@ Island train no. 45, and reach Hot Springs, 193 miles west,

° Pay S ‘ | at 1:05 p.m., the same day. Plenty of space was available .

a° : I i. ~ and the porter assigned him a particular seat in that car,

y By ; Srckige | for which he was to pay the tstablished fare, 90 cents.

Shortly after leaving Memphij@iand crossing the ‘Migsissippi

River into Arkansas the trailggnductor took up the Mem-

’ » phis-Hot Springs portion of his ticket, but refused to ae-—

‘

—_—_—_—_—_—_————

' ° ‘

° 4 . A

- ¢

j e

? mo .

be ones = a ares .

cept payment for the Pullman seat from Memphis, ani in~

accordance with custom, compelled him, over his senebaig

arid finally under threat of arrest, to move into the! so-called tae

_-Jim Crow car, or colored coach, in compliance with ;

Arkansas ‘statute requiring segregation of colored from

white persons by the use of cars or sections thereof taser ia

. ing ‘equal, but separate and sufficient accommodations,’

for both races. Complainant’s baggage and other.personal

effects wére allowed to go on to destination in the Pullman

car. Later, the conductor returned the portion of the ticket

he had taken up and correctly advised complainant that

~ he could get a refund on the basis of the second-class fare

[fol. 20] from Memphis, which was one cent less per nile

first class fare.- The refund was never claimed

from defendants and is net here sought, but defendants

stand ready to make it upon application, Complainant

has an action at law mending against the defendants in

the Circuit Court of Cook County, Ill, for damages inci-

dent to his transfer.

* ‘The Pullman car contained 10 sections of berths and two

_compartment-drawing rooms. The use of one of the draw-

ing rooms would have amounted to segregation under the

State law and ordinarily such accommodations ‘are avail-

able. Whether the 90-cent seat fare wow have been ap-

plicable is not clear, but both drawing rooms were occupied

Docket No. 27844—Sheet 5 ive |

by white passengers. The « car was of modern design and had

all the usual facilities and conveniences found in standard. _

sleeping cars. It contained a smoking room for men and a

dressing room for women. It was air conditioned, had

hot and coid running water, tables, carpet, mirrors, ‘wash

basins with good soap, clean linen towels, and separate

flushable toilets for men and women. It was in excéllent

condition throughout. First-class white passengers had,

in addition to the Pullman sleeper, the exclusive uge of

the train’s only dining car and only observationparlor

car, the latter havin& somewhat the same accommodatiors

for day use as the Pullman car and, in, addition, a writing .

desk and perhaps a radio. The white passengers could

range throughout the portion of the train behind the col-

____ored coach, but colored passengers were-confined to that

a.ca ite we |

The colored doach, carried next to the baggage car, was

the first passenger car behind-the locomotive. Behind it

came a white day coach, the dining car, the sleeper and

finally the observation-parlor car, all being. Rock Island

equipment, except the sleeper. The colored coach, though

of standard size and steel construction; was an. old com-

[fol. 21] bination affair. It was divided by partitions into

three main parts, one. for colored smokers, one for: white

smokers,. arid one, in the middle, for colored men and

women, but primarily the latter, and known as the women’s

section, each section having seats for about 20 passengers.

Complainant sat in the women’s scetion. The car was

poorly ventilated and not air conditioned. - The upholstery

was of leather. There was a toilet in each section, but

only the one in the women’s section was equipped -for

flushing and it was for the exclusive use of the colored

women. The car was without wash basins, soap, towels

or running water, except in the women’s section. Accord-

ing to complainant the car was filthy and foul smelling,

_ but the testimony of defendants, as we sha later see, is to

Z Docket No. 27844—Sheet 6

the contrary. The car éontainéd, besides complainant,

several other colored passengérs, including women. -Two

pairs of seats in the colored men’s section were used as an

office by the conductor and the flagman, who were white.

These conditions had prevailed ‘for at least 25 years.

The above facts are gathered principally from complain-

ant’s testimony, but several other colored persons, who

had traveled from Memphis to Hot Springs over the Rock

Island at times during the above-mentioned period, gave

. similar testimony as to the condition of the cars in which

they rode. They also told of colored coaches between

these points that had common toilets for men and women

and of the absence of carpets and foot rests, while much

_ More desirable accommodations were provided for white

passengers traveling in coaches. This treatment of the

‘colored race cannot be too strongly condemned.

Defendant’s witnesses, namely the conductor and flag-

mah of the trdin and the superintendent who had charge

of getting the equipment ready at Memphis, testified that

they noticed no dirt, filth or obnoxious odors in the car;

that it was as clean as it could be made; that in accord-

“ks a | 15

[fol. 22] ance -with the eind practice it was those

-eleaned, disinfected, equipped with newly laundered seut

and seat-back. linen covers, and inspected at Memphis be-

fore it was put into the train. Each section of the car

‘. contained a coolér of ice water and a 12-inch electric fan.

‘Incidentally, the. Rock Island keeps eight men busy pre-

paring equipmgnt ‘for 13 or 14 trains per day.

Since the egrly part of July, 1937, the Rock Island] has

been runningVa colored coach between Memphis and Hot

Springs that is entirely modern. It is of all-steel construc-

tion, with six-wheel trucks. It is divided by a partition into

two sections, one for colored and the other for white

passengers. It has comfortable seats with plush upholstery —

Docket: No. 27844—Sheet 7

and thier seat covers, linoleum floor covering, air condi-

tioning, electric light, and electric fans. In each section

there are wash basins, running hot and cold water, free _

paper towels and drinking cups, and separate flush ‘toilets

for men and women. There is no smoker section, as smok-

ing nowadays is generally permitted in all coaches and

sections thereof, and even in some instances, or to some

_ extent, in Pullman cars. The present colqred coach is.as

fully ‘desirable in all its appointments as the coach used

by the white passengers traveling at second-class fares.

One’of the complainant’s witnesses testified that as lite

. as September, 1937, he found conditions in the colored

coach between Memphis and Hot Springs ‘ yery bad,’ but

. evidently he was not riding the train that carried the new

car, as he said the men and women used the same toilet.

The present colored coach takes eare of colored second-

class passengers, but there is no Pullman, dining or ob-

servation-parlor car for colored first-class passengers. .

Only about one negro to 20 white passengers rides this

train from and to points on the line between Memphis

and Hot Springs and there is hardly ever a ‘demand from

[fol. 23] a éolored passenger for Pullman accommodations ;

the conductor recalled but 10 or 12 in the past 32 years of

his service. on, the train. What demand there may have

_ been a ticket offices does not appear.

Various previous proceedings akin to this one are Coun- |

cil v. Western & A. R. Co., 1 1.C.C. 339; 1-LC.R. 638; Heard

v. Georgia R. Co., 1 L.C 428; 1- LOR. 719; Edwards v.

OS EY

Nashville C. & St. L. Ry. Co., 12 1.0.C. 247, and Crosby: v.

St. Louis-S. F. Ry. Co., 112 1.0.0. 239. In the first four *

proceedings affirmative findings and orders were entered

requiring the removal of unjust discrimination and undue

prejudice to colored passengers, but not in the last one.

Kath rested on its own facts. None presented the same

situation as the instant proceeding. —

: Docket No. 27844—Sheet ie

For the purposes of this proceeding Complainant accepts -

“Segregation under the Arkansas statute, but urges th

defendants, to remove and avoid unjust discrimination and

undue prejudice, are bound to provide thc same equipment

and accommodations for colored passengers as for white

passengers.- In other words, he says that if defendants

are to continue the Pullman sleeper,.the dining car and the

. observation-parlor car for white passengers, they mtst

provide similar facilities, three raj cars, for colored

passengers paying first-class fare s the additional

charges provided by tariff for seat sPace. Fee

Complainant urges that ‘collection of the first-class fare,

notwithstanding the fact\that second-class accommodations

were furnished him, was violative of sections 1, 2, 3 and 6

of the Interstate Commerce Act; also of the Fourteenth |

Amendment to the Constitution, on the ground that he was

deprived of money without due process of law and denied

equal protection of the laws. .It is sufficient to say that a

first-class ticket was furnished and charged for because

complainant wanted it, and/that after it developed that

the first-class accommodations west of Memphis wer® all

[fol. 24] taken by other passengers defendants offered to

refund the difference. Moreover, as already stated, com-

plainant is here seeking no relief from the charges paid.

‘Complainant urges that the Rock Island, having-received

from him the first-class fare but having failed to furnish

first-class accommodations west of Memphis, vidlated sec-

tion 13 (4) of the act. That provision felates to intrastate

fares that are unjustly discriminatory or unduly prejudicial

in their relation to, interstate fares. No intrastate fares

are here involved. . There was no break in complainant’s

journey at the Tennessee-Arkansas State line. He was

engaged in through interstate travel from Chicago to Hot

Springs. Moreover, as said in the next preceding para-

_£

Docket No. ‘27844—Sheet 9

graph, complainant was, furnished a first-elass ticket. -be-

cause he asked for it, and: refund awaits him. |

Regardless of what finding may be made respeeting the

"Rock Island, the Illinois Central asks that the complaint

be dismissed as to it. There is no showing that colored

passengers are. treated differently from white passengers

gn their journeys from Chicago to Memphis and appar-

ently that road is in no way chargeable with discrimination,

even though it participates in the through transportation

under joint fares and ether arrangements. This carrier

is a proper, but perliaps not necessary party. It was named

as a defendant apparently out of Abundance of caution,

because it participated in the mofement.

‘The Pullman Company also asks dismissal, regardless

of what may be done as to the Rock Island, contending °

that it is not chargeable with discrjmination because it

provides accommodations in the for,

which if not already occupied or rdaserved for some one

else, are available for colored passengexs west of MAophis.

Apparently there is no discrimination oh its part, if the 90-

cent seat fare is applicable.

[fol. 25] The present colored coach meets the require- ©

ments of the law. As there is comparatively little colored

traffic and not likely to be such demand for Pullman, dining

and observation-parlor. car accommodations by colored

passengers as to warrant the running of any extra cars,

the discrimination and prejudice is plainly not unjust or

undue. Only differences in treatment that are unjust or

undue are unlawful and within-the power of this Commis-

sion to condemn, remove and prevent. ‘

The countiebis shouldbe dismissed.”’

XIV

The plaintiff on or about May 25, 1938, duly filed excep-

tions to the said proposed report in which exceptions, |

among other things the plaintiff contended that his con- —

stitutional rights under the 14th Amendment of the United

States —had been violated.

ee: oe

-. The defendant: Rock Island filed a reply to the excep-

tions, on or about June 4. 1938. :

2—577

-¢

of drawing rooms,

;

: e

‘ ‘ E

gue VOSS RS IS Ss A SISSIES TONE A ANSI i) is ol en Tea mee PS LDL IDOE GS DION ELISEO NIE, BOOTIE —

® : °

YS | ites bs

5 pete -xvr a -

On-‘or about July 6, 1938, the cause came on before the

full Commission for oral argument.

bi XVII

_+ On, or about November 7, 1938, the Commission filed its

report and order thereon dismissing the complaint. The

_ Said report was dissented to by five members of the sald

Commission. ie

[fol. 26] . _ XVII |

. The said report, including the dissenting expressions and

the order of the Commission arg hereto attached and

marked Exhibit B and made i hereof and is as

follows: , 5

eae | . Exurerr:“B”?

ae Interstate Commer mmission ~~~ --—~~

Ce Nee 11/28/38 ~

er + No, 27844

@ ee Reci W. MircHeti

: | 3 Sea,

. : anes 5;

Cuicaco, Rock Istann.&-Pactric Raruway Company

et al.

Submitted July 6, 1938. Decided November 7 , 1938

ais u

Present accommodations for co d passengers trayeling

* in Arkansas over the line Of The Chicago, Rock Island

‘ and Pacific Railway Company on throygh journeys from

'« Chicago, Ill, to Hot Springs, Ark., found not unjustly

diseriminatory or unduly prejudicial. Complaint dis-

missed. oe J

Arthur W. Mitchell and Richard, E. Westbrooks for

complainant, : 5 ED seme

Wallace T. Hughes, Daniel Taylor, E. A. Smi h, Robert

Mitten, H. J. Deany, Erwin W. Roemer, Charles S. Willis-

ton, and Lowell M. Greenlaw for defendants. . :

mama YR ie © sale

: :

me... MADRE Rares Bea PEC FR LN TIAEG ic POR g et AERO PDT AR a AES RERLNTON SS GLRE ES AO OEE CEE Cath aS lO

if.

. 19

- [fol. 27] Report of the Commission

By the Commission :° | ane

Exceptions to the examiner’s report were filed by com- if

plainant, to which the trustees of The Chicago, Rock Island .

and Pacific Railway Company, hereinafter called the Rock —

Island, replied. The proceeding was orally argued.

Complainant, a negro resident of Chicago, Ill, and a 7s

member of the House of Representatives of the United : 3 o*

States, by eomplaint filed September 2, 1937, alleges, in

effect, that defendants, in connection with their purported

compliance with an Arkansas statute requirmg segrega-

tion of the races during transportation; do not provide

as desirable accommodations for colored as for white

‘passengers traveling in Arkansas over the line of the Rotk

Island at first-class fares from Chicago, IIl., to Hot Springs,

_ Ark., and that this results in unreasonable charges and

unjust. discrimination against, and undue prejudice to, ; |

colored passengers, in violation of sections 1, 2, 3, and 13 c_—

of the Interstate Comm, ce Act, and the fourteenth amend-

ment to the Constitafion of the United States, guarantee-

Docket No. 27844—Sheet 2

4 ; | :

ing due process of law and equal protection of the laws.

However, the only relief sought is removal and avoidance

in the future of the alleged discrimination and prejudice ’

in the furnishing of accOmmodations. — -

Defendants question our jurisdiction to give the relief ©

sought, on the ground that the sections of the act invoked — ie

relate only to rates and charges. They take the position . 7

that the only provisions which give this Commission power .

over the. furnishing of equipment and facilities of trans-

portation begin with section 1 (10); which says that\ the

term ‘‘car service’’ as used in those provisions ‘‘shall \in- ;

clude.the use, control, supply, movement, *.* * and return ns

[fol. 28] of * * * cars * * * used in the transportation of»

property.* * * "(italics ours.) However section 3 (1) |

makes it unlawful “to subject any, particular person * * *,,

or any particular description of” traffic to any undue or

unreasonable prejudi ® or disadvantage in any respect

whatsoever.’’ In view, of the conclusion reached the . ge

ation raised is ipipprtant, but it appears’to be set at.

