INCONSISTENCY OF THE COURT

In the case of Hall v. DeCuir26 the court reached an important decision when an Act of Louisiana passed in 1869 to give passengers without regard to race or color equality of right in the accommodations of railroad or street cars, steamboats or other water crafts, stage coaches, omnibusses or other vehicles, was declared unconstitutional so far as it related to commerce between States.27 Here a person of color had been discriminated against by a Mississippi River navigation company which was called to answer before a United States court for violating this act.

Giving the opinion of the court, Chief Justice Waite said: "We think it may be safely 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. The statute now under consideration in our opinion occupies that position." "Inaction by Congress," the court held, "is equivalent to a declaration that interstate commerce shall remain 26 95 U. S., 487.

27 The Louisiana Act was:

Section. All persons engaged within this State in the business of common carriers of passengers, shall have the right to refuse to admit any person to their railroad cars, street cars, steamboats or other water-crafts, stage coaches, omnibusses, or other vehicles, or to expel any person therefrom after admission, when such persons shall, on demand, refuse or neglect to pay the customary fare, or when such person shall be of infamous character or shall be guilty, after admission to the conveyance of the carrier, of gross, vulgar, or disorderly conduct, or who shall commit any act tending to injure the business of the carrier, prescribed for the management of his business, after such rules and regulations shall have been made known: Provided, said rules and regulations make no discrimination on account of race or color, and shall have the right to refuse any person admission to such conveyance where there is not room or suitable accommodation; and, except in cases above enumerated, all persons engaged in the business of common carriers of passengers are forbidden to refuse admission to their conveyance, or to expel therefrom any person whomsoever.

Section 4. For a violation of any provision of the first and second sections of this act, the party injured shall have right of action to recover any damage, exemplary as well as actual, which he may sustain, before any court of competent jurisdiction. Acts of 1869, page 77; Rev. Stat. 1870, page 93.

free and untrammelled." This meant that the carrier was "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 best 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 unconstitutionality is clearly established, we think this statute to the extent that it requires those engaged in the transportation of passengers among the several States to carry colored persons in Louisiana in the same cabin with whites is unconstitutional and void. If the public good requires such legislation it must come from Congress and not from the States."

Justice Waite here expressed his fear as to the delicate ground on which he was treading in saying: "The line which separates the powers of the States from this exclusive power of Congress is not always distinctly marked, and oftentimes it is not easy to determine on which side a particular case belongs. Judges not infrequently differ in their reasons for a decision in which they concur. Under such circumstances it would be a useless task to undertake to fix an arbitrary rule by which the line must in all cases be located. It is far better to leave a matter of such delicacy to be settled in each case upon a view of the particular rights involved." Thus the way was left clear to vary the principle of interpretation according to the color of the citizens whose rights might be involved.

In view of the subsequent decisions in separate car cases, moreover, the following portion of Justice Waite's opinion as to a clause in the law involved in the case of Hall v. DeCuir is unusually interesting. "It does not act," said he, "upon the business through the local instruments to be employed after coming within 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. We confine our decision to the statute in its effect upon foreign and interstate commerce, expressing no opinion as to its validity in any other respect. ''28

With the rapid expansion of commerce in the United States and the consequent necessity for regulation both by the State and the United States, no power of Congress was more frequently questioned than that to regulate commerce and no litigant concerned in such constitutional questions easily escaped the consequences of the varying interpretation given this clause by the United States Supreme Court. The court, of course, accepted as a general principle that there are three spheres for the regulation of commerce, namely that which a State cannot invade, that which the State may invade, when Congress has not interfered, and that which is reserved to the State in conformity with its police power. But as late as 1886 the nationalistic school found some encouragement in the decision of the Wabash, St. Louis and Pacific Railway Company v. Illinois29 given by Justice Miller. He said: "Notwithstanding what is there said, that is, in the decisions of Munn v. Illinois; C. B. and Q. R. R. Company v. Iowa, and Peik v. Chicago and N. W. R. R. Co.,30 this court held and asserted that it had never consciously held otherwise, that a statute of a State intended to regulate or to tax, or to impose any other restriction upon the transmission of persons or property or telegraphic messages, from one State to another, is not within the class of legislation which the States may enact in the absence of legislation by Congress; and that such statutes are void even as to the part of such transmission which may be within the State." Chief Justice Waite, and Justice

