Brief Amicus Curiae — Morgan v. Virginia

’ IN THE

~ Supreme Court of the Wnitéd States

Ocrosper TERM, 1945

IRENE MORGAN, Appellant

eee a

COMMONWEALTH OF VIRGINIA, Appellee

ON APPEAL FROM THE SUPREME. COURT OF aiiaaaes “tl VIRGINIA

a)

MOTION FOR LEAVE TO FILE BRIEF AS AMICUS

American Civic Linertizs Untoy,.

Amicus CURLAE

¢

~

Grecory Hankin,

of the District of Calumbia Bar,

of Counsel.

as]

INDEX

ia | 2S ; PAGE

: Motion. For LEAVE To Fite Brier as Amicus Curiae...... i

; - BRIEF

; ’ ¢

4a *.

PEUPEIET C TORT TAU anciolevccceeenesivnscgeccnenAtpestavdacccesvonsoaness 1

“|. The statute is unconstitutional as a substantial

burden on interstate commerce... eNOS one

to

I]. The statute is unconstitutional under the due

process clause of the Fourteenth Amendinent.... 4

° .

is pth tine Yeeeah

IJ. The statute is unconstitutional under the. equal

4 protection clausé of the Fourteenth Amendment 12

RR, Oe. 2 1s ORRIN, DO RD 15

Cases Cited

wea" ive, TOO. UY age 4

v. Georgia, 279 U.S. 1 ei a3.

Po iE oe Teh, i Ee ee ee ell

So. Covington, ete, R. Company r. Kentucky, 252

. U. 8. 399

Washington ex rel. Seattle Title Trust Co, v. Roberge,

Ia PIP aloes cannes cient yes Seacaansiennecasnassnnserelas wt 12.

Yick Wo v. Hopkins; 118 U.S. 356 oe peer 15

| Statutes

U.S. Constitution, Apt. I, See. 8 el 3 oe. a

Michie’s Code of Virginia, 1942, Sections, 4997z- .

Cs EDEN sualiseiblankcapenianais Sdiloenascuil einteihneeitadanas tabs ‘1, 7,8, 10,

~ rH, 92,13

j

Se i RO a tis on ws Mil

>:

IN THE

Supreme Court of the United States

Octoser TERM, 1945

3

FA

“

r

, IRENE MorGan, Appellant, .

v.

CoMMONWEALTH OF VircintA, Appellee.

ene

a ‘ , ‘

ON APPEAL FROM THE SUPREME COURT OF APPEALS

OF VIRGINIA

Motion for Leave to File Brief as Amicus Curiae

May it Please.the Court: | ee

The undersigned: as counsel for ‘the American Civil

- Liberties Union respectfully moves the Honorable Court

for leave to file the aecompanying brief in this, case as

Amicus Curiae. The eonsent of the attorney for the

appellant to the filing ok this brief has been obtained.

Counsel for appellee has failed to give hig consent.

Special reasons in support of this motion are set out

-in the accompanying brief. or

Grecory HANKIN,

Counsel, American Civil Liberties

Union, Amicus Curiae.

March 4, 1946.-

“=

P Sesczcniid (ka 2 Jui Das ellashacrrte stiameer baie

PAA

ayenatay

FL TOROE GLE

IN THE

Supreme Court of the United States

Octosper TERM, 1945

No. 704

$< $< $<

IRENE Morcan, Appellant,

v.

COMMONWEALTH OF VIRGINIA, Appellee.

ee

ON APPEAL FROM THE SUPREME COURT OF APPEALS’

OF VIRGINIA

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, |

AMICUS CURIAE

a ws iad of the Case

This appeal involves the constitutionality of the law °

of Virginia segregating white and colored passengers in

public conveyances by motor vehicle within the State.. The

statute under consideration is’ Chapter 128, pages 343-4

of the Aets of Assembly, 1930, reproduced in Michie’s

Code of V irginia, 1942, Sections 4097 7-4097dd. It was up-

held by the: Virginia Supreme Court of Appeals oi June

. 6 1945, 184 Va. 24, 34S. FE. (2d) $91.

As-applied to the facts of this particular case, the state

law is attacked as being in conflict with the Commerce

2

,

od

Clause (Art. I, See. 8, el. 3) of the Federal Constitution.

| Apart from its application, the law is attacked as being

ms 4 on its face repugnant to the dué process and equal pro-

a clauses of the Fourteenth Amendment.

‘ .

I ~. . if \

‘ se wm, as I ’

The Statute ‘is ‘unconstitutional as. a substantial

burden on interstate commerce. :

7S

«,

@*

It is submitted that the law ‘under consideration i in boiutd

to constitute a burden on interstate commerce in two re.

‘spects: (a) it imposes a burden on’ the earrier, and (h) it

imposes a burden on the. passenger.

: (a). Burden on the Carrier. —It is well established that’

every passenger carrier by motor vehicle, by virtue of the

fact that it is a public utility, must render service equalls

and without discrimination. To observe this fundamental

requirement and yet to treat passengers'as being divided

inte separate and ‘segrégated . classes, necessarily requires

some duplication of service. If the accommodations «re

‘not duplicated, then the quality of service must. suffer.

In practice, the: quality of the service is-reduced for tlic

Jess favored’ class, with the result that. there is dis.

crimination in the rendition of the utility service. Only by~

remaining blind to the latter. fact;-may it be said) that

there is no burden on interstate commerce, when a.statute

requires that either separate huses, separate compartments

in buses, or separate seats be provided for white and

colored passengers. -If it is assumed that. there ix no

discrimination, it must also be concluded thax the st: itutory

requirement imposes a burden on ‘interstate commerce in -

the sense that'there is an economic burden imposed upon

the carrier.

x 3

The court below seems to rely on the ease of So. Cov-

mgton, ete, R. Company v. Nentiicky, 252-U. S, 399, for

the proposition that the requirement of separate facilities

for White and colored Passengers is merely an incidental

and indjrect burden on interstate commerce, In. that case,

liowever, the’ interstate transportation was incidental to

the transportation service rendered by the street railway

company, which operated un, interurban, service in the

State.of Kentueky, and had ai terminal across the river in

the City of. Cincinnati. Here the appellant was a pas-

senger on the Greyhound ‘Bus Lines, travelling on. a

through ticket from’ Hayes’ Store, Gloucester County,

Virginia, through the District of Cohunbia, Ao Baltimore,

Maryland. The interstate trip Was not a mere incident

to an intrastate operation, Here the test ix whether the

bus line could furnish separate buses, compartments, or

Seats, so as to render equal service and yet not be sub-

. ‘ . , , . .

Jected to a substantial economic burden, especially at this

time, when transportation facilities are most difficult. to

obtain. We think itis a matter of common knowledgg,

therefore: one not requiring proot by evidence, that the

statute doesgiinfose a burden on the interstate carrier,

Even if the So. Covington case were applicable to in-

terstate transportation by railroad or other similar means

of transportation,. it must be pointed out that bus trans-

Portation is essentially different in this respect, It may

be ‘argued that s6 long as the number of passengers would

Justify it, a railroad may attach additional éars of equal

quality, or may divide a car into separate cumpartments.

In bus transportation such equa “division of facilities

cannot be accomplished. It is the same bus, with but one -

entrance that must accommodate all. passengers as and

when they board the bus./’The burden on the -carrier-

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imposed by the-requirements of this statute extends also’

to the operation of the bus. In the case of. a ititroned

_train, the engineer is in charge of the physical movement

_of the train while the conductor is in charge ¢ of the con.

. duet of the passengers thereon, ‘The duties”of the con.

ductor in this respect do not ‘interfere with the duties of

the engineer. A interstate bis is gperated by #he per.

son, the driver; If he is to police te location (seating

and standing) of the passengers, that must interfere with

the movement of the vehicle in interstate commerce. The

requirements of this statute must of necessity interfere

with the proper scheduling of the interstate movement. #

The court below, however, stressed the fact that fie

carrier was not complaining of any, burden imposed on

interstate commerce, and that ‘‘in fact the carrier was’

not even a party to. this litigation.’’ | Apparently the

court below invoked the rule that a person has no stand-

ing to attack the constitutionality of a statute on the

ground that it invades the. rights of someone else,

Hebring v. Lee, 280 U. S. 111. Bug this rule ig not in

point whete a passenger complains that an economic

burden is imposed on the carrier.’ The carrier, as a pub.

lie utility,-is, only a means for rendering a service tthe

public with capital furnished by the inyestor. © The

charges made by the carrier are based upon payment hy

‘the passengers of all -costs of operation plus capital

charges. «In the last analysis, therefore. it is the pas-

' sengemthat pays all costs, and any requirements, impos-

"ing additional econoinic burdens an the carrier, ultimately

impose those burdens on the passengers. . Therefore, the

‘passenger has standing to complain of this additional bur-

den, when it is applied to interstate commerce.