Test by Interstate Conimerce Comfnission v. Illinois Cen-

= be 5 ets e: iets Se Lard /

PR eh EAU a Satie a ONE STS ee ¢

e ; ricci

PRES AE PM AP NEES SL EAE AEB BE AYO ERIN ISITE COR RN EN A ONT ABEIN ES SMCS mh

¢ ‘

tral R.Co., 215 U. 8. 452, and Pennsylvania R. Co. v. Clark

Bros. Coal Mining Co., 238 U.S. 456. Rew In,

‘The complaint mentions but a single incident of alleged

discrimination ‘and prejudice, the one hereinafter de-

“ seribed in’ which complainant was involved. Although

there is an allegation that ‘‘said practice of the defendants

in furnishing such unequal accommodations * * * causes

*\*.* undue and unreasonable prejudice to this complain-

ant and all other colored persons who in the future will

' Docket No. 27844—Sheet 3 ce

use .* * * the lines of ‘said defendants,’’ defendants upon

brief urge that the complaint .is insufficient to raise any

issue as to practice, on the ground that one incident does

not amount to a practice, and they move that all testi-

_ mony that does not relate to. this particular incident be

stricken. Plainly, however, the incident was mentioned

as representative of an alleged practice that was expected

to continue. The prayer is: that we require defendants to

cease and desist from the alleged violations of the act and

to provide lawful accommodations in the future for col-

ored passengers from and to the points involved. Defend-

ants are taking an unduly technical position. They have

long understood that a complaint is not to be narrowly

construed. They were well aware of the kind of accom-

modations they were furnishing and were nat taken by

surprise, but came to the hearing withgwitnesses adequately

informed respecting all the facts. hey objected at the

hearing to the receipt of any testimony not confined to

(fol. 29] the incident mentioned, but their objections were

properly overruled by the examiner. 7

At the hearing,’complainant moved that the Rock Island’s

answer be-stricken, contending that it violated rule IV (d),

(e) of the Rules of Practice, because it did not state fully,

completely, and with particularity the nature and grounds

. of the defense nor deny specifically and in detail éaeh

material allegation of the complaint. However, there is

no indication that complainant was put to any material

disadvantage by defendant ’s failure; and striking the -an-

. Swer would avail nothing, for the proceeding would never-

thelesg be-atissue. Rule IV (b) and Smokeless Fuel Co. v.

Norfolk & W: Ry. Co., 85 L.C.C. 395. |

’ &

> — h

pe ae ee teen eter art

, pe Docket No. 27844—-Sheet 4

\ m

The case is built mainly on an unpleasant experience

im complainant had about 18 months ago. On the evening

of April 20, 1937, he left Chicago for Hot Springs, over

the lines of the Illinois Central Railroad Company to -

Memphis, Tenn., and the Rock Island beyogd, traveling

on a round-trip ticket he had purchased at 3-cents per mile

from the initial carrier’s ticket agent in Chicago. He had

requested a bedroom on defendants’ through Chicago-Hot

Springs Pullman sleeping car, but none being available,

the ticket agent provided him with & compartment as far

as Memphis in the sleeper destined to New Orlear¢, La.

Just before the train reached Memphis, on the morning

after leaving Chicago, he had a Pullman porter transfer

him, together with his hand baggage and other personal

effects, to the Chicago-Hot Springs sleeper then on the

same train, but which was to leave Memphis at 8:30 a.m.,

on Rock Island train no. 45, and reach Hot Springs, 193

miles west, at 1:05 p.m., the same day. Space was avail-

able and the-porter assigned him a particular seat in that

ear, for which he was to pay the established fare, 90 cents.

/ Shortly after leaving Memphis and crossing the Mississippi

[fol. 30] River into Arkansas the train conductor took up

the Memphis-Hot Springs portion of his ticket, but refused

to accept payment for the Pullman seat from Memphis,

and in accordance with custom, compelled him, over, his

protest and finally under threat of arrest, to move into

the car provided for colored passengers, in purported

compliance with an Arkansas statute requiring se; ‘ga-

tion of colored from white persons by the use of cars or

partitioned sections thereof providing “equal, but separate’

and sufficient accommodations”’, for both races. Complain-

ant’s begs gage and other. personal effects were allowed to go

; Docket No. 27844—Sheet 5

on to destination in the Pullman car. Later the conductor

returned the portion of the ticket he had taken up and

correctly advised complainant that he could get a refund

on the basis of the coach fare of 2 cents per mile from Mem-

phis; The refund was never claimed from defendants.

and is not here séught, but defendants stand ready to

make it upon application, Complainant has an action at -

iat Oo ais > ‘s + a ies ” ™ " ew - Witenes ene aga — ogee reece ae ERECTOR YS eOP AL EM PS RET he

SLSR ON re wt I NR IE EEN EIS EE GRIN ETRE SIT IIS PUREE D8 SERN NTAIY AEA RE Be aE Me URN

. ‘

law pending against defendants in the Circuit Court of

Cook County, Ill., for damages incident to this’ transfer.

The Pullman car contained 10 sections of berths and 2.

compartment-drawing rooms. The use of one of the draw-

ing rooms would have amounted to segregation under the

State law and ordinarily such accommodations are avail-

able to colored passengers upon demand, the 90-cent seat

fare being applicable. Occasionally they are used ‘by col?

ored passengers, but in this instance‘both drawing rooms

were already occupied by white passengers. The car was

of modern design and had all the usual faeilities and cow.

veniences found in standard sleeping cars. It contained

smoking room for men and a dressing room for®women. «

It was air conditioned, had hot and cold running water,

tables, carpet, mirrors, wash basins with good soap,/clean

linen towels, and separate flushable toilets for mé

women. It was in excellent condition throughou

_ [fol 31] class white passengers ‘had, in additi s

Pullman sleeper, the exclusive use of the train’s orily din-

ing car and only observation-parlor car, the latter having

“somewhat the same accommodations for. day use as the

‘Pullman car and, in addition, a writing desk and perhaps

a radio. j

The coach for colored passengers was,jn the rear of the

baggage car. Behind it were a day coach for white pas-

sengers, the dining car, the sleeper and, nally, the observa-

‘ Docket No. 27844—Sheet 6

tion-parlor car, all. being Rock Isla

sleeper. The colored-passenger bach, though of standard ~

‘size and steel construction, was An old combinatiqn affair,

not air conditioned. It was divided by partitions into three

main parts, one for colored smokers, one for white smokers,

and one, in the center, for ¢olored men and Women, but

primarfly the latter‘and known as the women’s section, each °

section having seats for abéut 20 passengers.’ Complainant

Sat in the women’s section. There was a toilet in each sec-

tion, but only the one in/the women’s section was equipped

for flushing and it was/for the exclusive use of the colored -

without wash basins, soap, towels, or

running water, except in the women’s section. According to‘

complainant, the ear was filthy and foul smelling, but the

testimony of defey dants,as we-shaltater see, is to the con-

d equipment, except the

trary. The car csidinad. besides complainant, several

other colored passengers, including women. Two pairs of

_ seats in.the colored men’s section were used as an office by

the conductor and the flagman, who were white. These con-

ditions had prevailed for at least 25 years.

_ The above facts are gathered principally from complain-

‘aut’s testimony, but several other colored persons, who had

traveled from Memphis to Hot Springs over the Rock Is-

land at times during the above-mentioned period, gave simi-

‘_ lar testimony as to the condition of the cars in which they

[fol. 32] rode. . They also told of colored coaches between

these points that had common toilets for men and women.

-and ofsthe absence of carpets and foot rests, while much

more desirable accommodations were provided for white

passengers traveling in coaches.

Docket No. 27844-—Sheet 7

Defendant’s witnesses, nately the conductor and flagman

of the train and the superinténdent who had charge of clean-

ing the equipment at Memphis, testified that they. noticed

no dirt, filth, or obnoxious odors in the car; that in accord-

ance with the usual practice it was thoroughly cleaned, dis-

infected, equipped ‘with newly laundered seat and seat-back |

linen covers, and inspected at Memphis before being put

into the train. Each section of the car contained a cooler

of ice water and a 12-inch electric fan. Incidentally, the

Rock Island employs eight men af Memphis preparing

equipment for 13 or 14 trains per day.

Since the early part of July, 1937, when the coach above

described was taken out of service, the Rock Island has

operated a modern combination coach between Memphis

and Hot Springs. It is of all-steel construction, with six-

wheel trucks. It is divided by a partition into two sections, |

one for colored and the other for white passengers. It has

comfortable seats, finoleum floor covering, and is air condi-

tioned. In each section there are wash basis, running hot

and cold water, free paper towels and drinking cups, and ' —

separate flush toilets for men and women. There is no’

smoker section, as smoking nowadays is generally permitted

- in all coaches and sections thereof, and even in some in-

stances, or to some extent, in Pullman, cars. The ¢imbina-

tion coach is as fully desirable in all its appointments as

-the coach used entirely by white passengers traveling at ©

second-class fares. One of the evsiipletnant’ 8 ‘witudintes

testified that as late as September, 1937, he found condi-

tions in the colored-passenger coach hetween Memphis and

Hot Springs ‘‘very bad’’, but evidently he was not riding |

[fol. 33] the train that carried the new oy — same toilet. - |

Docket No. 27844—Sheet 8 ¢

Only about 1 negro to 20 white passengers rides this

train from and to points on the line between Memphis and .

Hot Springs, and there is hardly ever a demand from a.

colored passenger, for Pulanan accommodations; the con-

ductor recalled but 10 or 12 instances, in the past 32 years

of his service on the train, wherein colored passengers who

had entered Pullman cars were required by him to move

into the. colored-passenger coach. He estimated that the

demand for Pullman accommodations did not. amount to -

ore per year.- What demand there may have been at ticket

offices does not appear.

The present coach properly takes care of colored second-—

: ‘class*passengers, and the drawing rooms and compartments

in the sleepexgrovide proper Pullman accommodations for

' eolored-first-class passengers, but there are no dining-car

nor observation-parlor car accommodations for the latter

and they can not lawfully range through the train. —

Various previous proceedings akin ‘to this are Councill

v. Western & A. R. Co., 1 I. C. C. 339; 1 I. C. R. 638; Heard

5 } Dhere etrr 110. C. 428;1 1. 0. R. 719; Edwards v.

ashville, C. & St. L. Co., 12 I. C. C. 247; and Crosby v. St.

uis-S, F. Ry. Co., 112 I. C. O. 239. In the first four pro-

ings affirmative findings and orders were entered re-

quiring the removal ‘of unjust discrimination and undue

prejudice to colored passengers, but not in the last cited

case. Hach rested on its own facts. None présented the

same situation as the instent proceeding. -

Several decisions of the Supreme Court are referreé to.

In Louisville, N. O. & T.-R. Co. v. Mississippi, 133 U. &

587, and Chesapeake & O: Ry. Co. v. Kentucky, 179 U. S.

388, statutes of the States of Mississippi and Kentucky re-

<arng segregation of colored passengers in intrastate com-

Docket No. 27844—Sheet 9

[fol. 34] merce were upheld as not repugnant to the com-

merce clause of the Constitution.. The State courts, at least

i 3

“%

for the purpose of limiting the constitutional question, had.

. held that the statutes applied only intrastate, and the ques- *

tion of whether they were-constitutional,.so far as interstate -

traffic was concerned was not decided. In Chiles v. Chesa-

_peake & O. Ry. ©o., 218 U. 8. 71, dealing with céach passen-

gers, the Supreme Court held that in a southern State a rail-

road has the right, by theestablishment of appropriate rules»

and. regulations, to require s@gregation, intrastate and in-

. terstate, ‘aside from any statutory requirements, provided

substantially the same accommodations are furnished for

the two races. It said that railroad regulations respecting

this matter were subject to the same tests of reasonable- -

ness as those enacted by legislative authority and that rules

and regulations induced by the general sentiment of ‘the ~

community for which they are made and upon which they

operate are not eee. In McCabe v. Atchison, T. &

S. F. R. Co., 235 G3 S. 151, several-nggroes attacked, before

it became effective, statute of the State of Oklahoma re-

quiring segregation, An the ground that it violated the

fourteenth amendment. They sought to enjoin the carrier

defendant therein from complying with its terms, but no ;

basis was shown for equitable relief and the decree of the ~

_ lower court dismissing the bill was affirmed. In South Cov-

. ington & C. Street Ry. Co. v. Kentucky, 252 U.S. 399, the

Supreme Court held that the Kentucky. segregation statute, "

as applicable intrastate to an interurban electric carrier,

which also operated principally interstate, was not an un-

_ constitutional interference with interstate commerce.

Docket No. 27844—Sheet 10 —

Complainant urges that deferdants, to remove’and avoid

unjust discrimination and undue prejudice, are bound to

provide the same equipment aud accommodations for colored

[fol. 35] passengers as for white:passengers. In other

words, he says, that,if defendants are to continue all the

present first-class a 5 enaganeeag for ‘white passengers,

they must provide sifnil

sengers on the same basis of charge. He understands that

it is for defendants to determine whefher this equality of

eee should be accomplished by the running of extra

cars solely for colored passengers or by partitions in thé

ears now operated. The statute sets up two distinct groups

" of passengers, and the question for our determination is

ilar accommodations for’ colored pas= i

Rebanes wie} eh wees

at TR EES & gb PEO IIE EE PO

- .

1 pa

whether the aircumstances and conditions surrounding these |

gd ag ox traffic are so substantially different as

to justify the difference in treatment here alleged to be un- -

lawful. .

‘Complainant contends that the extent of the demand for ~

irst-class accommodations for colored passengers has no |

bearing on the question presented. He urges that McCabe ©

v. Atchison, T. & S. F. R. Co., supra, is to the effect that

' Na constitutional right-is personal'and that lack of volyme of

colored traffic or limited demand by colored passengers for

Pullman space is no defense,to a charge that under segre-

gation which results in the dccupancy of unequal facilities

colored passengers are denied equal protection of the laws.

That case dedlt with an Oklahoma statute which allowed de-

fendants to provide sleeping cars, dining cars, and chair

~~ ears to be used exclusively by either white or negro, passen-

gers, separately but not jointly. The court below had con-'

cluded that sleeping cars, dining cars, and chair cars, were,

comparatively speaking, luxuries, arid that it was competent

Docket No. 27844*—Sheet 11

for ‘the legislature to take'into consideration the limited

demand for such accommodations by one race, as compared ,

with the demand on the part of the other. Complainant

relies upon the following statement contained in the Su-

preme Court’s decision:

[fol. 36] It is not questioned that the meaning of this .

clause is that the carriers may provide sleeping cars, din-

ing cars and chair cars exclusively for white persons and

provide no similar accommodations for negroes. The

reasoning is that there may not be enough persons-of Afri-

can descent seeking these accommodations to warrant the

. outlay in providing them. Thus,@he Attorney Gemeral of

the State, in the brief filed by him in support of the law,

urges that ‘‘the plaintiffs must show that their own travel

‘ is in such quantity and of such kind as to actually afford

the roads the same profits, not. per man, but per car, as

does, the white traffic, or, sufficierit profit to justify the

furnishing of the facility, and that in such case they are

hot supplied with separate cars containing the same. . This

they have not attempted. What vexes the plaintiffs is the

limited market value they offer for such accommodations.

