Brief of Appellee — Morgan v. Virginia

Supreme Court brief1946

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BRIEF OF APPELLEE |

OCTOBER TERM 1945

No. 704

IRENE MORGAN

; Appellant

vs.

COMMONWEALTH OF VIRGINIA

APPEAL FROM THE SUPREME COURT OF

: APPEALS OF VIRGINIA |

Apram P. Staptes,

> Attorney General of Virginia.

VOBOGHC . f nA .

SUBJECT INDEX

Statement Biber as taspe sees we

The Constitutional Question Presented...

Summary of. Argument...........

I. The Fact That Appellant Was An Interstiite

Passenger Conterred On Tler No Constitu

tional Right to Occupy Any Space On The

Bus Other Than That) Assigned Ly the

Carrier to Members ot Her Race...

I]. Even If It Should Be Assumed That the Pro-

visions of the Statute Requiring the Car-

rier to Adopt Rules and Regulations For

* the Sepafaté Seating of White and Colored

Passengers Cannot Be Constitutionally Ap:

plied to the Operation of An Interstate Bus

Or to the Transportation of Interstate Pas-

sengers, Yet If the Carrier Actually* Adopts ©

such) Regulations They Nevertheless Are

Valid and Binding Upon All. Passengers to /

~ Which the Carrier Applies Them: and. Vio-

lation of Them May, Be Punished By .the

| Sc sipncakiitialshohasins

“II. Phe Challenged Statut@ is (a Reasonable,

Proper, ‘and Valid Exercise of the Police

Power of the State to Regulite the Use of

ee PND cate |

Nature of the Regulation Here Involved.........

IV. The Appellant. is Without Standing to: Chal-

lenge the Constitutionality of the Act on the,

| Ground that It Places-an Undue Burden on

- Interstate Commerce ...)............... ibaa Shaanndse Bes

Pace

tM: Reply to Appellant's Brief pe eens siren 22

Appellant's Argument «0.0.0.0... fT ane sareneme 23

Conclusion ee a aa eis 30

| ° TABLE OF CITATIONS

ee | a CASES |

Alabama, Etc. R. R. Co. v. Morris, 103 Miss. 511 18

Bourjois v. Chapman, 301 U. S. 183, 187, a 20

Chiles v. C. & O. Railway . ore t). Sest.ns. ES

_ Gong Lum v. Rice, 275 U. Sr eeeae ee ne eae

Hall v. DeCuir, 95 U. S..485,.24 L. Ed. 548.000.0002.

SUBJECT INDEX—Continued

7,.13, 18, 22, 23, 2

‘

“Hart v. State, 100 Md. 595, 60 Alt. 457, 458....26, 27

" Hendrick y. Maryland, 235 U. S. 610, 621...0....... 21

_ Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 576... 21

Liberty Warehouse Co. v. Burléy T. G. C 0-Op. M.

7. we Be. a: Be Reece ners oe

Louisville Ete. Railway Co. v. Miss., 133 U.S. ~

Ey Cree en ans Reda Suess eee

Plessy v. Fergusson, 163 U.S. 537-2000. 4, 17

Smith v. State, 100 Tenn. 494.......c0cccccccsscscsesoeseeee 18

* South Carolina State Highway Dept. v. Barnwell :

Bros., 303. U. S. 177, 191-192.......-scccssescssen ...20, 30

| South regina & C. Street R. Co. v. —— |

Be A acini ecncescneneeuepmaintbioncntieis ae

TABLE OF CLPATIC INS—- Continued

. 3 Page

CASES ~Continued

South 7. & Co Street Ro Co. vo Kentucky,

252 U. 399, 403-404, 408. 4.101

Southern Pacitie Co. ve Arizona, 202U. «ee |

891. Ed. Adv. Op. 1409, 181-1482 eee

Southern Railway Co. v. King, 217 w. S. 524, SH 21

Standard Stock Food. Co. v. Wright; Zao U. Ss:

OO ee ee ee ee 2t

CONSTITUTION AND STATUTES

Acts of Assembly, 1930, Cmapter 626.0086... i

Acts of Assembly, 1930, Chapter 128, AY SRS RE

Acts of Assembly, 1939, Chapter 128, See. 4. a

Acts of Assembly, 1930, Chapter 128, Scéc.- - iS.

Code of Virginia ( Michie. 1942). Sections 40077.

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SUPREME COURT OF THE UNITED STATES

; OCTOBER TERM 1945

“4

™ No. 704

IRENE MORGAN »

Appellant —

US.

COMMONWEALTH OF VIRGINIA

APPEAL FROM THE SUPREME COURT OF

APPEALS OF VIRGINIA

BRIEF OF APPELLEE

STATEMENT

Or July 16, 1944, the Richmond Greyhound Lines,

Inc., a motor vehicle.common carrier of passengers

licensed by the State to operate over*certain Virginia

highways extending from Norfolk to the District of

‘=

ot we 12]

