Hart v. State

.Boyd, J., delivered the opinion of the Court. The appellant was indicted under the provisions of ch. 109 of the Acts of 1904 of the General Assembly of Maryland for refusing to occupy a car and compartment to which he had been assigned by the conductor of the train on which he was riding. A demurrer to the indictment was filed by the traverser which was overruled by the Court and he then filed a plea in abatement which was demurred to by the State’s Attorney and the demurrer was sustained. The traverser was then tried and convicted and, after overruling a motion in arrest of judgment, the Court imposed a fine of five dollars on him.

From that judgment this appeal was taken. The indictment charges that the appellant, being of the colored race, was a passenger on a train of the Philadelphia, Baltimore & Washington Railroad Company operating cars and coaches by steam upon its railroad in the State of Maryland, “on and under a ticket which he had purchased in the city of New York for a continuous transportation therefrom by and over said railroad through the States of Pennsylvania and Delaware and said State of Maryland to the city of Washington.” The plea goes more in detail, but it will not be necessary to quote from it. The specific question to be determined is whether the above-mentioned Act of Assembly is in conflict with that part of Art. 1, sec. 8 of the Constitution of the United States, known as the “Commerce Clause” in-so far as that Act affects inter-state passengers. Section 1 of the Act provides “That all railroad companies and corporations, and all persons running or operating cars or coaches by steam on any railroad line or track in the State of Maryland, for the transportation of passengers, are hereby re ⁶⁰¹ quired to provide separate cars or coaches for the travel and transportation of the white and colored passengers on their respective lines of railroad;” and then provides that a compartment of a car or coach, divided as therein stated, shall be deemed a separate car or coach within the meaning of the Act.

Section 2 prohibits any difference or discrimination in quality of or convenience or accommodation in the cars, etc. Section 3 imposes a fine of not less than three hundred nor more than one thousand dollars upon the carrier for violation of the provisions of the Act. Section 4 confers the right and imposes the duty upon conductors and managers to assign white and colored passengers to their respective cars, and provides that a passenger refusing to occupy the car to which he is assigned, on indictment and conviction thereof, may be fined not less than five nor more than fifty dollars, or confined in jail not less than thirty days, or both, in the discretion of the Court. Section 5 imposes a fine on any conductor or manager failing or refusing to perform the duties imposed on him by sec. 4. Sec. 6 authorizes the conductor or manager in charge of the train to assign and set apart a portion of the car assigned to passengers of one color to those of the other color when the car intended for the latter is completely filled, if no extra car can be obtained, and the increased number of passengers could not be foreseen.

Section 7 excepts from the operation of the Act employees of railroads, nurses, officers in charge of prisoners, and the prisoners, transportation of passengers in caboose cars, attached to freight trains, parlor and sleeping cars and through express trains that do no local business. It seems to be well settled that a common carrier has the power, in the absence of statutory provision, to adopt regulations providing separate accommodations for white and colored passengers, provided, of course, no discrimination is made. It was said in West Chester and Philadelphia Railroad Company v. Miles, 55 Pa. St. 209, that, prior to the Act of March 22nd, 1867, declaring it an offense for railroad companies to make any distinction between passengers on account of race or color, “there was that natural, legal and customary differ ⁶⁰² ence between the white and black races in this State which makes their separation as passengers in a public conveyance the subject of a sound regulation to secure order, promote comfort, preserve the peace and maintain the rights, both of carriers and passengers.” That was a suit by a colored woman who had been ejected from a car for refusing to obey a rule of the company requiring conductors to make colored persons sit in one end of the car.

The case which was decided in favor of the plaintiff- in the Court below was reversed by the Supreme Court of- Pennsylvania. Justice Agnew, in delivering the opinion, said: “In order to preserve and enforce his” (the conductor’s) “authority as the servant of the company, it must have a power to establish proper regulations for the carriage of passengers. It is much easier to prevent difficulties among passengers by regulations for their proper separation, than it is to quell them. The danger to the peace engendered by the feeling of aversion between individuals of the different races cannot be denied.

