Under the rules of an interstate railroad, dining cars are
divided so as to allot ten tables exclusively to white passengers
and one table exclusively to Negro passengers, and a curtain
separates the table reserved for Negroes from the others. Under
these rules, only four Negro passengers may be served at one time,
and then only at the table reserved for Negroes. Other Negroes who
present themselves are compelled to await a vacancy at that table,
although there may be many vacancies elsewhere in the diner. The
rules impose a like deprivation upon white passengers whenever more
than 40 of them seek to be served at the same time and the table
reserved for Negroes is vacant.
Held: these rules and practices violate § 3(1) of
the Interstate Commerce Act, which makes it unlawful for a railroad
in interstate commerce "to subject any particular person . . . to
any undue or unreasonable prejudice or disadvantage in any respect
whatsoever." Pp.
339 U. S.
818-826.
(a) Having been subjected to the railroad's earlier practices
which the Interstate Commerce Commission and the court below found
violative of the Interstate Commerce Act, appellant, a Negro, has
standing to challenge the railroad's current regulations on the
ground that they permit the recurrence of comparable violations. P.
339 U. S.
823.
(b) The right to be free from unreasonable discriminations
belongs, under § 3 (1) , to each particular person. P.
339 U. S.
824.
(c) The curtains, partitions and signs emphasizing the
artificiality of a difference in treatment of passengers holding
identical tickets and using the same public dining facility violate
§ 3(1). P.
339 U. S.
825.
(d) The limited demand for dining car facilities by Negro
passengers does not justify the regulations. P.
339 U. S.
825.
(e) That the regulations may impose on white passengers, in
proportion to their numbers, disadvantages similar to those imposed
on Negro passengers does not validate them under § 3(1). Pp.
339 U. S.
825-826.
80 F. Supp.
32, reversed.
Page 339 U. S. 817
In a suit brought by appellant to set aside an order of the
Interstate Commerce Commission, 269 I.C.C. 73, the three-judge
District Court dismissed the complaint.
80 F.
Supp. 32. On direct appeal to this Court,
reversed and
remanded, p.
339 U. S.
826.
Page 339 U. S. 818
MR. JUSTICE BURTON delivered the opinion of the Court.
The question here is whether the rules and practices of the
Southern Railway Company, which divide each dining car so as to
allot ten tables exclusively to white passengers and one table
exclusively to Negro passengers, and which call for a curtain or
partition between that table and the others, violate § 3(1) of
the Interstate Commerce Act. That section makes it unlawful for a
railroad in interstate commerce "to subject any particular person,
. . . to any undue or unreasonable prejudice or disadvantage in any
respect whatsoever: . . . ." 54 Stat. 902, 49 U.S.C. § 3(1).
We hold that those rules and practices do violate the Act.
This issue grows out of an incident which occurred May 17, 1942.
On that date, the appellant, Elmer W. Henderson, a Negro passenger,
was traveling on a first-class ticket on the Southern Railway from
Washington, to Atlanta, Georgia, en route to Birmingham, Alabama,
in the course of his duties as an employee of the United States.
The train left Washington at 2 p.m. At about 5:30 p.m., while the
train was in Virginia, [
Footnote
1] the first call to dinner was announced and he went promptly
to the dining car. In accordance with the practice then in effect,
the two end tables nearest the kitchen were conditionally reserved
for Negroes. At each meal, those tables were to be reserved
initially for Negroes and, when occupied
Page 339 U. S. 819
by Negroes, curtains were to be drawn between them and the rest
of the car. If the other tables were occupied before any Negro
passengers presented themselves at the diner, then those two tables
also were to be available for white passengers, and Negroes were
not to be seated at them while in use by white passengers.
[
Footnote 2] When the appellant
reached the diner, the end tables in question were partly occupied
by white passengers, but at least one seat at them was unoccupied.
The dining car steward declined to seat the appellant in the dining
car, but offered to serve him, without additional charge at
Page 339 U. S. 820
his Pullman seat. The appellant declined that offer, and the
steward agreed to send him word when space was available. No word
was sent, and the appellant was not served, although he twice
returned to the diner before it was detached at 9 p.m.