Columbia, was engaged in operating: one’ of. its busses

over said route. Both interstate and intrastate pa®

~ sengers were being carried. — |

The appellant, a member of the Negro race, was a

passenger upon -said bus, and there were also white

passengers thereon, Her journey was from, Gloucester

County, Virginia, to baltimore, “Mafyland, which was /

- also the destination of the bus.” Sections one to four,

inclusive, of Chapter 128* of the Virginia Acts of

Assembly of 1930 impose upon carriers so licensed,

and upon their operating personnel, the duty to assign

to white and colored passengers separate seats on their

motor busses, but forbids any difference or discrimina-

tion in the quality of the accommodations. . The statute

itself does not undertake specifically to regulate the

subject, but it requires the carrier to do so. Section

five of the Act makes it a misdemeanor for any pas-

senger to refuse to occupy: the seats so assigned or

to fail or refuse ‘to change such seat if directed by the

operator of the vehicle in accordance with a lawiul |

custom or regulation in, force by the carrier. The

operator is first required to advise the passenger of

the fact of such regulation and request him or her to

_conform thereto. The carrier’s rules and ‘regulations

required the seating Of white passengers from the front

of the bus backward and colored from the rear for-

ward (R. 31). Appellant, at the time in question,

Was “occupy mg a space two seats forward from. the

*Set out in full in’ appendix to appelkant’s brief as Michie Code.

sections 40977 to 4097dd.

e ey |

_s . ‘ *

: long rear seat, Which was. partly occupied by colored

passengers. There were a number of white passengers

standing but’ no colored.’ The driver directed appellant

to change to one of thé vacant rear seats, which were

forbidden to white passengers. The purpose of this

Wwas to make room for a standing white passenger. The

driver at the time explained to her the regulations

of the carrier w hich required her to change. her seat

in the manner .requested (R. 31). Under its printed .

rule T-22 the carrier reserved full control of the seating

of passengers and of changing such seating at any

ta during the trip (Exhibit A, p. 32). Appellant

Tefused to Jeave the sea she was occupying (R. 32).

Thereupon the driver, Kelly, secured a warrant ° for

her arrest tipon a charge of violating section five Of

said Act. (Copy of Warrant, R. 24-25). The sheriff

in executing the warrant asked her to change her seat.

but ‘she again -refused. Thereupon the officer placed

her under arrest (R. 32, 37, 38). Appellant was tried

first hefore the trial justice, found guilty. and a fine

of ten dollars imposed on her. Upon her appeal to the

circuit court, after a trial de novo, she wads convicted

of refusing to comply with the driver's request that

she change her seat as required by said ‘section five

of the 1930 Act and the rule of the carritr. A like

fine of ten dollars was then imposed (R. 27-28). The

Supreme Court of Appeals of Virginia affirmed the con-.

Viction and from its judgment this appeal was allowed.

The appeal challenges the validity of the State Act

making it a misdemeanor for an mterstate pAssenger

‘traveling over Virginia highways to wilfully violate

the carrier's law ‘ful ‘regulation providing for the as-

signthent of separate séats for members of the whité:

and colored races, or to refuse to change his or her

seat in accordance with such a ‘regulation when re-

quested by the operator of the bus. Appellant makes |

no claim of discrimination in the quality of the accom-

modations* provided by the carrier for the colored

passengers. The statute (sectiqn two) expressly for-

bids’ “ahy difference or discrimination in the quality

or convenience of ihe accommodations provided for

‘the two races”. |

THE CONSTITUTION AL QUESTION PRESENTED

As appears’ fromi the appellant’s petition for a ‘writ

of error in the Supreme Court of: Appeals of Virginia, °

the only ground upon which it was claimed that the”.

statute is unconstitutional was that the provisions with

respect to the seating of passengers on the bus cannot-

be applied to an interstate passenger without running

afoul of the commerce clause of, the Federal Consti-

tution, Article 1, Section 8 (-R. 2-3, 7, 18). This was

the only constitutionalquestion considered in the opinion

of ,the court below (¢R) 58,). Appellant’ has not chal-

lenged the well estab|@&hed principle that statutory seg-

regation of the white"and colored races does not violate

the Federal Constitution. See / Yessy Vv. Ferguson, 163

u. 537; Gong Lum v. Riée, 275 U: S. 78.

This general question of the uffect of the commerce .

clause upon appellant’s rights, however, would seem to

involve’ several subordinate ones; first. whether the

commerce clause confers upon appellant, as an_ inter-

state passenger, ariv different. status than that occu-

.~)

an ae ae

pied by an intrastate passenger on a bus; second,

whether the provisions imposing upon the carrier op-

erating over Virginia highways the duties with respect

to separate seating arrangements constitute a pro-

“hibited burden on its ‘interstate ‘commerce operations,

and, third, whether appellant has any standing to com-

plain of the carrier's alleged burden in the absence of

complaint by the carrier. :

SUMMARY OF ARGUMENT

I. The fact that appellant’ was an interstate °

passenger. conferred on her no constitutional

right to occupy eny space on the bus other than:

that assigned by* the carrier to members of her

race, -

II. Even if it should’ be assumed that the pro-

visions of the ‘statute requiring the carrier to

adopt rules and regulations for the separate seat-

ing of white and coloreds passengers cannot be

constitutionally ‘applied to the operator of an in-

terstate bus or to the transportation of interstate

passengers, yet if the carrier’ ctually adopts such

‘, regulations. they nevertheless Jie valid and bind-

ing upon all passengers to which the éarrier ap-

‘plies them, and violation of them may be pitn-

ished by the State. | ‘ant

‘TIT. The challanged statute is a reasonable,

. proper, and valid exercise of. the police power of

the State to regulate the use of its highways.

; [6]

IV. The appellant is without standing: to chal

lenge the constitutionality of. the Act on the

ground that it places an undue: burden on inter-

.. State commerce.

"\V. Reply to appellant's brief.

