necessarily be occasioned by a promiscuous intermingling of all sorts of passengers in the same conveyance, whilst those who cannot or do not choose to pay the higher fare are afforded an opportunity to procure transportation which would otherwise be, perhaps, beyond their means, or at an expense which they would be unwilling to incur. No legal right is thereby denied and no one can, therefore, complain. Provision is accordingly made for such a separation, almost universally, by steamboats and railway carriers, and the necessary regulations to enforce it are adopted, and such regulations have been held to be not only lawful but highly commendable, as being conducive both to the public convenience and to the interest of the carrier. On that account state statutes requiring railroad companies engaged in domestic carriage to furnish separate coaches for white and colored people, provided no discrimination is made in the quality, convenience or accommodations of the cars or coaches set apart for white and colored passengers, have been held to be valid.28

28. Chesapeake & O. R. Co. v. Commonwealth of Kentucky, 179 U. S. 388, 45 L. Ed. 244, affirming 21 Ky. L. R. 228, 51 S. W. Rep. 160; Louisville N. O. & T. R. Co. v. Mississippi, 133 U. S. 587, 33 L. Ed. 784, 10 Sup. Ct. R. 348, affirming 66 Miss. 662, 6 So. Rep. 203, 5 L. R. A. 132; Plessy v. Ferguson, 163 U. S. 537, 41 L. Ed. 256, 16 Sup. Ct. R. 1138, affirming Ex parte Plessy, 45 La. Ann. 80, 18 L. R. A. 639, 11 So. Rep. 948; Anderson v. Railroad Co., 62 Fed. 46; Ohio Valley R. Co. v. Lander, 20 Ky. L. Rep. 913, 926, 47 S. W. Rep. 344, 882; Railroad Co. บ. Catron, 102 Ky. 323, 43 S. W. Rep. 443; Chesapeake, etc. R. Co. v. Wells, 85 Tenn. 613; Memphis, etc. R. Co. v. Benson, 85 Tenn. 627; Smith v. State, 100 Tenn. 494, 46 S. W. Rep. 566, 41 L. R. A. 432;

Louisville, etc. R'y Co. v. State, 66 Miss. 662; Segal v. Railway Co., (Tex. Civ. App.) 80 S. W. Rep. 233; Henderson v. Railway Co., (Tex. Civ. App.) 38 S. W. Rep. 1136; Railway Co. v. Ball, 25 Tex. Civ. App. 500, 61 S. W. Rep. 327.

Such separation is held lawful either as to cars, state-rooms, berths or tables where the carrier, in good faith, endeavors to give equal accommodations to each. Houck v. Railway Co., 38 Fed. Rep. 226; McGuinn v. Forbes, 37 Fed. Rep. 639; The Sue, 22 Fed. Rep. 843; Murphy v. Railroad Co., 23 Fed. Rep. 637; Logwood v. Railroad Co., 23 Fed. Rep. 318. But in Coger v. The Packet Co., 37 Icwa, 145, it was held that the steamboat company had no power to make and enforce a regulation to exclude negroes from any

And regulations designed for the comfort and protection of female passengers by separating them from those of the ruder

of the rights or privileges which
were allowed to white passengers,
and the company was liable to
damages in an action by a negro
passenger for an assault and bat-
tery in removing her from a seat
at the dinner table, which had
been provided and intended for
white passengers exclusively, and
which she had occupied contrary
to a regulation of the company,
and had refused to leave when re-
quested. It was said that by the
constitution and laws of the state
of Iowa there was no difference
between the white and negro
races, and that all rights and
privileges which were allowed to
the former must be conceded to
the latter, and that carriers could
make no distinction. It was also
said that the recent amendments
to the constitution of the United
States, and the laws of its con-
gress, prohibited any such distinc-
tion. This latter position, how
ever, is
one which cannot be
maintained in the light of later
decisions.

a

carrier to provide, as far as he reasonably could do so, for the comfort of his passengers, which would be seriously lessened if the negro and the white passenger, between whom there existed socially a repugnance, were forced into social contact. It was said by Agnew, J., in the latter case, that there was a natural incongruity between the two races, and that the carrier in making separation of them was but conforming to a condition of things which had existed and been sanctioned both by law and custom from the foundation of the gov. ernment. It was also conceded by the court in the case of The Chicago, etc., R. R. v. Williams, 55 Ill. 185. The rule in Pennsyl vania was soon after changed by statute. See Central R. Co. v. Green, 86 Penn. St. 421.

Under an enactment of congress that "no person shall be excluded from the cars on account of color," the requirement of separate cars for whites and blacks cannot be sustained. Railroad Co. r. Brown, 17 Wall. 445.

