negroes, from privileges and immunities enjoyed by everybody else similarly situated, and excluding the negro, and leaving him without remedy, from the comforts and conveniences of chair cars, dining cars, sleeping cars, such as are enjoyed by all other men; which deprives the negro of the privileges and comforts which he enjoyed prior to the passage of such act; which now imposes a fine upon the negro if he attempts to exercise the rights which he enjoyed before the passage of such act, must defeat the purpose, defy the spirit, and violate the express provision of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U. S. 356; Strauder v. West Virginia, 100 U. S. 303, 306.

Mr. S. T. Bledsoe, Mr. Charles West, Attorney General of the State of Oklahoma, Mr. J. R. Cottingham, Mr. C. O. Blake, Mr. Clifford L. Jackson, Mr. R. A. Kleinschmidt and Mr. C. E. Warner, for appellees, submitted:

This court has not jurisdiction to entertain the appeal. The Oklahoma Separate Coach Law is not violative of the commerce clause of the Constitution of the United States.

There is no charge that the railway companies are applying the state statute to interstate passengers.

The constitutionality of the Separate Coach Act is not affected by the Enabling Act, nor does that law conflict. with the Fourteenth Amendment.

The statute is not divisible. Abbott v. Hicks, 44 La. Ann. 74; Arbuckle v. Blackburn, 191 U. S. 405; Atch., Top. & Santa Fe Ry. Co. v. State, 124 Pac. Rep. 56; Bonin v. Gulf Co., 198 U. S. 115; Bolln v. Nebraska, 176 U. S. 83; Butler Brothers v. U. S. Rubber Co., 156 Fed. Rep. 18; Ches. & Ohio Ry. Co. v. Kentucky, 179 U. S. 388; Chiles v. Ches. & Ohio Ry. Co., 218 U. S. 71; Oklahoma v. Atch., Top. & S. F. Ry. Co., 25 I. C. C. Rep. 120; Escanaba Co. v. Chicago, 107 U. S. 678, 688; Florida Central Co. v. Bell, 176 U. S. 321; Hanford v. Davies, 163 U. S. 274; Louisville

&c. R. R. Co. v. State, 6 So. Rep. 203; Louisville &c. R. R. Co. v. Mississippi, 133 U. S. 587; McCabe v. Railway Co., 186 Fed. Rep. 966; Ohio Valley Ry. v. Lander, 47 S. W. Rep. 344; Pacific Exp. Co. v. Seibert, 142 U. S. 339; Permoli v. First Municipality, 3 How. 589, 609; Plessy v. Ferguson, 163 U. S. 537; Shoshone Mining Co. v. Rutter, 177 U. S. 505; Shulthis v. McDougal, 225 U. S. 561; So. Ry. Co. v. King, 217 U. S. 524; Thompkins v. M., K. & T. Ry. Co., 211 Fed. Rep. 391; Ward v. Race Horse, 163 U. S. 504; Willamette Bridge Co. v. Hatch, 125 U. S. 1.

The purpose of the case is to prevent separation of races, but the prayer only objects to distinction.

The proceeding cannot be one for mandatory injunction for equal facilities, nor is the action one for damages.

The state statute requires equal comforts. Neither the common law nor the Interstate Commerce Act gives a right of action enforceable in a Federal court before any application to the Interstate Commerce Commission as to interstate traffic.

The right of action cannot arise out of state law for want of jurisdiction in the lower court, nor can any right of action arise out of the Enabling Act or of the Constitution of the United States.

The plaintiffs do not allege lack of comforts under such circumstances as are sufficient to compel their furnishing, nor is any injury shown. Atlantic Coast Line v. Mazurky, 216 U. S. 122; Balt. & Ohio R. R. v. Pitcairn Coal Co., 215 U. S. 481; Coyle v. Smith, 221 U. S. 559; Covington v. Hagar, 203 U. S. 109; C., M. & St. P. v. Solon, 169 U. S. 133; Giles v. Harris, 189 U. S. 475; Int. Com. Com. v. Balt. & Ohio, 145 U. S. 263; Int. Com. Com. v. Ala. Co., 168 U. S. 165; Int. Com. Com. v. Louisville Co., 73 Fed. Rep. 409; M. & O. G. v. State, 29 Oklahoma, 640, 653; Rosenbaum v. Bauer, 120 U. S. 450; St. L. & St. Co. v. Sutton, 29 Oklahoma, 553; Taft v. So. Ry. Co., 123 Fed. Rep. 792; Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co.,

204 U. S. 426; United States v. L. S. & M. S. Ry., 197 U. S. 540; United States v. Norfolk Ry. Co., 109 Fed. Rep. 831; United States v. B. & O. R. R. Co., 145 U. S. 263; United States v. Hanley, 71 Fed. Rep. 673; United States v. Sayward, 160 U. S. 493; Compiled Laws of Oklahoma, 1910; 25 Stat. 862; 24 Stat. 24, 377.

