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Morgan v. Virginia

Morgan v. (No. 704)

Argued: 27, 1946

Decided: June 3,

184 Va. 24, 34 S.E.2d 491, reversed.

1. Provisions of the Virginia Code, 4097z to 4097dd, which the separation of white and colored on both interstate and intrastate carriers, are invalid as applied to passengers in vehicles moving because they burden commerce contrary to Art. I, 8, cl. 3 of the of the United States, even Congress has enacted no legislation on the

Pp. 374, 380, 386.

2. If a statute unlawfully burdens commerce, the powers reserved to the by the Tenth Amendment will not it. P. 376.

3. An interstate passenger, in a criminal proceeding with of the statute, is a proper person to its validity as a burden on interstate P. 376.

4. State legislation is if it unduly burdens interstate where uniformity is necessary in the sense of useful in accomplishing a purpose. Pp. 377, 380.

5. A cannot impose undue on interstate commerce by simply the convenient apologetics of the police P. 380.

6. Seating arrangements for the races in interstate motor require a single, uniform to promote and protect national P. 386.

Appellant, an interstate was convicted of a violation of Virginia 1942, 4097dd, relating to the of white and colored passengers on buses. The Supreme Court of of Virginia affirmed. 184 Va.

24, 34 S.E.2d On appeal to this Court, p. 386. [p374]

Opinion

J. Opinion of the Court

MR. JUSTICE delivered the opinion of the Court.

appeal brings to this the question of the constitutionality of an act of Virginia, which requires all passenger vehicle carriers, both and intrastate, [n2] to separate discrimination [n3] the white and passengers in their motor so that contiguous seats not be occupied by persons of different at the same time. A violation of the of separation by the carrier is a misdemeanor. The driver or other person in is directed and required to increase or the space allotted to the respective as may be necessary or proper, and may require to change their seats to with the allocation. The operator’s to enforce the provisions is made a [n5]

These regulations applied to an interstate passenger, appellant, on a motor vehicle making an interstate run or trip. to the statement of fact by the Supreme of Appeals of Virginia, appellant, who is a was traveling on a motor common [p375] operating under the statute, from Gloucester Virginia, through the District of to Baltimore, Maryland, the destination of the There were other both white and colored. On her to accede to a request of the driver to to a back seat, which was occupied by other colored so as to permit the seat that she to be used by white passengers, a was obtained and appellant was arrested, and convicted of a violation of 4097dd of the Code. [n6] On a writ of the conviction was affirmed by the Supreme of Appeals of Virginia. 184 Va.

24. The Court of interpreted the Virginia statute as to appellant, since the statute all motor vehicles and all [p376] both interstate and intrastate. The Court of Appeals refused to appellant’s contention that the applied was invalid as a delegation of power to the carrier by a concurrent

that no power is delegated to the to legislate. The statute itself the defendant’s conduct as a violation of and not the rule of the carrier.

Id. at 38. No complaint is as to these interpretations of the Virginia by the Virginia court. [n8]

The of the Court of Appeals that are and relied upon by appellant in form, only two. The is that the decision is repugnant to 3, 8, Article I of the Constitution of the United [n9] and the second the holding powers reserved to the states by the Amendment include the power to an interstate motor passenger to a seat restricted for the use of his race. the first question alone consideration, for, if the statute burdens interstate commerce, the powers of the state will not it. [n10]

We think, as the Court of apparently did, that the is a proper person to challenge the of this statute as a burden on [n11] If it is an invalid burden, the under it would fail. The affects appellant as well as the company. Constitutional protection burdens on commerce [p377] is for her on a criminal trial for violation of the statute. Hatch v. Reardon, 204 152.

160; Federation of v. McAdory, 325 U.S. 450.