Defendants are not by law compelled to furnish chair cars,

. o

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diners nor sleepers, except when the market offered reason-

ably demands the®facility.”’ “And in the brief of. counse]:

for the appellees, it is stated that the members of the legis-

lature ‘‘were undoubtedly familiar with the character and

extent of travel of persons of African descent.in the State. .

of Oklahoma and were of the opinion that there was no ; i »

substantial demand for Putiman car and dining car‘service’ -

for persons of the African race in the intrastate travel’’

' in that State. - .

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 diserimi-

nated against, whereas the essence of the constitutional | : 2A

* right is that it isa personal one. Whether or not particular .

facilities shall be provided may doubtless be- conditioned

upon there- being a reasonable demand therefor, but, if °

~ facilities are provided, substantial equality of treatment of _ ’

[fol. 37] persons traveling under like conditions cannot be

refused. It is the individual who is entitled tg the equal

protection of the laws, and if he is denied by a common car-

rier, acting in the matter under the authority of a state’

law, a facility or convenience in the course of his journey

Docket No. 27844—Sheet 12

which under substantially the same circumstances is fur-

nished to another traveler, he may properly complain that e

his constitutional privilege has been invaded. :

Defendants say that what the Court evidently meant by

this comment was that a carrier could not absolutely refuse

to afford colored passengers Pullman accommodations, but 3

had to provide them if there was reasonable demand from

colored passengers. In any event, we.are not here consid-

ering a constitutional question, but rather questions of the

act. Volume of traffic is an important consideration in de- »

- termining whether certain services demanded are warranted

and whether a difference in treatment is justified.

- At the hearing complainant stated that segregation was

not involved and apparently for the purpose of this case

he accepted it, regarding the Arkansas statute as requiring

it in that State for all passengers, both interstate and intra-

state. However, in his exceptions ke opposes it.as abomin-

able and urges that the statute does not require it as to

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interstate passengers. The statute is general in its terms

in that like the Mississippi and Kentucky statutes dealt

with by, the Supreme Court, it does not mention either intra-

state or interstate passengers. These latter statutes, as

already stated, were by State courts confined tg intrastate

- passengers and the Supreme Court accepted these construc- |

tions as binding on it. Complainant also relies on the Su-

preme Court’s conclusion in McCabe v. Atchison, T. & S.

F. R. Co., supra, to the effect that the, Oklahoma statute

had to be construed as applying only jntrastate because

[fol.38 | Docket No. ”27844—Sheet 13g

there had.been : no construction to the contrary by the State

urt. Be that as it may, the present case arose out of the

p eae: assumptions of the parties that the Arkansas.

statute.was applicable to interstate traffic, and while it is

not for us to construe the statute, we think, in view of its

general terms, that untifurther informed by judicial de-

termination, . defendants are justified, as a matter of self

protection, in assuming that it applies to interstate, as well

as intrastate, traffic. What ‘we are here dealing with is the

practice of the carriers fu Sicaiaed compliance with the

a practice which they coduld follow even if there

Complainynt urges ¢hat collection of the first- class fare,

notwithstanding the fact that.second-class accommodations

were furnished him, was violative of sections+1, 2, 3, and 6

of the act @also of the fourteenth amendment, on the ground

that he was deprived of money without due process of law

and denied equal protection of the laws. ItAs sufficient to

say that-a first-class ticket was furnished arid charged for «

<a because complainant wanted it, and that after it developed

that the first-class accommodations ordinarily available for

_ colored passengers west of Memphis were all taken by other

passengers defendants offered to ‘refund the difference.’

Moreover, as already stated, complainant is here seeking

no relief from the charges paid.

Complainant urges.also thaf,the Rock Island, having re-

ceived from. him the first-class fare but having failed to

furnish ‘first-class accommodations west of Memphis, vio-

lated section 13(4)!of the act. That provision relates to: —

_ intrastate fares that are unjustly discriminatory or un-

duly prejudiciai in their relation to interstate fares. No

‘ Yi

~~ Dacket No. 27844—Sheet 14)

intrastate fares are here involved. ‘There was no break in

complainant’s journey at the ‘Tennessee-Arkansas State

[fol. 39] line. He was engaged in through interstate travel

from Chicago to Hot Springs.. Moreover, as said in the

next preceding paragraph, complainant was furnished a first-

class ticket because he asked for it, and refund awaits him.

‘Regardless of what finding may be made respecting the

, Rock Island, the Illinois Central asks that the complaint be

dismissed as to it: There is no showing that*colored pas-

sengers are treated differently from white passengers on

their journeys from Chicago to Memphis and apparently

that road is in no way chargeable with discrimination, even

_ though it participates in the through transportation under .

_joiht fares and other arrangements. -This carrier is a

proper, but perhaps not necessary party. It was ndmed as

a defendant apparently out of abundance of caution, be- ,

cause it participated in the movement.

The Pullman Company also asks dismissal, regardless of

what may be done as to the Rock Island, contending that it

is not chargeable with discrimination, because it provides

- accommodations in the form of drawing rooms, which if

not already oped or reserved for someone else, are

available for cafored passengers west of Memphis at the

90-cent charge. There is’ no discrimination on its part.

It is not for us t to enforce the State law. We understand

that to be a mattér for State authorities. But in deciding

the case on the facts presented we must recognize that under

the State law defendants must segregate colored passengers.

@n these circumstances we find that the present colored-°

passenger coach and the Pullman drawing rooms meet the

requirements of the act; and that as there is comparativery, ,

little colored traffic and no indication that there is likely

4 “Docket No. 27844—Sheet 15

to be such demand for dining-car and observation-parlor

car accommodations by colored passengers as to warrant

the running of any extra cars or the construction of part-

titions, the discrimination and prejudice is plainly not un-

[fol. 40] just or undue. Only differences in treatment that

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are unjust or undue are unlawful and within the power of

this. Commissign to condemn, remove, and ‘prevent. - *

’ The complaint will be dismissed. -

_ Eastman, Commissioner, dissenting :_ LE ers

In his dissenting expression Commissioner Lee has cor-

. rectly indicated the rule which railroads must follow to.

~ avoid unlawful discrimination between white and colored:

paSsengers, where State statutes require their segregation.

So far as coach travel is concerned, it is clear that the Rock

land was not conforming to this rule, when com lqinant

de his trip to Hot Springs, but is probably confo ing to

it now. So far as Pullman accommodations are concerned,

Tam not satisfied that defendants were observing the rule

then or that they are observing it now. ;

" ‘The latter conclusion I reach reluctantly, for I realize

_ _* that, where segregation is required, the practical difficulties

“of observing the rule with respect to Pullman accommoda-

< tions are very great. The facts are fhat white passengers

were and are given adequate opportunity to obtain seats, .

berths, compartments, or rooms in Pullman cars, together

ae with the right to use any dining car or observation car that

* may be attached to the train, whereas colored passengers

_- have no opportunity to obtain seats or berths in the body of

<<, the car or to use dining or observation cars, but may ob-

‘tain. accommodations in a compartment or room, provided °

one can be found that has not been previously been taken

"+ Doeket No. 27844—Sheet.16

by a white passenger. Tf the conditions were reversed, T

-cannot believe that the white passengers would regard this.

as equality of treatment and opportunity. .

The practical difficulty lies, of course, in the fact that a :

demand for Pullman accommodations on the part of colored

afer passengers is very small. So tong as this condition exists,

bd {fol. 41] I not vrepared to say that it is necessary for a

railroad to Attempt the partition of observation or dining

cars, but I do believe that it is necessary to provide some

Pullman space, small though it may be, which will be re:

* served for the occupancy of colored passengers and which

white passengers will not be permitted to occupy, and to

ze easel Be RAIA AES A LAE TR PAA ERE IEOS AE STE NOTE,

. + Seay ° 31

provide means by which meals from the dining car may be ° 5

served in such space. -« efi Fast

Lee, Commissioner, dissenting : & a

The rule wa@ laid down in the early days of this Commis- °

sion that it was the duty of the railroads to furnish, for all

passengers paying the same fare, cars in all respe@ts equal“

and provided with the same comforts, accommodations, and .

protection for travelers. Councill v. Western & Atlantic R. +

R. Co., 1 I. C. C. 339; William H. Heard v. The Georgia R. ,

, BR. Co, 1 L.C. C. 428. It further held ‘“‘“* * * that.

: the separation of white and colored passengers paying the yar

same fare is not unlawfulif cars and accommodatiéns equal | &

in all respects are furnished to hoth and the same care and

protection of passengers is observed.’’ Edwards v. Nash.,

Chat. & St. Louis Ry. Co., 12 I. C. C. 247. In the latter case

the Commissicn said: “ig

‘‘While, therefore, the reasonableness of such regulation

as to interstate pasenger traffic is established, it by no --

means follows@that carriers may discriminate between

white and colored passengers in the accommodatians which .

they furnish to each. If a railroad provides certain facili-

ties and accommodations for first-class passengers of the

white race, it is commanded by the law that like accom-

_ Docket No. 97844—Sheet 17

modations shall be provided for colored passengers of the

same class. The principle that must govern is that the

carriers must serve equally well all passengers, whether

white or colored, paying the same fare. Failure to do this

[fol. 42]'is discrimination and subjects the passenger to

‘undue and reasonable prejudice and disadvantage.’ ’’

In each of the three cases, because the railroad had fur-

nished colored passengers inferior accommodations to those.

furnished white passengers of the same class, a finding of \.

pi nehe ss

aa cee eg oP SS gee ee) SO bre eat

discrimination was made. No decision has been found in =

which this Commission, on such facts, lias held’to the con~ "~~ ad \

trary. . : Eien ote ae hae a :

In this case complainant, traveling on a first-class ticket : =

and offering to pay for a seat in the Pullman car, to which . -:' &

the Pullman porter had assigned him, and in which there Ae

was ‘‘plenty of space’’, was requirgd to move .from the ¥

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Salaniiie car into the coach provided { tor coe passengers.

The latter was described as ‘‘an old combination affair’’,

not air-conditioned, which was divided into three parts,

and, except in the women’s seétion, was without wash

basins, soap, towels, or running water. A

Testifying for defendants, the conductor, who refused to

sell complainant a seat in the Pullman car, and had him re-

moved into the coach provided for colored passengers, said

that ‘‘during the thirty-two years I have worked over there

in. Arkansas, for. the Rock Island Railroad.Company, it has

~never had any first-class accommodations for Negroes”’ and

‘*T would not have sold a seat :in Section 3 or any other space

aie = wae car to Congressman Mitehell because he was

ofed person.’ “Witnesses other than complainant tes-

tified that they had been refused Pullman: re Negroes. Ta ;

on Rock Island-trains solely because they were Negroes. I

view of this evidence, I question the statement in the repo

that Pullman accommodatigns ordinargy‘‘are availabe to

colored passengers upon demand.’’ aoa

Docket No. 27844—Sheet 14

If the action ‘complained of does not constitute undue or

unreasonable prejudice or disadvantage under the act, as

[fol. 43] those terms arg understood, then I am at a loss to :

understand their meaning. The act which we administer

authorizes no difference in treatment of passengers because

of color, and it is my understanding that the segregation

statutes of the State require equal — for per;

sons of the two races.

_ No doubt the action of the Rock Island i in refusing to per-

mit complainant to occupy a seat in the Pullman car was

due to the State statute, requiring the segregation of white

and: colored passengers. Conceding the carrier’s legal -

right to segregate white and colored passengers in the State

of Arkansas, in segrezating such passengers, it must ac-

cord to one class acesmmodations substantially equal to

those accorded the other. If the carrier provides certain

accommodations for first-class white passengers, it is re-

quired to provide substantially similar accommodations for

colored passengers of the same class. In my opinion, when.

the railroad refused complainant Pullman accommodations |

and required him to ride in the coach provided for colored

passengers, it violated the act in failing to furnish hitn egb-

\Q —

—-——

rin re Seah PERS ate COE LIOLE OT.

33 -

} stantially similar accommodations to those furnished white

people willing, as he was, to pay tkerefor. —

I am authorized to state that Commissioners Aitchison

and Porter joint in this‘expression. _

Miller, Commissioner, dissenting in part: Pe, Ber \

{ am in accord with the conclusion of the majority that _

the present accommodations over the lines of defendants on’

_ through journeys from Chicago, Ill, to Hot Springs, Ark.,

do not result in unjust. discrimination or undue prejudice. ;

The demand of colored passengers for deanna aceommoda- © :

Cie ana - _ Docket No. 27844—Sheet 19 as :

tions over the route in question i is shown by the evidence of ©

record to have been negligible over a period of many years.

The provisions for such few colored passengers as have

t. desired to avail themselves of that service is shown to have

[fol. 44] been, rnd to be, ample under ordinary circum-

stances.. Had complainant made. Pullman reservations

somewhat in advance of the date of travel I am convinced

that he would have had no difficufty in obtaining suitable *

. accommodations over the entire -route. ‘

With respect to the service rendered complainant from

Memphis to Hot Springs in lieu of Pullman accommoda-

tions, however, I am of the view, and I think the report

should so find, that the coach accommodations furnished

complainant resulted in unjust discrimination and undue

prejudice. The preponderance of the evidence of record 4

indicates that the coach’ services afforded complainant, as |

well as other colored passengers, were decidedly inferior to

those afforded white passengers and to which alf passengers

+ are entitled. It appears that the improvement in the col-

ored coach service which has taken place over the route in

question since this complaint was filed has made such ser-

vice satisfactory.

When a colored person purchases a Geukciens ticket i ina .

_ state where segreyation is not required to a point in a state

where it is required, or through such. a state snch dissatis-

- faction and trouble as was here incurred by|complainant -

may, I be avoided by advice of the ticket agent to the

— effect that #hrough Pullman se should be

secured in advance.

3—577

2 r 5 3

aos ep iy : Z

PO Ee ee ee iE Fainlek tae?

sion, held at its office in Washington, D. C., on the 7th

day of November, A. D, 1938

BS No. 27844

rr Anraur, W. MitTcHELL

Vv.

Cuicaco, Rock Istanp.& Paciric Rarway Company et al.