In October, 1942, the appellant filed a complaint with the
Interstate Commerce Commission alleging especially that the
foregoing conduct violated § 3(1) of the Interstate Commerce
Act. [
Footnote 3] Division 2 of
the Commission found that he had been subjected to undue and
unreasonable prejudice and disadvantage, but that the occurrence
was a casual incident brought about by the bad judgment of an
employee. The Commission declined to enter an order as to future
practices. 258 I.C.C. 413. A three-judge United States District
Court for the District of Maryland, however, held that the
railroad's general practice, as evidenced by its instructions of
August 6, 1942, was in violation of § 3(1). Accordingly,
Page 339 U. S. 821
on February 18, 1946, it remanded the case for further
proceedings.
63 F. Supp.
906. Effective March 1, 1946, the company announced its
modified rules which are now in effect. They provide for the
reservation of ten tables, of four seats each, exclusively and
unconditionally for white passengers and one table, of four seats,
exclusively and unconditionally the Negro passengers. Between this
table and the others a curtain is drawn during each meal. [
Footnote 4]
Page 339 U. S. 822
On remand, the full Commission, with two members dissenting and
one not participating, found that the modified rules do not violate
the Interstate Commerce Act, and that no order for the future is
necessary. [
Footnote 5] 269
I.C.C. 73. The appellant promptly instituted the present proceeding
before the District Court, constituted of the same three members as
before, seeking to have the Commission's order set aside and a
cease and desist order issued. 28 U.S.C. §§ 41(28),
43-48; 49 U.S.C. § 17(9);
see also 28 U.S.C. (Supp.
III) §§ 1336, 1398, 2284, 2321, 2325. With one member
dissenting, the court sustained the modified rules on the ground
that the accommodations are adequate to serve the average number of
Negro passengers and are "proportionately fair."
80 F. Supp.
32, 39. The case is here on direct appeal. 28 U.S.C. (Supp.
III) §§ 1253, 2101(b). In this Court, the
Page 339 U. S. 823
United States filed a brief and argued orally in support of the
appellant.
It is clear that appellant has standing to bring these
proceedings. He is an aggrieved party, free to travel again on the
Southern Railway. Having been subjected to practices of the
railroad which the Commission and the court below found to violate
the Interstate Commerce Act, he may challenge the railroad's
current regulations on the ground that they permit the recurrence
of comparable violations.
Mitchell v. United States,
313 U. S. 80,
313 U. S.
92-93.
The material language in § 3(1) of the Interstate Commerce
Act has been in that statute since its adoption in 1887. 24 Stat.
380. From the beginning, the Interstate Commerce Commission has
recognized the application of that language to discriminations
between white and Negro passengers.
Councill v. Western &
Atlantic R. Co., 1 I.C.C. 339; [
Footnote 6]
Heard v. Georgia R. Co., 1 I.C.C.
428;
Heard v. Georgia R. Co., 3 I.C.C. 111;
Edwards v.
Nashville, C. & St.L. R. Co., 12 I.C.C. 247;
Cozart v.
Southern R. Co., 16 I.C.C. 226;
Gaines v. Seaboard Air
Line R. Co., 16 I.C.C. 471;
Crosby v. St. Louis-San
Francisco R. Co., 112 I.C.C. 239. That section recently was so
applied in
Mitchell v. United States, supra.
The decision of this case is largely controlled by that in the
Mitchell case. There, a Negro passenger holding a
first-class ticket was denied a Pullman seat, although such a seat
was unoccupied and would have been available
Page 339 U. S. 824
to him if he had been white. The railroad rules had allotted a
limited amount of Pullman space, consisting of compartments and
drawing rooms, to Negro passengers, and, because that space was
occupied, the complainant was excluded from the Pullman car and
required to ride in a second-class coach. This Court held that the
passenger thereby had been subjected to an unreasonable
disadvantage in violation of § 3(1). [
Footnote 7]
The similarity between that case and this is inescapable. The
appellant here was denied a seat in the dining car although at
least one seat was vacant and would have been available to him,
under the existing rules, if he had been white. [
Footnote 8] The issue before us, as in the
Mitchell case, is whether the railroad's current rules and
practices cause passengers to be subjected to undue or unreasonable
prejudice or disadvantage in violation of § 3(1). We find that
they do.