This Court frequently determine the validity of state that are attacked as unconstitutional with the national power interstate commerce. This presents that question as to a that compels racial of interstate passengers in vehicles interstate. [n12]

The precise of a permissible restriction on state cannot be fixed generally, or, not even for one kind of state such as taxation or health or [n13] There is a recognized principle, however, that may be as a postulate for testing whether state legislation in the absence of by Congress is beyond state This is that the state is invalid if it unduly burdens commerce in matters where is necessary — necessary in the sense of useful in accomplishing a purpose. [n14] Where is essential for the functioning of commerce, a may not interpose its local regulation. Too true it is that the principle in precision. Although the quality of a principle is abstract, its application to the of a situation created by the attempted of a statute brings about a determination as to whether or not the statute in question is a burden on commerce.

Within the broad limits of the the cases turn their own

In the field of transportation, there has a series of decisions which that, where Congress has not and although the state statute interstate commerce, a state may enact legislation which has only a local influence on the of commerce. [n16] It is equally settled that, even Congress [p379] has not acted, legislation or a final court is invalid which materially interstate commerce. [n17] Because the Constitution puts the power to regulate commerce in rather than the states, the of state legislation’s interference that commerce may be weighed by courts to determine whether the makes the statute unconstitutional. The courts could not invalidate legislation for the same reason Congress, within the limits of the Amendment, has authority to burden if that seems to it a desirable of accomplishing a permitted end.

This statute is attacked on the that it imposes undue on interstate commerce. It is said by the of Appeals to have been in the exercise of the state’s police to avoid friction between the But this Court pointed out ago that a State cannot the operation of this rule by invoking the convenient apologetics of the power. [n20] Burdens commerce are those actions of a which directly impair the of its facilities for such traffic. That impairment, we think, may from other causes costs or long delays.

A may arise from a state which requires interstate to order [p381] their on the vehicle in accordance with rather than national,

On appellant’s journey, this required that she sit in designated in Virginia. [n22] Changes in designation might be made at any during the journey when or proper for the comfort and convenience of This occurred in this Upon such change of the statute authorizes the operator of the to require, as he did here, any passenger to his or her seat as it may be necessary or proper. An interstate passenger must, if repeatedly shift seats moving in Virginia to meet the requirements of the changing passenger

On arrival at the District of Columbia the appellant would have had to occupy any available seat, and so to the end of her

Interstate passengers traveling via buses between the north and or the east and west may pass Virginia on through lines in the day or in the The large buses approach the of pullmans, and have seats for rest. On such interstate the enforcement of the requirements for reseating be disturbing.

Appellant’s argument, we think, includes facts on interstate motor transportation those immediately involved in journey under the Virginia regulations. To appraise the weight of the of the Virginia statute on interstate related statutes of other are important to show whether are cumulative effects which may [p382] local regulation Eighteen states, it appears, racial separation on public [n24] Ten require separation on carriers. [n25] Of these, applies specifically to interstate with an exception for interstate with through tickets states without laws on of passengers. [n26] The language of the acts, like this statute before the Court of decision in this case, may be to be susceptible to an interpretation that do or do not apply to interstate passengers.

In where separation of races is in motor vehicles, a method of as white or colored must be This may be done by definition. Any Negro blood identifies a as colored for purposes of separation in states. [n27] In the other which require the separation of the in [p383] motor carriers, no definition generally applicable or for the purposes of the statute is given.

definition or further legislative would be required to clarify the between the races. Obviously may be changes by legislation in the definition.

The interferences to interstate commerce arise from state of racial association on interstate has long been recognized. regulation hampers freedom of in selecting accommodations. The recent in transportation brought about by the of automobiles does not seem of significance in the problem.

People of all travel today more than in 1878, when Court first passed state regulation of racial in commerce. The factual situation set out in paragraphs emphasizes the soundness of Court’s early conclusion in v. DeCuir, 95 U.S. 485 .

The DeCuir arose under a statute of interpreted by the courts of that and this Court to require carriers

to give all persons in that State, upon the conveyances employed in such equal rights and privileges in all of the conveyance, without distinction or on account of race or color.