MR. JUSTICE HUGHES delivered the opinion of the court.

The legislature of the State of Oklahoma passed an act, approved December 18, 1907 (Rev. Laws, Okla., 1910, §§ 860 et seq.), known as the 'Separate Coach Law.' It provided that 'every railway company doing business in this State, as a common carrier of passengers for hire' should 'provide separate coaches or compartments, for the accommodation of the white and negro races, which separate coaches or cars' should 'be equal in all points of comfort and convenience' (§ 1); that at passenger depots, there should be maintained 'separate waiting rooms,' likewise with equal facilities (§ 2); that the term negro, as used in the act, should include every person of African descent, as defined by the state constitution (§3); and that each compartment of a railway coach 'divided by a good and substantial wooden partition, with a door therein, shall be deemed a separate coach' within the meaning of the statute (§ 4).

It was further provided that nothing contained in the act should be construed to prevent railway companies from hauling sleeping cars, dining or chair cars attached to their trains to be used exclusively by either white or negro passengers, separately but not jointly' ($7).

Other sections prescribed penalties both for carriers, and for passengers, failing to observe the law (§§ 5, 6). The act was to take effect sixty days after its approval (§ 12). On February 15, 1908, just before the time when the statute, by its terms, was to become effective, five negro

citizens of the State of Oklahoma (four of whom are appellants here) brought this suit in equity against The Atchison, Topeka & Santa Fe Railway Company, The St. Louis & San Francisco Railroad Company, The Missouri, Kansas & Texas Railway Company, The Chicago, Rock Island & Pacific Railway Company and The Fort Smith & Western Railroad Company, to restrain these companies from making any distinction in service on account of race. On February 26, 1908,-after the act had been in operation for a few days-an amended bill was filed seeking specifically to enjoin compliance with the provisions of the statute for the reasons that it was repugnant (a) to the commerce clause of the Federal Constitution, (b) to the Enabling Act under which the State of Oklahoma was admitted to the Union (act of June 16, 1906, c. 3335, § 3, 34 Stat. 267, 269), and (c) to the Fourteenth Amendment. The railroad companies severally demurred to the amended bill, asserting that it failed to state a case entitling the complainants to relief in equity. The Circuit Court sustained the demurrers and, as the complainants elected to stand upon their bill, final decree dismissing the bill was entered. This decree was affirmed by the Court Circuit of Appeals (186 Fed. Rep. 966), and the present appeal has been brought.

The conclusions of the court below as stated in its opinion were, in substance:

1. That under the Enabling Act, the State of Oklahoma was admitted to the Union on an equal footing with the original States' and with respect to the matter in question had authority to enact such laws, not in conflict with the Federal Constitution, as other States could enact; citing, Permoli v. First Municipality, 3 How. 589, 609; Escanaba Company v. Chicago, 107 U. S. 678, 688; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1; Ward v. Race-Horse, 163 U. S. 504; Bölln v. Nebraska, 176 U. S. 83. See also Coyle v. Oklahoma, 221 U. S. 559, 573.

2. That it had been decided by this court, so that the question could no longer be considered an open one, that it was not an infraction of the Fourteenth Amendment for a State to require separate, but equal, accommodations for the two races. Plessy v. Ferguson, 163 U. S. 537.

3. That the provision of § 7, above quoted, relating to sleeping cars, dining cars and chair cars did not offend against the Fourteenth Amendment as these cars were, comparatively speaking, luxuries, and that it was competent for the legislature to take into consideration the limited demand for such accommodations by the one race, as compared with the demand on the part of the other.

4. That in determining the validity of the statute the doctrine that an act although 'fair on its face' might 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, 373) was not applicable, as there was no basis in the present case for holding that any discriminations by carriers which were unauthorized by the statute were practised under state authority.

5. That the act, in the absence of a different construction by the state court, must be construed as applying to transportation exclusively intrastate and hence did not contravene the commerce clause of the Federal Constitution. Louisville &c. Ry. Co. v. Mississippi, 133 U. S. 587, 590; Chesapeake & Ohio Ry. Co. v. Kentucky, 179 U. S. 388, 391; Chiles v. Chesapeake & Ohio Ry. Co., 218 U. S. 71.

6. That with respect to the existence of discriminations the allegations of the bill were too vague and uncertain to entitle the complainants to a decree.

In view of the decisions of this court above cited, there is no reason to doubt the correctness of the first, second, fourth and fifth of these conclusions.

With the third, relating to § 7 of the statute, we are

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