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local regulation impracticable. Eighteen states, it appears, prohibit racial separation on public
public carriers. Ten require separation on motor carriers. Of these, Alabama applies specifically to interstate passengers with an exception for interstate passengers with through tickets from states without laws on separation of passengers.28 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 do or do not apply to interstate passengers.
In states where separation of races is required in motor vehicles, a method of identification as white or colored must be employed. This may be done by definition. Any ascertainable Negro blood identifies a person as colored for purposes of separation in some states.27 In the other states which require the separation of the races in
24 Cal. Civ. Code (Deering), 1941, 88 51-54; Colo. Stat. Ann., 1935, Ch. 35, $$ 1–10; Conn. Gen. Stat. (Supp. 1933), § 1160b; Ill. Rev. Stat., 1945, Ch. 38, $$ 125–128g; Ind. Stat. (Burns), 1933, $$ 10-901, 10–902; Iowa Code, 1939, $$ 13251-13252; Kan. Gen. Stat., 1935, § 21-2424; Mass. Laws (Michie), 1933, Ch. 272, $ 98, as amended 1934; Mich. Stat. Ann., 1938, $8 28.343, 28.344; Minn. Stat. (Vason), 1927, § 7321; Neb. Comp. Stat., 1929, § 23-101; N. J. Rev. Stat., 1937, $$ 10:1-2 to 10:1-7; N. Y. Civil Rights Law (McKinney), 88 40–41; Ohio Code (Throckmorton), 1940, $$ 12940–12942; Pa. Stat. (Purdon), Tit. 18, $$ 4654 to 4655; R. I. Gen. Laws, 1938, Ch. 606, $8 28–29; Wash. Rev. Stat. (Remington), 1932, § 2686 (semble); Wis. Stat., 1943, § 340.75.
25 Ala. Code, 1940, Tit. 48, § 268; Ark. Stat., 1937 (Pope), $8 69216927, Acts 1943, p. 379; Ga. Code, 1933, 8 68–616; La. Gen. Stat. (Dart), 1939, $8 5307–5309; Miss. Code, 1942, § 7785; N. C. Gen. Stat., 1943, § 62–109; Okla. Stat. Ann., 1941, Tit. 47, $$ 201-210; S. C. Code, 1942, $ 8530–1; Tex. Pen. Code (Vernon), 1936, Art. 1659; Va. Code, 1942, 88 40972–4097dd.
26 Ala. Code 1940, Tit. 48, § 268.
27 Ala. Code, 1940, Tit. 1, § 2; Ark. Stat. (Pope), 1937, § 1200 (separate coach law); Ga. Code (Michie Supp.), 1928, § 2177; Okla. Const., Art XXIII, § 11; Va. Code (Michie), 1942, 8 67.
motor carriers, apparently no definition generally applicable or made for the purposes of the statute is given. Court definition or further legislative enactments would be required to clarify the line between the races. Obviously there may be changes by legislation in the definition.28
The interferences to interstate commerce which arise from state regulation of racial association on interstate vehicles has long been recognized. Such regulation hampers freedom of choice in selecting accommodations. The recent changes in transportation brought about by the coming of automobiles does not seem of great significance in the problem. People of all races travel today more extensively than in 1878 when this Court first passed upon state regulation of racial segregation in commerce. The factual situation set out in preceding paragraphs emphasizes the soundness 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 public carriers “to give all persons travelling in that State, upon the public conveyances employed in such business, equal rights and privileges in all parts of the conveyance, without distinction or discrimination on account of race or color.” Page 487. Damages were awarded against Hall, the representative of the operator of a llississippi 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 cabin reserved for whites. This Court reversed for reasons well
28 Compare Va. Code, 1887, § 49, providing that those who had one-fourth or more Vegro blood were to be considered colored. This was changed in 1910 (Acts, 1910, p. 581) to read one-sixteenth or
It was again changed in 1930 by Acts, 1930, p. 97, to its present form, i. e., any ascertainable logro blood. See note 22, supra
stated in the words of Mr. Chief Justice Waite. As our previous discussion demonstrates, the transportation diffi
29 95 U. S. at 489:
"It was to meet just such a case that the commercial clause in the Constitution was adopted. The river Mississippi passes through or along the borders of ten different States, and its tributaries reach many 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. Nay 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 satisfaction 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 end 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 shall be. If this statute can be enforced against those engaged in inter-state commerce, it may be as well against those engaged in foreign; and the master of a ship clearing from New Orleans for Liverpool, having passengers on 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 aggrieved because
he had been excluded on account of his color." See Louisville, N. 0. & T. R. Co. v. Mississippi, 133 U. S. 587, 590-91.