The right to be free from unreasonable discriminations belongs,
under § 3(1), to each particular person. Where a dining car is
available to passengers holding tickets entitling them to use it,
each such passenger is equally entitled to its facilities in
accordance with reasonable regulations. The denial of dining
service to any such passenger by the rules before us subjects him
to a prohibited disadvantage. Under the rules, only four Negro
passengers may be served at one time, and then only at the table
reserved for Negroes. Other Negroes who present themselves are
compelled to await a vacancy at that table, although there may be
many vacancies elsewhere
Page 339 U. S. 825
in the diner. The railroad thus refuses to extend to those
passengers the use of its existing and unoccupied facilities. The
rules impose a like deprivation upon white passengers whenever more
than 40 of them seek to be served at the same time and the table
reserved for Negroes is vacant.
We need not multiply instances in which these rules sanction
unreasonable discriminations. The curtains, partitions, and signs
emphasize the artificiality of a difference in treatment which
serves only to call attention to a racial classification of
passengers holding identical tickets and using the same public
dining facility.
Cf. McLaurin v. Oklahoma State Regents,
ante, p.
339 U. S. 637.
They violate § 3(1).
Our attention has been directed to nothing which removes these
racial allocations from the statutory condemnation of "undue or
unreasonable prejudice or disadvantage. . . ." It is argued that
the limited demand for dining car facilities by Negro passengers
justifies the regulations. But it is no answer to the particular
passenger who is denied service at an unoccupied place in the
dining car that, on the average, persons like him are served. As
was pointed out in
Mitchell v. United States, 313 U. S.
80,
313 U. S.
97,
"the comparative volume of traffic cannot justify the denial of
a fundamental right of equality of treatment, a right specifically
safeguarded by the provisions of the Interstate Commerce Act."
Cf. McCabe v. Atchison, T. & S.F. R. Co.,
235 U. S. 151;
Missouri ex rel. Gaines v. Canada, 305 U.
S. 337.
That the regulations may impose on white passengers, in
proportion to their numbers, disadvantages similar to those imposed
on Negro passengers is not an answer to the requirements of §
3(1). Discriminations that operate to the disadvantage of two
groups are not the less to be condemned because their impact is
broader
Page 339 U. S. 826
than if only one were affected.
Cf. Shelley v. Kraemer,
334 U. S. 1,
334 U. S. 22.
Since § 3(1) of the Interstate Commerce Act invalidates the
rules and practices before us, we do not reach the constitutional
or other issues suggested.
The judgment of the District Court is reversed, and the cause is
remanded to that court with directions to set aside the order of
the Interstate Commerce Commission which dismissed the original
complaint and to remand the case to that Commission for further
proceedings in conformity with this opinion.
It is so ordered.
MR. JUSTICE DOUGLAS concurs in the result.
MR. JUSTICE CLARK took no part in the consideration or decision
of this case.
[
Footnote 1]
No reliance is placed in this case upon any action by any
state.
[
Footnote 2]
Rule of the Southern Railway Company issued July 3, 1941, and in
effect May 17, 1942:
"
DINING CAR REGULATIONS"
"Meals should be served to passengers of different races at
separate times. If passengers of one race desire meals while
passengers of a different race are being served in the dining car,
such meals will be served in the room or seat occupied by the
passenger without extra charge. If the dining car is equipped with
curtains so that it can be divided into separate compartments,
meals may be served to passengers of different races at the same
time in the compartments set aside for them."
258 I.C.C. 413, 415,
63 F. Supp.
906, 910.
Joint Circular of the Southern Railway System issued August 6,
1942.
"Effective at once, please be governed by the following with
respect to the race separation curtains in dining cars: "
"Before starting each meal, pull the curtains to service
position and place a 'Reserved' card on each of the two tables
behind the curtains."
"These tables are not to be used by white passengers until all
other seats in the car have been taken. Then if no colored
passengers present themselves for meals, the curtain should be
pushed back, cards removed and white passengers served at those
tables."
"After the tables are occupied by white passengers, then, should
colored passengers present themselves, they should be advised that
they will be served just as soon as those compartments are
vacated."
"'Reserved' cards are being supplied you."