Conferred On Her No Constitutional’ Right to Occupy Any

Space On the Bus Other Than That Assigned By the Car-

rier to Members of Her Race. | ,

There have been a number of decisions of various

courts, some of which intimate and others of which

hold that an interstate railroad or steamboat passenger

as stich, is possessed of some nebulous’ right) which

exempts him from State police regulations. Many ot

The Fact That Appellant Was An Interstate Passenger

them seem grounded on the now discarded principle that °

the commerce clause prohibited the exercise of any State

police, power which in any way regulated anything «or

person connected with interstate commerce by rai} or

water, whether it operated as a substantial burden there-

on or not. Some of the decisions turned on the fact that

the accommodations furnished the interstate passenger

of one race were of inferior quality to those provided

for the other, or that the accommodations actually fir-

nished. Violated the passenger's contract with the car

rier. .In cases of this kind the conclusion, that. the

passenger's constitutional or contractual rights) were

‘violated was unquestionably correct. But in the ab.

sence of discrimination in the quality of the accomnr-

Sosy) a

-dations there can be no sound reason why an interstate

~ traveler in a bus also transporting intrastate passengers <>

should have any superior rights over the latter. Any

Virginia statute which wOuld have the effect’ of ac-

cording to an interstate passenger in such a vehicle

operated on Virginia highways the right to occupy a

seat beside a member of either race, while denying

this, right to an intrastate passenger, would seem to

violate the equal protection clause of the ‘Fourteenth .

"Amendment. The mere fact that one passenger wilh «

continue his travels Aeyond the State line cannot: fur-

nish a basis for a different classification which would

“justify the discrimination against another who is an.

intrastate passenger. That such a distinction would

so result was pointed out by Mr. Justice Day in his

dissenting opinion in South Covinyton & Cincinnati

Street R. Co. v. Kentucky, 252 U. S., at page 408, .

where he said: ' |

“The provision for a separate compartment

for the’ use of only intrastate colored passengers

would lead. to confusion and = discrimination.”’

(Italics supplied ).

The decisions of this Court clearly deny any such’ -

‘uperior right to the interstate passenger over the’

inttastate one, or vice versa. in. so far as regulation

by the carrier is concerned. The first case involving

the rights of a passenger in this respect is Fall. v.

DeCuir, 98 UL S. 485. A Louisiana statute provided

that passengers on all public conveyances shold be

accorded free access to all parts thereof regardless of

# face or color, The plaintiff, a colored person, became’

{8}

an intrastate passenger on a steamboat licensed under

Federal statutes for the transportation of passengers

othe Mississippi River between various points in

numerous States. She was refused admission to a

cabin set apart for white passengers and obtained

the State court a judgment for damages against the

owner of. the vessel. This court, after pointing out

the confusion and inconvenience to the carrier which

would result from compliance with. the statute, held that

it imposed a substantial. direct burden on the interstate

commerce which the vessel was licensed to engage

in. and was engaged in, and was therefore invalid.

Since Congress had not acted’ in this field, it was said.

the owner of the vessel was free.to adopt such reason-

able rules and regulations on the subject as he deemed

to the best interest of all concerned; The decision not —

only denied to any passenger the right to occupy a space

set apart by the carrier for those of another race. but

also, in effect, denied the power of the State by _

lation to confer any such right with respect to'an inter:

state vessel under circumstances which would unduly

burden the carrier. The sole test applied was the right

of the carrier to regulate the subject, free from: bur-

densome State regulations, and. this right was predi-

cated upon the fact that the carrier. was. operating ‘

the vessel in interstate commerce on the navigable

waters of, and under license from, the Untted States.

It is significant that the opinion of the Courf was care-

ful to point out the difference in. the effect of the.com

“merece clause on a State's, regulation of commerce con-

ducted over its turnpike and ferries. The distinction .

was thus stated: | |

(9)

_“* * * The same is true of turnpikes and fer-

ries. By such statutes the States regulate, as a

matter of domestic concern, the instruments of

commnrerce situated wholly within their own juris- .

dictions, and over which they have exclusive

governmental. control except when’ employed in

foreign or interstate commerce. As they can

only be used in the State, their regulation for.

all purposes may properly be assumed by the ”

State, until Congress acts in reference to their .

foreign or interstate relations: When Congress

does act, the state laws are superseded only to

the extent that. they affect commerce outside the -

State as it comes within the State. * * *” (24

I.. Ed. 548. Italics supplied ).

Thus the reverse of the rule applied to steamboats

on navigable waters was held applicable to the regula-

tion of commerce on the highways. With respect to the

latter, failure of action on the subject by Congress .

was said to have the effect, not of leaving such com-

merce free from reyulation, but of leaving the States

“free to regulate same. The. instant case, of course,

involves the regulation of the use of the Virginia

highways by a common carrier of passengers.

The next case dealing with this question is Louis-

ville, Ete., Railway Company v. Mississippi, 133 U. S.

587.° The State statute required the carrier to provide °

separate coaches or compartments. for white and col-

ored passengers on all trains operated. within the State. .

The railroad company was’ convicted of violation of

[ 10]

“the separate coach requirement. This, Court held that

only intrastate commerce was the subject of regula-

tion, although it affected trains coming into and mov-

ing beyond the State. It was said that neither the =

statutory provisions, which required the assigning of

passengers to appropriate coaches; nor the rights .or

privileges of interstate passengers were involved. The

fact that the Act required the carrier to attach an

additional coach at the State ling on incoming trains

was held not to be an undue burden on interstate com-

merce.

Twenty ygars. later this Court decided the case of

Chiles v. C. & O. Railway Company, 218 U.S. 71. It

involved a state of facts strikingly similar to the case

at bar. A colored passenger had purchased a ticket

entitling him to first class passage from Washington.