487. Damages were against Hall, the representative of the of a Mississippi river steamboat traversed that river from New Orleans to Vicksburg, for in Louisiana the defendant in error, a person, from a cabin for whites. This Court for reasons well [p384] in the words of Mr. Chief Justice [n29] As our previous discussion the transportation difficulties [p385] from a statute that commingling of the races, as in the DeCuir are increased by one that requires as here. [n30] Other courts have looked racial separation statutes as to interstate passengers as burdens commerce. [n31]

In weighing the that enter into our as to whether this statute so interstate commerce or so infringes the of national uniformity as to be invalid, we are of the fact that conditions vary between northern or states such as Maine or with practically no colored industrial states such as Ohio, New Jersey and Pennsylvania a small, although appreciable, of colored citizens, and the states of the south, with percentages of twenty-five to nearly fifty colored, all with varying of the white and colored races in localities. Local efforts to amicable relations in difficult by legislative segregation in interstate emerge from the latter distribution. As no state law can reach its own border nor bar transportation of passengers its boundaries, diverse seating for the races in interstate journeys

As there is no federal act dealing the separation of races in interstate we must decide the validity of Virginia statute on the challenge it interferes with commerce, as a of balance between the exercise of the police power and the need for uniformity in the regulations for interstate It seems clear to us that arrangements for the different races in motor travel require a uniform rule to promote and national travel. Consequently, we the Virginia statute in controversy

Reversed.

MR. JUSTICE RUTLEDGE in the result.

MR. JUSTICE JACKSON no part in the consideration or decision of case.

1. Virginia Code of 4097z to 4097dd, inclusive. The are derived from an act of General of Virginia of 1930. Acts of Va.1930, p. 343.

2. Id. 4097z, 4097s; Morgan v. Commonwealth, 184 Va. 24, 39, 34 491.

3. Id. 4097aa.

4. Id. 4097z;

5. Id. 4097bb.

4097dd. Violation by misdemeanor; ejection. — All who fail while on any motor carrier, to take and occupy the or seats or other space to them by the driver, operator or person in charge of such or by the person whose duty it is to up tickets or collect fares passengers therein, or who fail to the directions of any such driver, or other person in charge, as to change their seats time to time as occasions pursuant to any lawful rule, or custom in force by such as to assigning separate seats or space to white and colored respectively, having been advised of the fact of such and requested to conform thereto, be deemed guilty of a misdemeanor, and conviction thereof shall be not less than five nor more than twenty-five for each offense. Furthermore, persons may be ejected from vehicle by any driver, operator or in charge of said vehicle, or by any officer or other conservator of the and in case such persons shall have paid fares upon said they shall not be entitled to the of any part of same.

For the refusal of any passenger to abide by the request of the in charge of said vehicle as and his consequent ejection from vehicle, neither the driver, person in charge, owner, nor bus company operating said shall be liable for damages in any

7. Morgan v. Commonwealth, supra, 37. Cf. v. State, 100 Tenn. 494, 46 566; Alabama Vicksburg R. Co. v. 103 Miss. 511, 60 So. 11; Southern R. Co. v. 112 Miss. 302, 73 So.1.

8. Hebert v. Louisiana, 272 U.S. 317; General Trading Co. v. Tax 322 U.S. 335. 337.

8. The Congress shall have To regulate Commerce with Nations, and among the several and with the Indian Tribes;.

12. passing upon a rule of a that required segregation of an passenger, this Court

And we must keep in mind we are not dealing with the law of a State a regulation of interstate commerce its power to make.

Chiles v. Ohio R. Co. 218 U.S. 71. 75.

13. Cf. Gwin, Prince v. Henneford, 305 U.S. 439; Mintz v. Baldwin, 289 346. 352; Welch Co. v. New 306 U.S. 79 ,84.

14. Southern Co. v. Arizona, 325 U.S. 761.

15. Cooley v. Board of Wardens, 12 299, 319; Minnesota Cases, 230 U.S. 352. Kelly v. Washington, 302 U.S. 1. 10.

16. or orders dealing with of operation: Smith v. Alabama, 124 465 (Alabama statute requiring an and license of train engineers operating in the state); Nashville, C. R. Co. v. Alabama, 128 U.S.

