MCCABE v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY.

(235 U.S. 151 (1914))

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 15. Argued October 26, 1914.-Decided November 30, 1914.

Under the Enabling Act the State of Oklahoma was admitted to the Union on an equal footing with the original States, and has the same authority to enact public legislation not in conflict with the Federal Constitution as other States may enact. Coyle v. Oklahoma, 221 U. S. 559.

It is not an infraction of the Fourteenth Amendment for a State to require separate, but equal, accommodations for the white and African races. Plessy v. Ferguson, 163 U. S. 537.

While a state statute, although fair on its face, may be so unequally and oppressively administered by the public authorities as to amount to an unconstitutional discrimination by the State itself, Yick Wo v. Hopkins, 118 U. S. 356, no discriminations unauthorized by the statute appear to have been practiced in this case under state authority.

The Oklahoma statute, requiring separate, but equal, accommodations for the white and African races, must, in the absence of a different construction by the state court, be construed as applying exclusively to intrastate commerce; and, as so construed, it does not contravene the commerce clause of the Federal Constitution. The essence of the constitutional right to equal protection of the law is that it is a personal one and does not depend upon the number of persons affected; and any individual who is denied by a common carrier, under authority of the State, a facility or convenience which is furnished to another under substantially the same circumstances may properly complain that his constitutional privilege has been invaded. The Oklahoma Separate Coach Law does discriminate against persons of the African race in permitting carriers to provide sleeping cars, dining cars and chair cars to be used exclusively by persons of the white race; this provision none the less offends against the Fourteenth Amendment even if there is a limited demand for such accommodations by the African race as compared with the white race. In order to justify the granting of an injunction complainants must

show a personal need of it, and absence of adequate remedy at law. The fact that someone else, although of the same class as complainant, may be injured does not justify granting the remedy. In an action, brought in the Federal court by several persons of the African race before the Separate Coach Law of Oklahoma went into effect, to enjoin the enforcement thereof on the ground that it contravened the Fourteenth Amendment, held that the allegations in the bill were too vague and indefinite to warrant the relief sought by complainants; that none of the complainants had personally been refused accommodations equal to those afforded to others or had been notified that he would be so refused when the act went into effect; that it did not appear that in such event he would not have an adequate remedy at law, and that the action could not be maintained. 186 Fed. Rep. 966, affirmed.

THE facts, which involve the constitutionality of the Separate Coach Law of Oklahoma, are stated in the opinion.

Mr. William Harrison, with whom Mr. Edwin 0. Tyler and Mr. Ethelbert T. Barbour were on the brief, for appellants:

The court erred in holding that the Oklahoma statute does not operate and deprive those of African descent of the equal protection of the laws within the meaning of the Constitution, which implies not merely equal accessibility to the court for the prevention or redress of wrongs and the enforcement of rights, but equal exemption with others in like condition from charges and liabilities of every kind.

The police power cannot be interposed to support a statute having no possible tendency to protect the community or for the preservation of the public safety, but which arbitrarily deprives the owner of liberty or property. Mugler v. Kansas, 123 U. S. 623, 661; Lawton v. Steele, 152 U. S. 133; Holden v. Hardy, 169 U. S. 366, 398; California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306; In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; Freund, Police Power, 525.

State police legislation may be invalid because it trenches on the sphere of the National Government under the Federal Constitution. Connolly v. Union Sewer Pipe Co., 184 U. S. 540.

So also as to police legislation which purports to deal with subjects beyond territorial jurisdiction. Morgan's Steamship Co. v. Louisiana, 118 U. S. 455, 464; Schollenberger v. Pennsylvania, 171 U. S. 1; Missouri &c. Ry. Co. v. Haber, 169 U. S. 618; Reid v. Colorado, 187 U. S. 137; New York &c. R. Co. v. New York, 165 U. S. 628; Allgeyer v. Louisiana, 165 U. S. 578.

A law not enacted in good faith for the promotion of the public good but passed from the sinister motive of annoying or oppressing a particular person or class is invalid. Yick Wo v. Hopkins, 118 U. S. 356.

The Oklahoma Act is violative of the commerce clause of the Constitution. Henderson v. New York, 92 U. S. 259; Welton v. Missouri, 91 U. S. 275; Wabash &c. Ry. Co. v. Illinois, 118 U. S. 557.

The act does restrict and affect interstate, to the same extent as intrastate, commerce; and in this respect the act is so plain and unambiguous as to leave no room for interpretation. Houghton v. Payne, 194 U. S. 88.