‘(b) Direct Burden on the Passenger.—Intersfate com-

merce is also burdened by the statute under consideration |

Fi “4 5 ®

in the Sense that -the® passengers inzinterstate commerce

‘are directly subjecttd to wholly unnecessary ahd un-

reasonable inconyenienve and discomfort. Lt is a matter

of common knowledge (iat awith the reduction in the

manutacture-of transportation facilities und the great in-

crease in the amount of travel by lus in interstate com-

merce, passengers often travel * packed like sardines."’ “To

illustrate how the statute affects bus travellers, one may

imagive a bus full of passengers traveling frome Balti-

more, through the District of Columbia, to Norfolk, Vir-

ginia. While these passengers are in Maryland and the

' District of Columbia, they occupy whatever seats are

available, and‘when the number of: passengers exceed the

,number of seats, the newcomers occupy’ guch standing

- roém as is available. As passengers leave the. bus, the

stamdees occupy. the seats left vacant. _As soon as the

bus comes into the State of Virginia, however, the carrier

invokes its regulation, jnade pursuant to the statute,

that colored passengers must be seated from the rear

forward, while white passengers must occupy the seats

from the front to the rear. A reshuffling must take place,

so that there would be-a distinct separation of the tao

classes of passengers. Those sitting in front may be re-

quired to’ occupy seats in the rear; those oceupying seats —

may be required to stand. Asstunjmty that the passengers

have already been pushed about and reshuffled, so as to

comply with the requirements of the statute, the bus may

come to a-stop where some white and colored passengers

are dischagged and others are taken on, with the result

that another reshuflling may have to take place. There

is a distinét difference between the quality.of service that

the intedstate passengers, both white and colored, receive

in the State: of Virginia, from-what they receive in the

State of Maryland and in the District of Columbia. . In

© . A 6 ¥

Virginia, the interstate passenger is not certain that, once

he has: obtained a seat, he can ride in peace and comfort » ‘

to his destination. Oni the contrary, passengers have been

so pushed about and have been so subjected todiscomfort

and Erte that they. and the exasperated driver

_ have to physieal violence, which has resulted in

_ serious injury and even death.. :

_. ? Here again, even if *it were said that a statute of the

character here involved would not constitute a burden on

interstate commerce as applied to transportation by rail,

the facts :elating to bus transportation are so different

as to. leave no, doubt that there is a definite burden on

" . interstate commerce as applied to motor carrier trans-

portation.. Unlike a railroad train, a bus is a single -

operating unit; unlike a railroad car, it has only one

entrance, and is not readily divisible into two sections

which may be said tobe equally desirable.’ In the rear -

_of the bus, as in thé instant case, there is one long bencli

set against the back of the vehicle and running its whole

_ width which is less. comfortable than the double seats on

either side" of the aisle. *The motion of the vehicle and

the gasoline fumes are more objectionable at the. rear of

the bus. W passenger travel is heavy, the aisle’ of

the bus is crowded with standing passengers. If the hus

is so divide that the rear seats are allocated to the

Negro passengers, they must push and jostle the standing

passengers both when entering and leaving the bus, even

though they may be going only to the next stop. ‘Mey

. are not only allotted less desirable accommodations, but

are subjected to ofher acts of discrimination which will

- he discussed later under the heading of: equal protection.

What we emphasize here is that, these passengers are

_— of their right to. equal and non-diseriminatory

: ~ ¥

service by a public utility operatingoin interstate com-

mercea, a '

Therefore, we submit that quite apart) from the

economic ‘burden on the carrier, the statute INposes a

burden-on the passengers engaged in interstate commerce

and particularly on the negro passengers ip such com-

merce, c

The statute is unconstitutional under the due

process clause of the Fourteenth Amendment. |

The statute is unconstitutional -for the reasons that it

subjects passengers to arbitrary power vested in’ bus

operators, it Wails to establish a standard of guilt: which

may be made tie basis, of criminal prosecution, and is

otherwise arbitrary and unreasonable on its face. It’ is

urged that for these reasons the act must fall as in viola-

tion of the due process provision of the Fourteenth -

Amendment,

One must view regdistically thie provisions of this law

and the facts with Which it assumes to deal. In- this

connection, we shall limit ourselves to such ‘facts as are

‘Matters of common rig .

(1) The statute requires all motor vehicle carriers in

the state to Separate white and colored passengers’ and

makes the failure, neglect or refusal so to segregate them

a misdemeanor (Sec. 40972). True, the statute also re

quires the carrier to “make no difference or discrimination

‘in the quality or convenience of the accominodations pro-

vided for the two races’’ (See. 4097aa). But failure, |

neglect. or refusal on the part of the carrier to obey this

requirement is not made a misdemeanor.

a

.

. Accordingly, some seats in the rear of eaé¢h bus are

usually designated for colored persons, while the seats to

the front of the division line are reserved for whites. [ln

some instances, as in the case at bar, the carrier posts a

general rule that colorgd passengers will be seated trou

the rear forward, and white passengers will be seated

from the front. In such instances, the initial division line

is: determined by the white passenger oecupying a seut

farthest toward the rear. nh,

So long as there are aniple seats available on botlr sides

of the division line, ‘both White and colored passengers 1

_ride in comparative comfort, although some pidisséengers,

whether white and colored, . do prefer the front: #eats,

while others choose to sit in the rear. If, however, th re

are more white passengers than the number of seats ayiu!

able for them, or more colored passengers than the number

“of. seats available for-them, they must remain standine

. either in the front or the rear of the bus without occupy ine

such seats as may be vacant beyond the division ‘Jin

This, itself, is arbitrary, unreasonable, capricious and

oppressive. ° ; s,

(2) The driver or operator of the bus ‘is authericd

and obliged by the statute to change the division line «i! +n

such change is ‘‘necessary or proper for the comfort «:

convenience: of the passengers,"" and to require: any pee!

senger to change his Seat as it may be **necessa:

proper.’’ Failure, neglect or refusal to observe ‘his

provision is a misdemeanor (Sec. 4097bb). The words

’**necessary or proper’’ whether with or without ‘)»

qualifying phrase ‘‘for the comfort and convenience 0% *)»

passengers’’ may be a standard, but it is a standard <0

broad and indefinite that the driver of the motor vehi’

can hardly be subjected to criminal prosecution wit) tt

violating the due process clause.

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th a | a : ’

In practice, this requirement operates not te impose

any obligation on the driver, but rather to clothephin with >

arbitrary power, —As-eolored passengers board the bus,

they go to the rear; and as white passengers beard the

bus, they remain in the Trent. After all the colored seats .

are vecupied, the colored passengers anust stand In parek

of the Yivision line, Se jong as nothing is done by the

driver, the colored passengers must erowd in the rear,

even if there are more passengers than space available,

even’ if they Must violate the physical law that He two

bodies can occupy the same space at the Same time.

However, the bus driver mas eume to the reseue and ask

the white passengers to mot up toward the front. Then

it is up to the white parsenvers to move Up. «Se long is

there is a single white passenger whe fails ‘or refuses te

move up, whether because he finds it diffic ‘ult, or ineon-

venient, or is simply unwilling ts oblige, the colored

passengers May het occupy the vacant seats. ‘Finally, if

the driver insists on hits authority, he may stop the Opera.

tion of the bus and change the dividing line, either by

moving the designation’ or by informing the White pits.

Senger of the rule requiring him to change his seat. Then,

the white passenger, under the statute, must Move Up.

Ali this lies within thes arbitrary judgment of the

driver. No matter how the piissengers Wiay - be imewar-

Venienced, so far as the question yf seating or standing

room is concerned, the driver can alw: ays take refuge in

. the consideration that the bus mist meve on te its

destination’ and that. travel should not be interrupted

for the purpose of ‘moving th dividing line to the front

or rear, in order to ACCOMMEGHaATE Sonne pr the Dussensers,

Of necessity, the determination of this question must be

left entirely to the Judgment of the driver, kn faet, the

‘Greater the need to accommodate ‘the: passengers by mov-

t

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ing the dividing line, as, for example, when many passen-

gers board or leave the bus at ‘the various stops, the,

greater also is the need to let them. suffer, else the buses

will not. operate according to schedule. Oby iously, this |

cannot be said to be reasonable legislation regulating

transportation.