96 (statute examination of railroad employees as to and color blindness); New York, H.R. Co. v. New York, 165 U.S.

628 York statute forbidding the use of or stoves in passenger cars and guard-posts on railroad bridges); Erb v. 177 U.S. 584 (municipal ordinance speed of trains in city to 6 an hour); Atlantic Coast R. Co. v. Georgia, 234 U.S. 280 (Georgia requiring electric headlights on Morris v. Duby, 274 U.S. 135 restrictions on motor carriers by order of Oregon highway Sproles v. Binford, 286 U.S.

374 and weight restrictions on trucks by Texas statute); South Highway Dept. v. Barnwell 303 U.S. 177 (statute restricting and size of motor carriers); v. Hamilton, 309 U.S. 598 (Pennsylvania forbidding the use of its highways to any vehicle any other vehicle over the of the operator of the vehicle); Terminal v. Trainmen, 318 U.S.

1 (Illinois requiring cabooses on freight

Statutes or orders requiring train service: Gladson v. 166 U.S. 427 (state statute intrastate train to stop at seat to take on and discharge Lake Shore Michigan R. Co. v. Ohio, 173 U.S. 285 (statute three trains daily, if so are run, to stop at each containing over 3,000 as applied to interstate trains); Coast Line R. Co. v. North Corporation Comm’n, 206 U.S. 1 regulating train service, requiring train to permit with through trains at point); Missouri Pacific R. Co. v. 216 U.S.

262 (order directing the operation of passenger train service specified route).


Statutes with employment of labor full crew laws: R.I. P. R. Co. v. Arkansas, 219 U.S. 453 full crew law applied to trains); St. Louis, I. M. S. R. Co. v. Arkansas, 240 518 (Arkansas full crew applied to switching crews); Pacific R. Co. v. Norwood, 283 U.S.

249 full crew laws to freight and switching crews).

17. or orders dealing with of operations: Kansas City R. Co. v. Kaw Valley Dist. 233 U.S. 75 requiring railroad to remove its over river for flood purposes); South Covington R. Co. v. Covington, 235 U.S. 537 (ordinances the number of passengers to be carried in, the of cars to be run and the temperature of an interstate railway car invalid; those rails on front and rear ventilation and cleaning valid); Air Line R. Co. v. Blackwell, 244 U.S. 310 Blow Post Law requiring to blow whistle and slow almost to a stop at each crossing where numerous crossings were involved.

Cf. R. Co. v. King, 217 U.S. 524. answer held insufficient to proof of burden of the statute on commerce); Southern Pacific Co. v. 325 U.S.

761 (statute limiting of cars in freight train to 70 and cars to 14).

Statutes or requiring local train Illinois Central R. Co. v. Illinois, 163 142 (statute applied to require mail train to detour main line in order to at station for the taking on and discharge of Cleveland, C. C. St.L. R. Co. v. Illinois, 177 514 (Illinois statute requiring train to stop at each Mississippi Railroad Comm’n v. Central R. Co.

203 U.S. 335 (order of requiring interstate train to at small town); Atlantic Line v. Wharton, 207 U.S. 328 Carolina statute and railroad order requiring interstate to stop at small town); St.

Southwestern R. Co. v. Arkansas, 217 U.S. 136 and order requiring delivery of cars to local shippers); v. Chicago, R.I. P. R. Co. 218 U.S.

135 requiring interstate train to at junction point); Chicago, B. Q. R. Co. v. Railroad Comm’n, 237 U.S. 220 statute requiring interstate to stop at villages containing 200 or inhabitants); Missouri, K. T. R. Co. v. Texas, 245 484 (order requiring trains to on time and fixing time for stops at junctions en route); St.

S.F. R. Co. v. Public Service 254 U.S. 535 (order requiring trains to detour through a town); St. Louis-San Francisco R. Co. v. Service Comm’n, 261 U.S.

369 requiring that interstate be stopped at small town).