D. C. to Lexington, Kentucky. At Ashland, Ken-

tucky, he had to change trains and entered a car set

apart exclusively for white passengers. Under protest

he was moved to a car provided for colored passengers

only. He brought suit against the carrier for dam-

lages upon the ground that his rights as an interstate

passenger were. violated by such removal. This Court

pointed out that the Kentucky court had held that .

the accommodations being equal, the interstate pas-

sengers had no right to ride in any particular cc ach,

Lyt that, independent of State statute, the carrier had

the right “to establish such rules and regulations as

will require white and colored passengers, although

they may be interstate, to, occupy separate copapart-

“ments upon the train”. (Italics supplied). The judg-

tly

ment of the Court of Appeals of: Kentucky that no

rights of the interstate passenger were vivlated was

affirmed by this Court. + a |

The application of the rule, which has now become

firmly established in this Court, that the validity of a

State regulation of or affecting interstate commerce .

‘is to be tested by the extent of the burden imposed

on the carrier in conducting its operations, was ex-

emplified in, the case of South Covington & C. Street

R. Co. v. Covington, 235 VU. S. 537, where some of the

regulations challenged were held unduly burdensome

'. upon the interstate carrier and therefore invalid, while

others were sustained.. A few years later, in applying

the test to other statutory regulations imposed upon

the same interstate carrier, a Kentucky statute requir-

ing separate coaches or compartments for white and

cdlored passengers was sustained as ‘to the carrier’s

operations.in Kentucky, although eighty per cent of the

passengers therein transported were -interstate. The

court said, “the regulation of the Act affects, inter-

state business incidentally and does not subject it to

unreasonable demands.” South Covington & C. Street

R. Co. v. Kentucky, 252 U. S. 399, 403-4. In neither

case did the opinion contain any intimation- that the

Statutes might bé invalid because of infringement of

the rights of interstate passengers. »

It is respectfully submitted jn conclusion. on this

_ point that the decisions of this Court establish beyond

‘question that an interstate’ passenger fas no constitu-

tional right -to occupy a seat in the conveyance of -a

carrier contrary to its rules and regulations. Whether ,

P | tae

any significance is to be attributed to the fact that the

carrier’s regulations on the subject were adopted pur-

suant to a State statute will next be considered.

Il.

Even If It Should Be Assymed That the Provisions of

the Statute Requiring the Carrier to Adopt Rules and

Regulations For the Separate Seating Of White and Col-

ored Passengers Cannot Be Constitutionally Applied to the ~~

Operator of An Interstate Bus Or to-the Transportation of

Interstate Passengers, Yet If the Carrier Actually’ Adopts

Such Regulations They Nevertheless Are. Valid and Binding

Upon All Passengers to Which the Carrier Applies Them, |

and Violation of Them May Be Punished By the State.

» . . . .

The decisions just reviewed establish beyond ques-

‘tion the right of the carrier to adopt the regulations”

here under consideration, in the absence of State regu- |

latory authority over the subject. They are therefore

valid unless the statute requiring theif adoption has

the effect of invalidating them. : The carrier not only

adopted the regulations but its agent, the operator.

enforced them against appellant and had a warrant

issued for her. arrest for theif violation, | er the

statute imposed no duty so to do. It may be argued

that the carrier acted under .the duress or compulsion

of the statute, in ignorance of its rights, but there.

is no evidence upon which ‘to base” such a contention.

The carrier: has never challenged the statute nor has

it appeared as amicus curtac in this case, either here

or in the court below, to register any dissatisfaction or

ee eee 113)

protest. In none of the ‘numerous cases in which

railroad. carriers have provided separate cars or coaches

for white and colored passengers does it appear that

’ said carriers failed to extend their regulations to cover

“interstate passengers. In Chiles v. C: & O. Ry. Co.,

supra, the carrier so extended its rules though the Ken-

tucky segregation statute requiring same was held in- .

applicable to interstate trains by the Supreme Court

of that State. This circumstance, however, was held

by this. Court not to affect the validity of the carrier's.

rule as applied to the interstate passenger.

To hold, because a State statute requiring the car-

rier to separate its white and colored ‘passengers ‘can-

not be applied to interstate passengers, that same would

nevertheless have the effect of depriving the ‘carrier

of the right to adopt and enforce its own rules which

would accomplish that purpose, would be to give greater -

effect to such a positive legislative requirement | than

was given to the prohibitory one in Hall vy. DeCuir.

supra, where this Court held invalid a State statute

which -prohibited- such segregation. The effect of @ch

a tule as this would be to enable a State to prohibit

segregation of interstate passengers by the carrier by

merely enacting a statute requiring -it.

Section 5 of the Act: under~which the appellant

Was convicted, provides ° that any passenger refusing

to obey the directions Of the driver or operator of

the bus with respect to changing his or her seai in -

conformity with a lawful: rule, regulation, or custom

of the carrier, after same has been explained to the

passenger, shall be ‘guilty of a misdemeanor. This

ore

¢ ‘ . ’

statute is a réasGhable exercise of the State’s police,

power, to: which no valid coristitutional objec tion can

be offered so long as it is held that the. carrier’s regu-

lation is itself a lawful'one. If the regulation of the

carrier is not lawful, then the statute, by its terms} ts

not applicable.