. ;

This proceeding being at issue upon complaint and an-

swers on file, and having been duly heard and submitted by

{fol. 45] the parties, and full investigation of the matters

and things involved having been made, and the Commission

having, on the date hereof; made and filed a report con- ©

_, taining its findings of fact and conclusions thereon, which

' said report is hereby referred to and made a part hereof:

_ It is Ordered, That the complaint in this be area

be, and itvis hereby, dismissed.

By the Commission.

: W. P. Bartel,. Secretary.” (Seal)

XIX

A copy of the report of the Commission was received

on November 28, 1938 by the plaintiff and on, to wit:

January: 23, 1939 a petition for ear aiaa and re-argument

_ was filed by the plaintiff.

’ xx

That on about February 2, 1939 the defendant, Rock

Island, filed its reply to the plaintiff’s petition for re-

td and. oeees

XXI 3

| On or about March 6, 1939, the Commission filed its

er, denying the petition of ‘the plaintiff for rehearing

d re-argument, a copy and notice of the said ordér was

received by the plaintiff March 20, 1939 and a copy of thé

said order is hereto attached, marked mans C and made

a part hereof, and is as follows:

‘At a General Session of the Interstate Conimérce Counts:

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: 35

Exurir 66 O*? |

: Order 5 5 . : S . : °

At a General Session of the interstate Commerce Com-

mission, held at its office in- Washington, D. C., on the

“6th day of March, A. D. 1939.

[fol. 46] - SC Meee

* Arruur R. MircHe ee.

EE } v.

Curcaco, Rock, Istanp & Pacrric Rarway CoMPANy, ET AL. |

. Upon further Consideration of the record in the above- |

- entitled proceeding, ayd upon vonsideration of petition of . >» a

complainant for rehearing and reargument: ‘ ; x

It is ordered, That the said petition be, and it is hereby, : S

denied. | ‘

By the Commission,

ee f

W. P. Bartel, Secretary. (Seal)

fk he |

XXII. | ,

r) } or j

All of the various steps in the above recited proceedings : a

‘were taken in accordance with the said Act of Congress :

and the rules of the Interstate Commerce Commission. i : rates ae

XXIiT

Plaintiff avers that he has been damaged and injured ;

by the order of the Interstate Commerce Commission é

entered Nevember 7, 1938 and the order of the said Com-

mission entered March 6, 1939 as aforesaid.

That the said order entered November 7, 1938 dismiss-

ing the complaint is inconsistent with the evidence pro-—

' duced by the defendant, Rock Island and with the findings

contained in the proposed srg Na of the Examiner and

¥.

the report i the ne:

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That the undisputed and uncontfadicted testimony of

the chief witness, Albert W. Jones, a conductor on the

[fol. 47} Rock Island for thirty-two years,. offered by the

defendant, Rock Island, fully sustains the allegations con-

tained in the complaint filed before the Commission, an

‘vexcerpt from the abstract of his testimony as contained

in the initial brief of the complainant and which was before —

the Commission is as follows: .

‘The only provision that the Rock Island has for carry-

ing all colored passengers is in that part of the Jim Crow

ear.’’ A colored person .who has a first class ticket is

compelled to ride in the Jim Crow car with all- cther

colored "persons who have second-class tickets or ‘‘two-

cent-per-mile’’ tickets. ‘‘A white person with a first-class

ticket is entitled to use the Pullman, the diner and ob-

servation car, which provide first class accommodations.

(Ree. 148.)”’

p. 44:

‘*Thee Rock Island Railroad Company has no such first-

class accommodations for negroes, although the negroes

may have first-class tickets on the Rock Island Railway

or ‘three-cent-per-ntile’ tickets. During. the thirty-two

‘years I have worked over there in Arkansas,®or the Rock

Island Railroad Company it has never had any first-class ©

accommodations for Negroes (Rec. 149). And they haven’t

any first-class accommodations in the sleeping cars for

Negroes now.’’

**The Rock Island Railroad Company does not at this

time have any first-class accommodations for colored pas-

sengers paying the ‘three-cent-a-mile’ fare permitting them

to use the observation car which. belongs to the Rock

Island. They cannot use the dining car, nor sleeping car,

although they may hold first-class tickets.’’ eh 's

p. 45: ;

‘Congressman Mitchell was sitting in Section 3 of the

Pullman car alone (Ree. 154). I do not-knew-if anyone

occupied Section 3 from 8 to Hot Springs on April

21st, but whether the space been sold or not. I would

[fol. 48] not have sold a seat Section 3 or any other space

+4.

2 ; :

in\Xhat Pullman var to Congressman Mitchell, because hey =~ i

was ed persoh. J know he had a first-class inter»

state round-trip ticket from Chicago, Illinois, to Hot

Springs, Arkansas.”’ : =.

‘“The accommodations furnished to Negro passengers

-in the Jim Crow car where Congressman Mitchell -was

‘ compelled to ride are not equal to%the accommodations

furnished in the observation car by the Rock Island Rail,

way to white passengers holding first-class tickets’’ (Ree. -

155). 3 \

_ There is porter service furnished to the passengers

in the observation car but no porter*service furnished to

- the’colored passengers in the Jim Crow cars’’ (Ree. 157).

‘‘The Jim Crow car which all colored passengers were

compelled to ride ih i April, 1937, had three compart-

ments (Rec. 158). There was no. running water, no wash -

basins or towels. There were only paper towels furnished

in the compartment of the Jim Crow car but linen and

paper towels were furnished in the’ observation car (Rec.

160). There was only one toilet in the compartment where J-

Congressman Mitchell was riding in the Jim Crow car,

which was ‘for women’. There was none for men who

were riding in that compartment’’ (Ree. 161).

p. 46: oi g

‘‘T have never sold any colored person any space or é

accommodations in the Pullman car during my entire

service.”’

“But I had charge of the train as the conductor for

the company and having charge of the train for the com-

pany I felt it was my-duty to put the congressman out

of the sleeping car into the Jim Crow car (Ree. 168). The

congressman did complain and protest beiiig put out of

the Pullman car. He showed me his ticket aid offered

to pay for the accommodations. But I told him he was:

a colored man and couldn’t ride in those first-class"ac- ~ a

commodations. If there had been a white passenger’.with

a first-class ticket wko had boarded 4ife train at Memphis,

(fol. 49] for Hot Springs, and had asked for a berth-or \_ x

a seat in that Pullman car, where there were vacant seats.” '.

or had asked for a seat.in the observation car, I would.

have sold it to him. I.do not know how many colored -/ ~~

people apply for Pullman tickets in Het Springs, for ~* ,— Zz:

Chicago, and are refused (Rec. 169).' If the compartments Fes

a) sere

aot,

38 : ? ° ‘ #19 + rb

or stateroom are occupied, no colored person can ridé in ©

‘the ;body of the sleeping car. No colored persons are

allowed to ride in the observation car which belongs to

ag the Rock Island, even if they -have first-class tickets. Those

are the rules of the railway company and I follow the

rules.”’ . -

nf Sahara 7 ' aX

“I sell space on that train for seats in’ the observation

. car but would‘ not sell a colored person any accommoda-

~ * tions in the observation car, although he had a first-class

' ticket (Rec. 171). The white people and colored people

are chorged the same fare for the ‘three-cent-per-nile’

ticket, or the>‘first-class_ tickets’ ‘(R. 172). There is no

diffarence in the charge for the ticket because of color.

\ : The, Pullman car -is-better equipped than the Jim Crow

ee car. Ifa white passenger with g first-class ticket was put .

Bhi . out of the Jim Crow car he could receive the first-class

““ accommodations of the Pullman car, and would not be

°* <<" compelled to purchase a compartment or a seat in the

, compartinent.. He could buy a seat in the Pullman car

or observation car, or parlor car.. The only requirement

is, his having a first-class or ‘three-cents-per-mile’ ticket.

They have the entire car (Rec. 174). Colored people can-

. not ride in that car, even if they have a first or second-

class ticket. All the colored people who ridé on my train

_Iust stay in the Jim Crow car, no matter what kind of a

ticket they have.’’ 4 Seaartons eae

res SZAVI'; 4 5

- Plaintiff alleges that the Commission’s said findings.and

orders are erroneous, invalid, unlawfulgand void for the

following reasons: : Ne et

[fol.50] 1. Said order ‘dismissing the complaint Vie

RS AOA, MORN 9: fot ka on Melee eee: RTT a aN ae ala ge ae ies se

’ : . ’ . “x : :

_ plaintiff and the findings upon which said order is. based

are arbitrary and unjust. ey Ae .

_\' 2. Said order and findings are contrary to the evidence \

; cm of record. / ae Ve 7 ae

i | _ 3: Said order and findings.are without support’ of any -

iM ~ substantial evidence in the record, & nt

2 ag _4, Said order and findings are without support of ally =.

# .\ >. .@vidence in“the record before th. said Commission in the

_ proceedings in which they are made. | o

<¥

39.

5. Said order and findings are against the indisputable

character of and the manifest weight of the evidence.

6. lw making the order and findings the Cotnmission

proceeded ‘upon the misapprehension of the law, .

7. In making the order and the findings the Commis:

gion disregarded the undisputed and uncontradicted ‘evi-

dence contained in the record.

8, There are no findings of fact to support the order

of the Commission. z ‘lj

9. The Commission proceeded under erroneous construc-

tions of law and misapprehensions in respect of its powers.

10, That gaid. order and findings are contrary to the

laws of the United States ‘of America. tea

4 ‘ \

41. Said order and findings conflict withthe former de-

cisions of the Interstate Commerce Commission in cases

involving the identical situation as the case at bar.

12. Said orders and findings. are contrary to and con-

flict with the United States Constitution and all amend-

ments thereto. : oy Sb aes hz a dv

[fol. 51] 13. Said order and find

conflict with the Enforcement Acts of the United States.

14. Said order and findings are a denial of the plaintiff

of the due process of law as guaranteed by the Fourteenth

Amendment of the United State’s Constitution.

1b. Said order and finditigs are a denial of the equal pro-

tection of the laws to, the plaintiff as guaranteed by the

“\

Fourteenth Amendment of the United States Constitution. —

a \ '

focal | sagt ene

- All of the matters herein alleged plaintiff offers to prove.

en, = aie oe

“That the plaintiff will suffer irreparahic loss and damage

unless the said order entered November, 1938 be set aside,

annulled.and vacated. — ene Sei. Ea aa eee

Ce | - . -

: } me. } / : ~"") Nine oe 2 ; ;

~ “In Tender Consideration Whereof and inasmuch as you:

petitioner, the plaintiff herein, has no adequate remedy at

> ee

igs are contrary: to and:

law, and may have relief only 3 in a court of equity, a eee ‘

prays:

1. That the petition be received and filed. ~*~

2. That writs of subpoena be issued ‘by the clerk of the

court, as provided by law, commanding the United States of

America, Frank O. Lowden, James E. Gorman, and Joseph

_B. Fleming, Trustees of the estate of the Chicago, Rock

Isiand & Pacific Railway Company, a corporation; Illinois

Central

Company, a corporation, defendants herein, to appear and

defend this action. *

[fol. 52]; 3. That notice hereof be given to the shia

of the/U nited States and all other persons required

by law to be notified.

4. That upon the Gling of this petition the Judge of this

court shall .call to his

termination thereof two other J udges, one of whom shall be |

a Cirguit Judge, as provided by law. - ,

5. That upon final hearing of this cause, this Setiecsiite’ 3

Court will enter its decree that said order of the said Inter-

state, Commerce Commission as aforesaid is null and void ..

and further decree that said order be set aside, annulled

and vacated. 7 :

‘ general

6. That a decree be entered sidiltees to the plaintiff the

' relief prayed for in his complaint filed before the said

Commission— °

7. And that any and all odie and farther relief may be~

“granted to the plaintiff as shall seem mont and just. pa

Arthur W. Mitchell, ,

By Richard E. Westhrooks, *

Richard E: Westbrooks, .

and | fe

Arthur W. Mitchell, Pro Se, : °

417 East 47th Street, Chicago, Illinois, | .2

... Attorneys for the Plaintiff. eu

- [fals. 53-57] Dily sworn tF by Richard E> Westbrook

Jurat omitted in noe y

Railway Company, a corporation, and Pullman

assistance in the hearing and de-

- Plaintiff,

Solicitor for Plaintiff — aoe re hat

3000” South State Street, Oticago, Mllinois

: /

NAAN Aw wrk tle a ee, — -

. 41

[fol. 58] In Untrep Srates District Court

‘. [Title omitted]

Awswer or Uniteb States. or ecanuccaine* June 9, 1939 ° a

United States of America, one of the defendants named | é

in the petition filed in, the above entitled cause, answersand

ways:

oe net *

United States admits the truth of the facts alleged in

‘paragraphs numbered I[ to XXII, both inclusive, of the pe-

tition, except that, with respect to. Paragraph XII, if denies

_ that a transcript of the evidence before the Intersta Com- 3 Pe

merce Commission was attached to, or made a part of, the, me ia.

copy of the petition served upon this defendant and United — J

States has no knowledge ‘whether plaintN¥ will offer such ot

transcript upon the hearing im this cage.

‘ Ii

United States dehios the matters, things, and conclusions =

alleged in Péragraphs XXIII to XXVIII, both inclusive, of Sere

the petition, except that it admits that Paragraph XXV of — -—

the petition quotes a part. of,the evidence of record before eee

[fols. 59°60] the Commission, but dentes that the testimony’ <P > ra

& as quoted ‘in paragraph constitutes all the evidence

submitted to andtonsidered by the Commission.

| ; :

Further answering the petition, United States denies that ¢

‘the facts therein alleged are sufficient to constitute a cause = _

of action against the United States or to entitle plaintiff to

the relief prayed or to any, other relief.

‘ew

Wherefore, having fully answered, United States prays

‘ that the relief sought by the petition be denied’ and that the .

_petition be denied at the cost of the plaintiff, and that it ~

have the benefit of such other and further orders, decrees, % ne

or relief as may be just and proper., F ee &

Elmer B. Collins, Special Assistant to the Attorney Be / iF

, General. Thurman Arnold, Assistant ‘Attorney ~~ ZZ

General. William. J. Onrapbell vanpee States At. a | Bo

torney. / , ies peo” :

PR Pe Sith aise ibe ana Ghar oo

[fol.61] | In Unrrep Srates District Courr °

- [Title omitted]

" ; eee INTERVENTION oF InTEKSTATE COMMERCE Commission—Filed

b) | June 19, 1939 i 3

To the Honorably Fndges of Said Court: °

7s : | ‘Tn accordance with the provisions of section 212 of the

a Judicial Code (36 Stat. L 1150, U.S. C., tit. 28, sec. 45a), we >

; hereby enter the appearance of the Interstate Commeree-

ar Commission as a party defendant in the above-entitled case,

and of ourselves as its counsel. /

oe z Daniel W: Knewlton, Chief Counsel. J. Stagjey

Payne, Assistant Chief Counsel.