18. See Pacific Co. v. Arizona, 325 U.S. at

19. Compare United States v. Products Co. 304 U.S. 144.

20. Kansas City Southern R. Co. v. Kaw Dist. 233 U.S. 75. 79.

21. Illinois R. Co. v. Illinois, 163 U.S. 142.

22. The Virginia Code of 1942, 67, a colored person, for the purpose of the as follows: Every person in there is ascertainable any negro shall be deemed and taken to be a person. Provisions for vital make a record of the racial of Virginia inhabitants. 1574 and

23. 4097bb.

24. Cal.Civ.Code (Deering), 51-54; Colo.Stat.Ann. 1935, Ch. 35, Conn.Gen.Stat. (Supp. 1933), Ill.Rev.Stat. 1945, Ch.

38, 125-128g; (Burns), 1933, 10-901, Iowa Code, 1939, Kan.Gen.Stat. 1935, 21-2424; (Michie), 1933, Ch. 272, 98, as 1934; Mich.Stat.Ann. 1938, 28.344; Minn.Stat. (Mason), 7321; Neb. Comp.Stat.

23-101; N.J.Rev.Stat. 1937, to 10:1-7; N.Y. Civil Law (McKinney), 40-41; Ohio (Throckmorton), 1940, 12940-12942; (Purdon), Tit. 18, 4654 to R.I.Gen.Laws, 1938, Ch.

606, Wash.Rev.Stat. (Remington), 1932, ( semble ); Wis.Stat. 1943,

25. Ala.Code, 1940, Tit. 48, Ark.Stat. 1937 (Pope), 6927, Acts 1943, p. Ga.Code, 1933, 68-616; (Dart), 1939, 5307-5309; 1942, 7785; N.C.Gen.Stat. 62-109; Okla.Stat.Ann. 1941,

47, 201-210; S.C.Code, 1942, Tex.Pen.Code (Vernon), 1936, 1659; Va.Code, 1942,

26. Ala.Code 1940, Tit. 48,

27. Ala.Code, 1940, Tit. 1, 2; (Pope), 1937, 1200 coach law); Ga.Code Supp.), 1928, 2177; Art. XXIII, 1 1; Va.Code

1942, 67.

28. Compare Va.Code, 49, providing that those who had or more Negro blood to be considered colored. This was in 1910 (Acts, 1910, p. to read one-sixteenth or more. It was changed in 1930 by Acts, p. 97, to its present form, i.e. any Negro blood.

See note 22,

29. 95 U.S. at 489:

It was to meet such a case that the clause in the Constitution was adopted. The Mississippi passes through or the borders of ten different States, and its reach many more. The upon these waters is and its regulation clearly a matter of concern. If each State was at to regulate the conduct of carriers within its jurisdiction, the confusion to follow could not but be productive of inconvenience and unnecessary hardship. State could provide for its own and regulate the transportation of its own freight, of the interests of others.

Nay, it could prescribe rules by the carrier must be governed the State in respect to passengers and brought from without. On one of the river or its tributaries, he might be to observe one set of rules, and on the other, Commerce cannot flourish in the of such embarrassments.

No carrier of can conduct his business with to himself, or comfort to those him, if, on one side of a State his passengers, both white and must be permitted to occupy the cabin, and, on the other, be separate. Uniformity in the regulations by he is to be governed from one end to the other of his is a necessity in his business, and to secure it, which is untrammelled by State has been invested with the legislative power of determining such regulations shall be. If statute can be enforced against engaged in interstate commerce, it may be as against those engaged in and the master of a ship clearing New Orleans for Liverpool, having on board, would be compelled to all, white and colored, in the cabin during his passage the river or be subject to an action for exemplary as well as actual, by who felt himself aggrieved he had been excluded on account of his

See Louisville, N. O. T. R. Co. v. Mississippi, 133 U.S. 590-91.

A regulation of the number of on interstate streetcars was held in South Covington Cincinnati R. Co. v. 235 U.S. 537. 547. Court said, at 547-48:

If can regulate these matters, Cincinnati can, and interstate might be impeded by conflicting and regulations in this respect which it might be impossible to On one side of the river, one set of regulations be enforced, and, on the other quite a different set, and seeking to control a practically movement of cars. As was said in v. DeCuir, 95 U.S.