It is the fact with which the company must deal. If a negro take his seat beside a white man or his wife or daughter, the law cannot repress the anger, or conquer the aversion which some will feel. However unjust it may be to indulge the feeling, human infirmity is not always proof against it. It is much wiser to avert the consequences of this repulsion of race by separation, than to punish afterwards the breach of the peace it may have caused.” There are numerous cases to the same effect, many of which are cited in Chilton v. St. Louis & I. M. R. Co., 19 L. R. A. 269 (s. c., 114 Mo. 88 ); Smith v. Chamberlain, Ibid, 710 (s. c., 38 S. C. 529); Ex parte Plessy, 18 L. R. A. 639 (s. c., 45 La.

Ann. 80 ); Bowie v. Birmingham Ry. & Electric Co., 50 L. R. A. 632 (s. c., 125 Ala. 397 ); and the notes to those cases, as reported in the L. R. A. series. The Supreme Court of the United States has recognized that doctrine, and has also determined that a State statute requiring separate accommodations for white and colored persons is not contrary to the 13th and 1.4th Amendments to the Constitution of the United States. Plessy v. Ferguson, 163 U. S. ⁶⁰³ 537, affirming Ex parte Plessy, supra. Justice Brown, in delivering the opinion of the Court said, the question was whether the statute was a reasonable regulation and with respect to that there must be a large discretion given to the Legislature! that “In determining the question of reasonableness, it is al liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.

Gauged by this standard we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable or more obnoxious to the 14th Amendment than the Acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding Acts of State Legislatures.” The case last mentioned did not involve the question of inter-state commerce, but was limited to the right of the State to require the carrier to provide separate accommodations for the two races within the State. This provision of the Constitution has been a fruitful source of litigation from the early days of our government to the present time. The line of demarcation between cases in which it' has been held that the constitutional provision was violated by State statutes and those in which the contrary conclusion was reached, cannot always be easily traced. It has often happened that the Supreme Court has been called upon to determine, under this' clause of the Constitution, questions of a most delicate character.

To sustain the necessary powers of the general government over inter-state dealings, without injuriously affecting the welfare of the people of the State, is not always free from difficulty, and it is therefore not strange that apparently inconsistent positions have some times been taken. The power to regulate inter-state commerce is undoubtedly vested exclusively in Congress, but the States may enact valid police laws which merely incidentally affect such commerce, if they do not conflict with some Act of Congress on the subject. ⁶⁰⁴ The Attorney-General in his brief filed in this case states his contention to be “that the police regulations of a State, which are valid in themselves, and which have a real and substantial relation to any head of the police power, are binding upon persons and corporations engaged in inter-state commerce,” and that persons travelling through the State must comply with those regulations which are enacted “for the purpose of furthering the public health, the public morals, the public convenience or the public order. ” He conceded at the argument that unless the statute now under consideration was within the police powers of the State, it was invalid in so far as it affected inter-state passengers, and as that is undoubtedly so, we must consider the question from that standpoint. It may be well at this point to recall some of the definitions or explanations of this term — police powers of the States — as given by the Supreme Court. It has spoken of it as a “power to enact laws to promote the order and to secure the comfort, happiness and health of the people,” (Hennington v. Georgia, 163 U. S. 299 ); as “their admitted police powers, and having a real relation to the domestic peace, order, health and safety of their people, but which by their necessary operation affect to some extent, or for a limited time, the conduct of commerce among the States,” (Ibid); “such reasonable regulations as were appropriate for the protection of the health, the lives and the safety of their people,’ ’ (Railroad Company v. New York, 165 U. S. 628 ); “reasonable regulations for their management, in order to secure the objects of the incorporation, and the safety, good order, convenience and comfort of the passengers and of the public,” (Gladson v. Minnesota, 166 U. S. 427 ); and in Lake Shore, etc., Co. v. Ohio, 173 U. S. 285 , it was held that “the power exists in each State by appropriate enactments not forbidden by its own or the Federal Constitution to regulate the relative rights and duties of all persons and corporations within its jurisdiction, so as to provide for the public convenience and the public good,” and “the power of the State by appropriate legislation to provide for the public convenience stands upon the same ground as its power by appro ⁶⁰⁵ priate legislation to protect the public health, the public morals, or the public safety.” Justice Brown, in delivering the opinion in C. & C. Bridge Co. v. Kentucky, 154 U. S. 204 , said, “The adjudications of this Court with respect to the power of the States over the general subject of commerce are divisible into three classes.