Washington, D. C., June 15, 1939.

o..- Sd re

fs ; p 14) | ; [fol.62] - In Untrep Srares Disfficr Courr :

Re oe a a * | | [Title omitted]

| "i pe Answer or Inrerstate ComMERcE Commission—Filed June

zi } 3 - 7,1

cise ‘ ie The Interstate Commerce ission, hereinafter called

: the Commission, intervenin fendant in the above-en-

Pie il) > titled action; Shemp, and wees | Ley Smead

: i: Answering paragraphs I to XXII, both inclusive, of the.

5 i petition, the Commission admits, for the purposes of. this

‘ i _ suit, that the allegations contained therein are true... The

ey report of the Commission; in:its Docket No. 27844, ‘Arthur

te _ W. Mitchell v. Chicago; Rock Island & Pacific Railway Com- ©

«A _ pany. et al., referred to in paragraph XVIII of the petition,

sie. _ is officially rs a in-2291.C.C.703. :

v, ; | ’ | s ‘ 1 : » ; a I 5s, . :

a : ' 4 | te het paragraphs XXII, XXII, and XIV, of the «

tel petition, the Commission denies the allegations contained

( therein. ee ee Ree a x

. eer

_ [fol. 63] : II

Answering paragraph XXV of the petition, the Commis-

- sion denies the allegations coritained therein, with the fol- .

lowing exceptions: ‘It admits that Albert W. J ones testified

in the proceeding before the Commission entitled No.

27844, Arthur W. Mitchell v. Chicago, Rock Island & Pacific

Railway Company. et al., but denies that the excerpt from

the abstract of his testimény as quoted on pages 43-45 of

the petition is a full, accurate and complete statement of

his testimony, and the Commission respectfully refers the

Court to the testimony itself, appearing at pages 99-181 of -

the official transcript of the testimony before the Commis-

sion, a complete copy of which, itis alleged in paragraph

XII of the petition,-will be offered on behalf of the plain-

tiff at the hearing on his petition before this Court. The

‘Commission respectfully calls the Court’s attention to the

fact that other-evidence tha that of the above-mentioned

* witness was introduéed at: the hearing -before the Com-

mission.

IV ;

Answering paragraphs XXVI to XXVIM, both inclusive,

of the petition, the Commission denies the’allegations con-

tained theréin.

V Ma ~

Further answering paragraph XXVI of the petition, the

Commission alleges that the gravamen of plaintiff’s com-

_plaint to tht- Commission was that he was subjected to un-

cahe discrimination and undue prejudice, in violation of

ctions 2 and 3 (1), of the Interstate Commerce Act, in

, connection with.accommodations furnished to him on a

journey from Chicago, Ill., to Hot Springs, Ark., April’20- ~

21 1937; that in the proceedings before the Commission |

plaintiff was aceorded the full hearing pravided for in -

. [fol. 64-65] and by the Interstate Commerce Act; that at the

-hearing on his complaint to the Commission a large volume

of testimony and other evidence bearing upon the subjggt

matter of the complaint was submitted-to the Commission

for consideration, including testimony and other evidence

submitted on behalf of plaintiff by his counsel; that in briefs ©

' filed fn) gaid proceeding and inoral argument questions.

| sdiating % said matters we ere fully argued and submitted

to-the a ccamrensnse for sna i on seit of the _

/ ‘ ° : :

REDE REE ELIT BIEL TT A RTE ISN BS LEE” NESE LEER AL PNG ATT I ADOT eee

y - a e °

i. ® “}s

: s

44 a

by their respective counsel, and the Commission determined

said matters and entered and served upon the plaintiff and

other interested parties its said report and order, in which

the Commission found that plaintiff-had not been asnbjected

to unjust discrimination or undue prejudice, and entered

an order dismissing the complaint.

a Wherefore, having fullyganswered, the Commission prays |

that the relief sought by the petition be denied and that, the

petition be dismissed. .

vai . Interstate Commerce Commission, By J. Stanley

Payne. Assistant Chief Counsel.

Daniel W. Knowlton, Chief Counsel, of Counsel.

- (fol. 66] Iw Unrrep Srares Districr Court

. [Title omitted]

| Separate Answer or Frank O. Lowpen, James E. Gorman

a AND JosepH B, Fiemine, Trustees or THE Estate oF THE

Cuicaco, Rock Isuanp aXp _Paciric Ratiway, A Corpora-

tion.—Filed June 16, 1939 ~

Frank O. Lowden, James E. Gorman and Joseph B. Flem-

ing, Trustees of The Chicago, Rock Island and Pacific Rail-

way Company, a corporation, by Wallace T. Hughes and -

Dan#] Taylor, their attorneys, answering the petition of

the plaintiff, say:

eas BET EPO et OT Ee, = ae : eee

They admit the facts,alleged in paragraphs I to XXf,

inclusive, of the petition, except (a) as to the allegations

in paragraph II of fhe petition, these defendants deny that

‘they are a corporation, but on the contrary say that they /

are Trustees having charge, control and possession of The

Chicago, Back Island and Pacific Railroad under and by

virtue of their appointment as such by the District Court of

_ the United States for the Northern District of Illinois, |

. Eastern Division, in a certain proceeding, therein pending,

_for the reorganization of a railroad under Section 77 of the ©

Bankruptcy Act of the United States;.and, (b) except as

[fol. 67] to paragraph XII, they deny that a transcript of

the evidence before the Interstate Commerce Commission

was attached to, or made a part of, the copy of the petition

. .

. d

PRU ne 8 te to ve , RR ee TE ae oo wtr~ " caves ‘ LS OL TE TONS NAR EARLE Lt LORELEI

, . . *

e ‘

served upon these defendants, and defendants have: no _—

knowledge whether plaintiff will offer such, transcript upon

the hearing in this case. ‘si $ :

‘ I *.

These defendants deny the matters, things and conclu-

sions alleged in paragraphs XXiII to XXVII, both in

clusive of the petition, except that they state that paragra

XXV of the petition quotes a part only of the evidence pf

record before the Commission, and they deny thag, the testi-

mony so quoted in said paragraph constitutes all of the

‘testimony of Witness Albert W. Jones, or all of the evi-

oy submitted to the Interstate Commerce Commission

cont which that body made its findings and = its

con

usions.

Itt ; ; s

- These defendants deny that the facts, matters and things . *

alleged in the petition are sufficient to constitute a cause of

action against these defendants or to entitle the plaintiff to :

the relief prayed in his petition or to any other relief. . ae

Wherefore, having fully. answered, these defendants, :

Frank 0. Lowden, James E, Gormah and Joseph B. -Flem- , °

ing, Trustees of the Estate of The Chicago, Rock Island . : :

and Pacific Railway Company, pray that the relief sought

by the petition be denied and that the petition be dismissed . / |

at the cost of the plaintiff. | ons

Frank O. Lowden, James E. Gorman and Joseph B. oe -

- Fleming, Trustees of the Estate of The hicago, — :

Rock Island and Pacifie Railway Company, a cor-° *

poration. By: Wallace T. Hughes, Daniel Taylor.

Their - Attorneys, 1025 LaSalle Street Station, -

Chicago, Ill. \

i a oe

[fols. 68-69] : pn or Serivce f

I hereby certify that copies of this answer hits been

- served this day upon plaintiff and other defendants by mail- /

ing the same to their respective attorneys in envelopes

. properly addressed.

; Danie! Taylor, Attorney for Defendants, Frank 0.

Lowden, James E. Gorman and Joseph B. Fleming,

an Trustees of the Estate of The Chicago, Rock Is-

; land and Pacifie Railway Company, a cnrporation.

Chicago, Ill, June 16, 1939. ms | | | f os 3 )

PAE NAH is RN Rat UR TAS cabo

A fe Renan oat me

on)

. 4 .

4 ;

’ , ‘

° \ :

‘ - :

SOON: Rts SP ROTH TN FST ey eae - — SAG ANE 2 ae RAE AT eae aaNet gn NR IRR A. A AANA aa sr PALS SIS as

PONE RE: ? ” VPA TRG RE TES pf Reh ated BS pe ee, oe ute ce wihgal< PAI LE Ry WSs |

cO_ °

- ‘

. .

‘ P .

« 46

| [fol. 70] . ly tarrep Srares District Court

| [Title omitted]

Separate Answek or Toe PuLLMANn Company, A CoRPoRA-

@ TION, TO THE Petition or ArtHur ‘W. Mitcueti—Filed

June 17, 1939 :

The Pullman’ Company, one of the defendants herein, f

by Lowell M. Greenlaw,’Charles 8. Williston, Herbert S.

‘Anderson and Erwin W. Roemer, its attorneys, answering

. the petition of the plaintiff : ‘

1: Denies the allegations ‘of paragraph ID f the petition

so far as such allegations pertain to thjs defendant, and

, alleges that it is organized and incorporated as a corpora-

tion under the laws of the State of Illinois and authorized

to manufacture, construct, and purchase railway cars, with

all convenient appendages and supplies for persons travel-\

ing therein, and to sell or uge, or permit to-be used, the

same in such manner and upon such terms as it may think

fit and proper. '

— [fol. 71] 2. Denies the allegations of paragraph III of the

petition so far as such allegations pertain to this defendant,

and alleges that this defendant is a sleeping.car company ~~

subject to provisions of the Interstate Commerce Act and

, that as such on car company it furnishes sleeping car

accommodations {o0. passengers traveling between points

stated in paragraph ITI, when suck passengers eontract with

this defendant for such accommodations in accordance with

the pro¥sions of this defendant’s tariffs on file with the

i _ Interstate Depamaree Com ission.

3. Admits the filing. by the plaintiff hegilen on, to-wit,

’ September 2, 1937, of a written complaint with the Inter-

state Commerce Commission in form and substafice as set

. forth in paragraph VI of said petition.

eee

. ey | Kdmits the allegations of parqgrepes VII aind Vill

of said petition.

b. sith the segplaen:et ssn ik 15-8 et ets — :

_._— 4ion-and states that the full and complete answer of The

*Pullman Company-~filed in said proceedings before the In-:

terstate Commerce Commission was as follows:

—_ 2 fa ie

‘‘Answer of Defendant, The Pullman Company”?

‘The Pullman Company, defendant, for its answer to the

complaint herein, says: lade : |

Bed Pa admits the allegations of Paragraph I in said com-

plaint. :

‘*2. It denies the allegations of Paragraph Il of said

complaint so far as such allegations pertain to this de-

[fol. 72] fendant, and states that this defendant is a sleep- —

ing cagcompany siibject to the provisions of the Interstate

Commerce Act, and that as such slegping car company it

furnishes sleeping car accommodations to passengers travel-

ing between points stated in said Paragraph II, when such

passengers contract with this’defendant for such accommo-

dations in’ accordance with provisions of this defendant’s

. tariff$ on file with the Interstate Commerce Commission.

‘**3. It denies the allegations of Paragraph III of said

complaint so fay_as such allegations apply to this-defend-

ant, and states that.the only charge paid by complainant

to thi$:defendant in connection with the journey referred ° ,

‘to was-for a compartment in this' defendant’s sleeping car 2

between Chicago, Illinois, and Meniphis, Tennessee; that |

‘this defendant furnished to complainant the accommodations |

for which he paid and that such accommodations were-fully

equal to the accommodations furnished other patrons of this

defendant, paying the same fare. -This defendant received

no fare and made no contract with complainant for any /

accommodations in this defendant’s cars for the portion of «.~,

complainant’s ‘journey between Memphis, Tennessee, and -

Hot Springs, Arkansas. , | -

‘*4./It denies all of the allegations of Paragraph IV ‘of

- said complaint, so far as they pertain to this defendant, and

in that commection states the facts to be as alleged in Para- ‘|

raph 3 of this answer. | fae

(dra “6. It denieg4il of the dilegations of Paragraph

V of said complaint so far as they pe?tain to any prejudice

or disadvantage or inferior accommodations with respect § *

to complainant’s journey from Chithgo to Memphis in the

car in which he had purchased Pullman accommodations.

With respect to the alleged inferior accommodations in thec .

equipment occupied by complainant between Memphis apd f

Hot Springs, this defendant states that such equipment ,

af. pie aie ve

* *- .

LOLI IAL NE TYE LO, EPL OCTET PIES ALT IT IEEE OE SPS Bey NE cd iaaie al

7 = jai Spain

+ hs

48 «

¢ . ! —*

and accommodations were not owned or controlled or/ op-

erated by this defendant. , a

‘

* “6, It denies the allegetions of Paragraph VI of the

complaint sé far as they relate to any act or mission of

this defendant, and states the faets to be as heretofore al-

leged in this answer.

. **7. It denies the allegations of Paragraph VII of the- .

complaint, so far as they relate to any act or ommission of

this defendant.

“This defendant denies that complaizant ji is entitled to

the relief prayed for in his complaint against this defénd-

ant.

i . ‘*Wherefore this defendant prays that the ‘sald complaint

may be dismissed,as to this defendant.

‘Dated at Chi 0, Illinois, this 22nd day of September,

. A. D., 1937.

‘‘The Pullman Company. By G. A. Kelly, Vice Pres-

| ident. L, M. Greenlaw, Attorney for a

| . Company, 79 East Adams Street, Chicago} lli-

th nois.”’

ea i [fol. 74] 6. Admits the allegations of paragraphs X to

| XXII, ihelusive, of said peti ion.

. 7. Denies that the plaintiff has been damaged and in-

, y mJ jured by the order of the Interstate Commerce Commission

“ ; entered November 7, 1938, and the order of the said Com-

: : mission entered March 6, 1939, as alleged in -paragraph

' al XXIII of said petition.

i 8. Denies that the said order enter®l November 7, 1938,

dismissing the complaint, .is inconsiftent with the evidence L

s produced and with the findings contained in the proposed

¢ report of the Examiner and the report of the Commission,

eee

“4

as alleged in paragraph XXIV of said petition.

9. Denies that the testimony of Albert W. Fones, a con-

ductor on the Rock Island, sustains the allegations -con-.

+ ined in the complaint before the Commission, 4s al-

. . leged in paragraph XXV of said petition, and alleges

that the testimony of said Albert W. Jones and other testi-

mony are consistent with the dismissal of the complaint

as to jhis defendant and denies that the testimony set

. forth in said paragraph XXV constitutes all the evidence

to and considered by the Comvnission.

cr, ites

ae ee a =

‘ - and orders of of

ymmerce Commiss e erroneous, - aumlawful or

voi XXVI of anid pe ns alleged by the p satis in paragraph

d petition, or for any other reasons, and alleges:

j' That sdido order dismissing the complaint of the plain-

ff and findings\upon which said order is based are not

arbitrary and uhjust. os “tr

\[fol. 75] (2) d order and folie are consiatend

with the evidence \of pe record./ _

(3) That gaid orc er’ ‘and findings are supported by the

5 evidence of the record.