485. commerce cannot flourish in the of such embarrassments.

30. South Cincinnati R. Co. v. Kentucky, 252 U.S. relied upon by appellee, not decide to the contrary of the holding in v. DeCuir. In that case, a corporation was convicted in the Kentucky of violation of a state statute required it to furnish cars separate compartments for white and It operated streetcars interstate the lines of another corporation owned tracks that wholly intrastate. The Court of of Kentucky held the conviction on the ground that the offending act was the of the intrastate railroad in violation of the statute.

It was said that the did not apply to an interstate passenger. Covington Cincinnati Street R. Co. v. 181 Ky. 449, 454, 205 S.W.

Morgan Electric Cars

The Court of Appeals referred, continual approval, at that to Chiles v. Cheapeake Ohio R. Co. 125 Ky. 304:

It is admitted that 795-801 of the Kentucky Statutes, all railroad companies to furnish coaches for transportation of white and passengers and imposing upon the and conductors a penalty for refusing or to carry out the provisions of the law, not apply to appellant, who was an interstate it being conceded that the is only operative within the limits of this State and as to passengers who travel from one within the State to another within its border.

This accepted this application of the statute, and said it is not a regulation of commerce. Page 403. what was meant by the opinions was under the Kentucky act, the with wholly intrastate must operate cars separate compartments for intrastate

31. Anderson v. Louisville N. R. Co. 62 F. 46, 48; Washington, B. A. R. Co. v. 53 App.D.C. 200, 289 F. 598. See Hart v. State, 100 Md. 595, 60 A. Carrey v. Spencer, 36 N.Y.Supp.

Concurrence

BLACK, J. Concurring

MR. JUSTICE BLACK, concurring.

The Clause of the Constitution provides Congress shall have to regulate commerce. among the States. I have believed, and believe, that this means that Congress can regulate commerce, and that the cannot. But, in a series of decided in recent years, Court, over my protest, has that the Commerce Clause this Court in nullifying legislation which this concludes imposes an undue on interstate commerce. [*] I think whether state legislation an undue burden on interstate raises pure questions of which the Constitution intended be resolved by the Congress.

Very a majority of this Court its power to invalidate state on the ground that such put an undue burden on commerce. v. Richmond, supra; Southern Co. v. Arizona, supra. I thought and still believe, that, in cases, the Court was assuming the of a super-legislature in determining matters of policy. Id. at 788, n. 4.

But the Court, at for the present, seems committed to interpretation of the Commerce Clause. In the Pacific Company case, the as I understand its opinion, found an burden because a State’s for shorter trains increased the of railroad operations, and thereby interstate commerce and impaired its In the Nippert case, a small tax on a sales solicitor employed by located outside of Virginia was to be an undue burden even a solicitor for Virginia concerns in the same business would been required to pay the same

So long as the Court remains to the undue burden on commerce I must make decisions it. The burden on commerce imposed by the Virginia law here under seems to me to be of a far more serious than those of the Nippert or Pacific Company cases. The Pacific Company opinion, relied in part on the rule in Hall v. DeCuir, 95 U.S. which case held the Commerce Clause prohibits a from passing laws require that,

on one side of a line. passengers, both and colored, must be permitted to the same cabin, and, on the be kept separate.

The Court said that

uniformity in the by which. [a carrier] is to be governed one end to the other of his route is a necessity in his

and that it was the responsibility of Congress, not the to determine what such shall be. The undue burden on formula consequently requires the decision. In view of the Court’s disposition to apply that I acquiesce.

* Nippert v. Richmond, 327 416 ; Southern Pacific Co. v. Arizona, 325 761 ; McCarroll v. Dixie Greyhound 309 U.S. 176 ; Gwin, White v. Henneford, 305 U.S. 434 ; Adams

Co. v. Storen, 304 U.S. 307 .