The doctrine of contemporaneous practical construction does not apply to statutes which are explicit and free from any ambiguity. Swift v. United States, 105 U. S. 695; United States v. Graham, 110 U. S. 219; Merrit v. Cameron, 137 U. S. 542, aff'g 102 Fed. Rep. 947; Franklin Sugar Co. v. United States, 153 Fed. Rep. 653.

The term negro as used in the act includes every person of African descent as defined by the Constitution.

Passengers coming into Oklahoma, and going out and going through Oklahoma, upon their failure to go to the coach or compartment designated for the race to which they belong have been ejected, arrested and confined in the common jails.

Commerce among the commonwealths is traffic, transportation and intercourse between two points situated in different States. Wabash R. R. Co. v. Illinois, 118 U. S. 557; Louisville Ry. Co. v. Mississippi, 133 U. S. 587, 592; Ches. & Ohio Ry. Co. v. Kentucky, 179 U. S. 388, 395; Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. Rep. 1, 19. Pacific Express Co. v. Siebert, 142 U. S. 339, distinguished.

The statute is not separable as to interstate and intrastate commerce, and, therefore, the whole act is unconstitutional. United States v. Reese, 92 U. S. 214; Trade Mark Cases, 100 U. S. 82; Poindexter v. Greenhow, 114 U. S. 270; Pollock v. Farmers Trust Co., 158 U. S. 636. See also Cooley's Const. Lim., p. 209; State v. Denny, 21 N. E. Rep. 275; State v. Perry County Commissioners, 5 Ohio, 497; Island v. Louisiana, 103 U. S. 80; Spraigue v. Thompson, 118 U. S. 90, 94; Chi., Mil. & St. P. Ry. Co. v. Westby, 178 Fed. Rep. 619, 632.

The very fact that the act subjects every passenger to the provisions of the law and makes no distinction or exception as to interstate passengers, raises a conclusive legal presumption that the legislature intended to make no distinctions and exceptions, and the act is not subject to judicial construction. To so do would be unjustifiable judicial legislation. The rule is that which is not denied is granted. Hall v. DeCuir, 95 U. S. 485; Union Central Ins. Co. v. Champlin, 116 Fed. Rep. 858, 860; Wrightman v. Boone County, 88 Fed. Rep. 435, 437; Madden v. Lanchester Co., 65 Fed. Rep. 188, 194; Water Co. v. Omaha, 147 Fed. Rep. 1; Cella Commission Co. v. Bohlinger, 147 Fed. Rep. 419, 425; Mobile v. Kimball, 102 U. S. 691, 697; Brown v. Houston, 114 U. S. 622; Bowman v. Chicago &c. Ry. Co., 125 U. S. 465, 488.

The statute is so formed and applied that its application and operation can be used to discriminate against one class of citizens. Yick Wo v. Hopkins, 118 U. S. 356;.

Chy Lung v. Freeman, 92 U. S. 275; Ex parte Virginia, 100 U. S. 339; Neal v. Delaware, 103 U. S. 370, 374; Soon Hing v. Crowley, 113 U. S. 703.

The sleeping and parlor car proviso is an evasion as against prior existing rights and is a law without a remedy. The carriers operate under this law unevenly and oppressively to those of African descent.

The constitutional rights of citizens are not dependent upon considerations nor upon the varying conditions and circumstances. Citizens of African descent have no adequate remedy at law as the act provides no penalty for the failure or the refusal to provide equal accommodations, or chair cars, dining cars and sleeping cars, and said law is unconstitutional and void.

The act violates §§ 22 and 25 of the Enabling Act under which Oklahoma was admitted into the Union.

Race distinction in the law is any requirement by statute, constitutional, provisional or judicial legislation, that a person act differently if he is a member of one or another of the races in the United States. Congress intended that the only exception to the equality provision of the Enabling Act is that the State may establish and maintain separate schools for the white and colored children.

The State, after having accepted irrevocably the terms and all of the terms of the Enabling Act, cannot thereafter be heard to complain or to repudiate any or all of such terms. Frantz v. Autry, 91 Pac. Rep. 193.

The act conflicts with the Fourteenth Amendment. It is discriminatory. It was not passed for the health, safety and comfort of its citizens, but as a subterfuge under the guise of police power and police protection. The danger does not justify the degree of restraint imposed, but the act is wholly racial and based upon race and color as such.

An act that permits and even authorizes and directs the excluding of one class of persons, and in this case the