(4) That said order and findings are supported by the

‘an in the record before the Interstate Commerce

-Commission in the proceedings i: which they were made.

(5) That said order and findings are consistent with the

character of and 4 manifest weight of the evidence. _.

(6) That in m fhe or sand findings the Interstate \

Commerce Commission proceeded with fall knowledge of »

and i in conformity with the law pertaining thereto.

(7) ‘That in making the order and the findings the Inter-

state Commerce Commission gave due regard to the evi-

“denee contained in the record.

~"(8) That there are findings of fact to support the order

of the Interstate Commerce Commission.

(9) That the Interstate Commerce Commission proceeded

- under and by reason of a proper and correct construction .

of law and of its powers.

(10) That 1 the said order and findings are consistent -

the laws of the United States of America.

(11) That said’ ofder and findings are consistent with be

former decisions of the Interstate Commerce Commission’

in analagous situations. |

(12) t said order and findings are consistent with

the Constitution of the United States of Agecien and all

amendments thereto. /

(13) That said order and findings are fn a with

the Enforcement Acts of the United States of America.

, st? y, f

Interstate ~

ul _ 3

# . * ees {GF De RAs < 7, 3

? / “7 —t Se mo a Per eS RE Bh RS TTY Re RE Bes sp

ace ti SS gery: VLE NN RT RMB AT? Sa ats aga Rep eA Tce Sah ii —

(14). ‘That said otder and findings iitsiceatake grant to.

the plaintiff due process of law guaranteed by the Consti- Loa

tation of the United States of: America, :

eT] (15) That said order and findings are consist nt with and ~

-/a grant to the plaintiff of equal protection Bf the laws

_ / guaranteed by the demcacenic ane .. Unit States of

| America. .— 3 ;

[fols. 76-77] 11. Denies thet the plaintiff will suffer ir-

reparable loss or damage unless the said order entered

November 7, 1938, be set aside, annulled and vacated, as

alleged,in-paragraph XXVIII of said petition. _

12. Denies that the facts alleged in the petition are sufii-

_-cient to constitute a cause of action against this ——

or. to entitle pla‘ntiff to the Lesa prayed or to any other

relief.

Wherefore, this defendant venpasitulle prays that. an

_ order be entered herein dismissing the aid — as to

this defendant.

~- (he Pullman Company, by Lowell M. Gcseulaw,

Charles 8. Williston, Herbert S. Anderson, Erwin

W. dit Its pisces |

[fol. 78]. In U NITED Srares District Court

ee : _ [Title omitted]

SEPARATE Answer or Iuuinois CenTrAL Ratiroap Company,

A Corporation—Filed J une 17, 1939

‘- Comes now one of the defendants, Mlinois Central Rail- .

road Company, a\corporation, sued herein under the name -,*

and style of Illinois Central Railway Company, by E. A. ,

- Smith, H. J. Deany and Robert Mitten, its attorneys, and

answering the petition of plaintiff says: o

This defendant:admits the truth of the facts alleged in —

Paragraphs I to XXII, both inclusive, of the petition, except

that it denies the allegations of Paragraph IT of said peti-

tion so far as such allegations pertain to the defendant

Pullman Company, and states that said Pullman Company

—

. J .

ae ,

° f

y : f i : é

EC. LLY SLT TL TNE STIS IID SIT EE NEGO LE TCE ME DELLE EE LIES NCE SEAN NEG ENE

. 4 z :

ga¥ res 51 ie

isa slécnings car company and ak a railioad or transporta-

‘tion company; and except-further that it denies the allega-

tions pertain to. this defendant, Illinois Central Railroad

\ Company, being” 4 common carrier engaged in interstate

-Commerce in the State of Arkansas, and states the fact to

be that this defendant, Illinois Central Railroad Company, °

o--. [fol 79) 1 is not engaged i in interstate commerce between any

' points in the site of Arkansas. — ae

ee ype |

This defendant denies the matters, things and conclusions $x

* alleged in Paragraphs XXIII to XXVIII, both inclusive, of °

the petition, except that it admits that "Paragraph XXV

of the petition quotes a.part of the evidence of record before

the Commission, but denies thatthe testimony so quoted

ia said paragraph constitutes all the evidence submitted to

and considered by the Sc

Further andwering the petition this defendant, Illinois

Central Railroad Company, denies that the facts therein

alleged are sufficient to constitute a cause of action against

any of the defendants, or to entitle plaintiff to the relief

‘ prayed or to ead other relief. ;

‘3 ee

Further answering the petition this defendant, Illinois of

Central Railroad Company, denies that the facts therein

alleged are sufficient to constituteya cause of action against

- this defendant, Illinois Central Railroad Company, or to.

entitle plaintiff to the relief prayed, or to any other relief |

against this defendant, Illinois Central Railroad Company.

Wherefore: having fully answered, this defendant, Tlinois

Central Railroad Company, prays that the relief sought by.

the petition b@ denied at the cost-of the plaintiff, and that

this defendant have the benefit of such other and further

orders, decrees or relief as may be just and proper.

Illinois Central Railroad Company, by E. A. Smith,«

a H. J. Deany, Robert Mitten, Its Attorneys, 135 ipa

East 11th Place, Chicago.. Vernon W.' Foster, of

Counsel, 135 East 11th Place, Chicago, Illinois.

eer sae SPE GES

Sent ~ “tries ee Pe ee

an ES He ane eat > ei ewe.

ia ge SRST RRR ST ATP es

te Sg

Sete

SRA BNL

fe r= 2. The Commission, after the hearing, found the facts .

~ ve:

. {fols-80-81] ( Crrtiricats or SzRvice 7 ;

I hereby certify that I have this day served a copy of the 3

foregoing upon the attorneys of all- parties of record by

= mailing a copy thereof to each party, properly addressed. :

aoe Dated, at Chicago, Illinois, this 17th day of Jutie, 1939. ~

; rs oe V. W. Foster, of Counsel.

2 : ‘ >is

‘[fols. 82-83] In Unrrap Saves Disratcr Court

: | 7 Wie onitied]

Orper Sertie CavUsE FOR HeantwaJ ril 23, 1940

% On motion of Plaintiff’s Attorney - a that this

cause be an@the same is hereby set for hearing before three® -

judges May 27, A.D. 1940: ; e

\ ’ /

— 7:

[fols. 84-85] Ix Unrrep Srares Disraicr Corr ate

| 3 [Title omitted] ear Tite cee ? : }

z Findings of Fact end Conclusfons of Law—June 27; 1940 ia

P a Pursuant to Federal Equity Rule 703, and Rule 52 of the

* . Federal Rules of Civil Procedure, we find the facts to be

as follows: z Ay

Finvines or Fuct ~*~

1. The order here in question was thade by the Interstate

° Commerce Commission after a full hearing. “4

. Specially, and stated separately its conclusions of law there-

on, and they are made a part of these findings and con- a

clusions respectively by reference. :

3. ‘The Commission’s findings of facts were all supported

by substantial evidence. : ene a

, ConcLusions or Law

1, The findings of the. Commission are not erroneous.

2. The order of the Commission is-not contrary to law.

; ; e

‘ea Ye

mF ty <= " * -

1 the i) : . —

4 j - . 4

‘ S X\ ‘

‘of the Federal Constitution.

ey The order of the Commins is supported bythe spice

“Iigs.

“ ‘5. This ooart is Sethe jurisdiction to pont the relief .

sought in the complaint, or any part thereof, and the com- .

omni: should be dismissed.

* William M. Spa rks, -Cir. J. Charles EK. Woodward, 2

. | Dist. Judge. M. L. Igoe, Dist. Dini

—_

. [fols. 86-87] js Unrrap Srateg District Courr For THE .

NorTHERN Districz OF Iniawo1s, Eastern Division

* “Present: Hon. William M. Sparks, Ciréuit Judge; tie.

- Charles E.’ Woodward, District Judge; Hon. Michael. L.

_ Igoe, District Judge.’ ‘

No. 500 Ske

Arraur W. Mrircaen

3 - vB. :

_ Untrren States or et say

Onpzr DisMIssING@ Ciees fi une 27, 1940 —

Upén the findings of fact and conclusions of law this day

entered herein ‘

eds Ordered and Decreed that this cause be and the

same hereby is dismissed for lack of jurisdiction at the

“costs - the complainant.

. [fol. 88] ‘Ts Unrrep Srares District CA: ~:

Vis cee a [Title omitted]

Nonice OF Arrsat—Filed August 23, ‘1940

: os

Elmer B. Collins, Esq:., Solicitor for the United States

_ of America, Washington, D. C.

a es Stanley Payne, Esq., Solicitor for the Interstate Com-

_. merée Commission, Washington,, D. Cc.

3. The order of.the Commission contravenes no > provision ;

~ a:

er eee

; . *. ts 7

° ? a . © @

_ -

Loe.

Saas

Wallace . of Hughes and Daniel Taylor, Esquires, General 3

; -

’ , 2

St is SPE Ss Res Sane o ,

a0 a ner: . ie . :

he 3 _ Attorneys for Frank O. Lowden, James E. Gorman and

- 1 | Joseph B. Fleming, Trustees of the Estate of the.

Chicago, Rock Island and Pacific Railway Company,

Suzy:

EEN Bre reg Ro cake

C. S. Williston, Esq., Solicitor for the Pullman Company,

Pullman Building, 79 East Adams ‘Street, Chicago,

Illinois. | :

Robert Mitten, Esq., Commerce Attorney for the IlMnois

~ __ Central Railway Company, a corporation, 135 Hast 11

Place, Chicago, Illinois. Pere

You and each of you are hereby, notified that on the-23rd -

day of August, 1940, at ten o’clock a. m., or as soon there-

after as counsel can be hgard, we shall present to the Hon- _

orable William M. Sparks, United States Circuit Judge, .

and the Honorable Charles E. Woodward and Honorable

. Michael L. Igoe, United States District Judges, the petition

- of the petitioner hérein for an appeal from the final orders

and decree made and entered in the District Court in the

: above entitled cause on the 27th day of June,.1940, to the

Supreme Court of the United States, a copy of said petition P

for appeal and Assignment of Errors therein referred to

being aftached hereto; and ask that an order be entered

mm herein allowing said «peal and making same returnable

. | [fol. 89] within thirty (30) days from August 23rd, 1940,

. > a copy of said order being also attached hereto.

_. Richard E. Wéstbrooks, Arthur W. Mitchell, pro se.,

‘Solicitors for Petitioner. ‘

Mss

ajch bag

SS ESS

ee ee ee cee

eter sees

a | | 4 wit» STATE. QF Iuurors,

- ||. - ‘County of Cook, ss. :

; y . ; _” Avrrpavit or Service

: a Hattie Mae Salone, first being duly sworn, deposes and

* *. says that at the request of the attorneys for the petitioner

she served tNe above and foregoing Notice of Appeal, the

Petition for Appeal and Assignment of Errors hereto at- -

taehed upon the attorneys for all parties of record and

who are named in the foregoing Notice of Appeal by placing

| a copy of the same in a sealed envelope with the proper

Bl") 7 amount of postage attached to said envelope and addressed

s | to each of the attorneys for the parties of record in this

- G@ause as the names and addresses appear in the foregoing

_ Notice of Appeal, and depositing each of the said envelopes

in the United States maikbox at 30th and State’ Street,

Chicago, Tljinois, on i the 18th day of August, 1940. :

! Hattie Mae Salone, Affiant.

’ Subseribed and sworn-to before me this 18th day of

August, A. D.,-1940.. Birdie Lee James, Notary .

Public. (Seal.)

pe ' d

“*[fol. 90] In ‘Untrep States Dwraior: Court

» *. [Title omitted] -

| ” Pgririon FoR Appzaps—Filed August 23, 1940

To:

Honorable William, M. Starks, United ‘States Circuit:

Judge.

- Honorable Charles E. Woodward and Honorable Michael .

L. Igoe, United States District Judges.

Now comes Arthur W. Mitchell, petitioner, by his solici-

tors and feeling aggrieved by the final order and decree

of the District Court made and entered herein on- to-wit,

June 27, 1940, does hereby appeal therefrom to the Supreme

Court of the United States and prays that his appeal be

allowed and that citations be issued as provided by law.

The particulars wherein he considers the final order and

decree erroneous are set forth i in the Assignment of Errors

on file, to which reference is made. He prays that a tran-

script of-the record, proceedings-and papers on which the

find] order and decree was made and entered, duly authenti-

cated, may be transmitted to the Supreme Court of the

United States, and he further prays that a proper order

- granting to him an appeal to the Supreme Court of the

- United Statés and relating to the security to ‘be required

of him be made.

‘Richard E. Westbrooks, Arthur W. Mine pre .

. 8e, Solicitors for Petitioner.

Dated the 18th day of August, 1940.

[fol. 91] Ins Unrrep Stars District Court

| [Title omitted] 7 ’

Assignment or Exrors—Filed Aug. 23, 1940

Now comes Arthur W. Mitchell, petitioner herein, and

pregents with his -petition for appeal herein this assign-

SES sy FAST ART > Lins Bose: ae Ree

SY Meee rf raat eee EDs IRN pee

OS ate Nard ae pins abegigy ks gay wes

ESTs St a

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ikon Shashi ELI EAI RK Patong rata tae

SRA SII SC ee et 8 ee ae ee eee

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"> gis supported by findings. ~

56 :

“ment of errors and says that in the above entitled cause

and the decree made and entered against him therein on

athe 27th day of June, 1940, there is error in the particulars

hereinafter set forth. SRG is RS aa ee

_ _, The District Court for the Northern District of Iinois, —

Eastern Division, erred in making the frral i and-decree

in this cause and in dismissing the petition herein for lack

of jurisdiction at the cogts of the émplain-t in the following

respects: , Bae gaat ee

1. It erred in finding that the Commissicn’s findings of

‘fact were all supported by substantial evidence.

2. It erred-in finding that the finding- of the Commission

are not erroneous. - yy

3. It erred in finding that the order of the Commission is

not contrary to law. .; putt | vanities |

4, It erred in-finding that the order of the Commission .

contravenes no provisions of the Federal Constitution.

5.°It erred in finding that the order of the Commission

[fol.92] 6. It erred in finding that the court was without

* jurisdiction to grant the relief sought in the complaifit or’

any part thereof and that the complaint should be dismissed.

