# Brief of Appellee — Morgan v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0110%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief of Appellee - **Published:** January 1, 1946 - **Citation:** 328 U.S. 373 ## Text »,@ | — F 7 e ~ = PiLeé’ = came Meme CF AS by | | MAR B 1916} = oe 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 Ps 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 si i) 14 21 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. 4097dd Ruilatal stead iecauavarwibiausenipebe eis alc au ee 2 a eA 4 7-4 ° . . ‘ % ° a. oe ‘“ . . : . . . - ” ce \ % . ~~ ” ® . - Se o) bl ? r ‘ae . 4 ~ . s e , * . . . ~ ; } ~ ~ ~~ . % % . a ‘ 4 2 = y a - Wests o . ad ; oh af psy _ a © : f : : * SUPREME COURT OF THE UNITED STATES ; OCTOBER TERM 1945 “4 Mi ™ 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] 2 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. co 2 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- / 4 14 © i é » 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. : 4 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: | | 7 (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 v 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 , 6 e 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] . e 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- riers as unconstitutional © invasions Of an area. “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 f St | _ (26) fe rca = x 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 . a. ““* * * ‘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 . . ° 4 ¢ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0110%3A6. Public record. Not legal advice.