. See also, Bass v. The Railroad, 36 Wis. 450; Chicago, etc., R. R.

burgh, etc., R. R. v. Hinds, 53 Penn. St. 512; Miller v. Steamboat Co., 12 N. Y. Suppl. 301.

In Day v. Owen, 5 Mich. 520, it was held that a carrier by steamboat might lawfully make and enforce a regulation excluding such passengers from the v. Williams, 55 Ill. 185; Pittscabin appropriated to white passengers; and in the case of The West Chester, etc., R. R. v. Miles, 55 Penn. St. 209, it was held that a regulation of a similar character, excluding them from certain carriages of a train, was not illegal and could be enforced. These decisions were based upon the argument that it was the duty of the

There seems to be a difference of opinion among the courts as to whether state statutes requiring separate coaches for colored and white interstate passengers are void as regulations of interstate commerce. That such a state stat

sex are said to be not only reasonable, but to be demanded by considerations of humanity.29

Sec. 973. (§ 543.) Same subject-Contract of carriage made subject to such regulations.-Every contract for the carriage of the passenger is therefore to be understood as made with reference to such regulations when they exist; and it must be determined either by the express terms of the contract or from the circumstances under which the passage is taken in what manner it was agreed that the passenger should be carried; and if by his contract or conduct he has elected to be carried in a particular manner, he cannot complain that he has been. refused privileges or accommodations which have been allowed to others who have preferred and contracted for another manner of treatment, though in the same conveyance.

8. Ejection of passengers for misconduct.

Sec. 974. (§ 544.) But when once accepted, a passenger cannot be ejected unless guilty of some misconduct. It does not follow, however, that because the carrier might have refused to receive the passenger had he known the objections at the time of his taking his passage, he may eject him for the same reasons when the facts are brought to his knowledge, after he has been received and the transportation has been commenced. In the case of Pearson v. Duane,30 the court, after admitting that the circumstances, had they been known to the commander of the vessel before the passage was commenced, would have justified him in refusing to receive the

admitted to a given car is reasonable and valid. Peck v. Railroad Co., 70 N. Y. 587; Memphis, etc., R. Co. v. Benson, 85 Tenn. 630; Chilton v. Railroad Co., 114 Mo. 88, 21 S. W. Rep. 457, 19 L. R. A. 269, citing Hutch. on Carr.

But where a passenger can find no seat elsewhere and enters the ladies' car without objection, he is lawfully there and cannot be ejected by force, at least until a seat is offered him elsewhere. Bass

v. Railway Co., supra; Thorpe t Railroad Co., 76 N. Y. 402. See also, Craker v. The Railroad, 36 Wis. 657; State v. Overton, 24 N. J. (Law), 435; Nieto v. Clark, 1 Cliff. 145; West Chester R. R. r. Miles, supra.

30. 4 Wall. 605.

See on ejection of drunken passengers, Milliman v. The Railroad Co., 66 N. Y. 462; Putnam v. The Railroad Co., 55 N. Y. 108.

libelant as a passenger, goes on to say: "But this refusal should have preceded the sailing of the ship. After the ship had got to sea, it was too late to take exceptions to the character of the passenger or to his peculiar position, provided he violated no inflexible rule of the boat in getting on board. This was not done, and the defense that Duane was a 'stowaway,' and therefore subject to expulsion at any time, is a mere pretense, for the evidence is clear that he made no attempt to secrete himself until advised of his intended transfer to the Sonora. Although a railroad or steamboat company can properly refuse to transport a drunken or insane man, or one whose character is bad, they cannot expel him after having admitted him as a passenger and received his fare, unless he misbehaves during the journey. Duane conducted himself properly on the boat until his expulsion was determined, and when his fare was tendered to the purser he was entitled to the same rights as other passengers. The refusal to carry him was contrary to law, although the reason for it was a humane one. The apprehended danger mitigates the act, but affords no justification for it."

Sec. 975. ($545.) Same subject-Not to be ejected for supposed bad character if properly conducting himself. So in the English case of Coppin v. Braithwaite,31 the plaintiff had taken passage to his destination in the vessel of which the defendant was the commander. It being brought to the knowledge of the latter before the destination was reached, that the plaintiff was a pickpocket and a man of bad character, he, without any act of misbehavior on the part of the plaintiff, put him ashore at an intermediate place, for which the plaintiff brought an action against the owners of the ship for a breach of the contract to carry him to his destination, and it was held that, after the plaintiff had been received as a passenger on board the ship and the voyage commenced, the expulsion was illegal until the plaintiff had been guilty of some act of misbehavior to justify it, and that the circumstances 31. 8 Jurist, 875.