Concurrence

J. Concurring Opinion

MR. JUSTICE concurring.

My brother Burton has with great force for not invalidating the Virginia statute. for me, Hall v. DeCuir, 95 U.S. is controlling.

Since it was decided, seventy years ago, case, on several occasions, has approvingly cited, and has never questioned. Chiefly for this I concur in the opinion of the Court.

The upon national systems of of a crazy-quilt of State laws operate to burden commerce whether such contradictory and State laws concern commingling or racial segregation. does not imply the necessity for a uniform regulation of arrangements for on interstate carriers. Unlike powers of Congress ( see Art. I, 8, cl. 1, Duties, Imposts [p389] and Art.

I, 8, cl. 4, concerning Naturalization; I, 8, cl. 4, concerning Bankruptcies), the power to commerce does not require uniformity.

Congress may devise a policy with due regard to interests of different regions. 37 Stat. 699, 27 U.S.C. 122 ; Distilling Co. v. Western Maryland R. Co. 242

311 ; 45 Stat. 1084, 49 U.S.C. 60 ; v. Ohio, 297 U.S. 431.

The cannot impose diversity of when such diverse would result in unreasonable on commerce. But Congress may effectively its power under the Commerce without the necessity of a blanket for the country.

Dissent

BURTON, J. Opinion

MR. JUSTICE BURTON,

On the application of the interstate commerce of the Federal Constitution to this I find myself obliged to from the majority of the Court. I sustain the Virginia statute that clause. The issue is the desirability of the statute nor the constitutionality of segregation, as such. The opinion of the does not claim that the statute, regulating seating for interstate passengers in motor violates the Fourteenth Amendment or is in with a federal statute. The holds this statute for but one reason.

It holds that the imposed by the statute upon the interest in interstate commerce so outweighs the contribution made by the to the State’s interest in its public as to make it unconstitutional.

The undue upon interstate commerce relied upon by the Court is not of by the Federal Government, by any state, or by any This statute has been in since 1930. The carrier is operating under regulations of its own conform [p390] to the statute.

The conforms to the policy adopted by as to steamboats (1900), electric or cars and railroad (1902-1904). Its validity has been unanimously by the Supreme Court of Appeals of The argument relied upon by the of this Court to establish the burden of this statute on commerce is the lack of uniformity its provisions and those of the laws of states on the subject of the racial of interstate passengers on motor

If the mere diversity between the statute and comparable statutes of states is so serious as to render the statute invalid, it probably that the comparable statutes of other states, being from it and from each are equally invalid. This is true under that of the majority, which disregards interstate travel between states having similar to hold

that seating for the different races in interstate travel require a single, rule to promote and protect travel.

(Italics supplied.) specifically, the opinion of the Court that the laws of the 10 contiguous of Virginia, North Carolina, Carolina, Georgia, Alabama, Louisiana, Arkansas, Texas, and require racial separation of on motor carriers, while of 18 other states prohibit separation of passengers on public On the precedent of this case, the of the 10 states requiring racial apparently can be invalidated because of sharp diversity from the in the rest of the Union, or, in a lesser because of their diversity one another. Such invalidation, on the [p391] of lack of nationwide may lead to questioning the validity of the of the 18 states now prohibiting racial of passengers, for those laws differ sharply from on the same subject in other of the Union, and, in a lesser from one another.

In the absence of law, this may eliminate regulation of racial separation in the of interstate passengers on motor and leave the regulation of the subject to the carriers.

The present decision lead to the questioning of the validity of regulation of the seating of intrastate in the same motor vehicles interstate passengers. The decision may result in increased lack of between regulations as to seating on motor vehicles limited to passengers in a given state and on motor vehicles engaged in business in the same state or on routes.

The basic weakness in the case is the lack of facts and essential to demonstrate the existence of a serious and major burden the national interest in interstate as to outweigh whatever state or benefits are attributable to the statute and would be lost by its invalidation. The recognizes that it serves as the arbiter of the competing demands of and national interests, [n2] and it must fairly determine, in the of congressional action, whether the statute actually imposes an undue burden upon commerce as to invalidate that In weighing these competing if this Court is to justify the of this statute, it must, of all, be satisfied that the years of experience of the state and the that are reflected in this state law should be set aside.

