Memorandum for the US — Mitchell v. United States

Supreme Court brief1941

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3, Interstate passages: constitutionality.__

B. The carrier’s practice.............---....-..-

CITATIONS

Miiaw. Hicks, 44 La. Ann: 770...--- EES Te ee:

Alabama & V. R. Co. v. Morris, 103 Miss. 511, 60 So. 11, 2

_ writ of error dismissed on motion of plaintiff in error, 234

3 a aes epee ae ee ee eee 9

. Arkansas Gas Co. v. Department, 304 U. 8. 61_....---.--- 11

- Armour & Co. v. The Alton Railroad Co., No. 293, this

PR iisccdva cscs iccnathndusteducucdbutcde Vests 5-

_ Berea College v. Kentucky, 211 U. 8. 45....------------- 7

Butis v. Merchants Transportation Co., 230 U.8.126..--.. 138

Carrey v. Spencer, 36 N. Y. Supp. 886_-----=)---.------ 9

Case v. Los Angeles Lumber Co., 308 U. 8. 106. ..-------- 8

Chesapeake and Ohio Ry. Co. v: Kentucky, 179 U. 8. 388.... 9,10 -

Chicago Junction Case, The, 264 U. 8. 258....-.....-.---- 4

Chiles v. Chesapeake and Ohio Railway, 125 Ky. 299, ;

affirmed, 218 U, 8. 71_.....---------.------ 9, 10, 12, 14, 15

Civil Rights Cases, 109 U. 8. Sa geen ede ate 13

Coger v. Northwest. Union Packet Co., 37 Iowa 145-~.-- Bow 15.

Councill v. The Western & Atlantic R. R. Co., 11. C. C. 339. 14

Cosart v. Southern Ry. Co., 16 I. C. C. 226_-_....-.-2--- 14

Crosby v. St. L28. F. Ry. Co., 2118 1 C..O. GOO. seessis. 14

Cumming v. Board of Education, 175 U. 8. 528__...--.---- 7

Edwards v. Nash., Chat. & St. Louis Ry. Co., 121. C. 0.247. 14

(1)

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Cases—Continued ~ ‘ Page

El Paso & Northeastert: Railway Co. v. Gutierres, 215 U. 8.

Wuitisghttbhdesadsasitideddenabneksnbentiesweencunasé 13

~~ Gaines v. Seaboard Air Line Ry., 16 I. C6 tek. Ye 14

General Inv. Co. v. N. Y< Central R: R., 271 U. 8. 228... __. 3

Gong Lom v: Bios, 376 U. 8.782 ics sn ccc ek 7

Gwin, etc., Ine. v. Henneford, 305 U. 8. 434..-..--.-..-_-. 10

Hall v. De Cuir, ahs doug ene EN eS ETE 10

“Heard v. The Georgia R. R. Co., 1 1. C. C. 428... 14

Heard v. The Georgia Railroad Co., 31. C. C. 111-...-.- Wp 14

Heiner v. Donnan, 285 U. DORs cents eimcb sabia Lawns 18

Hart v. State, 100. d. 595, 60 Atl. 457... .....-.-...-..- 9, 15

Houck Ry. Co., 88 Fed. 226_.......-____. 15

Huff v. Norfolk, d Southern R. Co. 88 8. E. 344 Reanpeanon 9

Interstate Commerce Commission v. Cregeen: Washington R. of

Ee ALS OR ae ar ec en ee enna af

Inland Waterways Corp. v. Young, 309 U. 8. 517__._..._-- 14

Keck v. United States, 172 U. 8. 434.......-......---_- 8!

Keifer & Keifer v. R. F. C., 306 U. 8. 381__-_._____-___-. 12

Louisville & N. R. Co, v. United States, 282 U. 8. 740. ____- 19

Louisville &c. Railway Co. v. *fississippi, 133 U. 8. 587.. 8,10

Maurer v. Hamilton, 309 U. 8. 598........._-_- fasupiiice a2;

McCabe v. Atchison, T. &S.F.Ry.Co., 186 Fed. 966;-affirmed,

936 'U. 8. WOR sive nencshidntscvcceccue 6, 7, 9, 10, 15, 18, 20

Milk Board v. Eisenberg Co., 306 U. 8. 346......._.___-. il

Mississippi Valley Barge Line Co. v. United States, 202

aS Bisa ch alte pnb eb dada wkuswene pied 20

Missouri ex rek: Gaines v. Canada, 305 U. BBB nn inc 7, 18, 20

Mobile & O. R. R. Co. v. Spenny, 12 Ala. App. 375 Addie. 15.