7. It erred in dismissing the cause for lack of jurisdiction

~ at-the costs of the complainant.

a f

8. It erred in failing to find, as it should have done, that

the plaintiff was an interstate passenger on the Rock ‘Is-

land Railroad, holding a first-class: round trip ticket for

which he had paid a first-class fare from Chicago, Illinois,

to Hot Springs, Arkansas. =

9. It erred in failing to find; as it should have done, that

as such first-class passenger, making a continuous inter-

state journey and travelling in interstate commerce, that

he was entitled to equal first-class accommodations and com-

forts identical with the first-class accommodations and com-

forts furnished all other white passengers holding first-

class tickets and travelling in interstate commerce. °

- 10. It erred in failing to find, as it should have done, that

_ it was the lawful duty of the Rock Island to furnish to the

_ plaintiff, as a first-class interstate passenger, ‘such equal

—

: | sce | ee —Y | : 57 /

accommodations and comforts as were furnished to first- —

-’ class white passengers travelling on the sare trgin as inter-

state passengers. — boeken

11. It erréd in failing to find, as it should have done,

that the Rock Island failed to furnish to the plaintiff such

equal accommodations and comforts as was its lawful duty -

to sa furnish but —.the contrary, compelled the plaintiff to .

occupy, during a part of his interstate: journey, second-

glass accommodations. nae eae

| 12.-It erred in failing to find, as it should have. done,

that such conduct on the partiof the Rock Island was in

| violation of the Interstate Commerce Act.

13. It erred in failing to find,-as it should have done,

_ that the Rock Island received from the plaintiff a first-

class fare dw compelled him to occupy ‘second-class ac-

commodatidhs in violation of the Interstate Commeree Act.

[fol:93] 14. It erred in failing to find, as it should have

done, tha} the conductor of the Rock Island, i furnishing |

_ first-clasé accommodations to all white passengers holding

first-class tickets and travelling as jpterstate sengers,

and refusing to furnish the same to. the plainjjgf who held

a first-class ticket and was travelling as an j

senger, was unduly and unreasonably pr '

and was unduly and unreasonably pref tial to the white

passengers to the disadvantage of t intiff and violated

the Interstate Commerce Act. i’ 52

15. It erred in failing @ find, as it should have done,

that the Rock Island; in charging and receiving a ‘greater

compensation for services rendered in transporting ‘the

‘plaintiff as a first-class interstate passenger, than - was

charged and collected. from other persons for doing -for

them a like and contemporaneous service, did unjustly dis-

triminate against the plaintiff in violation of the Interstate

Commerce Act. : i

i 7 : ;

16. It erred in, failing to find, as it should have done, |

that the Rock Island, in receiving a charge from the plain- -

tiff and contracting to furnish first-class accommodations

and comforts during the entire interstate trip of the plaintiff

from Chicago, Illinois, to Hot Springs, Arkansas, and in

, failing and in refusing to furnish such first-class accommo-

dations, although such first-class accommodations were

7~J

EON ERE pronay res aN" GET IO PRE ENTS Sys cee Go8 Sse ee ESE aoe

= 3 A : A . : -

available, was unjust, unreasonable, unlawful and in viola-

tion of the Interstate Commerce Act.-— Diss :

‘17. It erred in, failing te, find,.as it should have done, «

_ that the conductor of the Rock Island, in having practiced

unjust discrimination agaiust colored pérsons travelling

- in interstate commerce for the'past 32 years has caused,

is causing and wil cause undue and mreasonable advantage

to white persons and undue and unreasonable prejudice .

do the plaintiff and all colored persons travelling in inter-

stata commerce and is in violation of the Interstate Com-.

‘ merce Act. : eel Shee

18. It erred in failing to find, as it should have done,

that the conduct of the Rock Island tqwards the plaintiff

as above.set-forth, is in Violation of the 14th Amendment of

AE the United States Constitution in denying to the plaintiff .

.° ; DA, the equal protection of the law. | Se

ee 19. It eyred in failing to find, as it should have done,

| that the conduct of the Rock Island towards the plaintiff

aS as above set forth, is in violation of the statutes and laws

enacted by the Congress of the United States, known as the

Enforcement Act or Civil Rights Act.

ie 20. It erred in failing to find, as it should have done,

He | that it is a lawful duty which the Rock Island owes to white

? _. and colored passengers on this line, im interstate travel,

Ai to make them equal in comforts, accommodations, and. equip-

(fol. $4] ‘ment, without any discrimination where the same

price is charged. oe : : ee

_ 21. It erred in failing to find, as it should have done,

that it is the lawful duty, which the Rock Island owes to the 2

Be travelling public over its line, engaged in interstate travel,

igri ‘ that its train officers should refrain from practices against

Pi all such passengers without regard to race, color or sex,

_which result in undue prejudice and disadv ntage.

ae 22, It’ erred’ in failing to find, as it should\have done,

eon that there is no equality of service, when the money of )

bai white first-class interstate passengers purchases\luxurious

accommodations and comforts and the same ax

money purchases for colored first-class interstate

4 inferior quarters on the same interstate journey.

Pi ae 23. It erred in failing to find, .as it should have done,

'“. +.» ‘that contmon carriers are bound to provide for colored

ount of

Nee tot Baht ng at

- ? ‘ . a

pM... a = Quimenimanplee bene

a Phe ee

interstate passengers, holding first-class tickets, aecommoda- ee OF

tions and comforts precisely equal in all respects to those

’ provided for white interstate passengers holding a similar

ticket. gine Lina’.

24. It erred in failing to find, as it should have doné, that

common‘carriers are bound to prayide first-class accommo-

dations and comforts to interstate passengers without regard

to race or color as first-class interstate pagsengers have’con-

tracted and paid for. os

‘25. It erred in failing to find, as it should have done, ~

that-the- separate coach law of the State of Arkansas has 3

no application to interstate passengers making a continuous

journey in interstate commerce. Saipan essen eee

96. It erred in failing to find, as it should have done,

that the plaintiff, as a native born citizen of the United Poe

States, was entitled to all privileges and immunities of citi-

zens in the several States and a denial to the plaintiff carol

solely'on account of his color and race by the Rock“Island, —-

under ‘a claim of custom or local State law, while all other =

‘white citizens under like conditions are granted the ‘same - = _—_—_..

privileges and immunity, is in violation of the Constitution: : 3

of the United States. . ey .

| 27... It erredgin failing to find, as it should have done,

* that the order entered by the Interstate Commerce Cont-

mission dismissing the ‘proceedings filed by the plaintiff .

before the Interstate Commerce Commission and the find- —

ings upon, which said order is based, are arbitrary and

unjust... die nies

[fol. 95] 28. It erred in failing to find, as it should have

done, that said order and findings are contrary to the evi-

' dence of record. — °

09. It érred in failing to find,-as it should have done,

that said order and findings are without support of any |

substantial evidence in the record. ea

30. It erred in failing to find, as it should have done,

that said order and findings are without support of any.

- eviden€e in the recofd before the said Commission in the

proceedings in which they were made. |

31. It erred in failing to find, as it should have done,

that said order and findings are against the indisputable.

character of and the manifest weight of the evidence.

— ; wy ze

- $2. It erred in failing to find, as it should -have ‘done,

that in making the order and findings the Commission dis-

regarded the undisputed and uncontradicted evidence. con-

tained in the record.

33. It erred in failing to find, as it should have done,

that there are not findings of facts to support fhe order

- of the Commission.

qe 3

34. It erred in failing to find, as it should have done,

that the Commission proceeded under erroneous construc-

tions of law and misapprehensions in respect of its powers.

35. It erred in failing to find, as it should: have done,

that said order and findings are contrary to the laws of

the United States of America. at

36. It- erred in failing to find, as it should have done,

that said order and findings conflict with the fornier deci-

sions of the Interstate Commerce Commission in cases in-

‘volving the.identical situation as the case at bar.

37. It erred in failing to find, as it should have done,

that said orders and findings are contrary to and conflict

with the United States Constitution and all amendments

thereto.

38. It erred in failing to find, as it should have dotie, ..°

that the order and findings of the Commission conflicts

with and. is contrary to the decisions of the Supreme Court

of the United States, the-United States Circuit Courts of

Appeal and the United States District Courts, in cases

involving the identical situation as shown by the undisputed

4nd uncontradicted evidence appearing in the record,

[fols. 96-97] 39. It erred in failing to find, as it should have

done, that said order and findings are contrary to and in

conflict with the Enforcement*Act or Civil Rights Act of

the United States. . 7 /

40. It erred in failing to find, as it should have done, that

said order and findings are a denial of. the plaintiff of the

due process of law as guaranteed by the Fourteenth Amend-

ment of the United State’s Constitution. ia

41. It erred in failing to find, as it should have done, that

said order and findings are a denial of the.equal protection

of the laws to the plaintiff as guaranteed by the Fourteenth.

Amendment of the United-States Constitution.

e bs

43. That the order of the Interstate Commerce Commis-

sion and the judgment of the United States District Court

are contrary to the basic principles upon which this govern-

ment was founded and judicially approves unjust discrimi-

nation against a native born American citizen, solely on —

account of his race and color and said order and judgment

is unjust and unamerican.

Wherefore, petitioner prays that the said order and de-

eree entered herein on the 27th day of June, 1940, be re-

versed, and that the said District Court of the nited

States for the Northern District of Illinois, Easter Divi-

sion, be directed to enter a decree granting the prayer of

the petition of the petitioner and that the said order of

the Interstate Commission be declared void and perpetually

set aside, suspended and annulled and that your petitioner

may have such other and further relief-4s may be appro-

priate. pice se 3 | . “id ea

Richard E.gV estbrooks, Arthur W.-Mitchell, Pro Se.,

Solicitors for Petitioner, 3000 S. .State Street,

Chicago, [llinois. . | . a

(

[fols. 98-99] ~ In Unrrep SraTEs District Court

[Tite omitted] 4

-Orver Grantine PETITIONER AN APPEAL 10 THE ‘Unrrep

‘

Srares Supreme Court anp Fixine THE AMOYNT OF THE

Bonp—Aug. 23, 1940: ng

Upon the entering of the final decree in this cause came

Richard E. Westbrooks and Arthur W. Mitchell, pro'se.,

solicitors for petitioner, and filed their Assignment of Er-

rors and Petition for Appeal and itis hereby —

' Ordered that an appeal by. the petitioner in the above

entitled cause to the Supreme Court of the United States —

from the final order and decree heretofore filed and entered

on June 27th, 1940,.be and the same is hereby allowed, and

that a certified transcript of the record, testimony, exhibits,

stipulations and all proceedings be forthwith transmitted if

‘to the Supreme Court of the United States, said appeal be

hereby made returnable thirty (30) days from the date

hereof, ee §:

> . :

it Is Hereby Further Ordered that the bond of appeal be;

and the same is hereby fixed in the sum of $300.00 Dollars.

Entered: |

William M. Sparks, United States Lircuit Judge; —

—— —, United States District J udge.

Dated August 23, 1940.

~ [fols. 100-106] Citation in usual form showing service on

Daniel W. Knowlton, et al., filed Sépt. 17, 1940, omitted in

‘printing. — . ie

° ;

| [fols. 107-129] In Unrrep Srares Drricr Court.

De [Title omitted] .

Orper Approvinc APPEAL Bonp—Aug. 24, 1940

This cause coming on to be heard upon the motion of

‘Richard E. Westbrooks and Arthur W. Mitchell, pro se,

. Solicitors for petitioner for an order approving the Appeal

Bond heretofore ordered in this cause, August 23rd, 1940,

and it appearing to the court that. the petitioner presents

‘im open court a certified check dated August 23rd, 1940,

drawn on the American National Bank & Trust Company of

» Chicago, payable to Hoyt King, Clerk of the United States

District Court, in the sum of Three Hundred ($300.00) Dol-

lars as security ; 3 Y

It Is Hereby Ordered that the Appeal Bond of Arthur W.

Mitchell, be and the same is hereby approved and ordered

filed ; s

- It Is Further Ordered that the Clark of this court, accept

and receive the above mentioned certified check, which is

to be cashed by the said clerk of ‘this court and held as

security under the terms and conditions contained in the

said Appeal Bond of Arthur W. Mitchell, petitioner, antil

the furthe? order of this court. 7

“Entered: : wren ke 4

-————, United States Circuit Judge; Holly, United °

States District Judge; —— —, United States.

‘Distriet Judge. . ’ y

Dated August 24th, 1940. 7

» eause, all original e

» (fole. 130-131] In Galil Srargs Disrrict Court ~

[Title omitted] -

OrpER EXTENDING Time—Sept. 21,1940 »

- On motion of the plaintiff and for satisfactory reasons

‘appearing to the court, it is hereby ordered that, iat

The time for the docketing of this cause in the Supreme

Court of the United States, pursuant to the appeal sued

out; to present for approval the Narrative Statement of

Evidence and to complete the preparation of the Transcript |

of Record for certification by the Clerk of this court, —

be and is hacks extended to and including the 21st day

of November, A.D. satnet \

ae, United States Circuit Judge; >,

United States District Judge; Igoe, United States

District Judge.

Dated this 21st day of September, A.D. 1940.

[fols. 132-133] In Unrrep States District Court

[Title omitted]

Oxper re Onictwa Exurerrs—Nov. 14, 1940

On motion of the plaintiff and for satisfactory reasons

appearing to the court, It Is Hereby Ordered that,

a. The Clerk of this court include in the transcript of

record, which is being prepared for use in the proceedings

on appeal to the re Courtgf the United States in this

hibits which were introduced in the” \.

~ United States District Court on the hearing of this cause.

b. That Plaintft Exhibit No. 1, (a), (b); (c), (d)s (e)y

and Defen ’s Exhibit No. 1, stand i in lieu of a Narrative

Statement of the Evidence and be so certified to the Su- .

__preme Court of thagppited States by. Olerk of this court...

Entered:

, — ——, United States Circuit Jadge;.: — -—,

United States District J udge ; Igoe, United States

‘District Judge. ~ a

Dated this 14th day of Mevesioee; A.D. 1940. a )

| | fe.

rs nee |

[fols. 194185) In Untrep Sraires Distaicr Cousr:

[Title omitted ]

OrpER RE Transcript or Testimony—Nov. 14, 1940

Good cause appearing, it is ordered that a transcript of .

oral ar ent in this cause, presented before this Court on

May 2%, 1940, by counsel for the respéctive parties, be sent

as original exhibit to the Clerk of the Supreme Court

of the United States and be included as part of the record

herein on appeal.

* Entered:

Igoe, Judge United States District Court.

- Dated this 14th day of November, 1940.