(3). For the purposes of this law, the driver ‘is the

judge of the race of each passenger, whenever the passen:

‘ger fails to disclosé his or her race (See. 4097¢c).- What-—

constitutes. sufficient *‘disclosure”’ of race is not provided

for by the statute. Obviously, the statute does not mean

~~that if the passenger claims to be of one race or another,

- the claim ‘is binding, on the driver. Here again tis

criminal statute is so lacking in definiteness as to be vio-

lative of the due process clause. ‘However, there are stil!

further difficulties. What about those instances Where a

“person, no matter how dark in complexion, or how light,

is unable to state with any assurance that he is either

white or black? The statute clothes the bus driver witi

authority to determine facts about which anthropolovists

have been battling for years. .Such methods of deteriiin-

ing racial status may. be quite in order where people are

ruled by absolute decree. There it may be proper to

- determine that Japanese are Aryans, while others: (of the

white race) are not. There it. may be proper for some

tioering to say: ‘*Wer ein Jude ist, bestimme ich.’ (1

determine who is a Jéw.) ‘But under oar Constitution.

it is improper even for a legislature to determine

facts which are properly the subject of- proof,

Georgia, 279:U. S. 1. Such determination of fact cannot

be left to the operator of a motor vehicle. ™ - -

(4) Each passenger must occupy the seat assigned #

him by the driver and must obey his directions to «lange

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‘his seat from time to time as océasions require, ‘*pur-

siant to any lawful rule, regulation or custom."’ (See.

4079dd).~ Failure to obey is a misdemeanor. “Thus, the

passengers, both white and colored, may not be permitted

to ride unmolested in peace and comfort, save at the will

of the driver, - He may require them to change their seats

any number of times for any reason, and have them

secupy any seats he selects for them, so long as no two

contiguous seats are occupied by white and colored pas-

sengers (See. 4097bb). |

(5) One further illustration will dispel any doubt as to

the arbitrary and unreasonable character of the. statute.

The Virginia law provides that if a passenger does not

obey the driver's direction to occupy the’ seat designated,

or to*®cehange seats, he ‘may be ejected: and, if he is

ejected, neither the person ejecting him, that is the driver

or operator of the hus, nor ‘the owner of the bus, nor the

manager, nor the hus company, is liable in damages:in any

eourt (See. 4097dd)2 This provision goes far hevond the

limitations on any public officer in the use of foree, This .

Provision evidently applies, no matter how arbitragy or

unreasonable the conduct of the driver, no matter how:

great the force he used, and no matter how creat the ine

‘Jury to the person ejected. Tn other words, under this

provision, any passenger failing to obey the driver is not

only guilty of ua misdemeanor, but becomes an outlaw,

In the court below. the appeliant. argued that the

‘fatute constituted an unconstitutional delegation of lecis-

lative power, and. the court helow overruled this, con-

tention. Tt is admitted that the question of delegation.of

power, as such, ix nota Federal question, hy

under the State constitution. Therefor

this point here.” There is a phase to

one arising

ve do not ‘urge. .

lis question, how-

- °

12

ever, which is-definitely Federal in character; namely, that

if the delegation’ of power is such as to clothe private

persons with arbitrary governmental power, such a dele-

. gation is violative of the due process clause of the Four-

teenth Amendment. See Washington ex rel. Seattle Title

. Trust Co. v. Roberge, 278 U. S. 116, As in the Robera

case, so here, arbitrary goyernmental power is vested in

the carriers and their agents who are private persons.

* The difference between the Roberge case and’ the one at

bar lies in the fact that here the statute in a blanket

manner makes each driver of a motor vehicle a special

policeman (Sec. 4097cc). There is nothing on the face

of the statute to show that the driver must pass any

_tests in order to assume the duties. of a public officer

This provision only acceptuates the fact that -the em.”

ployees of the transportation company are clothed with

arbitrary governmental power. Surely, had the statute

in the Roberge case similarly designatedeyall property

owners as zoning commissioners, that would hardly have

affected the ruling in that cags.

We submit that the law under consideration ix <0

arbitrary and unreasonable on its face, that irrespective

of any application, it is contrary to the due process clause

of the Fourteenth Amendment. .

Hil -

The statute is unconstitutional under the equal '

protection clause of thé Fourteenth Amendment.

‘What was said above was based on the assumption

(contrary to fact) that the treatment accorded to hoth

white and colored persons is exactly the same. It is a

matter of common knowledge that the treatment is’ not

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the same, and this’ Court can take judicial notice of the

fact that the treatment of the two races results in dis-

crimination against the colored, not against the white,

race. . ; .

The provision in the Statute requiring no discrimina. -

tion in the. accommodations (See. 4097aa) gives only lip

service to the decisions of this Court that segregation of

races is violative of the equal protection clause, dnless

equal accommodations ‘are made available both to white

and colored -persong, Equal accomodations are not pro-

vided, and that is a fact known to everybody. In opera-

_tion and effect,: the statute, and the-fule of the carrier,

result in unequal accomodations. Cf. Vick Wo y. Hopkins,

118 U.S. 356. | ; _

Even if equal accommodations were provided. hoew-

ever, there would still be a violation of the equal protee-

tion elause if the service provided is diseriminatory,

We must appeal to this Court for a reconsideration of

its own fundamental concepts underlying this question of

race discrimination. We submit that to say that segrega-

tion of races in public transportation is not violative of

the ‘equal protection clause, so long as equal service js”

rendered, is a contradiction in terms, The segregation is.

the very thing that makes the service unequal and dis-

eriminatory, by far’ more so than differences in the com.

fort of the seats, the amount of congestion, the age, model,

speed, vibrations of the buses, and all other physieal

A carrier by motor vehicle, like a carrier by rail,

water or air does not merely furnish accommodations for

calrying passengers from ong point to another, Th.

carrier furnishes a service Which has attributes other

factors which are attributes. of the transportation service,

than, and in addition. to, the physical facilities used for

o

14 c

the act of transporting. .The sum total of these attributes

constitute what one may call the quality of service. Mach

passenger is entitled to the same quality of service as

any other passenger. This is what is meant by equal ani

non-diseriminatory service. If it is part of the service to

furnish a luncheon or supper to the. passengers, as is:

done by the air lines, each passenger is entitled to thé

luncheon or PP, and no passenger may be discrimi-

nated against. If, ds part of the service, passengers are

courteously treated, as they. should be by the employees

of all carriers, each passenger has a‘ right to receive the

same courteous treatment as any other passen nger. In

the rendition of transportation service, itis implied that

passengers would be free from physical abuse on the part

of the carrier or its agents, and no passenger may be dis-

criminated against by being subjected to such abuse. We

submit that it is not too much to expect that. passengers

be free frdm- psychological.or social abuse on the part of

the carrier and its agents. Many persons yould much

rather submit to physical abuse than to abuse because of

their race, which is treated as if it were a social stigina.

The word ‘‘white’’. or the word ‘‘colored’’ denotes a

person whose skin has a white or black pigment, or a

blend‘of the two; ‘just as the words ‘‘aryan’’, and ‘*non-

aryan’’ denote persons of certain anthropological classi-

‘fication. But the words ‘‘white’’:and ‘‘colored’’, like the

words ‘‘aryan’”’ and:‘‘non-aryan’’,* also bear connotations

which are far reaching. They are employed by some

persons not as descriptive, but as evaluative, terms. They

are intended as, and have the effect of, designations of

‘‘snperiority’’ and ‘‘inferiority.’’ When thus used, it

makes little difference whether the words used are

?

* Technically these words refer to a specifi¢ language rather than an ethnic

group.

~ . 15

‘white’ and “‘eolored’’, or “socially superior’ and

“socially inferior.’ The effect is the same,

If, as part of a transportation service, some passen-

gers are enabled to ride. in comfort, while others are sub.

jected to discomfort, there js discrimination: and .it is of

little importance Whether the discomfort results from a

hard seat, or from being clothed with indicia of inferi-

ority. And if this unequal treatment is meted out t& the.

passengers by the carrier under the authority ‘of the

State, there is a violation of the equal protection clause

of the Fourteenth Aniendment. A fortiori, a state law,

the operation and effect of which is to require such un-

"equal treatment, must be held’ violative of this constitu-

tional prohibition.

CONCLUSION .

It is respectfully urged that the statute here in-

volved be declared unconstitutional and the case

ordered dismissed.

Respectfully submitted,

=

AMERICAN (ryt, Linertizs Uxtoy,

-. Amicus. Curiar.

GREGORY Hanky, an

of the District of Columbia Bar,

Osmonn K. FRAENKEL,

ARTHUR GaRFIELD Hays,

Victor W. Rotnem,

of the New York Bar,

Of Counsel.

p./e

SUPREME COURT OF THE. UNITED STATES.