Moffat Tunnel League v. United States, 280 U. 8. 113._.__- 4

Morrisdale Coal Co. v. Penna. R. R. Co., 230 U. 8. 304._._ 5

» ~~ Murphy v. Western & A. R. R., 23 Fed. 687_.._.______.. 15

Nashwille, C. & St. L. Ry. v. Browning, 810 U. 8. 362...... 19

Norwegian Nitrogen Co. v. United States, 288 U.8.294.... 14

Ohio Valley Ry.’s Receiver v. Lander, 20 Ky. L. Rep. 913... - 15

pccamnarce e taacmen Sine celal Salin ab nme i

Plessy v. Ferguson, 163 U. 8. 587__-....----.0._. 2. 7, 9,10, 12

Robinson v. Baltimore & O. R. R., 222 U. 8. 506... baila Sins e 5

Rochester Telephone Corp. v. United States, 307 U. 8. 125-- 4,19

Shreveport Casés, The, 234 U. 8. 842_........._._...__ ae

Smith v. State, 100 Tenn. 494, 46 8. W. 566; writ of error

dismissed on motion, 21 8. Ct. Rep. 917, 45 L. Ed. 1256. 9

South Carolina Highway Department v. Barnwell Bros., 303

GEN ei didnt bok Rebs ods Mink ds sheesh nubian cs lL

South Covington &c. Ry. Co. v. Kentucky, 181 Ky. 449,

affirmed, 252 U. QP idiinscaiseunccwrnswecuiiescnck 9, 10.

Fie wren Ip a arn ramen ay aac psa RP RREN CN Ee Rm A FH,

Pos

Cases—Continued

So. Kansas Ry. v. State, 99 S. W. 166.....-.------.-----

Southern Ry. Co. v--Norlon, 112 Miss. 302, 73 So. f._.----

State Tax Commission v. Van Cott, 306 U. 8. 511,-.------

—Tank Car Corp. v. Terninal Co., 308 U. 8. 422_...--.----

Terae & Pac. Ry. v. Abilene Cotton Oil Co., 204 U. 8. 426__-

United States v. Americin Trucking Ass'n, 310 U. 8. 534_.

United States v.. Hutcheson, No. 43, this Term_--.-- RTS Me

Warehouse Co. v. Unite! States, 283 U. 8. 501.-....------

Washington, B. & A. Mlectric R. Co. v. Waller, 289 Fed.

~ Welch Co. v. New Hamy shire, 306 U. O Mii oc

Youngstown Sheet & Tub: Co. v. United States, 295 U. 8. 176.

Statutes: : |

Civil Rights Act of 1878, ¢, 114, 18 Stat. 385, Secs. 1,2... 18 \

Interstate Commerce /.ct, c. 104, 24 Stat. 379, 380, Sec. .

pee" 8 oe | eee ee ete 12, 15, 18

Commerce Court Act, c. 309, 36 Stat. 539.......-----.. 2

Act of October 22, 1913, c. 32, 38 Stat. 208 (28 U. 8. C.

Dros i ings cvedesblecneddcnsoeppiwescesee 2

Arkansas separate coah law (Acts of 1891, pt. 15, as” ~

amended by Acts of 1893, p. 200; Pope’s Digest, 1987, °

Vol. I) Secs. 1190-11{19..----.- Peay eee Serena Capek AP 6, 7,12

Miscellaneous:

H. R. 8821, 75th Cong., 3d Sess...>='...-.-- i fesse tailpiece 14

H. R. 183, 76th. Cong., )at Sess......-.....6...-2--2 es 14

ME. Bs SER, FO Cam, 100 BitRakn ccc ccencdsuccsencccs 14

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Ocrosan TERM, 1940 |

No. 577

ArrHur W. MITCHELL, APPELLANT ag

Vv. wy

. Te Untrep States or America, [nrerstate Com-

MERCE COMMISSION, F'rank O. LOWDEN, ET AL.

| ON APPEAL FROM THN DISTRICT COURT OF THE UNITED sh :

STATES FOR THE NORTHERN DISTRICT OF ILLINOIS

MEMORANDUM FOR THE UNITED STATES

The United States, one of the five appellees in this ‘ :

case,’ does not support the judgment of the court — t

below. The legal questions, however, are not en- ~ |

tirely clear and the Solicitor Generalisof the opin- 3 é

ion that both this-Court and the other appellees —___ : |

are entitled to have presented the arguments which ' | Be

may be advanced in support of the judgment below. _ 3 ae

__.1The other»appellees are the Interstate Commerce Com- - | : ; aes Roe eS

mission, the trustees of the Chicago, Rock Island and Pacific ma his

Railway Company, the Illinois Central Railway Company,

' ahd the Pullman ee

that the judgment | of the court

He has, therefore, authorized the Interstate Com-

merce Commission to file s brief and appear in

argument i in support of the order of the Commis-

sion judgment below.”

The following randum outlines the reasons

“which have led the United ) the conclusion

slow should be

reversed.