‘TIL

The Challenged Statute is a Reasonable, Proper, and

‘Valid Exercise of the Police Power of the State to ——

the Usé of Its. Highw ys. aca

The statute 1s ; designed to promote the safety of the

- highways, as well as: the peace and comfort. of the

passerigers. The requirement that the carrier assign

separate seats to the members of the two races is in-

tended to avoid racial ‘unpleasantnesses, frictions, dis-

_orders, of riots, 6n the busses while in operation. Such

uccurrences endanger the safety, not only of the occu-

‘pants of ‘the busses, but of other velticles using the

same highways. Thesbusses are huge vehicles, oper rate

at high speed, and safety requires. the constant attention

of the driver. to the roadway ahead. A> flare- -up among

the passengers which would distract his attention for

only a briéf moment might result in a collision with

other. vehicles or in running the- bus into a. ditch anil

overturning it. Although the application of the re

quirement tv a bus engaged in an interstate journey,

or to an interstate passenger. thereon, would constitute

a regulation. Slightly affecting commeree, same lies

within the well recognized: field of the. State's police.

o/* i : e ae ¢ .

L135)

'- power to regulate ,the use of its highways, and also

other local matters incident to such commerce, in the

absence of congressional regulation thereof. -

The right of the State to require segregation of

white and colored passengers by motor vehicle carriers

has ‘apparently never been challenged before; at least

no such case ‘has been found. This Court, has in recent +

“years eniphasized the very much broadéy and more

. far-reaching powers which ‘the State may. properly

exercise. over its Own highway’ than over the operation

of interstate railroads. The cases. dealing with: State

regulation of -local matters affecting commerce are

riumerous. They have been exhaustively reviewed in’

the opinion of Mr. Chief Justice Stone in ‘the cases

of Southern Pacific Co. v. Arizona, ........ ae ae

(decided June 18, 1945), 89 L. Ed. Adv. Op., p. 1469."

The opinion is so recent and*contains: such a clear

and concise epitome of the previous decisions relating

to the States’ regulatory powers over their highways,

and the general principles flowing ‘from these decisions,

that it seems appropriate to quote same in full at this

point : : FF)

a wr Carolina State Highway Dept. v. Barn-

well Bros., 303 US 177, supra, was concerned

with the power of the state to regulate the weight

and width of motor cars passing interstate over

“the highways, a legislative field over % hich the

state has a far more extensive control than over

ge railroads. In that case, and in Maurer

. Hamilton, 309,/US 598, supra, we were at

. pains to point out that there are few subjects

[16]

e* a. ° aos

of state regulation affecting interstate commerce —,

which are ‘so peculiarly of local concern as 1s x

the use of the state’s highways. Unlike the _rail-

roads local highways are built, owned and main-

tained by the state or its municipal subdivisions.

_The state is responsible for their safe and* eco-—

nomical administration. Regulations . affecting

the safety of their use must be applied alike to

intrastate and interstate traffic., The fact that

they affect alike shippers in interstate ‘and. in-

' trastate commerce in great numbers, within as —

‘well'as without the state, is a safeguard against

regulatory abuses. Their regulation is ‘akin to

quarantine measures, game: laws, and* like local

regulations of rivers, harbors,gpiers, and docks,

. with respect to which the state has exceptional

scope for the exercise of its regulatory power,

and which, Congress not acting, have been sus-

tained even though they materially ‘interfere with

interstate commerce (303 US. at 187, 188, and

cases cited). (89 L. Ed. Adv. “Op. 1469, 1481-

1482. Italics supplied )..

As pointed out by Justice Gregory in the court below.

(R. 64,65), Congress has repeatedly ‘resisted ‘efforts

to induce it to enact legislation to prohibit the’ segre-

gation of interstate passengers, and his opinion con-

cludes that “This continued refusal of the Congress

to legislate in-the segregation field demonstrates its

desire that the matter be left where it is now: that ts.

that the several States, under their’ police power, he

: permitted to continue to legislate ‘in this field, subject

L 17 J

“e

only to the limitation that ney shall not. directly or

unreasonably burden interstate comnterce.” Certainly

with respect to the regulation of the use of State high-

ways there can be no doubt as to the correctness of this

conclusion. it is-clear also that the regulation of the

. sttbject by the carrier as authorized by the. Virginia

statute is not such a. anne burden.

, NATURE OF THE. REGULATION HERE INVOLVED

The ‘statute requires only that the carrier assign

separate seats to the members of the white and colored

races, and change such assignments from time to time

to-conform to variations in the number of passengers

of each race. It does not undertake to designate any *

particular part of the bus for use by either race, but

does provide that the accommodations sHall be° equal

in quality. It also imposes upon the driver or operator

of the bus the duty to require eaeh passenger to occupy

a seat in the spacé assigned to members of his or her

Face, and vests him with powers of a conservator of

the’ peace to enforce order thereon.

As to the burden imposed on the carrier in conduct-

ing its operations, it is insignificant compared to segre-

gation requirements which have been imposed on rail-

tls and have been sustained by this Court. Thus

in Louisville, Ete., Railway Co. v. Mississippi, supra,

it was necessary to attach an additional coach to an

interstate train on entering the State, but this was held

not prohibited -by the commerce clause. The Virginia

statute does not necessitate any different or additional

equipment of any kind: | Separate compartments . are

not even required.

118],

In Plessy v. Ferguson, supra, “the preservation of

public peace and good order” was‘ recognized as the™

legitimate and proper objective of the statute (163 U. sS.

550). Likewise a regulation for seating passengers “

as to preserve order and decorum, and to prevent con- .

tacts and collisions arising from natural or well known

customary repugnancies which are likely to breed dig-

turbances, where white and_ colored persons are hud-

/dled together without their consent” was said by Mr.

Justice Clifford in Hall v. DeCuir, supra, to be a reason-

able one. (24 L. Ed. 553.)