No. 704,—-OcTonEr Term, 1945.

fe

Irene Morgan, Appellant, Appeal from the Supreme

vs, oe ourt of Appeals of the State

Commonweal f Virginia. j; ' Virginia.

{ June i 1946. ]

Mr. Justice Reep ‘delivered the opinion of the Court.

This appeal briugs to this Court the quostion of the constitu-

tionality of an act of Virginia,’ which requtres all passenger motor

vehicle carriers, both interstate and intrastate,? to separate with-

out discrimination® ‘the white and colored passengers in their .

motor Luses so that contiguous ‘seats will not be occupied by

"persons of different ‘races at the same time. A violation of the

requirement of separation by the carrier is a misdemeanor.* The

driver or other’ person in charge is directed and réquired to

increase or decrease the spave allotted to the respective races as

may be necessary or proper and may require. passengers to change

their seats to.comply with the allocation. The operator's failure

to enforce the provisions is made a misdemeanor.®

_ These regulations were applied to an interstate passenger, this

appellant, on a motor vehiele then.making an interstate run or

trip. According to the statement of fact by the Supreme Court

of Appeals of Virginia, appellarit, who is & Negro, was traveling

on a motor common carrier, operating under the above-mentioned

statute, from Gloncestes County, Virginia, through the District

of Columbia, to Baltimore, Maryland, the destination of the bus.

There weré other passengers, both white and colored. On her

‘Tefusal to accede to a request .of the driver to move to a back

seat, which was naftly oceupied by other colored passengers,

so as t6 permit the seat that she vacated to be used by white

Ts

1Virginia Céde of 1942, $$ 4097z to 4097dd inelusive. The sections are

derived from an aet of General Assembly af Virginia of 1930. Acts of

Assembly, Va. 1930, p. 343.

21d., $$ 40972, 4097m, 4097s; even r. Commonwealth, 184 Va. 24, 39.

87d, § 4097aa, , ;

$Id., § 40972: § 4097bb.

314., § 4097bb.

>>

¢

*

o P Morgan vs. Commonwealin of Virginia,

passengers, a warrant was obtained and appellant: was acest:

tried and convicted of a vigation of Section 4097dd of the Vir

ginia Code.© On a writ of error the conviction was -sltirne |

the Supreme Court of Appeals of Virginia, Is4 Va. 24 1

‘Court of Appeals interpreted the Virginia statute as applicable.

to appellant since the statute ‘‘embraces: all motor vehicles «

all passengers, both interstate: and intrastate." The Court o!

Appeals, refused. to accept appellant's contention that the statute

applied was invalid as a delegation of legislative power to th

. edrrier by a concurrent holding ‘‘that no power is deleyated +

the carrier to legislate .: .. The statute itself condemns the +

fendant’s eonduct as a vivlation of law and not the rule of the

earrier.’’ Id., at 38. No, complaint ‘is made as to these interprt

tations of the Virginia statute by the Virginia court.*

' The errors of the Court of Appeals that are assigned, an:

upon by appellant are in form only two. The first is that th

decision is repugnant to Clause 8, Section & Article T of th

. Constitytion of the United States,® and the second the halding.that

_ powers reserved to the states by the Tenth Amendment inelude the

6‘*4097dd. Violation by fpassengers ; thiodemeaner: ejection...-All persons

who fail while on any motor vehicle carrier, to take and oeeupy the sat ot

seats or other space assigned to them by the driver, Operator or other mersen ur,

charge of such vehicle, or by the person whose duty it is ta take up tickets

or collect fares from passengers therein, or who fail to obey the dir us

of any such driver, operator or, other person in charge, as afore stil

change their seats from time to time aa vecasions require, pursuant to ont

lawful rule, regulation or custom in force’ by such lines as te assigning

separate seats or other space to white and colored persons, respect ‘+l!

having been first advised of the fact of such regulation and requested *

conform thereto, shall be deemed guilty of a misdemeanor, and upon bon

vietion thereof shall be fined not less than five dollars nor more than yp

five dollars for each offense. Furthermore, stich persons may be e je ted.

such vehicle by any driver, operator or person in charge of said vehicl’.

by any police officer or other conservator of the peace: and in caw sw

persons ejected shall have paid their ‘fares upon said vebicle, they <ta!! nv

be entitled to the return of eny part of same. For the refusal of any «ut

passenger to abide by the request! of the person in charge of said veh (le &

aforesaid, and his consequent ejection from said vehicle, neither the <iiter. .

operator, person in charge, owner, manager nor bus company operiting sil:

b

‘vehicle shall be liable for damages in any court.’’

7 Morgan v. Commonwealth, supra, 37. ('f. Smith v. State, 100 Tenn i

Alabama & Vicksburg R. R. Co. v. Morris, 103 Misa ss. 511; Southern Ky. ty. '

Norton, 112 Miss. 302. ; F

§ Compare Hebert v. Louisiana, 272 U. &. 312, 317; General Trading «

Tax Comm'n, 322 U. 8. 335, 337, ;

®‘*Seetion 8. The Congress shall have Power . . . To regulate Conimerte

par ae Nations, and among the several States; and with thie India

mn”

Morgan vs. Commonwealt of Virginia. 3,

power to require an interstate wotor Passenyer to Occupy a seat re

stricted for the use of his rae. Actually, the first question alone

needs consideration for if the statute unlawful bupdens- inter

state cymmerce, the reserved powers of the state will not validate

_ re .

We think, as the Court of Appeals apparently did, that. the

appellant is a proper person to challenve the validity of- this

Statute as a burden on commeree.!" Lf it is an invalid birviden. ”

the conviction under it would fail. The statute affects appeliant.

as well as the transportation company. “Constitutional protection

against burdens on cofimerce is for her benetit on a criminal trict

for violation of the challenged statute. Maleh \ Reardun, 204

U. 8. 152, 160; Federation of Labor v. Me Adory, 325-0. 8. 450.

This Court frequently must determine the validity of state

Matutes that are attacked as Uncoustitutional interferences with

the national power over interstate commerce, «This appeal poe

ts that question as to a statute that compels racial segregation

cf interstate passengers in vehicles moving interstate!

The precise degres of a permissible restriction on ostate peiwer

cannot he fixed generally or indeed not ever for one kine of, State

legislation, such as taxation or health or safety. There is a rege

ognized abstract principte, however, that may be taken as a postu

late for testing whether prrticular state legislation in the abner *

of action’ by Congress is beyond state power. This-is that the

state legislation is invalid if iv anduly burdens that commerce inu-

matters where uniformity is’ necessary~-necessary in the const?

tutional sense of useful in-accomplishing a permitted purpose!

Where uniformity is essential for the functioning of commerce, a

state may not interpose its local regulation." Too true it is that

‘ reas t. Rowleg, No, 261 this Term, decided February 4, 1946, slip opinion

Pp pe .

NCY. Edwards r. Cnlifornia, 314 U.S, 160, 172, mn. 1.

: 12 When passing upon « rule of a earrier that reqnired segregation of an

laterstate passenger, this Court anid! ‘* And we must keep in mind that we are

mot dealing with the Inw of a State Attempting a reculation of interstate °

tommeree beyond its power to muke.’’ Chiles r. Mhevapenke & Ohio Railway,

18 U. 8. 71, 75.

Of. Gwin, ete, Ine. r, Henneford, 305 U.S. 424, 439: Mitz » Ballwin,

289 T. 8. 346, 252: Welch Co. +. Now Hampshire, 206 TS. TO. «4.

“Southern Pavitic Co. +. Arizona, 325 U.S. 761. 788 7).

Cooley r. Board. of Wardens, 12 How. 299, 319: The Minnesota Rate

Chars, 230 8. 352, 402; Kelly vr. Washington, 402 U. & 1, 10.

cr

o

40 — Morgan vs. Commonwealth of Virginia. .

the principle lacks in precision. Although the quality of such

a principle is abstract, its application to the facts of a situation

created by the attempted enforcement of a statute brings about

a specific determination as to whether or nqt the statute in ques.

ion is a burden on commerce. Within the ‘broad limits of the

’ principle, the cases turn on their own facts.

In the field of transportation, there have been a series of de-

cisions which hold that where Congress has not acted ‘and although

the state statute affects interstate commerce, a state may validly

enact legislation which has predominantly only a local. influence

on the course of commerce.’* It is, equally, well settled that, even

where Congress has not acted, state legislation or-a final court

order is invalid which matérially affects interstate: commerce.”

16 Statutes or orders dealing with safety of. operations: Smith rv. Alabama,

124 U. 8. 465 (Alabama statute Tequiring am examination and license of

train engineers before operating in the state); Nashville, &e. Railway

Alabama, 128 U. 8. 96 (Statute requiring examination of railroad emplovers

as to Vision and color blindness); N. Y., N. H. & H. Railroad rv. New York.

