1. Provisions of the Virginia Code, 1942, §§ 4097z to 4097dd,
which require the separation of white and colored passengers on
both interstate and intrastate motor carriers are invalid as
applied to interstate passengers in vehicles moving interstate,
because they burden interstate commerce contrary to Art. I, § 8,
cl. 3 of the Constitution of the United States, even though
Congress has enacted no legislation on the subject. Pp.
328 U. S. 374,
328 U. S. 380,
328 U. S.
386.
2. If a state statute unlawfully burdens interstate commerce,
the powers reserved to the State by the Tenth Amendment will not
validate it. P.
328 U. S.
376.
3. An interstate passenger, charged in a criminal proceeding
with violation of the statute, is a proper person to challenge its
validity as a burden on interstate commerce. P.
328 U. S.
376.
4. State legislation is invalid if it unduly burdens interstate
commerce where uniformity is necessary in the constitutional sense
of useful in accomplishing a permitted purpose. Pp.
328 U. S. 377,
328 U. S.
380.
5. A State cannot impose undue burdens on interstate commerce by
simply invoking the convenient apologetics of the police power. P.
380.
6. Seating arrangements for the different races in interstate
motor travel require a single uniform rule to promote and protect
national travel. P.
328 U. S.
386.
184 Va. 24, 34 S.E.2d 491, reversed.
Appellant, an interstate passenger, was convicted of a violation
of Virginia Code, 1942, § 4097dd, relating to the segregation of
white and colored passengers on motor buses. The Supreme Court of
Appeals of Virginia affirmed. 184 Va. 24, 34 S.E.2d 491. On appeal
to this Court,
reversed, p.
328 U. S.
386.
Page 328 U. S. 374
MR. JUSTICE REED delivered the opinion of the Court.
This appeal brings to this Court the question of the
constitutionality of an act of Virginia [
Footnote 1] which requires all passenger motor vehicle
carriers, both interstate and intrastate, [
Footnote 2] to separate without discrimination
[
Footnote 3] the white and
colored passengers in their motor buses so that contiguous seats
will not be occupied by persons of different races at the same
time. A violation of the requirement of separation by the carrier
is a misdemeanor. [
Footnote 4]
The driver or other person in charge is directed and required to
increase or decrease the space allotted to the respective races as
may be necessary or proper, and may require passengers to change
their seats to comply with the allocation. The operator's failure
to enforce the provisions is made a misdemeanor. [
Footnote 5]
These regulations were applied to an interstate passenger, this
appellant, on a motor vehicle then making an interstate run or
trip. According to the statement of fact by the Supreme Court of
Appeals of Virginia, appellant, who is a Negro, was traveling on a
motor common carrier,
Page 328 U. S. 375
operating under the above-mentioned statute, from Gloucester
County, Virginia, through the District of Columbia, to Baltimore,
Maryland, the destination of the bus. There were other passengers,
both white and colored. On her refusal to accede to a request of
the driver to move to a back seat, which was partly occupied by
other colored passengers, so as to permit the seat that she vacated
to be used by white passengers, a warrant was obtained and
appellant was arrested, tried, and convicted of a violation of
Section 4097dd of the Virginia Code. [
Footnote 6] On a writ of error, the conviction was
affirmed by the Supreme Court of Appeals of Virginia. 184 Va. 24,
34 S.E.2d 491. The Court of Appeals interpreted the Virginia
statute as applicable to appellant, since the statute "embraces all
motor vehicles and all
Page 328 U. S. 376
passengers, both interstate and intrastate." [
Footnote 7] The Court of Appeals refused to
accept appellant's contention that the statute applied was invalid
as a delegation of legislative power to the carrier by a concurrent
holding
"that no power is delegated to the carrier to legislate. . . .
The statute itself condemns the defendant's conduct as a violation
of law, and not the rule of the carrier."
Id. 184 Va. at 38, 34 S.E.2d at 497. No complaint is
made as to these interpretations of the Virginia statute by the
Virginia court. [
Footnote
8]
The errors of the Court of Appeals that are assigned and relied
upon by appellant are, in form, only two. The first is that the
decision is repugnant to Clause 3, Section 8, Article I of the
Constitution of the United States, [
Footnote 9] and the second the holding that powers
reserved to the states by the Tenth Amendment include the power to
require an interstate motor passenger to occupy a seat restricted
for the use of his race. Actually, the first question alone needs
consideration, for if the statute unlawfully burdens interstate
commerce, the reserved powers of the state will not validate it.
