847. Choice of facilities.

In many businesses alternative services are provided, such as sleeping cars and day coaches upon railway trains.1 The more costly cars may surely be more comfortably equipped, if the less costly provide reasonable accommodation. This is true also of freight cars, there being special stock cars for the transportation of race horses much better fitted than the ordinary stock cars.2 Where there are such alternative services, it is obvious that the customer should be given his choice; the company should not dictate without reason. Thus it would seem clear that persons belonging to a certain race could not be excluded from the superior accommodations if they wish. to have them.3 But sometimes reasons may exist for rules regulating the choice. Thus for the transportation of passengers in palace cars, certain classes of tickets for the journey may be refused.4

§ 848. Separation based upon race.

Considered in this light then, it would seem that there could be no question as to the legality of the provision of separate accommodation for colored persons, whether by

1 See Pullman Palace Car Co. v. Lee, 49 Ill. App. 75 (1892).

Coupland v. Housatonic R. R. Co., 61 Conn. 531, 23 Atl. 870, 15 L. R. A. 534 (1892).

'See Pullman Palace Car Co. v. Cain, 15 Tex. Civ. App. 503, 40 S. W. 220 (1897).

4 Lawrence v. Pullman P. Car Co., 144 Mass. 1, 10 N. E. 723, 59 Am. Rep. 58 (1887).

In Thorpe v. New York Central & H. R. R. R. Co., 76 N. Y. 402, 32 Am. Rep. 325 (1879), it was held

that where the ordinary coaches are crowded a passenger has a right to enter a parlor car operated by the same company, no regulation against this being promulgated.

But in Bass v. Chicago & N. W. Ry. Co., 36 Wis. 450, 17 Am. Rep. 495 (1874), it was held that when the ordinary coaches are full a passenger has no right to enter the ladies' car.

regulation or legislation.2 The Tennessee court 3 goes to the root of the matter when it says: "We know of no rule that requires railroad companies to yield to the disposition of passengers to arbitrarily determine as to the coach in which they take passage.' The right to determine the question rests with the carriers as the North Carolina court clearly says: "Among those reasonable

regulations which they have a right to adopt is the one of classifying their passengers and assigning them to separate, though not unequal, accommodations. This right, as

regards the separation of the white and colored races in public places has been expressly and fully recognized in many of the courts, both state and national."

§ 849. No real discriminations permissible.

This right to assign is subject to the limitation strictly insisted upon that there must be no inequalities imposed by this assignment to designated facilities. Thus if the races are separated the cars must be equally equipped with proper conveniences. And if such special facilities as ladies' cars or sleeping cars are available to one race they must also be to the other.2 Legislation also must treat the races without the least discrimination as is well brought out in two recent Florida cases. In one of these cases,3 the court had under review a State statute requiring street car companies to provide separate cars, but con

such legislation to interstate transportation is attempted.

United States.-Hall v. Decuir, 95 U. S. 485, 24 L. ed. 547 (1877).

Kentucky.—Ohio Valley Railways Receiver v. Lander, 104 Ky. 431, 47 S. W. 344 (1898).

Maryland.-Hart v. State, 100 Md. 595, 60 Atl. 457 (1005).

New York.-Carrey v. Spencer, 36 N. Y. Supp. 886 (1895).

Teras.-Pullman Palace Car Co. v. Cain, 15 Tex. Civ. App. 503, 40 S. W. 220.

Some cases treat the separation of the races to avoid trouble as almost a duty. See Wood v. Louisville & N. Ry. Co., 101 Ky. 703, 42 S. W. 349 (1897); Quinn v. Louis

ville & N. Ry. Co., 98 Ky. 231, 32 S. W. 742 (1895).

1 United States.-Houck v. Southern P. Ry. Co., 38 Fed. 226 (1888). Texas.-Henderson v. Galveston, H. & S. A. Ry. Co. (Tex. Civ. App.), 38 S. W. 1136 (1896).

And see Coger v. North Western Union Packet Co., 37 Iowa, 145 (1873).

But see Day v. Owen, 5 Mich. 520, 72 Am. Dec. 62 (1858).

2 Illinois.-Chicago & N. W. Ry. Co. v. Williams, 55 Ill. 185, 8 Am. Rep. 641 (1870).

Texas.-Pullman Palace Car Co. v. Cain, 15 Tex. Civ. App. 503, 40 S. W. 220 (1897).