In Alabama, Etc., R. R. Co. v. Morris. 103. Miss. 511,

the court, in sustaining a segregation statute. said:

soa

“A riot upon an interstate train growing out

of the refusal of common carriers to recognize

a situation known to every Mississippian—black

and white—would. endanger the lives* and’ dis-

turb the peace of all persons passengers on the

train, intrastate and jnterstate; and we there-

fore decline to limit the application of the statute

to-intrastate commerce. Possessing the knowl-

. edge of local conditions common to all- residents

of our section, we confess some surprise that

there was no’ sequal to the event described by’

the record.” © |

—

__The following is a quotation from a similar case.

Smith v. State, 100 Tenr. 494:

“* * * If it be true, as is sometimes. said,

that race prejudices exist here that make it un-

—

Li) °

comfortable or unsafe or promotiye of disorder

to mix the races in public conveyances, then both

“safety and good order are promoted as well as

comfort, in their separation. The State i« to

judge of the necessity for such a regulation.

* * * ”

The opinion of Mr. Justice Gregory in this case

reflects the same line of thought. Hé said: “If the

statute were held to be. valid as to intrastate passengers

and. invalid as tO interstate passengers, a condition

would exist that would adversely disturb fhe peace

and welfare.” (R. 66,)

The prevention of racial friction, disorders and éon-

flicts has,always been the avowed’ and accepted basis ,

for the enactmént of segregation laws. Disorders: or

disturbances suddenly breaking out on a rapidly moving

bus are fraught with far more dangerous consequences

‘than ‘on a railroad train. The faét that section 4 of

the Act vests the driver or person in charge of the’ bus

. With the powers of a special policeman and: conservator

of the peace in the enforcement of order emphasizes

the importance attributed by the legislature to the main-

tenance of peaceful conditions on the bus. Usually the |

- driver is the only agent or employee of the carrier on.

the vehicle... It is imperative that ‘his attention to his

duties be not suddenly: interrupted by disorders break-

ing out among the passengers as has been heretofore

pointed out. Such an occurrence would not only: en-

danger the safety of the bus’ and its occupants, but

would imperil the safety of the highways. Other

vehicles using them. would be ‘subjected to the threat

[20]

of collission with the bus-if the driver’s vigilance js

diverted: to the suppression of disorders. The burden

rested upon appellant to show that. the’ statute imposed

an-undue burden on interstate commerce. Bourjois v._

Chapman, 301 U. S. 183, 187, 188. Yet no effort was

made ‘by her in i. circuit court to. introduce evidence

to show that the statute is unreasonable or; not sup-

ported ‘by the facts or the conditions prevailing in

‘Virginia: As said-in South Carolina State Highway

Department v. Barnwell Bros., 303 U.S. 177, 191-192:

“* * * Being a legislative judgment if is

presumed to be supported by facts known to the

legislature amless facts judicially known or

proved preclude that possibility. Hence, in re-°

viewing the, present determination we examine’

N the record, not to see whether the findings of the

‘court below are supported by evidence, but to

ascertain upon the whole -record whether -it is

possible to say that the legislative choice is with- -

out rational ge Standard Oil Co. v. Marvys-

ville, 279 U. 582; Borden’s Farm Rroducts ,

Co. v.: Ten beets av. Ss. 2. oe. Uf Ft”

A regulation so completely in accord with the estab-

lished public policy of Virginia as expressed in the.

court below (R. 60), and with the customs and usages

in many other States as appears from the numerots

reported cases on the .subject,eannot be found by this

Court to be “without rational basis.”

The Appellant is Without Standing to Challenge ‘the

Constitutionality of the Act on the Ground that It Plies

an Undue Burden on Inerstate Commerce. ;

The decisions of this Court herdiofore discussed have

_ clearly demonstrated that no constitutional right of an

- interstate white or colored passenger. is violated by

being required by the carrier to occupy the seating

space assigned to members of his or her race. This

is precisely the situation here presented. Tefore the

statute could -be considered an impermissible burden

on commerce it would be necessary to show that the

carrier is being hampered in its transportation activities.

sut the carrier is not-complaining that any such burden

or obstruction fo its business results from ‘the obliga-

tions imposed on it by the Act. In fact the carrier

itself issued the regulations involved, and initiated the

arrest and prosecution of the appellant for refusal to —

abide by its rules. Certainly the appellant has no stand-

ing to complain that the earrjer is being unduly bur-

dened. The only complaint the carrier has made was

against the appellant for. violation of its regulations.

In order to prevail here the appellant “must show that

the enforcement of the challenged judgment wéuld

deprive it (her)—not another—of some right arising

under the Constitution or laws. of the United States

properly asserted below.” Liberty: Warehouse’ Co. v.

Burley T. G. Co-op. M. Asso., 276 U.S. 71, 88*. | The

*'To the same effect see also Southern Railway Co. v. King, 237

U.S. $24, 534: Standard Stock Food Co. v. Wright, 225 U.S. 540,

550: Hendrick ¥. Maryland 235 U.S. 610,621; Jeffrey Mfg. Co. v.

Blagg, 235 U.S. 571, 576.

S . [ 22)

enforcement of the rules and regulations of the carrier

have not deprived her of any’ right,:nor has she any

standing to complain of them or of the statute imposing

a fine on her for their violation.