STATEMENT

Appellant filed a complaint (R. 3-7) with the ~

Interstate Commerce Commission, charging that

the appellee carriers had subjected him to undue

and unreasonable prejudice, and praying that they

be required: in the future to cease and desist from

violations of the Interstate Commerce Act and to

provide for colored persons holding tickets for

first-class accommodations from Chicago, Lllinois,

to Hot Springs, Arkansas, such first-clase facilities

as the Commission may deem reasonable and jus

(R.6,7). |

The Ciaitshaatte found that the case was “‘built

mainly on an unpleasant experience complain-

ant had about 18 months ago” (R. 21). On the

morning of April 21, 1937, thé-appeliant, en route

from Chicago to Hot Springs, was compelled under

threat of arrest to move from a Pullman car after

® Under Section 5 of the Commerce Court Act. (36 Stat.

589; see 88 Stat. 208 ; 26 U. S. C. § 45a) the Commission may

appear independently of the United States. Ses 7. @. C. v.-

~—-Oregon- Washington R. C “~ 288 U. 8. 14, 22-27.

. eet eracian® ete ak 3 ORS ei ts ee a i — " * \ f

pars iateeT OP I Si Ee SO ete SE I PIN Re Se Sai ones ctx eter wicta 3 mn Gens ° ’

im. cere SERRE ac RNC Sah et ND RIN 2 Ee cir gL eR irnkut amir al NCR Rn Fs.

. re " »

the train crossed the Arkansas border. This was

in purported compliance with an Arkansas segre-

- gation statute. He held a first-class railroad ticket

and offered. to pay for his Pullman seat. The ap-

pellee “carriers, junder ordinary circumstances, —

~ would have mad: a Pullman drawing room avail- —

able, but all were then occupied by white passen- _ i

gers. Appellant accordingly was transferred into

_ asecond-class coach reserved for the use of colored,

passengers.’ The conductor advised appellant that

. "he could obtain a refund of the extra cost of the

~ first-class ticket, but Renner enearee by

the appelldht (R, 21-22), |

* ‘The Commission on November q, 1938, dininisoca

appellant’s complaint (R. 34). Four members |

= ted ¢R. 30-33), and a fifth dissented in part. a =

Appellant bpought suit to set aside this order (R. i See

4-40). The three-judge distriet court upon gen- |

—-—eral findings of fact and conclusions of law (R.

52-53) dismissed the eause for lack of jurisdiction *

(R. 53). Appellant was allowed an appeal (R. ~ ee

61-62) and this Court noted probable duriegietion ; : |

on December 16, 1940. _ ees Pat \Y

~ |There + was testimony that this coach was filthy and far :

imferior to the second-class coach reserved for the use of | . Rue

white persons, but at the time of the hearing a new coach of j Sery

quality equal to those used by second-class white passengers fo /

was in use (R. 22-24). ~

In the light of the findings, we are of opinion that the

dismissal is more accurately described as placed on the

merits rather than want of jurisdiction. See General In.

Co. v.New York Central R. R., 271 U. 8. 228, 280 :

__APPELLANT’s STANDING To Suz

~ At the threshold of the case lies a question as to”

appellant’s standing to attack the Commission’s

refusal to issue a cease-and-desist order. It is im-

material that the order dismissing’ his complaint

was negative inform. Rochester Telephone Corp.

v. United States, 307 U. 8. 125. But neither the

complaint nor the findings show that appellant in-

. tends in the future to use the appellee carriers be-

tween Chicago and Hot Springs, and his complaint

is limited to the discrimination to which We was

subjected on this run by these carriers.

Standing to attack an order of the Interstate

Commerce Commission is probably not an auto-

matic consequence of appearance before the Com-.

. Inission. See Pittsburgh & W. Va. Ry. v. United

States, 281 U. 8. 479, 486; compare The Chicago ©

Junction Case, 264 U. 8. 258, 268: Some independ-

ent interest in the order is doubtless necessary.»

Moffat: Tunnel League v. United States, 289 U. 8.

118; ef. Y oungstown Sheet & Tube Co. v. United

States, 295 U. S. 476; 479.

: However, -appellant is probably able to show a

‘pecuniary interest in his attack on the Commis-

sion’s order. He has brought an action at law for

damages against the appellee carriers (R. 21-22).

The Interstate Commerce Commission has primary

jurisdiction to determine the lawfulness of an

alleged discrimination, and a suit for damages ean-

not-be maintained until the Commission has deter-

mined that the discrimination is unlawful. Rob-

inson V. Baltimore & O, R.R., 222 U. 8. 506; Morris-

dale Coal Co. v. Penna. B. R. Co., 230 U. S. 304;