[
Footnote 10]
We think, as the Court of Appeals apparently did, that the
appellant is a proper person to challenge the validity of this
statute as a burden on commerce. [
Footnote 11] If it is an invalid burden, the conviction
under it would fail. The statute affects appellant as well as the
transportation company. Constitutional protection against burdens
on commerce
Page 328 U. S. 377
is for her benefit on a criminal trial for violation of the
challenged statute.
Hatch v. Reardon, 204 U.
S. 152,
204 U. S. 160;
Federation of Labor v. McAdory, 325 U.
S. 450,
325 U. S.
463.
This Court frequently must determine the validity of state
statutes that are attacked as unconstitutional interferences with
the national power over interstate commerce. This appeal presents
that question as to a statute that compels racial segregation of
interstate passengers in vehicles moving interstate. [
Footnote 12]
The precise degree of a permissible restriction on state power
cannot be fixed generally, or indeed not even for one kind of state
legislation, such as taxation or health or safety. [
Footnote 13] There is a recognized abstract
principle, however, that may be taken as a postulate for testing
whether particular state legislation in the absence of action by
Congress is beyond state power. This is that the state legislation
is invalid if it unduly burdens that commerce in matters where
uniformity is necessary -- necessary in the constitutional sense of
useful in accomplishing a permitted purpose. [
Footnote 14] Where uniformity is essential for
the functioning of commerce, a state may not interpose its local
regulation. [
Footnote 15]
Too true it is that the principle lacks in precision. Although the
quality of such a principle is abstract, its application to the
facts of a situation created by the attempted enforcement of a
statute brings about a specific determination as to whether or not
the statute
Page 328 U. S. 378
in question is a burden on commerce. Within the broad limits of
the principle, the cases turn on their own facts.
In the field of transportation, there have been a series of
decisions which hold that, where Congress has not acted, and
although the state statute affects interstate commerce, a state may
validly enact legislation which has predominantly only a local
influence on the course of commerce. [
Footnote 16] It is equally well settled that, even where
Congress
Page 328 U. S. 379
has not acted, state legislation or a final court order is
invalid which materially affects interstate commerce. [
Footnote 17]
Page 328 U. S. 380
Because the Constitution puts the ultimate power to regulate
commerce in Congress, rather than the states, the degree of state
legislation's interference with that commerce may be weighed by
federal courts to determine whether the burden makes the statute
unconstitutional. [
Footnote
18] The courts could not invalidate federal legislation for the
same reason because Congress, within the limits of the Fifth
Amendment, has authority to burden commerce if that seems to it a
desirable means of accomplishing a permitted end. [
Footnote 19]
This statute is attacked on the ground that it imposes undue
burdens on interstate commerce. It is said by the Court of Appeals
to have been passed in the exercise of the state's police power to
avoid friction between the races. But this Court pointed out years
ago "that a state cannot avoid the operation of this rule by simply
invoking the convenient apologetics of the police power." [
Footnote 20] Burdens upon commerce
are those actions of a state which directly "impair the usefulness
of its facilities or such traffic." [
Footnote 21] That impairment, we think, may arise from
other causes than costs or long delays. A burden may arise from a
state statute which requires interstate passengers to order
Page 328 U. S. 381
their movements on the vehicle in accordance with local, rather
than national, requirements.
On appellant's journey, this statute required that she sit in
designated seats in Virginia. [
Footnote 22] Changes in seat designation might be made
"at any time" during the journey when "necessary or proper for the
comfort and convenience of passengers." This occurred in this
instance. Upon such change of designation, the statute authorizes
the operator of the vehicle to require, as he did here, "any
passenger to change his or her seat as it may be necessary or
proper." [
Footnote 23] An
interstate passenger must, if necessary, repeatedly shift seats
while moving in Virginia to meet the seating requirements of the
changing passenger group. On arrival at the District of Columbia
line, the appellant would have had freedom to occupy any available
seat, and so to the end of her journey.
Interstate passengers traveling via motors between the north and
south or the east and west may pass through Virginia on through
lines in the day or in the night. The large buses approach the
comfort of pullmans, and have seats convenient for rest. On such
interstate journeys, the enforcement of the requirements for
reseating would be disturbing.
Appellant's argument, properly we think, includes facts bearing
on interstate motor transportation beyond those immediately
involved in this journey under the Virginia statutory regulations.