165° U. 8. 628 (N. Y. statute forbidding the use of furnaces or stoves in

passenger cars and requiring guard-posts on railroad bridges); rh +

Morasch, 177 U..8. 584 (Municipal ‘ordinance limiting speed of trains

in. city to 6 miles an hour); Atlantic Coast Line . Georgia, 234

U.-S. 280 (Georgia statute requirjng electzic headlights on locomotives):

Morris v. Duby, 274 U. S. 135 (Weight restrictions on motor earriet

imposed by order of Oregon highway commission); Sproles rv. Dinford.

286 U. 8. 374 (Size and weight restrictions on trucks imposed by Texas

statute); 8. GQ Hwy. Dept. v. Barnwell. Bros., 303 U.-S. 177 (Statute re

stricting weight and size of motor carriers) : ‘Maurer v. Hamilton, 209 T°.

' 598 (Penna. statute forbidding the use of its highways to any vehicle carry.

ing any other vehicle over the head of the operator of the vehicle) ; Terminal

Assn, v. Trainmen, 318 U. 8. 1 (Illinois statute requiring cabooses on fre ight

trains). ,

Statutes or orders requiring local train service: Gladson v. Minnesota,

166 U. 8S. 427 (State statute reguiring intrast:tte train to stop at county seat

to take‘on and, discharge passengers); Lake Shore & Mich. South. Railway

v. Ohio, 173 U: S, 285 (Statute requiring three trains daily, if so many are

run, to stop at each city containing over 3,000 inhabitants as applied to inter

state trains); Atlantic Coast Line v. N. Car. Corp. Com'n, 206 U8. 1

(Order regulating train service, particularly requizing train to permit con

nection with through trains at junction point) ; Mot Pae. .Ry. Co. v. Kant sas

216 U. 8S. 262 (Order directing the operation of intrastate passenger tt

service. Over specified route).

Statutes dealing with cmployment of labor-—full erew laws: Chi

R. I. & Pace. Ry. Co. v. Arkansas, 219 U. 8S. 453 (Arkansas full crew hae

applied to interstate trains); St. L. & Iron Mtn. Ky. v. Arkansus, 240 U.

518 (Arkangas full crew laws applied to switching crews); Missouri = ie

R. Co. v. Norwood, 283 U. S. 249 (Arkansas full crew laws applied to hin ight

and switching crews) i

17 Statutes or orders dealing with safety of. operations: Kansas So

Ry. rv. Kaw Valley Dist., 233 U. 8. 75 (Order requiring railroad te rin’

its bridges over river for flood control purposes); South Covington 'y. |

shern

Pa

/ ‘

Morgan Vs. Uommonwéalth of Varginia, 5

Because the Constitution puts the ultimate power to regulate com-_

merce in Congress, rather than the states, the degree of state

legislation’s interference with that commerce may be weighed by

federal courts to determine whether the burden makes the statute

unconstitutional.!® The couits could not invalidate federal levis-

lation for the same reason because Congress, within the limits of

the Fifth. Amendment, has authority to burden Conunerce if that

seems to it a desirable means of accomplishing a permitted end."

This statute is attacked on the ground that it imposes undue

burdens on interstate. commerce. — It is said” by the Court =f

Appeals to have been passed ir the exercise of the state's police

power to avoid friction between the races. But this Court pointed

out years ago ‘‘that a State cannot avoid the operation of this

rule by simply invoking the convenient apologetics of the police

power.’ Burdens. upon commeyte are those actions of a’ state

which directly ‘‘impair the usefulness ‘of its facilities for such

Covington, 235 U. S. 537 (Ordinances regilating the number of passengers

to be carried in, the number of curs to be run and the temperature of an

interstate street railway car invalid; those requiring rails on front and -rear

platform, ventilation and cleaning valid) ;: Seaboard Air Line Ry. v. Black-

well, 244 U. S. 310 (Georgia Blow Post Law requiring train to blow whistle

and ‘slow down almost to a stop at each grade crossing where numerous grade

crossings were involved. Cf. Southern Railway Co. rv. King, 217 U. 8. 524,

where answer held insufficient to permit proof of burden of the statute on

interstate commerce) ; Southern Pacific Co. v. Arizona, 325 U. 8. 761 (Statute

limiting number of cars in freight train to 70 and passenger ears to 14.)

Statutes or orders reyuiring local train service: Tinois Central Railroad

Co. v. Ilinvis, 163 U. S. 142 (Statute applied to require fast mail train to

‘etour from main line in order to stop at station for the taking on and

discharge of passengers); Cleveland, &. Ry. Co. vr. Hlinois, 177 U. S. 514

(Ill. statute requiring interstate train to stop at each station) ; Mississippi

BR. R. Com. v, Tlinois Cent. R. R., 203 U. 8. 335 (Order of commission re-

quiring interstate train to stop at small town); Atlantic Coast Line ¢.

Wharton, 207 U. S. 328 (S. (. statute and railroad commission order re

quiring interstate train to stop at small town); St. Lonis S. W. Ry. +.

Arkansaa, 217 U. S. 136 (Statute and order requiring delivery of freight

‘ars to local shippers) ; Herndon v. Chi.,: Roek Island & Pac. Ry¥., 218 UL 8.

135 (Statute requiring interstate train to stop at junction point); Chi., B.

t Q. Ry.-v. Wisconsin R. R: Com., 237 U. 8. 220 (Wisconsin statute requiring

interstate train t stop,.at villages containing 200 or more inhabitants):

ssouri, Kans, & Tex. Ry. Co. v. Texas, 245 UL 8. 484 (Order requiring /

rains to start on time and fixing time allowed for stops at junctions vf

route); St. Louis & S. F. Ry. v. Pub. Sery. Comm., 254 U. $8. 535 (Ord®r re

quiring through trains to detour through a small town); St. LS. F. Ry...

Pub. Serv. Commyp., 261 U.S. 369 (Order requiring that interstate trains be

stopped at small town). i “

18See Southern: Pacific ('o. vr. Arizona, 325 U. 8. at 770.

18 Compare United ‘States-r. Carolene Products Co., 304 U. 8S. 144, 146. .-

* Kansas Southern Ry. y. Kaw Valley Dist., 233 U. 8. 75, 79.

6 * Morgan Vs. Commonwealth of Virginia.

traffic.’"*! That impairment, we think, may arise from other

causes than costs or. long delays: A burden maf arise from a

state statute Which requires. interstate passengers to order their

“movements oii the vehicle in ‘accordance’ with loeal rather than

national. -requirements. : 7) =e

On appellant’s journey, this statute required that. she sit in

designated seats in Virginia.“" -¢ ‘hanges i in seat designation might

be made ‘‘at any time’ during the journey when “neees Sit

proper for the éomfort and convenience of passengers. | > This

occurred in this instance. Upon such’ change of designation

statute authorizes the operator of the vehicle to require. as |:

did here, ‘‘any passenger to change his or her seat as it may |

necessary“ or proper.’’*3 An interstate passenger must if neers

sary repeatedly shift Seats while moving in Virginia to mert th

seating requirements af the changing passenger group. tn ar

rival at the District of Columbia line, the appellant would have

had freedom to occupy any available seat’ and so to thes

her journey. ‘

Interstate passengers traveling via motors between the rortl

and south or the east and west may pass through Virgina

through- ‘Hines in the day or in the night. The large buses ap

proach the comfort of pullmans and have seats convenient

rest. Qn such interstate journeys the enforcement of ‘the

quirements for reseating would be. disturbing.’

Appellant's argument, properly we: think, includes facts bear

ing on interstate motor transportation beyond those inimediate)

involved in this journey under the Vi irginia statutory regulations

To appraise the weight of the burden of. the Vi irginia statute

interstate commerce, related statutes of other states are ii pertan’

» show whether there are cumulative effects which may ak

loeal regulation impracticable. Eighteen states, it ‘appedrs. pre

hibit racial séparation on public carriers?4 Ten require se

21 Titinois Central Railroad Co. ~. Mlinois, 163 U.S, 142, 154,

22 The Virginia Code of 1942; section 67, defines a colored pers&s. for ‘>

purpose of the Code, as follows: ‘‘ Every person-im whom there is aseertan

_able any negro blood shall be deemed and taken to be a colored pots

; /'* Provisions for vital statistics mako’ a reeofd of the racial bone

of ‘Virginia inhabitants. Seétions 1574 and 5099a,.