A regulation of the number of passengers on interstate street cars was held invalid in South Covington & Cincinnati R. Co.v. Covington, 235 U.S. 537, 547. This Court said at 547-48:
“If Covington can regulate these matters, certainly Cincinnati can, and interstate business might be impeded by conflicting and varying regulations in this respect, with which it might be impossible to comply. On one side of the river one set of regulations might be enforced, and on the other side quite a different set, and both seeking to control a practically continuous movement of cars. As was said in Hall v. DeCuir, 95 U. S. 485, 489, commerce cannot flourish in the midst of such embarrassments.
culties arising from a statute that requires commingling of the races, as in the DeCuir case, are increased by one that requires separation, as here.30 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 infringes the requirements of national uniformity as to be invalid, we are mindful of the fact that conditions
30 South Covington & Cincinnati R. Co. v. Kentucky, 252 U. S. 399, relied upon by appellee, does not decide to the contrary of the holding in Hall v. DeCuir. In that case a carrier corporation was convicted in the Kentucky courts of violation of a state statute that required it to furnish cars with separate compartments for white and colored. It operated street cars interstate over the lines of another corporation that owned tracks that were wholly intrastate. The Court of Appeals of Kentucky held the conviction good on the ground that the offending act was the operation of the intrastate railroad in violation of the state statute. It was said that the statute did not apply to an interstate passenger. South Covington & Cincinnati Street R. Co. v. Commonwealth, 181 Ky. 449, 454, 205 S. W. 603. The Court of Appeals referred, with continual approval, at that point to Chiles v. Chesapeake & Ohio R. Co., 125 Ky. 299, 304: “It is admitted that sections 795–801 of the Kentucky Statutes, requiring all railroad companies to furnish separate coaches for transportation of white and colored passengers, and imposing upon the company and conductors a penalty for refusing or failing to carry out the provisions of the law, does not apply to appellant, who was an interstate passenger; it being conceded that the statute is only operative within the territorial limits of this State, and effective 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 Kentucky act the company with wholly intrastate mileage must operate cars with separate compartments for intrastate passengers.
31 Anderson v. Louisville & N. R. Co.. 62 F. 46, 48; Washington, B. & A. R. Co. v. W'aller, 53 App. D. C. 200, 289 F. 598. See also Hart v. State, 100 Md. 595, 60 A. 457; Carrey v. Spencer, 36 N. Y. Supp.
vary between northern or western states such as Maine or Montana, with practically no colored population; industrial states such as Illinois, Ohio, New Jersey and Pennsylvania with a small, although appreciable, percentage of colored citizens; and the states of the deep south with percentages of from twenty-five to nearly fifty per cent colored, all with varying densities of the white and colored races in certain localities. Local efforts to promote amicable relations in difficult 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 boundaries, 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 decide the validity of this Virginia statute on the challenge that it interferes with commerce, as a matter of balance between the exercise of the local police power and the need for national 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 promote and protect national travel. Consequently, we hold the Virginia statute in controversy invalid.
MR. JUSTICE RUTLEDGE concurs in the result.
MR. JUSTICE JAckson took no part in the consideration or decision of this case.
MR. JUSTICE BLACK, concurring.
The Commerce Clause of the Constitution provides that "Congress shall have power ... to regulate commerce ... among the several States.” I have believed, and still believe, that this provision means that Congress