Armour & Co. v. The Alton Railroad Co., No. 293,

this Term; cf. Texas & Pac. Ry. v. Abilene Cotton

Oil Co., 204 U. S. 426; Tank Car Corp. v. Terminal

Co., 308 U. S. 422, 433. Accordingly, if the success

of appellant’ s action at law turns on the action of

the Commission,’ he has a pecuniary interest —

cient to attack the order. -

More fundamentally, we think that vindication

of the rights of; Ahe person ranks higher than pro-

tection of one’s right not to be charged discrimina-

tory ‘rates. While appellant has not shown any

specific intention of again using the appellee car-

riers between Chicago and Hot Springs, few men

can so order their personal affairs that their future _

travels are predictable. Petitioner has already

: s,

* We suggest below (pp. 19-20) that no question of admin-

istrative judgment can properly be found in this case. The

“primary jurisdiction” doctrine is based upon the fact that

the ordinary case of discrimination involves questions of ad-

ministrative judgment. If the ‘rule were limited

__to its’reasons, we should a y conclude that the court

had jurisdiction in this case without regard to the Commis-

sion’s action. But in matters of procedure, it is sufficient

that the reason for the rule applies in’ most cases. ‘If a de-

_ termination on the merits were to shape the antecedent pro-

laa

simplicity and expedition.

297492412 | baer /

POE BES ALY LEO LRT LE ESI BREIL SBT

Neale Sedat ONSTAR SA at BISCO SO ESS See eee

been subjected to one indignity because of lis race

and, if the diserimination be unlawful, is entitled

to guard against its recurrence. See McCabe v.

AT. & 9. F. Ry. C6., 235 0. 8. 151, 163-164. The

_ guaranties of equal treatment cover the oecasional

traveler as well as the commuter.

THE LAWFULNESS OF THE D1sORIMINATION

_. The majority of the Commission ruled: (1) the

appellee carriers were justified in assuming that

the Arkansas Separate Coach pa applied to an

interstate transportation (R. 28); (2) the carrier

_ practice of ségregation would be valid in the ab-

sence of the state statute (R. 28) ; and (3) the small

amount of colored traffic, rarely in excess of the

available Pullman drawing rooms, made the oc-

easional discrithination when separate Pullman

accommodations were not available neither unjust

rior undue (R. 29-30).° | |

*Commissioner Eastman dissented, with reluctance be ~

cause of the practical burdens placed upon the carriers if

they were required to provide equal accommodations (R.

. 80-31). Commissioners Lee, Aitchison, and Porter dis--

sented on the ground that the Interstate Commerce Act

required equality of accommodations (R. 31-33). Commis-

—_

A. THE ARKANSAS STATUTE

1. The Segregation—This Court on seyeral oc-

easions has ruled that segregation statutes do not

violate the Fourteenth Amendment,’ Plessy v.

_ Ferguson, 163 U. 8. 537;.McCabe v. A., 7. & S. F.

Ry. Co.» 235 U. 8. 151, 160; ef. Cumming v. Board

"of Rducation, 175 U. S. 528, 544-545 ; Berea College

y. Kentucky, 211 U. 8, 45; Gong Lum v. Rice, 275

‘U.S. 78, 85-86; Missouri ex rel. Gaines v. Canada,

305 U, S. 337, 344. We shall, therefore, assume

that the Arkansas statute does not deny equal pro-.

tection because of its command that colored and

white passengers be segregated.

2, Interstate Passage:. Construction.—The Ar-

kansas Separate Coach Law * (Acts of 1891, p. 15,

as amended by Acts of 1893, p. 200; Pope’s Digest,

- 1937, Vol. I, See. 1190) provides;

* See, also, the numerous decisions of the lower federal

courts and the state courts cited in the Gong Lum (275 U.S,

at 86) and the Plessy (163 U.S, at 548) cases, and the deci-

sions upholding state segregation statutes against attack

. under the nea 2 clause (infra, pp. 8-10). Compare

Pace y. Alabama, 106 U. 8, 588. :

* The entire Act is printed in the Appendix to appellant's

brief, pp. 15-17. |

Other sections forbid persons, on penalty of a $10-$200

- fine, to occupy seats assigned to those of another race (Secs.

_’ 1192, 1196) ; forbid carriers to permit the joint, use of sleep-

ing or chair cars (Sec. 1193).; require train officers to sepa-

rate the races, on penalty of a $25 fine (Secs, 1195, 1196) ;

authorize train officers to refuse to carry any passenger who

refuses to occupy the d&signed coach (Sec. 1197) ; impose a

fine of $100-$500 upon a railway company for every day and

‘every train run in violation of the Act (Sec. 1198) ; and re-

quire that the statute be posted in every coach (Sec. 1199).

YER FRO SONORA A i,

;

SE hs RR CN GR DAE TS IAT REELS

All railway companies carrying passen- ©

gers in this state shall provide equal but sep-

- arate and sufficient accommodations for the

white and African races by providing two

or more pomenger = for each passen-

ger train; *

The Arkansas courts have not considered wheth.

er dr not the statute applies to interstate transpor-

tation. The statutory language, ‘All railway

“companies carrying passengers in this state’’, is

equivocal, We believe, however, that the statute

should be construed to apply only to the intrastate

~ transportation of passengers.