23 § 4097bb. a

24 Cal. Civ. Code (Deerin; z), 1941. See, 51-54; Colo, Stat. Ann. 1935, %

35, See, 1-10; Conn. Gen. Stat. (Supp. 1933), Sec. 1160b; Dll. Rew. Stat. 14

Ch. 38, See. 125-128g:; Ind. Stat. (Burns), 1933, See. 10-901, 10-902, Tow

Morgan vs. Commonuy alth of Virginia, 7

aration on motor earriers.*> Of these Alabama applies specifically”

to interstate Passengers with an exception fur interstate Pa@ssen-

gers with through tickets from, states without laws ON separation —

of passengers.“* The language of the other acts, like this Virginia

statute before the Court.of Appeals” decision in this case, may be

said to be susceptible to an interpretation that they dd or do not

apply to interstate Passengers. | .@ oe

Tn states where Separation of raees is required in moter Vehicles, -

a method of identification as White cor colored must® be employed

This. may be done by definition, Any ascertainable Newro blood

entities a persen as colored: for purposes éf Separation in’ sone

states"? Tn the other states hich require the separation of the

races In motor carriers. appareatly no definition generally applica-

ble or made for the purposes of thestatute is given, Court defini.

tion or further levislative enactinents would be required to Clarify

the line between. the races: Obviously there may be chanses by

legislation .in the definition 2% -

The interferenges to interstate commerce Which “arise from state

regulation of ratial association on interstate vehicles has long heen

teeorniaed. Such reenlation hampers freedom of Choice in select.

ing accommodations The reeent | changes jn transportation

brought shout by the

a

coming of -antomobiles does not seem of

Vode, 19239 See. 13251-13959. Kan. Gen, Stat.. 1935, See. 21.2424: Mass,

Laws Michie): 1932, Chap. 272. Sec, G8, ne amended 1924. Mich. Stat. Ann.,

WAS, Sie O28 343. 28.3434: Minn. Stat.( Masons, 1927. See. 6321: Neh, Comp,

tat. 1926, See, 23-101; N. J, Rev, Stat., 1937, See, 10:1-2 to 10:1-7- \ ¥

1 Rights Law (Mr Kinney), See, 40 41; Ohio Code (Throekmorton). Win,

¢.-12940-12942; Pa. Stat. (Purdon) ¢ Tit. 18, See. 4654 to 4655; R. I. Gen.

aws, 1938, Ch. 606, See, 28-29; Wash. Rey. Stat. (Remington), 1932, Sve.

686 (semble ) ; Wis: Stat., 1943, See. 340.75, =

5 Ala. Code, 1940, Tit. 48, See. 268: Ark. Stat., 1937 (Pope), See. G02 1-5

927, Acts 1943, P. 379: Ga. Code, 193: » See, 68-616: La. Gen. Stat. (Dart

939, See. 5207 5309: Miss. Code. 1942, See. 7785: N. ©. Gen. Stat. 1943,

fe. 62-109; Okla. Stat. Ann., 1941, T#., 47, 201-210: S «. Code, 1942,

fe. 8530-1; Tex. Pen. Code (Vernon), 1936. Art. 1659; Va. Covle. 1942,

. 40972. 4097dd. : :

* Ala..Code 1940, Tit. 48, Ser.” 268, - ete

7 Ala. Code, 1940, Tit. 1, See, 2. Ark. Stat. (Pope), 1937 See, 1200) “sep.

ae coach law); Ga. Code Michie Supp-:), 1928, See 2177: Okla: Conat..”

i. XXIII, See, 11: Va. Code ‘Michie), 1912, See 7,

28 Compare Va. Code, 1887, See 49. providing ‘that those who had on

urth or hore Negro blood were.sto be considered eolored. — This was

enged in 1910 (Aets, 1910, P. 781) ¢to read one sixteenth or more. it

* again changed in 1930 by Acts, 1930, Pp. 97, to its present form, i. e.,

Y ascertainable Negro blood. ‘See note 22, sipra,

~_——, e

a

8 Morgan vs.. Commonwealth of. Virginia.

id - e

gia

great significance in the problem. People of all races travel today

more extensively than in 1878 when this Court first passe l ‘upon

st@je regulation of racial segregation in commegge. . The ‘factual

situation set out in preceding paragraphs emphasizes the sounds

ness of this Court’s early conclusion in Hall v. DeCuir; 95 U. S.

485.

The DeCuir case arose under a statute of Louisiana interpreted

by the courts of that state and this Court to require pubilic car-

riers ‘‘to give all persons travelling in that State, upon the public

_ conveyances employed in such business, eqnal rights and privileges’

in all parts of the conveyance, without distinction or discrimina-

tion on account of rage or color.’”’ Page 487. Damages were

awarded against Hall, the representative of the operator of a

‘Mississippi river steamboat that traversed that river interstate

from New Orleans to Vicksburg, for excluding in- Louisiana the

defendant in error, a colored person, from a eabin reserved for

whites. This Court reversed for reasons well stated in the words

of Mr. Chief Justice Waite.2® As our previous discussion dem-

oil

i

2995 U. S. at 489:

‘‘It was to meet just such a case that the commercial cl..use in the

Constitution was adopted. The river Mississippi passes through or along

the borders of ten different States, and its tributaries reach riany more.

The commerce upon these waters is immense. and its regulation clearly a

matter of national concern. , If each State was at liberty to regulate the

conduct of carriers while within its jurisdiction, the confusion, likely to

follow could not but be productive of great inconvenience and -unnecessary

hardship. Each State could provide for its own passengers and regulate the

transportation of its own freight, regardless of the interests of others. Nar

more, it could prescribe rules by which the carrier must be governed within

the State in respect to passengers and property brought from without. On

one side of the river or its tributaries he might be required to observe one

set of rules, and on the other another. Commerce cannot flourish in the

midst of such embarrassments. No carrier of passengers can conduct his

business with satisfactioa to himself, or comfort to those -employing him,

if on one side of a State line his passengers, both white and colored, must

be permitted to occupy +the same cabin, and on the other be kept separate.

. Uniformity in the regulations by which he is to be governed from one en!

to the other of his route is a necessity in his business, and to secure it

Congress, which is untrammelled by State lines, has been invested with the

exclusive legislative power of determining what such regulations shal! b.

If this statute can be enforced against those engaged in inter-state com

merce, it may be as well against those engaged in foreign; and the master

of a ship clearing from New Orleans for Liverpool, having passengers 00

board, would be compelled to carry all, white and colored, in the same cabin

during his passage down the river, or be ‘subject to an action for damages.

‘exemplary as well as actual,’ by any one who felt himself agyrieved: be

cause he had been excluded on account of his ‘color.’’ moar.

See Louisville, &. Railway Co. v. Mississippi, 133 U. S. 587, 59091.

Morgan vs. Commonwealth of Virginia. 9

‘onstrates, the transportation difficulties arising from a-statute the

requires commingling of the races, as in the DeCuir case, are in-

creased by one that requires separation, as here3° Other federal:

courts have looked upon racial separation statutes as applied to

_interstate passengers as burdens upon commerce?!

In weighing the factors that enter into our conclusion as to

whether this Statute so burdens interstate commerce or so. in-

fringes the requirements of national uniformity as to be invalid,

we are mindful of the fact that conditions vary between. northern

or wastern states such as Maine or Montana. with practically no

-eclored population; industrial states such as Illinois, Ohio, New

Jersey and Pennsylvartia with 2 small, although appreciable, per-

centage of colored citizens; and the states of the deep south with

percentages of from twenty-five to nearly ffty per cent colored, all

A regulation of the number of passengers on interstate street cars was"

held invalid in South Covinuton Ry. v. Covington, 235 U. 8. 537, 547. This

Court said at 547-48:

“If Covington -can regulate these matters, certainly Cincinnati ean,

#and interstate business might be impeded by conflicting and varying

regulations ‘in this respect, with which it might he impossible ta comply.

On one side of the river one set of regulations might be enforced, and

on the other side quite a different sct, and Both seeking to control a

practically continuous movement of ears. As was said in Hall vr. DeCuir,

95 U. 8. 485, 489, ‘commerce cannot flourish in the midst of such em-

barrassments. ’’ ; -—

%0South Covingtén, &. Ry. Co. r. Kentucky, 252 U. S. 399, relied upon

by appellee, does not decide to the contrary of the holding in Hall v. Defuir.