To appraise the weight of the burden of the Virginia statute on
interstate commerce, related statutes of other states are important
to show whether there are cumulative effects which may make
Page 328 U. S. 382
local regulation impracticable. Eighteen states, it appears,
prohibit racial separation on public carriers. [
Footnote 24] Ten require separation on
motor carriers. [
Footnote
25] 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.
[
Footnote 26] 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. [
Footnote 27]
In the other states which require the separation of the races
in
Page 328 U. S. 383
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. [
Footnote 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. De Cuir, 95 U. S.
485.
The
De Cuir 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 traveling 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
95 U. S. 487.
Damages were awarded against Hall, the representative of the
operator of a Mississippi 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
Page 328 U. S. 384
stated in the words of Mr. Chief Justice Waite. [
Footnote 29] As our previous discussion
demonstrates, the transportation difficulties
Page 328 U. S. 385
arising from a statute that requires commingling of the races,
as in the
De Cuir case, are increased by one that requires
separation, as here. [
Footnote
30] Other federal courts have looked upon racial separation
statutes as applied to interstate passengers as burdens upon
commerce. [
Footnote 31]
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
Page 328 U. S. 386
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 percent colored, all with varying densities of the
white and colored race 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.
Reversed.
MR. JUSTICE RUTLEDGE concurs in the result.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[
Footnote 1]
Virginia Code of 1942, §§ 4097z to 4097dd inclusive. The
sections are derived from an act of General Assembly of Virginia of
1930. Acts of Assembly, Va.1930, p. 343.
[
Footnote 2]
Id., §§ 4097z, 4097m, 4097s;
Morgan v.
Commonwealth, 184 Va. 24, 39, 34 S.E.2d 491.
[
Footnote 3]
Id., § 4097aa.
[
Footnote 4]
Id., § 4097z; § 4097bb.
[
Footnote 5]
Id., § 4097bb.
[
Footnote 6]
"4097dd. Violation by passengers; misdemeanor; ejection. -- All
persons who fail while on any motor vehicle carrier, to take and
occupy the seat or seats or other space assigned to them by the
driver, operator, or other person in charge of such vehicle, or by
the person whose duty it is to take up tickets or collect fares
from passengers therein, or who fail to obey the directions of any
such driver, operator, or other person in charge, as aforesaid, to
change their seats from time to time as occasions require, pursuant
to any lawful rule, regulation, or custom in force by such lines as
to assigning separate seats or other space to white and colored
persons, respectively, having been first advised of the fact of
such regulation and requested to conform thereto, shall be deemed
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than five dollars nor more than twenty-five dollars
for each offense. Furthermore, such persons may be ejected from
such vehicle by any driver, operator, or person in charge of said
vehicle, or by any police officer or other conservator of the
peace, and in case such persons ejected shall have paid their fares
upon said vehicle, they shall not be entitled to the return of any
part of same. For the refusal of any such passenger to abide by the
request of the person in charge of said vehicle as aforesaid, and
his consequent ejection from said vehicle, neither the driver,
operator, person in charge, owner, manager, nor bus company
operating said vehicle shall be liable for damages in any
court."
[
Footnote 7]
Morgan v. Commonwealth, supra, 184 Va. 37, 34 S.E.2d
496.
Cf. Smith v. State, 100 Tenn. 494, 46 S.W. 566;
Alabama & Vicksburg R. Co. v. Morris, 103 Miss. 511,
60 So. 11;
Southern Ry. Co. v. Norton, 112 Miss. 302, 73
So. 1.
[
Footnote 8]
Compare Hebert v. Louisiana, 272 U.
S. 312,
272 U. S. 317;
General Trading Co. v. State Tax Comm'n, 322 U.
S. 335,
322 U. S. 337,
322 U. S. 349.
[
Footnote 9]
"Section 8. The Congress shall have Power . . . To regulate
Commerce with foreign Nations, and among the several States, and
with the Indian Tribes."
[
Footnote 10]
Case v. Bowles, 327 U. S. 92,
327 U. S.
102.
[
Footnote 11]
Cf. Edwards v. California, 314 U.
S. 160,
314 U. S. 172,
n. 1.
[
Footnote 12]
When passing upon a rule of a carrier that required segregation
of an interstate passenger, this Court said, "And we must keep in
mind that we are not dealing with the law of a state attempting a
regulation of interstate commerce beyond its power to make."
Chiles v. Chesapeake & Ohio R. Co., 218 U. S.