In Louisville dc. Railway Co. v. Mitslesipigi, 133

U.S. 587, 592, this Court sustained a segregation

statute aE in almost identical terms ° on the

ground that the state court had construed it to ©

apply only to intrastate transportation. That case

was décided March 3, 1890, one year-before en-

actment of the Arkansas statute. On familiar

principles, the Arkansas legislature must be pre-

sumed to have adopted this construction. Keck v.

United States, 172 U. 8. 434, 436; Case v. Los

Angeles Lumber Co., 308 U. S. 106, 115.

This Court has similarly approved the state court

construction of other state segregation statutes,

correspondingly equivocal, as applicable only to

* The statute there involved required “all railroads carry- .

ing passengers in this State (other than street railroads)” -

to provide separate but equal accommodations (183 U. S.

at 588).

intrastate passage. Plessy v. Ferguson, 163 U.

§. 587, 548; Chesapeake and Ohio Ry. Co. v. Ken- |

tucky, 179 U. 8. 388, 394. And in McCabe v. A., ae

T. & 8S. F. Ry. Co., 235 U.S. 151, 160, this Court in - |

dictum said that there was “‘no reason to doubt’

that an Oklahoma segregation statute, ‘in the ab-

sence of a different construction by the state court,

must be construed as applying to transportation

exclusively intrastate’. The weight of authority

in the state courts is to the same effect. While |

-two state courts have held that segregation stat- —

utes cast in general terms apply to interstate as

well as intrastate transportation,” the courts of Re: SUT

six states have limited these statutes. to transpor- a pars

tation of passengers wholly -within the: state.”

These decisions, it is true, do not represent an

independent ruling on statutory construction;

ordinarily the opinion proceeds under the com-

pulsion of an assumed constitutional prohibition.

10 Smith vy. State, 100 Tenn. 494, 46 S. W. 566, writ of error

dismissed on motion, 21 S. Ct. Rep. 917, 45 L. Ed. 1256;

Southern Ry. Co. v. Norton, 112 Miss. 302, 73 So. 1; + AleBans

&V.R. Co. v. Morris, 103 Miss. 511, 60 So. 11, writ of error

dismissed on motion of plaintiff in error, 234 U. S. 766.

1 Hart v. State, 100-Md. 595, 60 Atl. 457; CAiles v. Chesa- |

peake and Ohio Ry. Co., 125 Ky. 299, affirmed, 218 U. S. 71;

So. Covington &c. Ry. Co. v. Kentucky, 181 Ky. 449, af- ye

firmed, 252 U. S. 399; Abbott v. Hicks, 44 La. Ann. 770;

So. Koneas Ry. v. State, 99 S. W. 166 (Tex. Civ. App.) ;

Carrey. v. Spencer, 36 N. Y. Supp. 886; see, also, Washing-

ton, B. & A. Electric R. Co. v. Waller, 289 Fed. 598 (App.

D, ©.) ; McCabe v. Atchison, T. & S. F. Ry. Co., 186 Fed. ia

966 (C. C. A. 8th), affirmed, 235 U. S. 151; cf. Huff v. Nor-

cua mene Co., 88 S. E. 344. :

€

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Be:

ORE RRO EEOET HES CE HE UNE

CEE NARS EM AE Spe APICES SES SRN SR Rat ie aT

Nie RTO fe thom: oer | aeaammmmmamas

Compare State Tax Commission v. Van Cott, 306

_U. 8. 511. But; evén if the assumption were un-

' warranted, the consistent rulings may be supposed

to have represented also the expectations of the

Arkansas legislature. See Gwin, ete., Ine. v. Hen-

neford, 305 U. 8. 434, 441, NI

_ 8. Interstate Passage: Constitutionality.—It,

however, the Arkansas statute were construed as

applicable to interstate transportation, it might

well then be unconstitutional as a forbidden regu-

lation of interstate commerce.

. This Court h#e never halt = _ the

merce, a Louisiana statute (of 1869) which forbade

common carriers to discriminate on aeecount of

race or color. The confusion which would arise

from separate and varying state laws was con-

sidered conclusive that the subject was for na-

tional regulation alone. On the authority of the

De Cuir case, this Court in dicta has frequently

stated or assumed that a state segregation statute

could not constitutionally be applied to an inter-

state passage. Lowisville de, Railway Co. y. Mi is-

sissipph, 133 U. 8. 587, 590, 591; Plessy v. Fergu-

son, 163 U. 8. 587, 548; Chesapeake and Ohio Ry.

Co, v. Kentucky, 179 U. S. 388,°394; Chiles v, Ches-

apeake and Ohio Railway, 218 U. 8, 71, 75; MeCabe

v.A., 7. & 8. F. Ry. Co., 235 U. 8. 161, 160; South

Covington de. Ry. Co, v. Kentucky, 252 U. 8, 399, ,

403-404, see 407. The lower federal courts and

most of the state courts have similarly held that the

commerce clause. protects the interstate passenger ~ - |

from a state segregation statute. Two state courts, . =

have, however, ruled to the contrary.”