In that case a earrier corporation was convicted ig the Kentucky courts of

violation of a state statute t at reeuired it to+ furnish ears with separate

compartments for white and colored. It Operated street ears interstate over

the lines of another corpr: ition ‘that owned tracks that were wholly intra-

state. The Court of Appeals of Kéntucky held the conviction. good on the

ground that the offending act was the operation of the intrastate railroad in

Violation of the state statute. Tt was said that the statute did not apply

to an interstate passenger. S. C. & C. Street Ry. Co. 2. Commonwealth, 181

Ky. 449, 454. The Court of Appeals referred, with continual approval, at

that point to Chiles v. Chesapeake & Ohio Ry. Co., 125 Ky. 299, 304: «It is

admitted that section 795-801 of the Kentueky Statutes, requiring all rail-

Toa companies to furnish separate coaches for trans »rtation of white and

cr pangs and imposing upon the company 4 « conductors a penalty

fo using:or failing to carry out tlie provisions of the law, does not apply

to appellant, who was an interstate passenger; it being coneeded that the

statute-is only operative within the territorial limi‘s of this State, and effee-

tive as to passengers who travel from one point within. the State to another

Place within its-border.’’ This Court accepted this application of the state

statute and said it ‘‘is not a regulation of interstate commerce.’! Page

403. Probably what was meant by the opinions was that under the Ken-

tucky act the company with wholly intrastate mileage must operate cars

With separate compartments -for intrastate passengers.

31 Anderson v."Louisville & N. R. Co., 62 Fed. 46, 48:"Washing nu, B. &

A. Electric R. Co. v. Waller, 289 Fed. 598. See also Hart v. State, .00 Md. -

595; Carrey rv. Spencer, 36 N. Y. Supp. 886.

ca Wr ROO . Wee Onn

. . rs ° —— >

10 Morgan vs. Commonweallh of Virginia,

with varying densities of the white and* colored race in certain

localities. Local elforts ‘te promote amicable relations in diflicult

areas by legislative segregation in interstate transportation

emerge from the latter racial distribution. As no state law

can reach beyond its. own border nor. bar transportation of ~

passengers across its boundarivs, diverse seating requirements for

the races in interstate. journeys result.. As there is no federal act

dealing with the separation of ‘races in interstate transportation,

we must deeide the validity of this Virginia statute on the chal-

lenge that it interferes with-commerce, as a matter of balance be-

tween the exercise of the local police power and the need for

natiofal uniformity in the regulations for interstate travel. It

seems clear to us that seating arrangements for the different races

in interstate motor travel: require a single, uniform rule to: pro-

mote- and protect national travel. Consequently, we’ hold the

Virginia statute in controversy invalid. -

Reversed.

.+Mr, Justice RUTLEDGE concurs in the result.

Mr. Justice Jackson took no part’ in che ecnsideration «

c:sion of this case

_ )

- —

.

Mr. Justice. BhacK concurring.

The Commerce Clause of the Constitution provides that **Con-

gress shall have poWer . . .. to regulate commerce . . . among

the several States.’’ I have believed, and still believe hat this

provision means that Congress can regulate commerce. and that the

eourts cannot. But in a series ef ¢ases decided in recent years

this Court over my protest has held that the Commerce, Clause

justifies this Court in nullifying state legislation which this Cour

concludes imposes an ‘‘undue burden’’ on interstate commerce!

I think that whether state legislation imposes an ‘‘undue burden”

. on interstate commerce raises pure questiorts, of policy, which the -

Constitution intended should be résolved by ‘he Congress. °

Very recently a majority of this Court reasderted its power to

invalidate state laws on the ground that such legislation put an

1 Nippert v. Richmond, — U. 8. —-; Southern Pacifie Co. v. Arizona, 325

U.S. 761; MeCarrol v. Dixie Greyhound: Lines, 309 U. S. 176; Gwin, White

& Prince vr. Henneford, 305 U.S. 434; Adams Mfg. Co. v. Storen, 304 U. §.

307. a ;

~°

Morgan vs. Commonwealth of Virgina. cae B

undue burden on commerce, Nippert y. Richmond. 3 Supra: Nouth

ern Pacific Co. Vv. Arizona, Supra. 1 thought then. and still he-

lieve, that ‘in tiie vases the Court was assuming the rele of a

~“super-legislature’’ in determining matters of governncontal’

- poliey. 12, at 787, w. 4. : .. 3

But the Court, at least fo~ the present, seems committed to this |

interpretation of the Commerce Clause. Tn the Sgudbern Paes ns

Co. case, the Court, as I understand its opinion, found an? “Uundgg:

-burden’’ because a state's requireme nt for shorter trains inereased

‘the cost of railroad operations and there ‘by delayed interstate ¢

merce and impaired its effici ‘leneys In the Mippert ease « eisai

tax iniposed on a gales solicitor . employed by concerns located

outside of Virginia was found to be an © tndue burden’ eye:

though a solicitor for Vj Irginia concerns engaged in the same bus:

ness would have been required to pay the same tax, |

So long as the Court remains committed to the undue burden

on commerce formula,’’ _T must make decisions wnder it. Thy

“burden on commerce”? ‘imposed by the Virginia law here Under

consideration Seems to me to be of a far more serious nature than.

those of the Vipper! or Southern Pacific Company cases, Tie

Southern Pacific mpany opinion, mdreover, relied in’ part. on

the rule announeéd in Hall v. DeCuir, 95 U.S. 485, whic h case

held that the Commerce Clause prohibits Ja state from’ passin

laws Which require that ‘ ‘on one side of aAtmate line... passen-

gers, both white and colored, must be permitted’ to> occupy the

same cabin, and on the other be. kept separate.”’ The Court fur.

ther said that “uniforn. iy in the regulations by Which ;

fa carrier} . . is fo be governed from one ‘end to the other of

his route is a necessity in his business’? and that it was the ro.

“ Sponsibility of Congress, not the States, to determine “what snely'

regulations shall be.”? The “undue bur’en on ecommerce form.

Tla”’ consequently requires the Majority ’s decision. In view of the

Court’s present ee to apply that formula, I acquiesce,

‘

/

/ / | ;

Mr. Justice FRANKFURTER concurring.

* My brother’ Burton has stated with great force reasons for not

invalidating the Virginia statute. But for me Fall y. DeCuir,

TUL S. 485, is controlling. Since it was decid® nearly seve ty

Years ago, that case on several. occasions has Keen approvingly

‘ss Morgan vs.‘ Comonwealth of Virginia.

cited and“has never -been questioned. Chiefly for this reason |

eoneur in the opinion of the Court.

The imposition pon national systems of tied: of “ee

erazy-quilt ‘of State laws would operate to\ burden commerce un-

reasonably, whether such contradictory and confusing State laws

concerr racial commingling or racial segregation. This does not

imply the necessity for a nationally -uniform regulation of ‘ar.

rangements for passengers on interstate carriers. Unlike other

J powers of Congress (see Art..I, §8, el. TI, concerning ‘‘Duties,

Imposts and Excises’’; Art. I, -§8, el. 4, concerning ‘‘ Naturali-

zation’’; Art. I, § 8, cl. 4, concerning ‘‘Bankruptcies’’), the power

to regulate commerce does not’ require geographic wnifornfity..

. Congress may devise a national policy with due regard to vary 2

interests of.different regions. E. g., 37 Stat. 699, 27 U. S. C. §.122

Clark Distilling Co. v. West’n Md. Ry, Co., 242 U. S. 311; 45 Stat.

° 1084, 49 U.S.C. § 60; Whitfield v. Ohio, 297 U. 8. 431. The States

cannot impose diversity of treatment when such diverse treatment

would result in unreasonable burdens on commerce. But Con-

gress may effectively exercise its power under the Commerce Clause

without. the necessity of a blanket rule for the country. *. ;

t

Mr. Justice ‘Burton dissenting.

On the ‘application, of the interstate commerce clause of thé

Federal Constitution to this case, I find myself obliged. tp differ

from the gnajority of the Court. I would sustain the Virginia

statute against that elause. The issue is neither the desirability

of the statute nor the constitufionality of racial segregation as

such. The opinion of the Court does not claim that the Virginia

_ Statute, regulating seating arrangements for interstate passengers

in motor vehicles, violates the Fourteenth Amehdment or is in con- ©

flict’ with a federal statute. The Court holds. this. statute uncon-

stitutional for but one reason. It holds that the-burden imposed -

by the statute upon the nation’s interest in interstate commerce .

so greatly outweighs the contribution made by the statute to the

state’s interest in its public welfare as to make it unconstitutional. -

The undue burden upon interstate commerce thus relied upon”

by the Court is not complained of by the Federa! Governnrent,

by any state, or by any carrier. This statute has been in effect:

cy

Morgan vs. Commonwealth of Virginia. 13

since 1930.* The earrjer concerned is Operating under regulations

of its own which conform to the statute. The Statute? conforms. .

to the policy adopted by Virginia as to steamboats (1900), electric’

or street cars and railroads ‘ (1902-1904). Its validity has been

usigy upheld by the Supreme Court of Appeals of Virginia.