28 Mr. Justice Clifford concurred in the judgment but went into details to justify the segregation whereas the opinion of the court merely tried to see whether the details conflicted with the power of Congress to regulate commerce. 29 118 W. S., 557.

30 All of these are in 94 U. S.

Bradley and Justice Gray, however, dissented for various

reasons.

In the Louisville Railway Company v. Mississippi,31 however, in 1899, the court, evidently yielding to southern public opinion, reversed itself by the decision that an interstate carrier could not run a train through Mississippi without attaching thereto a separate car for Negroes and had the audacity to argue that this is not an interference with interstate commerce.32 To show how inconsistent this interpretation was one should bear in mind that in Hall v. DeCuir the court had held that this was exactly what a State could not do in that the statute acted not upon business through local instruments to be employed after coming into the State, but directly upon business as it comes into the State from without or goes out from within, although it purported only to control the carrier when engaged within the State. It necessarily influenced the conduct of the carrier to some extent in the management of his business 31 133 U. S., 587.

32 This was the law of Mississippi:

Sec. 1. "Be it enacted, That all railroads carrying passengers in this State (other than street railroads) shall provide equal, but separate accommodation for the white and colored races by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition, so as to secure separate accommodations.''

Sec. 2. That the conductors of such passenger trains shall have power and are hereby required to assign each passenger to the car or the compartment of a car (when it is divided by a partition) used for the race to which said passenger belongs; and that, should any passenger refuse to occupy the car to which he or she is assigned by such conductor, said conductor shall have the power to refuse to carry such passenger on his train and neither he nor the railroad company shall be liable for any damages in any event in this State.

Sec. 3. That all railroad companies that shall refuse or neglect within sixty days after the approval of this act to comply with the requirements of section one of this act, shall be deemed guilty of a misdemeanor and shall upon conviction in a court of competent jurisdiction, be fined not more than five hundred dollars; and any conductor that shall neglect to, or refuse to carry out the provisions of this act, shall, upon conviction, be fined not less than twenty-five nor more than fifty dollars for each offense.

Sec. 4. That all acts and parts of acts in conflict with this act be, and the same are hereby repealed, and this act to take effect and be in force from and after passage. Acts of 1888, p. 48.

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throughout his entire voyage. "No carrier of passengers, "said the court in Hall v. DeCuir, "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 to be kept separate. formity in the regulation 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 exclusive legislative power of determining what such regulation should be."

Giving the opinion in the Mississippi case, however, Justice Brewer said: "It has been often held by this court that there is a commerce wholly within the State which is not subject to the constitutional provision and the distinctions between commerce among the States and the other class of commerce between citizens of a single State and conducted within its limits exclusively is one which has been fully recognized in this court, although it may not be always easy, where the lines of these classes approach each other, to distinguish between the one and the other.''33 He might have added some other comment to the effect that this court will not definitely draw the line of distinction between such classes of commerce since it desires to leave adequate room for evasion, because it had been unusually easy to find such a line in cases in which the rights of Negroes were concerned and such definite interpretation might interfere with the rights of white men. Justices Harlan and Bradley dissented on the grounds that the law imposed a burden upon an interstate carrier in that he would be fined if he did not attach an additional car for race discrimination, and that the opinion was repugnant to the principles set forth in that of Hall v. DeCuir.

The United States Supreme Court finally reached the position of following the decision of Ex Parte Plessy which justified the discrimination in railway cars on the grounds

88 133 U. S., 592.