_ ‘The statute, it is true, may be argued to be an

exercise of the power of Arkansas to provide for

the comfort of those within its borders. If there

were an important occasion for the exercise of the -

so-called police power of Arkatisas, the recent de-

cisions of this Court demonstrate that the inter-

state carrie? would not be exempt. South Caro-

U. S. 177; Arkansas Gas Co. v. Department, 304

U. S. 61; Welch Co. v. New Hampshire, 306 U. 8,

79; Milk Board v. Eisenberg Co., 306 U. 8. 346;

Clason v. Indiana, 306 U. S. 439; Maurer v.

Hamilton, 309 U. S. 98. a ,

But the distribution of commerce powers be-

tweén state and nation eannot proceed upon mathe-

matical formulae. The task of this Court under eee

the Constitution is one of adjustment and recon- 7.

¢iliation. In performanee of this task it cannot, 7

of course, ignore othtr provisions of the Consti-

tution. The Thirteenth, Foutteenth, and Fif- — |

teenth Amendments set up a constitutiotial policy : e%

against racial discrimination. Those ameridments |

~~~ #8"The cages aré listed supra, p. 9, notes 10 and 11; the

decisions represent a blend of onstitutionsl decision and

statutory construction. .. =

este pie eine repenemonctae papeepentrs a Che ye ai 2

— 12

have been held not to contain any specific prohibi-

ope _ tion against racial segregation (supra, p. 7 ).

Seo os _ But, while they fall short of the specific prohibition,

eee sof os -they-remain as a factor which must be weighed in

a | the commerce clause adjustments. There is, in

cS other words, no occasion to permit state power to

Teach into the field of interstate commerce in order 7

ie i; to-accomplish an end at variance with the basic

3 policy of the Amendments. Compare Keifer &—

Keifer v. R. F. C., 306 U. S. 381, 391; United States

_V. Hutcheson, No. 48, this Term.

We conclude, therefore, that the Arkansas sepa-.

rate coach law is inapplicable to interstate pas-

sage, whether as a matter of statutory construction

or of constitutional limitation.

B. THE CARRIER’ 8 PRACTICE

In Chiles v. Chesapeake and Ohio Railway, 218

nt U. 8. 71, this Court ruled that a carrier, without

i regard to the inter- or intra-state' character of the

iW journey, had power by regulation to segregate

_ white and colored passengers. The opinion, analo-

A ae gizing the carrier’s power to that of a state, rested

| _ upon Plessy v. Ferguson, 163 U: 8. 537.

| ~ The Court, in the Chiles case did not consider

Section 3 (1) of the Interstate Commerce Act,

which forbids any carrier from subjecting ‘‘any

¢ | particular person * * * or any particular

| TeOSeDSHID 6: EMER." Yat Ao. a eine. se

coe ae

13 : [ }

unreasonable prejudice or disadvantage in any re-

spect whatsoever.””* It is by no means clear that .

the segregated colored passenger is not in some re-

spect subjected to an undue or unreasonable preju- | : Bae oes

dice or disadvantagesimply becauseheisnotdenied ~~

“the equal protection of the laws.”” The prejudice

is clear, and the only question is whether it is “un-

‘due” or “‘unreasonable.”” The answer to this ques-

tion would be different according as one looked to ee .

the established customs of the region or to the ! |

basic concepts of our government, as reflected in see

the Thirteenth, Fourteenth, and Fifteenth Amend-

ments. ‘ ; :

However, the question is one of statutory con- -

struction. Whatever might be the correct view if

the matter were open to original examination, the

long-continued practice of the Interstate Commerce

Commission has been to allow segregation by the | |

carriers so long as equal accommodations. were | :

8 The opinion also ignores the Civil Rights Act of 1875

(18 Stat. 835), Sections 1 and 2 of which forbid public con-

- veyances from refusing equal accommodations because of

color. The Act, however, was held unconstitutional in the

Cwwil Rights Cases, 109 U. S. 3, as applied within a state.

In Butts v. Merchants Transportation Co., 230 U. S. 126, the

~ Court heid that the Act was inseparable, and could not after

its invalidation in the Civil Rights Cases be applied to inter-

state carriers by water. Compare, however, Zl Paso &

_ Northeastern Railway Co. v. Gutierrez, 215 U. S. 87. We

assume, therefore, that appellant is not aided by the Civil.

Rights Act. :

tiee, adopted wosnsnnerssre with the Act, must

on familiar principles be supposed to have received -

the approval of Congress.” Norwegian Nitrogen

~ Go. v. United States,-288 U. S. 294, 815; Inland

_ Waterways Corp. v. Young, 309 U. 8. 517, 524-525;

United States v. ‘American Trucking ‘Assns., 310

U..&. 584, 549. We assume, therefore, that segre-

gation by carrier regulation does not violate the

Interstate Commeree Act.

However, it is not wholly clear in thie < case that. 3

there was a carrier regulation of dignity sufficient

to come within the rule of Chiles v. Chesapeake and

Ohio Railway, 218 U. §. 71. That case was read