'State v. Patterson, 50 Fla. 127, 39 So. 398 (1905).

taining a provision that the act should not apply to colored nurses having the care of white children or sick white persons. This act was held to be unconstitutional, because giving to the white race the privilege of being accompanied by negro nurses while denying to negroes the privilege of being accompanied by white nurses. In view, very probably of this holding, the council of Pensacola passed an ordinance, also requiring separate compartments for the two races but providing in general terms that it should not be construed to apply to nurses attending children or invalids of the other race. This ordinance was held in the other case,1 to be free from the vice of the statute; with respect to the exception of nurses, it was declared that such exception was a proper and reasonable classification and did not render the ordinance invalid.

Topic D. Fair Apportionment of Service

§ 850. Duty not to discriminate.

Even when we have the case where by reason of unexpected press of business the management is excused from meeting all demands upon it, it still is not free from legal obligation in dealing with the situation. On the contrary a secondary obligation now rests upon it to deal with the

1 Crooms v. Schad, 51 Fla. 168, 40 So. 497 (1906).

In Louisville & N. R. R. Co. v. Catron, 102 Ky. 323, 43 S. W. 443 (1897), it was said that even where exceptions to the color separations were made for cases of nurses and officers, this means only that such attendants may accompany their charges not that such charges may accompany attendants.

And see Wood v. Louisville &

N. R. R. Co., 101 Ky. 703, 42 S.
W. 349 (1897).

In Southern Ry. Co. v. Thurman, 28 Ky. L. Rep. 699, 90 S. W. 240, 2 L. R. A. (N. S.) 1108 (1906), it was said that the railroad was not liable if in good faith it assigned a white person to the colored

car.

But see Ex parte Plessy, 45 La. Ann. 80, 11 So. 948, 18 L. R. A. 639 (1892).

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situation for the best interests of all concerned. It may not discriminate in this situation any more than in any other, but must perform its public duty impartially. Refusing the goods of one to take those of another certainly seems discrimination in the usual sense in which that word is used. And indeed where no justification appears for a carrier who serves one customer ahead of another, such discrimination will be held a violation of the carrier's duty. Certainly where orders for cars are filed, filling an order which is later in time is plain discrimination against the earlier order passed over. Two extreme cases will illustrate this. In one a railroad apparently desirous of keeping from market ties on its route furnished cars to other shippers of lumber while refusing this complainant cars for his ties. In the other the railroad refused its quota of cars to a colliery because the owners would not sell their coal to a company affiliated with it."

The general propositions contained in the text are derived from many cases, more particularly from: Delaware.-Truax V. Philadelphia, Wilmington & B. R. R. Co., 3 Houst. 233 (1864).

Illinois. Great Western Ry. Co. v. Burns, 60 Ill. 284 (1871).

New York. Strough v. New York C. & H. R. R. R. Co., 181 N. Y. 533, 73 N. E. 1133, aff'd 92 App. Div. 584, 87 N. Y. Supp. 30 (1905).

North Carolina. Patterson V. Steamship Co., 140 N. C. 412, 53 S. E. 224, 5 L. R. A. (N. S.) 1012, 111 Am. St. Rep. 848 (1906).

Cases directly on this point are: Kentucky.-Newport News & M. V. R. R. Co. v. Reed, 10 Ky. L. Rep. 1020 (1889).

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Minnesota.-Rhodes v. Northern P. R. R. Co., 34 Minn. 87, 24 N. W. 347 (1885).

Texas.-Houston & T. C. Ry. Co. v. Smith, 63 Tex. 322 (1885).

Utah.-Nichols v. Oreg. Short Line Ry. Co., 24 Utah, 83, 66 Pac. 768, 91 Am. St. Rep. 778 (1901).

3 American Tie & Timber Co. v. Kansas City S. Ry. Co., 175 Fed. 28, 99 C. C. A. 44 (1909).

See further, State v. Chicago & N. W. Ry. Co. (Neb.), 120 N. W. 165 (1909).

Loraine v. Pittsburg, J. E. & E. R. R. Co., 205 Pa. St. 132, 54 Atl. 580 (1903).

See further, Toledo & O. C. Ry. Co. v. Wren, 78 Ohio St. 137, 84 N. E. 785 (1908).