# Memorandum for the US — Mitchell v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0404%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Memorandum for the US - **Published:** January 1, 1941 - **Citation:** 313 U.S. 80 ## Text BLANK PAGE “v = 3 \ \ , , an cael ge erate ta X 5 . _ eer tana eT aR Dine Octet Dt Oe ase carer ER wy sara ae AT i ested tics vist halk GOR IPED anna - J 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) 297492411 tiptoe Brecon eran stnrteteaceemn ster tater nck 6 PNR eee Hits i a ta peosmegsce Fe SAE RA PR ee Ee oe SOARS ee eye Hes URS apie Sethe Ye SOE ay hsp Mon Sas Te tig agente oat or ies 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 3 ¢ a= ¥ S ce 7 ay 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 \ os 3 { : : : } = a 3 ~~? 4 BLANK PAGE e patra RTP NaCI Ri ENR ns apa tioned 9 Sh eo BLEEP on a SST peer mate nerensnocmeay ceiiiaiiaieieiameaaaaaat ° “ ry ) / 7 ‘ | Saheim et he Wied Ste | 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 " » 4 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. i 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- e a —_ 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). J YER FRO SONORA A i, ; 4 . 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). 9 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. : : : : € ‘@ Be: a 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, , tl 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. .. = HT | este pie eine repenemonctae papeepentrs a Che ye ai 2 é a — 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 o 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 1. ©. C, 880; Heard v. The Georgia R. R. Co, 11. ©. ©, 428; Heard v. The Georgia Railroad Co., 3 I. C. ©. 111; Edwards v. Nash., Chat. & St. Lowis Ry. Co.,12 1. ©. C. 247; Cozart v. outhern Ry. Co,, 16 I. C. ©, 226; Gaines ¥. Sea- board A Line Ry. 161. ©. C. 471; Croeby tv. St. L.-S.F. 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, \ j / 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 . oe 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 ° SPW 2 Reon TTA Cease -« SNORE OND RN NST NE eMC peer selva re lett tecnciBintee tion pReen Nett tena .&B 18 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 Ss cents MO eitig the Sm ia e Q «J a a ty ny ape do --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0404%3A06. Public record. Not legal advice.