in Washington, B. & A. Electric R. Co. v. Waller,

. 289 Bed. 598, 601-603 (App. D. C.), to require a

formal, published regulation, rather than. merely

& customary practice, to justify segregation of

colored passengers. Under this limitation of the -

* See Councill v. The Western & Atlantic R. R. Co., 1

Ry. Co., 112 L. C. C. 239. In the four cases first cited dis-

erimination in Scotemny edison was found, in the three last

cited it was not.

%* This inference receives some added support in view ~of

the bills to forbid segregation which have been introduced -

‘in Congress only to languish in Committee.— See, e. g.,

H. R. 8821, 75th Cong., 3d Sess.; H. R. 182, 76th Cong.,

iat H.R. 132, 77th Cong., Ist Sess. |

Bb .

rule, which is not entirely justified by the opinion

in the Chiles case, it is doubtful that the carrier’s

practice rose to the formality of a rule or regula-_

tion (see R. 24-25; 131, 140, 141, 147, 172, 178).

' We have, therefore, some doubt whether any

segregation would be warranted on the appellees’

Chicago-Hot Springs run. But in view of the con-

clusions reached in the next section, we think it

unnecessary to resolve this question.

C. EQUALITY OF ACCOMMODATIONS

-—1. Phe Rule.—In every decision of this Court

dealing with segregation by carriers it has been

assumed that, under the equal protection clause,

the separate accommodations must be of equal .

quality. And in McCabe v. A., T. & 8. F. Ry,

Co., 235 U. &. 151, 161, this Court in considered

dictum ruled that-“substantial equality of treat- a ‘| |

—_ment_of persons traveling under like conditions Pir

eamnot. be refused.” The state courts and the lower oC

federal courts, without exception, have held like- | :

wise.” The Interstate Commerce Commission has

invariably applied the same rule under Section 3

(1) of the Interstate Commerce Act (supra, p. 14),

19 See, e. g., Mobile & O. R. R. Co. v. Beonnh, 12 Ala. App.

875, 387; Coger v. Northwest. Union Packet Co., 87 Towa

145, 153, 156187; Ohio Valley Ry.’s Receiver v. Lander,

20 Ky. L. Rep. 913, 917; Ew parte Plessy, 45 La. Ann. 80,

$5, afirmed, 169 U. 8 997; HM v. State, 100 Ma. 898,

001; Murphy v sw stern & A. R. R., ® Fed. 687, 689 (C. C.

E.D. Tenn.) ; Houck y. Southern Pac. Ry. Co., 38 Fed, 226,

998 (0. C. W. D. T ex.) . Sh aes,

The. Arkansas statute itself requires that the ac-

commodations be equal (supra, p. 8).

2. The Equality of Accommodation.—The actual

incident which precipitated the appellant’s com-

plaint involved a discrimination because of his color

even as compared to second-class white travelers

(R. 22-23). But since July 1937 the carrier has

put in service a coach for colored passengers which

is of equal quality with that used by second-class

white passengers (R. 23). Since the complaint

asks only relief for the future, it may be assumed

that colored passengers who travel second-class

have accommodations equal to those open to white

passengers at the same fare.

However, the question does not end with travel —

_on second-class tickets. Colored passengers who

, travel first-class on the appellee carriers are not,

we believe, given accommodations which are sub-

stantially equal: to those open to white passengers.

When a drawing room is available, the carrier prac-

tice of allowing colored passengers to use one at,

Pullman seat rates avoids inequality as between’

_ the accommodations specifically assigned to the

passenger.” . But when none is available, as on the

trip which occasioned this litigation, the discrimi-

nation and inequality of accommodation become

"90 Dilsorimination vemaina; for an enforced privacy may

well be galling and unwelcome. But, in view of the deci-

sions sustaining segregation statutes as applied to interstate

pssst and segregation regulations of the

carriers (supragpp. 12-14), we assume this discrimination

ae ee

iW A

self-evident. It is no answer'to say that the colored

passengers, if sufficiently diligent-and forehanded,

can make their reservations so far in advance as

to be assured of first-class accommodations.” So

long as white passengers can secure first-class-res-

ervations on the day of travel and the colored pas-

sengers cannot, the latter are subjected to inequality

__ and discrimination because of their race.” BE

8, Phe Small Number, of Colored Passengers.—

The Commission accepted the testimony of the rail-

road conductor that only 10 or 12 times in the past

32 years on the Memphis-Hot Springs run had

colored passengersbeen forced to leave the Pull-

man for want of separate accommodations; it ob-

served, however, that “‘what demand there may

have been at ticket offices does not appear’’ (R. 24).

The Commission recognized that a discrimination

occurred on the specific trip which underlay this

proceeding, but ruled that. it was not unjust. or

undue because of the “comparatively little colored

traffic’? (R. 26-27, 29-30). .

- This ruling'we believe to be erroneous. The Con-

