# Brief Amicus Curiae — Morgan v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0110%3A8 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief Amicus Curiae - **Published:** January 1, 1946 - **Citation:** 328 U.S. 373 ## Text ’ 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 $ 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 “ 10 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 - a8 11 ‘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 > ¢ * 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 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. : : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0110%3A8. Public record. Not legal advice.