First, those in which the power of the State is exclusive; second, those in which the States may act in the absence of legislation by Congress; third, those in which the action of Congress is exclusive and the States cannot interfere at all.” He said that within the second-class are embraced laws for the regulation of pilots, quarantine and inspection laws, the policing of harbors, the improvement of navigable channels, the regulation of wharves, piers and docks, the construction of dams and bridges across the navigable waters of a State, and the establishment of ferries. Other instances, more analogous to this case, in which State statutes have been upheld, although it was contended they were contrary to this clause of the Constitution, are those requiring engineers to undergo examinations and obtain licenses from a State Board of Examiners before being permitted to run trains in the State ( 124 U. S. 465 ), prohibiting anyone from serving on railroad lines who was color blind, or had defective vision (128 U, S. 96); preventing freight trains from running on Sunday ( 163 U. S. 299 ); forbidding heating passenger cars with stoves or furnaces ( 165 U. S. 628 ). Such legislation is sustained on the ground that a State has the right to adopt reasonable rules for the construction, management and operation of railroads within its jurisdiction, designed to "protect persons and property otherwise endangered by their use. “They are not in themselves regulations of inter-state commerce, although they control in some degree the conduct and the liability of those engaged in such commerce. So long as Congress has not legislated upon the particular subject, they are rather to be regarded as legislation in aid of such commerce, and as a rightful exercise of the police powers of the State to regulate the relative rights and duties of all persons and corporations within its limits,” C. M. & St. Paul Ry.

Co. v. Solan, 169 U. S. 133 . ⁶⁰⁶ Having seen .that under the authorities a common carrier can itself adopt reasonable regulations for the separate accommodation of white and colored passengers, and that the States can lawfully enact laws requiring such separation, so long as they are confined to intra-state commerce, and having gathered from the decisions of the Supreme Court such statements of the police powers of the States as show the nature of those general powers, it is incumbent upon us to see how far the Supreme Court has determined or indicated its views on the specific question now before us. The case of Hall v. DeCuir, 95 U. S. 485 , is more applicable than any other we have found. The Supreme Court treated the statute involved in that case as requiring those engaged in inter-state commerce to give all persons travelling in Louisiana equal rights and privileges in all parts of the conveyance, without distinction or discrimination on account of race or color, as the State Court had so construed it. The Court said that “State legislation which seeks to impose a direct burden upon inter-state commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Congress,” and that that statute occupied that position.

Chief Justice Waite, in delivering the opinion said, “It does not act upon the business through the local instruments to be employed after coming within the State, but directly upon the business as it comes into the State from without, or goes out from within. While it purports only to control the carrier when engaged within the State, it must necessarily influence his conduct to some extent in the management of his business throughout his entire voyage. His disposition of passengers taken up and put down within the State, or taken up within to be carried without, cannot but affect, in a greater or less degree, those taken up without and brought within, and some times those taken up and put down without. A passenger in the cabin set apart for the use of whites without the State must when the boat comes within, share the accommodations of that cabin with such colored persons as may come on board afterwards, if the law is enforced.” The Chief Justice added that “It was to meet just ⁶⁰⁷ such a case that the commercial clause in the Constitution was adopted. * * * 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 of 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.” The Chief Justice quoted from Justice Field, in Welton v. Missouri, 91 U. S. 282 , that “Inaction (by Congress) * * * is-equivalent to a declaration that inter-state commerce shall remain free and untrammelled” and said that congressional inaction left the carrier “at liberty to adopt such reasonable rules and regulations for the disposition of passengers upon his boat, while pursuing her voyage within Louisiana or without, as seemed to him most for the interest of all concerned. The statute under which this suit is brought, as construed by the State Court, seeks to take away from him that power so long as he is within Louisiana, and while recognizing to the fullest extent the principle which sustains a statute, unless its