stitution * and the Interstate Commerce Act alike

%* Commissioner “Miller suggested this expedient in his

partial dissent (R. 33).

Indeed, even with respect to the colored passenger who

secures a drawing room, the Commission found that “there

are no dining-car nor observation-parlor car accommoda-

tions for the latter and they can not lawfully range through

the train” (R. 24).

* The equal protection clause of the Fourteenth Amend-

ment would reach to the Arkansas statute; the due-process

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make the guaranty of equal treatment one which is

personal to each passenger. The majority of the

Commission considered that it was dealing with a

question of ‘‘colored traffie’’ (R. 29). It was, how-

ever, faced instead with an issue of the basic liberties

and privileges of citizens. These are secured to each

' person, not only to those members of groups suff-

ciently numerous to make the liberty or privilege ex-

pedient, or attainable without undue expense or

- inconvenience,

This Court, in ouitiadin dictum, so held in McCabe

v.A.,T.¢8.F. Ry. Co., 235 U.S. 151, 161-162. In

Missouri ex rel. Gaines v. Canada, 305 U. 8. 337, 351,

the Court made a corresponding decision with re-

_ spect to staté educational facilities, It is true that

both casés dealt with the effect of the equal Protec-

tion clause upon state statutes, while here the case

deals with a state statute combined with a carrier

regulation challenged under the Interstate Com-

‘merce Act. But, even assuming the state statute

can be ignored and the issue treated as-one of a car-

rier regulation alone, we do not believe that a prac-

tice whieh, if coramanded by.a state, would be a de-

nial of equal protection of the laws, can escape con-

demnation under Section 3 (1) as an “‘undue or un-

reasonable prejudice or disadvantage in any respect

whatsoever.” This language, the Court has fre-

-/quently observe “is certainly sweeping enough fo

clause of the Fifth Amendment to the action of the ‘a

sion (cf. Heiner v. ti 285 Ps S. 312, 326, edna

embrace all the discriminations of the poet dee

~‘geribed which it. was within the power of Congress

to condemn.’’ The Shreveport Case, 234 U. 8. 342,

356; Louisville & N. R. Co, v. United States, 282

U.S. 740, 749-750; Warehouse Co. v. United States,

283 U. 8. 501, 512-513.

D. THE EFFECT OF THE COMMISSION’S DETERMINATION

The majority of the Commission, in the last anal-

ysis, seems to have directed dismissal of the appel- —

lant s complaint because of its finding (R. 29)—

that the present:colored-passenger coach and ~

the Pullman drawing rooms meet the. re-

quirements of the act; and that as there is

comparatively little eolored traffic and no

‘indication that there is likely to be such de-

mand for dining-car and observation-parlor

car accommodations by. colored passengers

as to warrant the running of any extra cars

or the-construction of partitions, * * *.

Commissioner Eastman, dissenting, recognized the

‘practical difficulties which would follow upon re-

quiring that the discrimination be-eliminated, and

suggested possible solutions (R. 30-31).

If the issue before this Court called into question

the Commission’s judgment on these practical or —

economic obstacles to ‘a removal of the inequality,

its decision would not be open to review except

upon a charge that it was arbitrary or without sup-

port in the evidence. Nashville, C. & St. L. Ry. v. .

Browning, 310 U. 8. 362, 366; Rochester Telephone

Gorp. v. United States, 307 U. 8. 125, 146; Missis-

sippi Valley Barge Line Co. v. Umited States, 292 —

U. 8. 282, 286-287. This is the case in the ordinary

discrimination complaint. Pennsylvania Co, v.

United States, 236 U.S. 351, 361.

But we do not so conceive the issue here. “We

; think there is no room for administrative or expert

judgment as to the practical difficulties in remov- —

ing the discrimination. However great these may

3 | be, the common carrier which undertakes to segre-

| | gate its colored passengers must pay the cost.

e : McCabe v. A., T. & 8. F. Ry. Co., 235 U. 8. 151;

Missouri ex rel. Gaines v. Canada, 305 U. 8. 337.

- CONCLUSION

POE Rea

We therefore conclude that the Commission er-

roneously supposed that the Arkansas Separate

Coach Law applied to an interstate passenger, and

erroneously determined that the small number of

colored passengers asking for first-class accommo-

- dations justified an occasional discrimination

against them because of their race. If either of

a. these conclusions is correct, the Commission should

be directed to reinstate the appellant’s complaint

and to proceed in the light of the opinion of this

SS, , | y

Francis Bmwpie,

Solicitor General.

Wagner W. GARDNER, ~

_ Frank CoLeMAn, |

> Special Assistants to the, Attorney General,

U. S. GOVERNMENT PRIBTING OFFICE: 1948

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.