Vv =

Reply to Appellant’s Brief . ,

In her summary of argument appellant says:

“For seventy years the decisions and pro-

nouncements of this’ Court have consistently —

condemned state statutes attempting to control.

or require the segregation of, Negro passengers

moving in interstate commerce on public car-

“where national power under the commerce clause

is exclusive. Unless the reasoning of those

cases was or is unsound, they should be fol

lowed.” es

As a matter of fact, no case has ever been decide]

by this Court involving the validity of a State statvte

requiring segregation of white and colored interstate

passengers. There have been intimations in cases 1-

- volving railroads that such statutes might be considere!

unconstitutional if the question were before the Cour.

but the question has never been before the Court and

no decision to that effect has ever been renderéd. tier

all, each such case: would have to stand upon its own

facts and be subjected to the test applied in f/al’

DeCuir, supra. It might be considered more con-

[23 ]

venient for the railro:d. carrier to provide separate

accommodations for white and colored interstate pas-

sengers in States having such requirements for local

passengers than to undertake to make a distinction

between them. In fact, the reported cases indicate

this to have been the usuak custom of railroads, inde-

pendent of statute. The conclusion to be reached would

necessarily depend upon whether the iis as of

. the Ratute. in any particular case,, would constitute

an wWdue burden on conducting the commerce involved.

There has been no such case decided here involving .

a railroad. . There has. never been even an intimation

‘ with respect to the rule which would apply to‘a motor ,

vehicle carrier in such a case in the absence of con-

gressional action. — i

APPELLANT'S ARGUMENT

Appellant takes the’ position that Hall v. DeCuir,

supra, conclusively establishes the principle that State

statutes providing for separate accommodations for

white and colored passengers “on public earriets” con.

travene th&cpmmerce clause. But the Court’s opinion

expressly sfys that its conclusions therein éxpressed do

- not apply to highways owned by the States. As hereto-—

- fore pointed out in this-brief, Hall v. DeCuir involved

the sole question of the validity of a State statute

prohibiting the.carrier from providing such separate

accommodations. It related only to a steamboat opetat-

ing on navigable waters of the United States, which

in crossing the river would at short intervals find itself

in different States. Under the facts in that case, the

Court held the-statute obnoxious to the commerce clause,

_ because it imposed. an undue burden 6n interstate com-

. merce which was subject to the regulatory ‘powers of |

Congress. “Inaction by Congress,” it was said, “is

equivalerft to a declaration that interstate commerce

shall remain free and untrammelled.”” But lest its deci-

sion might be interpreted as applying the quoted prin-

ciple to State statutes regulating traffic on ferriés and

highways the Court took the pains to — any such’

intention by saying:

’ oe Oe OT he same is true’ of turnpikes and

ferries. By. such, statutes the States regulate, as

a matter “of-domiesti¢c.concern, the instruments of

commerce situated wholly. within their own juris- °|

_ dictions, and over which they have exclusive

governmental eontrol except Ww hen employed in

foreign, or.interstate commerce,’ As they cah

only be used in-the State, their regulation for all

purposes may properly be-agsumed by the Stair,

until Congress acts. in‘reference to their foreign’

. or interstate relations: | When Congress does

act, the State laws are superseded. only to the

extent that they affect commerce: outside the

‘Ge as it comes within the State. a *” (24

. Ed. 548. Italics supplied. ) ‘

Thus, under this principle laid down in’ Hall v.

DeCuir, Congress,: by refusing to enact legislation

touching this subject of segregation of passengers on

busses has left to the*State the regulation ef same on

[25]

"its highways. ° Congress has evidently taken cognizance

of the obvious fact that local conditions are so “dif

ferent in the various States that no uniform regulations ,

. could be satisfactorily applied. ‘And it recognizes also

the proprietary interest of the States in such maiters.

* The Commonwealth @f Virginia has purchased and

owns the fee simple title to its highways; it has built

and constructed them; it repairs and maintains then

in good condition; it patrols and polices them, and

enforces obedience to traffic regulations and the general

laws against crime. To require different regulations

for intrastate and interstate passengers on busses would.

surround law enfogcement on the highways with con-

stant confusion and doubt. It would seriously impair

the effectiveness of the use of the roads as an instru-

mentality of both local and interstate eottimerce. The

necessity for such State tiniformity of regulation with

respect to its roads-was recently emphasized by this

Court in these words;.*Regulations affecting the safety

of their -use must be applied alike to intrastate and

interstate traffic.” Southern, Pacific Co. v. Arizona,

suprg.: It is no doubt because of its recognition of the

truth of this statement that Congress has declined to

enact any regulation which would accord to an inter-

state passenger traveling over State highways ‘any

status different from that of the local citizen. The

application of ‘the separate seating requirements to local

passengers alone would seriously jeopardize the safe

operation of the bus. Instead of reducing the burden

on commerce it Would immeasurably increase it. There

would be constant. danger of quarrels, ‘frictions and

disturbances due to misunderstandings among the

by the carrier the possibility of the occurrence of the

"passengers ‘ona bus, where the only change is from

there is a wide difference in the €ffect of, disorder on

ae “ce® > . c« . f

in a‘railroad coach does not affect the engineer. of the

| _ (26) fe rca =

passen gers as to who are § subject to the regulations and.

who are exempt from them

Appellant's brief (pp. 12- 14) quotes extensively irom

the Maryland case of fart v. State, 100 Md,,-at 612-

In this case the railroad had not promulgated any regu-

lations with. respect’ to seating arrangements and_ the

vitw was expressed that should the case react this.