It represents the tested public of Virginia, regularly enacted, and currently observed. The officially state interests, even affecting interstate commerce, not be laid aside summarily by Court in the absence of congressional It is only Congress that can affirmative national uniformity of

In Southern Pacific Co. v. Arizona, 325 761. 768-769, 770, Court, speaking through the Chief Justice, said:

In the of these principles, some may be found to be plainly within, and plainly without, state But, between these lies the infinite variety of in which regulation of local may also operate as a regulation of in which reconciliation of the conflicting of state and national power is to be only by some appraisal and of the competing demands of the state and interests involved. [n3]

* * * *

in general, Congress has left it to the to formulate the rules thus the commerce clause in its application, because it has appreciated the destructive to the commerce of the nation if their [ the courts’] protection were and has been aware that, in application, state laws not be invalidated without the support of factual material which afford a sure basis for an judgment. [n4] . Meanwhile, has accommodated its legislation, as have the to these rules as an established of our constitutional system. There has been left to the states scope for [p393] the regulation of of local state concern, though it in some measure the commerce, provided it does not restrict the free flow of across state lines, or with it in matters with to which uniformity of regulation is of national concern.

(Italics

The above-quoted requirement of a factual of a sure basis for an informed by this Court calls for a and demonstrable basis of action on the of this Court. In the record of case, there are no findings of that demonstrate adequately the of the burden, if any, which the statute has imposed upon commerce, during the many since its enactment, in comparison the resulting effect in Virginia of the of this statute. [n5] The relies largely upon the of a nationwide diversity among statutes on this subject, a demonstration of the factual situation in states, and especially in Virginia. The therefore is not able in this to make that necessary and accommodation of the competing demands of the and national interests involved should be the foundation for passing the validity of a state statute of standing and of important local in the exercise of the state police [p394]

The Court makes its own assumption that the question of separation of interstate passengers in vehicle carriers requires uniformity of treatment, rather diversity of treatment, at this The inaction of Congress is an important that, in the opinion of Congress, issue is better met without uniform affirmative regulation with it. Legislation raising the long has been, and is now, before Congress, but has not reached the of either House. [n6] The that 18 states have in some degree racial in public carriers is important in the direction of uniformity. The fact, that 10 contiguous states, in degree, require, by state some racial separation of on motor carriers indicates a appraisal by them of the needs and in those areas than in The remaining 20 states have not equally far in either direction.

recital of existing legislative is evidence against the validity of the by this Court that exists today a requirement of a uniform national rule on the

It is a fundamental concept of our Constitution where conditions are diverse, the of problems arising out of them may come through the application of treatment matching the diversified as determined by our local governments. of treatment is appropriate where a uniformity of conditions exists.

1. Acts of 1900, p. 340; or streetcars: Acts of 1902-1904, p. railroads: Acts of 1902-1904, p. Va.Code Ann. 1942, 3978-3983; 3962-3969.

2. Southern Co. v. Arizona, 325 U.S. 761.

5. Hall v. DeCuir, 95 U.S. does not require the conclusion by the Court in this case. The statute in the DeCuir case have been invalidated, at time and place, as an undue on interstate commerce under the clearly stated by Chief Stone in Southern Pacific Co. v. supra, and as applied in this opinion.

If the DeCuir case is without weighing the surrounding it would invalidate today in New England states prohibiting separation in seating arrangements on which would not be invalidated the doctrine stated in the Arizona

6. See H.R. 8821, 75th 3d Sess. 83 Cong.Rec. 74; H.R. 76th Cong. 1st Sess. 84 27; H.R. 112, 77th 1st Sess. 87 Cong.Rec. 13.

Morgan Electric Cars
Morgan Electric Cars
Morgan Electric Cars
Morgan Electric Cars
Morgan Electric Cars
Morgan Electric Cars

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