71,
218 U. S.
75.
[
Footnote 13]
Cf. Gwin, White & Prince v. Henneford, 305 U.
S. 434,
305 U. S. 439;
Mintz v. Baldwin, 289 U. S. 346,
289 U. S. 352;
Welch Co. v. New Hampshire, 306 U. S.
79,
306 U. S.
84.
[
Footnote 14]
Southern Pacific Co. v. Arizona, 325 U.
S. 761,
325 U. S.
766-771.
[
Footnote 15]
Cooley v. Board of
Wardens, 12 How. 299,
53 U. S. 319;
Minnesota Rate Cases, 230 U. S. 352,
230 U. S. 402;
Kelly v. Washington, 302 U. S. 1,
302 U. S. 10.
[
Footnote 16]
Statutes or orders dealing with safety of operations: Smith
v. Alabama, 124 U. S. 465
(Alabama statute requiring an examination and license of train
engineers before operating in the state);
Nashville, C. &
St. L. R. Co. v. Alabama, 128 U. S. 96
(statute requiring examination of railroad employees as to vision
and color blindness);
New York, N.H. & H. R. Co. v. New
York, 165 U. S. 628 (New
York statute forbidding the use of furnaces or stoves in passenger
cars and requiring guardposts on railroad bridges);
Erb v.
Morasch, 177 U. S. 584
(municipal ordinance limiting speed of trains in city to 6 miles an
hour);
Atlantic Coast Line R. Co. v. Georgia, 234 U.
S. 280 (Georgia statute requiring electric headlights on
locomotives);
Morris v. Duby, 274 U.
S. 135 (Weight restrictions on motor carriers imposed by
order of Oregon highway commission);
Sproles v. Binford,
286 U. S. 374
(size and weight restrictions on trucks imposed by Texas statute);
South Carolina State Hwy. Dept. v. Barnwell Bros.,
303 U. S. 177, 625
(Statute restricting weight and size of motor carriers);
Maurer
v. Hamilton, 309 U. S. 598
(Pennsylvania statute forbidding the use of its highways to any
vehicle carrying any other vehicle over the head of the operator of
the vehicle);
Terminal Assn. v. Trainmen, 318 U. S.
1 (Illinois statute requiring cabooses on freight
trains).
Statutes or orders requiring local train service: Gladson v.
Minnesota, 166 U. S. 427
(state statute requiring intrastate train to stop at county seat to
take on and discharge passengers);
Lake Shore & Michigan
Southern R. Co. v. Ohio, 173 U. S. 285
(statute requiring three trains daily, if so many are run, to stop
at each city containing over 3,000 inhabitants as applied to
interstate trains);
Atlantic Coast Line R. Co. v. North
Carolina Corporation Comm'n, 206 U. S. 1 (order
regulating train service, particularly requiring train to permit
connection with through trains at junction point);
Missouri
Pac. R. Co. v. Kansas, 216 U. S. 262
(order directing the operation of intrastate passenger train
service over specified route).
Statutes dealing with employment of labor-full crew laws:
Chicago, R.I. & P. R. Co. v. Arkansas, 219 U.
S. 453 (Arkansas full crew law applied to interstate
trains);
St. Louis I.M. & S. R. Co. v. Arkansas,
240 U. S. 518
(Arkansas full crew laws applied to switching crews);
Missouri
Pacific R. Co. v. Norwood, 283 U. S. 249
(Arkansas full crew laws applied to freight and switching
crews.)
[
Footnote 17]
Statutes or orders dealing with safety of operations: Kansas
City Southern R. Co. v. Kaw Valley Dist., 233 U. S.
75 (order requiring railroad to remove its bridges over
river for flood control purposes);
South Covington &
Cincinnati R. Co. v. Covington, 235 U.
S. 537 (ordinances regulating the number of passengers
to be carried in, the number of cars to be run and the temperature
of an interstate street railway car invalid; those requiring rails
on front and rear platform, ventilation and cleaning valid);
Seaboard Air Line R. Co. v. Blackwell, 244 U.
S. 310 (Georgia Blow Post Law requiring train to blow
whistle and slow down almost to a stop at each grade crossing where
numerous grade crossings were involved.
Cf. Southern Railway
Co. v. King, 217 U. S. 524,
where answer held insufficient to permit proof of burden of the
statute on interstate commerce);
Southern Pacific Co. v.