Court the statutory regulations would be held inappli--

cable to interstate passengers. For ‘this reason, the

Maryland ‘court construed the statute as embracing ,

only intrastate travelers. But the opinion recognized °

the right of the raijroad to adopt segregation re gula-

tions as to interstate passengers in States which dp‘.

not have them. By the’ adoption of such, regulations

frequent , changes from one railroad car to another.

which was suggested in appellant’s quotation from the

opinion could ‘be readily obviated. However, . the in-

conveniences depicted would have no application ‘to -

one seat to another in the same vehicle. This. is. Qo

more difficult than moving from one chair to anotlier

in the same room in one's homg, The changing Of seats

by the. passenger is a, little thing compared with the

resulting benetits in safety, peace and comfort, for

a railroad train’ and on a motor bus. A disturbance

train, but such an occurrence on. a bus almost certainly —

would disconcert ‘the driver, endangering not only all

the ‘passengers, but also persoris traveling in other

cars on the highway.

ce)

Appellant repeatedly asserts that no element of safety

is involved in. the requirement of -separate seats. for .

White and coloned Passengers. And yet this casg of

Hart v. State, which she so strongly invokes, contains

and approves *the. following quotation from a Penn-

-sylvania an .

““* * * ‘Tn order to preserve and enforce his

" (the conductor's ) authority as the servant of

the company, it Must have a power to establish

‘proper ‘regulations for” the carriage of passen-

gers. It is much’ easier “to prevent difficulties,

‘among passengers by regulations for their proper

separation than it is to quell them: The danger

to the peace engendered by the’ feeling of aver- a

sion between individuals of the different races

‘cannot be dénied. It is the fact with which the’

-. Company must deal. If a negro take his seat

* beside a white man or his wife or daughter, the

law. cannot repress the anger or conquer the

aversion which some will feel. ‘However unjust

it may be to indulge the feeling, human in-

firmity is not always proof against it., It is

much wiser to avert the* consequences of this

repulsion of race by separation than to punish

afterward the breach. of -the peace ‘it may have

caused.’, There are numerous cases to the same

‘

effect. mahy of which are citéd in. Chilton v.-

St Louis & I. M. R. Co., 114 Mo. 88 19.1. R.

A. 269; Smith v. Chamberlain, 38'S. C. 529, 19

I. R. A. 710; Ex ‘parte Plessy, 45 La. Ann.+80,

. 18 L.R. A. 639; Bowie vy. Birmingham Ry. -

2 .

ei ao

' & Electric Co., 125 Ala. +397, 20 L. R. A. 632;

and the notes to those cases, as reported in the |

I... R.A. series.” (00 Atl, at p. 458).

T he foregoing is “undoubtedly a correct statement

of the reasons underlyitig ‘and necessitating statutes of

this kind. However much we regret it, we must never-

‘theless face the truth and not deceive’ ourselves by

idealisite or wishful thinking. Virginia, along with ”

many pther States similarly situated, is» confronted

with a condition, not a theory. If this condition could

be ,removed by the passage of a law’ or a decision of

a Court, there would be none to oppose it. But. laws

cannot alter human nature ‘or erase racial antagonisms.

They are not confined to our country or to our people.

They are world-wide. Only the great Master who

created and endowed mankind with these infirmities

can eradicate them.” Until that occurs our government

must. be based’ upon the recognition that they still

exist. en | ° |

“Appellant has ‘not. even attempted to show by the

citation of any judicial decision that she was possessed

of any right to occupy the seat frem which she was

requested, to move. She bases her argument solely

upon the alleged w ‘ant of power in the Staté to regulate

the’ conduct of an interstaie passenger. To such a

passenger she would accord a status immune from the

laws which govern the citizens of Virginia engaged

in local travel. But she cites no authority to sustain

such a remarkable claini. . os, .

Appellant assests that free movement through a

State is a constitutional «guaranty. This may be con-

[ 29 ]

ecded. But the free movement guaranteed does not

mean immunity from State regulations imposed in the

‘exercise’ of the police ‘power which do not. discrimi.

nate against. the interstate traveler and are likewise

applicable to the local citizen. But this does not satisfy

appellant. ‘She insists that Yeee travel means discrimi-

nation in het favor and against a resident of the State

through Which she is passing.

Appellant repeatedly asserts that statutes of ‘the kind

here involved dre based upon provincial notions which

do afford a. substantial bagis for such legislation. But

the quotation hereinabove from the Pennsylvania court

would hardly justify this criticism. The people of that

State had fought a long war to free the Negro from

slavery and_ their legislature must be considered as-

motivated under then existing conditions by necessity

rather than prejudice in pagsing legislation of this type.

Certainly the decision of’ si court sustaining its

validity so’ indicated.

Appellant also attacks the statute binietis some in-

terstate travelers may have such an admixture of white

and colored blood ‘as to render .it difficult for ‘the

agents of the carrier to. determine whether they should

be classified as white or colored. She does not claim

to fall in that category, nor is the carrier complaining

-of any such’ burden. She therefore has no standing

Jin. this Court to attack the validity of the Act because

it may possibly deprive other persons of some consti-

tutional right, as the cases cited under point IV, supa.

clearly show. ;

Appellant's arguments in the main constitute-a chal-

lenge to the wisdom of the legislature in enacting the

1°30 |

statute. But this is a matter with which this Court

is not concerned. [nthe absence of convincing cv}

dence that conditions im Virginia do not justify. the

legislation, the presumption that it) 1s) supported by

existing facets known to the legislature will be con ;

clusivée unless facts judicially known preclude that pos

sibility. South Carolina State Highway Dept. v. Baru.

well, supra. The record contains no evidence at all on

the. subject. It) would) seem, therefore,.that these

arguments nught more appropriately be addressed to

Congress in advocacy of desired regulatory legislation

than to this a Court. a

ae: ke

The judgment of the court below is clearly right and

‘should be affirmed. |

Respectfully: submitted,

. ABRAM P. STAPLES,

lttorney General of Virginia. -

Supreme Court—State Library Building,

Richmond. 19, Virginia.

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.