{fol 136] In Usrrep Srarzs District Court

¢ ;

[Title omitted]

Ducts FoR TRANSCRIPT OF ‘Recorp—Filed Sept. 3, 1940

To the Honorable Hoyt King, Clerk of thé District Court

of the United States for the Northern District of Illinois,

Eastern Division: y 3

_ )¥ou are hereby yequested to make a Ke ranscript of ay

: to be filed in the Supreme Court of the United States pur-

\suant to a Notice of Appeal heretofore filed August 23; 1940

and to include in such franscript of record the following,

(1) The process.

(2) The pleadings. '

(3) Copy of petition,- which shall include so anak of the

exhibits in accordance with the rules of the United. States

Supreme Court.

(4) Answer of'United States of America. -

(5) Answer of the Interstate Commerce Commission.

(6) Answer of Frank O. Lowden, James E. Gorman and

James B. Fleming, Trustees of the Estate of the Chicago,

Rock Island and Pacific Railway Company, a corporation.

(7) Answer of Pullman Company, a corporation.

(8) Answer of Illinois Central Railway Company. ~

co i Order allow

of.

* (9) Order setting capse for hearing. ‘

[fols. 1387-138] (10) Narrative statement evidence .or

agreed statement of fact. (See Order 11-14-40)

(11) Findings of fact, conclusions of law and Final De-

cree entered by the court June 27, 1940. ;

(12) Order approving narrative statement of evidence

or agreed statement of fact. (See Order 11-14-40)

(13) Notice of Application for order allowing appeal. °

(14) Petition for Appeal. 2 ;

* (15) Assignment of errors. pak

g appeal. . Ree

17) Citation on appeal.

(18) Bond on appeal.

(19) All orders, enlarging time for docketing cause in the

United States Supreme Court and extending time to have

approved the narrative statement of evidence in condensed

. form. |

(20) Praecipe for record on appeal. and proof of service

thereof. : ,

(21) Jurisdictional statement’and proof of service there-

( 22) Order certifying record to United States Supreme’

Court. ; roe

_ (23) All stipulations filed in said cause. ,

‘(24) All orders of the court entered subsequent to the

. entry’ of the decree and not heretofore requested herein.

Richard E. Westbrooks, Arthur W. Mitchell pro se,

Solicitors for Plaintiff.

[fol. 139] Puantirr’s Exutsrr No. 1

Interstate Commerce Commission

| Washington , :

I, W. P. Bartel, Secretary of the Interstate Comnterce

Commission, do hereby certify that the attached are true

_eopies of the following: | Se

Complaint filed September 2, 1937 ; Paton

Transcript of the stenographer’s notes of thé hearing

held March 7, 1938, at Chicago, Ill., before Examiner W.

A. Disque, and exhibits filed at said hearingy ~ |

5577

66 sp

Report proposed by Wm. A. Disque, Examiner, filed May —

5, 1938; |

: Report and order of the CommjSion filed and entered

November 7, 1938; and =—t-s 3 .

Order of the Commission entered March 6, 1939, .

in Docket N 0. 27844, Arthur W. Mitchell v. Chicago, Rock

Island & Pacific Railway Company ét al., the originals of

A. which are now on file and of record in the office of this

Commission. . .

-. In Witness Whereof I have hereunto set my hand and

affixed the Seal of said Commission this 15th day of Sep-

tember, A. D. 1939.

W. P. Bartel, Secretary of the Interstate Commerce

Commission. (Seal.) : oy

[fols. 140-149] Comp! int omitted. “Printed side page 7

ante. wee “ge .

[fol. 150] Bevorz Interstate Commerce ComMIssIon

Doeket’ No. 27844

_ Arraur W. Mrrcneu pe

vs.

Tae Cuicaco, Rock Istanp AND Pactric Ratuway Company,

. (F. O. Lowden, J. E. Gorman and J. B. Fleming, Trus-

- tees), et al. r

Chicago, Illinois, March 7, 1938. 10 a. m.

Before W. A. Disque, Examiner

Met pursuant to notice. 7

Appearances : :

»__ Richard E. Westbrooks, 3000 South State Street, Chicago,

. Illinois, appearing for complainant. 7

_ Arthur W. Mitchell, 3000 South State Street, Chicago,

‘® Illinois, complainant, appearing pro se. .

Daniel Taylor and Wallace T. Hughes, 1025 LaSalle

Street Station, Chicago, Illinois; appearing for the Chi- »

cago, Rock Island and Pacific Railway Company (Frank

Trustee). e |

’ Erwin W. Roemer, Charles 8. Williston, and Lowell M. |

Greenlaw, 79 East Adams Street, Chicago, Illinois, appear-

ing for The Pullman Company. ee

[fol. 151] H.J. Deany and.R. Mitten, 135 East 11th Place,

~ Qhicago, Illinois, appearing for Illinois Central Railroad

- Company. 5 Sets % ;

- .

[fols. 152-153] PRocEEDINGS

_ Exam. Disque: Come to order, please.

The Interstate Commerce Commission has assigned for -

hearing at this time and place, Docket No. 27844, Arthur W.

Mitchell against Frank O. Lowden, et al., Trustees of The

Chicago, Rock Island & Pacific Railway Company, and other

carriers. ee : '

_~ Who appears for complainant?

Mr. Westbrooks: Richard E. Westbrooks, for the com-

plainant; and Arthur W. Mitchell, pro se. |

Exam. Disque: Who appears for defendants? - Mees, °

Mr. Hughes: Daniel Taylor and Wallace T. Hughes, 1025

LaSalle Street Station, Chicago, for The Chicago, Rock

Island & Pacific Railway Company, Frank O. Lowden,

James E. Gorman, and Joseplf B. Fleming, Trustees.

Mr. ay we W. Roemer, Lowell M. Greenlaw, and

Charles 8S. Wi n, Chicago, Illinois, appearing for The

Pullman Company. ;

Mr. Deany: H. J. Deany, and Robert Mitten, Chicago,

Illinois, appearing for the Illinois Central Railroad Com-,

' pany. . |

Exam. Disque:’Does anyone else appear?

_(No response.) 7 ge

'’ Exam. Disque: You may proceed, Mr. Westbrooks.

Mr. Westbrooks: First, before we proceed, if the Exam-

iner please, I presume that it is proper andafitting, for the

purpose of the record if nothing more, that I call your

(fol: 154] attention to the fact that I have received for the 5 Vira

first time a copy of the answer of The Pullman Company,

now for the first time. 2 eet

I want the record to show that. yey ;

« Exam. Disque: You mean, you just received it toflay?

. 68 “3 : ;

; Mr. Westbrooks: Just received it today. -

Exam. Disque: All right. ae

Mr. Westbfooks: At the hearing here.

With respect to the answer of Frank O. Lowden, James |

E. Gorman, and Joseph B. Fleming, as Trustees of the

estate of The Chicago, Rock Island and Pacific Railway

Company, I want to make a motion to strike their answer.

Now, I appreciate that these hearings are not to a great

degree, technical, but that they are somewhat informal.

_ However, under the pleadifigs prescribed by this Commis-

sion, I think that they have failed to conform.

I particularly refer to: page 43 of the rules of the Com-

mission, promulgated and revised April 1, 1936,—that is,

page 23, paragraph (d)swhich says: . :

‘All answers should be so drawn as fully and completely ;

to advise the parties and the Commission of the nature of

the defense, and should admit or deny specifically and itt

detail each material allegation of the pleading answered.”’

ia » ©

Section (e) which should be read in connection with Sec-

, [fol. 155] tion (d), concerning answers, of the rules of

practice, is entitled ‘‘Denials of violations of Section 2

or 3’’—that is, of the act. It provides:

‘‘An answer denying that an alleged discrimination is

unjust, under Section 2 of the act, or that an alleged

preference or prejudice is undue, or unreasonable, under

. Section 3 of the act, should state fully the grounds relied

- upon in making such denial.’’ :

_ _ Now, as I said, it is not merely for technical reasons,

bat I do not think that the Lowden answer complies, or

‘attempts to comply with fully giving their defense.

‘ Now, the answer, of course, speaks for itself, and I

presume that rather than to—it is only for the purpose

of saving that point, that is, as to the insufficiency of the

-answer, that I desire to make that motion.

Exam. Disque: All right. x

_Mr. Westbrooks: Our motion is noted on the record.

Exam. Disque: Your motion will ke given consideration.

We will proceed with the first witness. :

Mr. Greenlaw: If the Examiner please, may I state, if Hs,

you please, in answer to the statement of the attorney for

the complainant, concerning the answer of The Pullman

‘

ry alae 69

: Company; tat fot in my hand our file copy of my letter

of September 22nd, addressed to Mr: Arthur W.-Mitchell,, —

and Mr. Richard E. Westbrooks, 417 East 47th Street, Chi-

[fol. 156] cago, stating that I am rt a copy to each of

_them of the answer.

That was the same date that the answer was filed with

the Interstate Commerce Commission. In our letter to the

- Commission, I stated that copies were being served upon

Possibly it may have gone astray in the mails, but I

just wanted the record to show that the answer had been

sent in due form. |

Exam. Disque: All right. | :

Mr. Westbrooks: Now, I think that the issues here are

very ‘simple, as to whether or not the acts which we have

alleged in our complaint, violated the sections*of the Inter-

state Commerce act which we have alleged i in our complaint.

I do not think that there are any Money demands asked,

_ ‘or any reparation for the violations; that is, the violation

of the excess fare, charging a fare for first class service,

and then the complainant only receiving that first class

service,a part of the way, and being compelled té receive -

second class service from Memphis, Tennessee to Hot -

Springs, Arkansas, after having paid the first elass fare. _

The second glass. accommodations, I believe, we have

specifically described, as to the condition of the second class

car, commonly Zalled a Jim Crow car. in the south. s

The issue here is as to whether or not they can compel

a passenger who has paid the first class fare for accommo-

[fol. 157] dations in interstate commerce to be—well, put

out, thrown out, asked out, or removéd, either way we want

to put it, oat of the first class accommodations, before he

reaches the end of, his journey, over his protests and against

his will;. and be compelled to continue to the end of his

journey in second class accommodations and facilities.

Now, we will proceed with the evidence. T think these

_are the issues, briefly stated.

Call Congressman Mitchell.

Exam, Disque: Be louse, at Congressman Mitchell

AEN Y

Artuur W. MircHELL was sworn and testified as follows: .

Direct examination.

By Mr. Westbrooks :

Q. State : your name, please.

A. Arthur W. Mitchell. b

Q. Your address?

A-$806 South Parkway, Chicago, i is my home address.

‘Q. What is your business, sir? .

A. I am a lawyer; at, the present time ‘member of the

Congress of the United States.

Q. And you have been a member of the Congress of the

United States for how long, sir?

A. Since—I took a se&t in the Congress on the 3rd of

, 1935, and I have been a member since,

. I am now serving my second term in Congress.:

[fol. 158] Q. Calling your attention, sir, to April the 20th,

1937, did you have-occasion to see, or were you in Chicago

at that time? -

A. I was in Chicago ‘on April 20th, 1937. I left Chicago

the evening of April 20th on a trip to Hot Springs, Arkansas.

Q. And did you make arrangements for th@trip, sir,

’ yourself in person? °

A. I did. *

Q. What arrangements did you make for’ the ae to

, Hot Springs?

A. Durin the day of the 20th I pitting lbs the 19th, I

called the ois Central ofliee and made a reservation for

the trip.

‘I tried to get a Getesien, and thay did not have a bed-

room that was goin the way to Hot Springs, that was

not then engaged; but they did provide me with 4 bedroom

over the Illinois Central to Memphis, Tennessee.

I bought a first class ticket, a part of which ticket is

» here now, that I did not use, the return part of the ticket,

, after this thing happened. ‘I have here the return part

of the ticket that I bought to Hot Springs, Arkansas, from.

Q. Now-ni mic |

A. (Confinuing) Then ught the bedroom from here’

to Memplfis, and I have the stub for that bedroom. ,

- Before I got to — i'inew that the car that I was ~

aes |

-in would not go to Hot Springs, but there was a car at- —

, tached to that train that I was informed would go to Hot

_ Springs.

[fol. 159] I had the porter of the sucticular car that was -

‘ - to go—-that I was informed would go to Hot Springs, come ~

back to my reservation on the car in which I had traveled

to Memphis—or, I was at that time perhaps 8 or 10 miles

out from Memphis; and he took my baggage, consisting of

two suit cases, a large handbag, brief case and.a smal] hand-

bag, raincoat, topcoat, and umbrella, and. conveyed them

- up to a seat in the car that would go to Hot Springs, and

~ assigned me to that cat. aie

Q, Now, may I ask you this question at this point, - sir:

you paid for your railroad ticket, did you?

A. Yes. -

Q. How much did you pay for your ratlroad ticket? -~

A. I have the-figdes here. |

Q. What did it cost you? —

A. I find, taking the memorandum I Rae a I called

up, that I paid $27.70 for the railroad ticket. ;

Q. And did the Illinois Central agent from whom you

purchased the ticket in: Chicago here _to Hot Springs, Ar- .

kansas, inform you whether that was a first class or

ond clase ticket, sir? — ”*

_A. I called for a first-class ticket, and this is what he

gave me, and it is marked that way, ‘‘First Class.”

Q. That was a first class round trip ticket? ~

A. Yes, sir.

Q. From Chicago, Illinois, to Hot Springs, Arkansas?

A. Yes, sir.

[fol. 160)” Q. And return.

fA. Yes.

Q. By.way of Memphis, Tennessee; is that correct?

A. Yes, sir,—returning over the Rock Island and Illinois

Central to Chicago.

_ Mr. Westbrooks: I ask that the ticket be masked as

exhibit No..1¥or be complainant. :

has het Disque: He has never turned that i in, for a ——

me. S37

' Mr. Westbrooks: No, he has not. We are still entitled

' toa refund.

_ + The Witpess: I thought it was worth more in a hearing.

like this than it would be to turn it in. 3

——————-

ae es c

Exam. Disque; Mark it Complainant’ ~ Exhibit No. 1 for

identification at this time.

* (Complainant’s Exhibit No. 1 marked for identification.) —

Mr. Westbrooks: Is there any ‘objection? I show it to

counsel. + Is there any objection?

~ Mr. Taylor: No objection.

Mr. Westbrooks: If there is no objection, if the Exam-

iner please, I offer in evidence Complainant’s Exhibit 1.

The Witness: I have a photostatic copy of that.

Mr. Westbrooks: I will ask leave to file a photostatic

copy in lieu of the original, ond withdraw the original at

this time.

[fol. 161] The Witness: This is a photostatic copy.

_ Exam. Disque: Let us put the photostatic copy in, as the

one for the record. Then you can keep your own ticket.

Mr. Westbrooks : As there’ an

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