Arizona, 325 U. S. 761
(statute limiting number of cars in freight train to 70 and
passenger cars to 14.)
Statutes or orders requiring local train service: Illinois
Central R. Co. v. Illinois, 163 U. S. 142
(statute applied to require fast mail train to detour from main
line in order to stop at station for the taking on and discharge of
passengers);
Cleveland, C., C. & St. L. R. Co. v.
Illinois, 177 U. S. 514
(Illinois statute requiring interstate train to stop at each
station);
Mississippi Railroad Comm'n v. Illinois Central R.
Co., 203 U. S. 335
(order of commission requiring interstate train to stop at small
town);
Atlantic Coast Line Co. v. Wharton, 207 U.
S. 328 (South Carolina statute and railroad commission
order requiring interstate train to stop at small town);
St.
Louis Southwestern R. Co. v. Arkansas, 217 U.
S. 136 (statute and order requiring delivery of freight
cars to local shippers);
Herndon v. Chicago, R.I. & P. R.
Co., 218 U. S. 135
(statute requiring interstate train to stop at junction point);
Chicago, B. & Q. R. Co. v. Wisconsin Railroad Comm'n,
237 U. S. 220
(Wisconsin statute requiring interstate train to stop at villages
containing 200 or more inhabitants);
Missouri, K. & T. R.
Co. v. Texas, 245 U. S. 484
(order requiring trains to start on time and fixing time allowed
for stops at junctions en route);
St. Louis & S.F. R. Co.
v. Public Service Comm'n, 254 U. S. 535
(order requiring through trains to detour through a small town);
St. Louis-San Francisco R. Co. v. Public Service Comm'n,
261 U. S. 369
(order requiring that interstate trains be stopped at small
town).
[
Footnote 18]
See Southern Pacific Co. v. Arizona, 325 U.S. at
325 U. S.
770.
[
Footnote 19]
Compare United States v. Carolene Products Co.,
304 U. S. 144,
304 U. S.
146.
[
Footnote 20]
Kansas City Southern R. Co. v. Kaw Valley Dist.,
233 U. S. 75,
233 U. S.
79.
[
Footnote 21]
Illinois Central R. Co. v. Illinois, 163 U.
S. 142,
163 U. S.
154.
[
Footnote 22]
The Virginia Code of 1942, section 67, defines a colored person,
for the purpose of the Code, as follows: "Every person in whom
there is ascertainable any negro blood shall be deemed and taken to
be a colored person. . . ." Provisions for vital statistics make a
record of the racial lines of Virginia inhabitants. Sections 1574
and 5099a.
[
Footnote 23]
§ 4097bb.
[
Footnote 24]
Cal.Civ.Code (Deering), 1941, §§ 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, Chap. 272, § 98, as amended
1934; Mich.Stat.Ann.1938, §§ 28.343, 28.344; Minn.Stat. (Mason),
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), §§ 40-41; Ohio
Code (Throckmorton), 1940, §§ 12940-12942; Pa.Stat. (Purdon), Tit.
18, §§ 4654 to 4655; R.I.Gen.Laws 1938, Ch. 606, §§ 28-29;
Wash.Rev.Stat. (Remington), 1932, § 2686 (
semble);
Wis.Stat. 1943, § 340.75.
[
Footnote 25]
Ala.Code 1940, Tit. 48, § 268; Ark.Stat. 1937 (Pope), §§
6921-6927, Acts 1943, p. 379; Ga.Code, 1933, § 68-616; La.Gen.Stat.
(Dart), 1939, § 5307-5309, Act No. 209 of 1928; 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, §§ 4097z-4097dd.
[
Footnote 26]
Ala.Code 1940, Tit. 48, § 268.
[
Footnote 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, § 67.
[
Footnote 28]
Compare Va.Code, 1887, Sec. 49, providing that those
who had one-fourth or more Negro blood were to be considered
colored. This was changed in 1910 (Acts, 1910, p. 581) to read
one-sixteenth or more. It was again changed in 1930 by Acts, 1930,
p. 97, to its present form,
i.e., any ascertainable Negro
blood.
See note 22
supra.
[
Footnote 29]
95 U.S. at
95 U. S.
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 untrammeled 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 interstate
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 anyone who felt himself aggrieved because he had been
excluded on account of his color."
See Louisville, N.O. & T. R. Co. v. Mississippi,
133 U. S. 587,
133 U. S.
590-591.
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,
235 U. S. 547.
This Court said, at