The argumeyfrelied upon by the majority of, this Court to estab-

lish the undue burden of this statute on interstate commerce is .

‘the lack of uniformity between its provisions and those of the

laws. of other states on the subject of the racial separation of

interstate passengers on motor vehicles, :

«If the mere diversity between the Virginia statute and com.

parable statutes of other states is so serious as te render the 4jr-

ginia’ statute ‘Invalid, it Probably Means that the comparable

statutes of those other states, being diverse from it. and from

each other, are equally invalid. This is. especially true under

that assumption of* the majority Which disregards Sectional inter-

state travel between neighboring states having similar laws, to hold

“that. seating arrangements fur the diferent races in interstate

moter travel require a single, uniform :rule to protect national

trayel.’” (Italics Supplied.) More specifically, the opinion of the.

Court indicates that the laws of the 10 contiguous stafts of Vir.

ginia, North Carolina, South Carolina, Georgia, Alabama, Mis..

- Sissippi, Louisiana, Arkansas, Texas and Oklahoma require racial

separation of, passengers on motor carriers, while those of 18 other

states prohibit racia! separation of Passengers on public carriers. -

On the precedent of this case, the laws of the 10 staf@s requiring

racial separation apparently can be invalidated because of, their

sharp diversity from the laws in the rest of the Union, or.. in a

lesser degree, because of their diversity from one another. Such

invalidation, on the.grouid of lack of: ited, uniformity, may

* lead to questioning the validity af the laws of the. 18 states now

Prohibiting racial Separation of passengers, for those laws likewise

differ sharply from ‘laws on the same subject ‘in other parts of the

Union and, in a lesser degree, from one another. In the absence:

of federal law; this may eliminate State regulation of racial sepa-

ration ‘in the Seating of interstate. passengers on motor vehicles

ee . A

'Steamboats: Acts of 1900, p. 340; electric. or strect cars: Acts of 1902.

> P. 990; railroads. Acts of 1902-1904, p. 987, Va. Code Ann., 1942.) -

if 4022-4095. 3978-3983; 3962"3969, ‘ oy AP

r

o&

a

\

‘

the sane motor veliéles, with int erstate Passengets.- The dacs.

se

Ma Morgan vs. Commonwealth of Virginia.

and leave the regulation of the subject to the respective carriers

The present devision will lead to the questioning of the s “&

of statutory — of the seating of intrastate? pxtssen c+ °

.

.

may also -result in increased lack of tini! vermity between rewula-

tions as. to seating arrangements on motor velx ‘les limiged

‘ ‘ e . ~

rasta’ passenvers in a given State and those of motor toelieies

neagel in int?rstate business in the s:fme state er om comm ooting

eoeen.

* The basic weakneis 1 in the appellant’s case is the lack of facts a:

findings essential to demonstrate the existence of such a ser: s

and major burden .upon'the national interest in. interstaty

merce as to outweigh whatever state or local benefits are a*-

tributable to’the statute’and which wou! L te lest by its invallta-

‘tien. The Court recognizes that it Serves as **the final arbiter wf

the competing demands of state and national interests’? aro)

it must fairly determine, in the absences of Conyressiona!

whether the state statute actually imposes such an undue’ bur!

upon interstate commerce as to invalidate that statute. ‘In w-\

-ing these competing demands, if this Court is to justify the inva!

dation of this statute, it must, first of all, be satisfied that the many

years of experience of the state and the carrier that are ae seted

in this state.law should be set°aside. It represents the teste!

publie policy of. Virginia resularly enacted, long maintained and

currently: observed. The officially “declared state interests. ever

when affecting interstate commerce, should not be laid’ aside sm.

marily by this Court in the absence of Congressional action. It

is only Congress that ean supply. affirmative national uniformity

of action. *

In Southern Pacific Co. v. Arizona, 325 U. S. 761, 768-769, 77°

this Court speaking through the late Chief Justice said :

‘In the application of these. principles: some enactments

may be found to be plainly within and others ‘plainly wither

state power. But between these exfremes Hes the intuit

variety ‘or vases, in which re@ulation of local matters may

also operate as a regulation of eofumeree, in which recone!!!)

tion of the conflicting claims of state and national nower is

to be attained only. by some appraisal and accommo l:tion of

2 Southern Paeifie Co. v. Arizona, 325 U. S. 761, :769.

- Vorgan ee C43 ie uth aif Vis meri i

the COMPONGS cerhands or the state and nacional Witerests

* sInvelved’ :

. : ° . , . A e a2 : 2 : . . : e

“But in general Congress has legt it te the courts to formu.

late the rules thus interpreting the commerce clause in its

‘ application, doubtless because -it Itas appreciated the destrue- ”

tive’consequences to the eonimeree of the nation if their ji. e.

. the courts’) protection were Withdrawn, © © and has heen

aware that in their application state laws will not be invali-

dated without the ‘Support of relevant factual material which

will ‘afford @ sure basis’ for an informed yuglgment.s .

Meanwhile. Congress has accommodated its legislations as

have the states. to.t ese rules as an established feature of our

constitutional system. There has thus been left to the states

Wide scope for the regulation of matters of local state con:

‘cern, even though it in some measure affects the commerce,

provided it does not niaterially restrict the,free flow gf com-

Merce across state lines. or interfere With it in matters with

respect to which Uniformity of regulation is of predominant:

national concern.”’ ¢ Ftalies supplied.) ; =

The above ‘quoted requirement of a factual establishment of

“a sure basis’’ for an informed judgment by this Court calls for

8 firm and demonstrable b sis of action on the part-of this Court.

In the record of this ‘case there are no firfdings - of fact that

demonstrate adequately the excessiveness.of the burden, if any,

which the Virginia statute has imposed upon interstate com

meree,during the many years since its enactment, in comparison

With the resulting efféct in Virginia of the invalidation. of this

statute The Court relies largely upon the recital of a nation-

» Wide diversity among state statutes on this subject withont a

demonstration of the factual situation in those states, and espe.

cially in Virginia. The Court therefore is not able in this case

to make that necessary ‘‘anpraisal and accommodation of the

competing demands of the state and national interests divelved”

*See Parker Brown: 317 UT. S. 341, 362: Di Bente v. Pennsylvania, 273

- & 34, 44. . .

‘Terminal Assn. v. Trainmen, 318 U. & 1, &

_, Hall ev. DeCuir, 95 1. S¢ 445. does rot require the conclusion teached by

the Court in this case. The Louisiana statute in the DeCwr case could have

invalidated. at thae time and place, ae an undue burden on interstate

commerce under the rules clearly stated “be Chief Justice Stone in Southern

Co. %. Arizona, supra. and as applied im thie dissenting opinion,

If the DeCwir ease is followed without weighing the surrounding facts

it would ‘invalidate today statutes in Sew Enyland’ states prohibiting»

Separation in seating arrangements on carriers, ‘which would not be

invalidated under the doetrine stated in the Ar cong eane.

‘

~—

~*~

*

_-_

a

16 e ‘Morgan vs. Commonwealth of: Virginia.

which should be the foundation for passing pon the validity of

a state statute of long standing and of important local signifi-

cance in the exercise of the state police power.

The Court makes its own further assumption ' that the oie .

-of racial separation of -interstate passengers in ‘motor vehicle

‘carriers requires national uniformity of ‘treatment rather than

diversity of treatment at this time. The inaction of Congress is

an important indication that, in the opinion of Congress, this

issue is better met without nationally, uniform affirmative regula-

tion than with it: Legislation raising the issue long has _ been,

and is now, pending before Congress byt has not reached the floor

of either Jouse.* The. fact that 18 states have prohibited in some

~ degree racial separation in public carriers is important progress

in the direction of uniformity. The fact, however, that 10 con-

tiguous states in some degree require, by state law, some racial

separation of passengers on motor carriers indicates a different

appraisal by them of the needs and conditions in those areas than

in others. The remaining 20 states have not gone equally far in

. either diredtion. This recital of existing legislative diversity is

evidence against the validity of the assumption by this Court

that there exists today a requirement of a single uniform national

rule on the subject.

It is a fundamental concept of our " Constitution that where

conditions are diverse the solution of problems arising out of

them may well come through the application of diversified treat-

ment matching’ the diversified needs as determined by our local

governments. Uniformity of treatment is appropriate where &

substantial uniformity of conditions exists.

“e

oe

6

@ See H. R. 8821, 75th Cong., 3d Seas., 83 Cong. Ree. 74; H. R. 182, 76th

Cony., lst Sess., 54 Cong. Ree. 27; H. R. 112, 77th Cong., Ist Sess., 87 Cong.

Rec. 13. : :