258 I.C.C. at 415, 63 F. Supp. at 910.
[
Footnote 3]
"(1)
It shall be unlawful for any common carrier subject to
the provisions of this part to make, give, or cause any undue or
unreasonable preference or advantage to any particular person,
company, firm, corporation, association, locality, port, port
district, gateway, transit point, region, district, territory, or
any particular description of traffic,
in any respect
whatsoever; or to subject any particular person, company,
firm, corporation, association, locality, port, port district,
gateway, transit point, region, district, territory, or any
particular description of traffic
to any undue or unreasonable
prejudice or disadvantage in any respect whatsoever. . .
."
(Emphasis supplied.) 54 Stat. 902, 49 U.S.C. § 3(1).
The appellant sought an order directing the railroad not only to
cease and desist from the specific violations alleged, but also to
establish in the future, for the complainant and other Negro
interstate passengers, equal and just dining car facilities and
such other service and facilities as the Commission might consider
reasonable and just, and requiring the railroad to discontinue
using curtains around tables reserved for Negroes.
The appellant sought damages, but the Commission found no
pecuniary damages, and that issue has not been pressed further.
[
Footnote 4]
"
TRANSPORTATION DEPARTMENT CIRCULAR NO. 142"
"
CANCELLING INSTRUCTIONS ON THIS SUBJECT"
"
DATED JULY 3, 1941, AND AUGUST 6, 1942"
"SUBJECT: SEGREGATION OF WHITE AND COLORED PASSENGERS IN DINING
CARS."
"To: Passenger Conductors and Dining Car Stewards."
"Consistent with experience in respect to the ratio between the
number of white and colored passengers who ordinarily apply for
service in available diner space, equal but separate accommodations
shall be provided for white and colored passengers by partitioning
diners and the allotment of space, in accordance with the rules, as
follows: "
"(1) That one of the two tables at Station No. 1 located to the
left side of the aisle facing the buffet, seating four persons,
shall be reserved exclusively for colored passengers, and the other
tables in the diner shall be reserved exclusively for white
passengers."
"(2) Before starting each meal, draw the partition curtain
separating the table in Station No. 1, described above, from the
table on that side of the aisle in Station No. 2, the curtain to
remain so drawn for the duration of the meal."
"(3) A 'Reserved' card shall be kept in place on the left-hand
table in Station No. 1, described above at all times during the
meal except when such table is occupied as provided in these
rules."
"(4) These rules become effective March 1, 1946."
"R. K. McClain,"
"Assistant Vice-President."
269 I.C.C. 73, 75;
80 F. Supp.
32, 35.
Counsel for the railway company at a subsequent hearing,
corrected the above rules "to the extent of using the word
"
negroes' in place of `colored persons.'" Also, the evidence
shows, and the Commission has stated, that "White and Negro
soldiers are served together, without distinction." 258 I.C.C. 413,
415; 63 F. Supp.
906, 910. The rules, accordingly, are treated as applicable
only to civilian passengers. The company further showed that it is
now substituting a five-foot high wooden partition in place of the
curtain. The steward's office is being placed in the table space
opposite that reserved for Negro passengers, and a similar wooden
partition is being erected between that office and the rest of the
car.
[
Footnote 5]
The company was permitted to introduce two tabulations, covering
about ten days each, showing the comparative numbers of meals
served to white and Negro passengers on trips comparable to the one
which the appellant had taken. These show that only about 4% of the
total meals served were served to Negro passengers, whereas four
reserved seats exceed 9% of a total seating capacity of 44. On the
other hand, the tabulations also show that, at one meal, 17 Negro
passengers, and at each of 20 meals, more than eight Negro
passengers, were served. Similarly, the brief filed by the
Commission states that, out of the 639 serving periods reported, on
15 occasions, more than four times as many white passengers were
served as there were seats reserved for them, and, on 541
occasions, there were two or more rounds of servings.
[
Footnote 6]
"The Western and Atlantic Railroad Company will be notified to
cease and desist from subjecting colored persons to undue and
unreasonable prejudice and disadvantage in violation of section 3
of the Act to regulate commerce, and from furnishing to colored
persons purchasing first-class tickets on its road accommodations
which are not equally safe and comfortable with those furnished
other first-class passengers."
1 I.C.C. at 347.
[
Footnote 7]
The rules also denied access by Negroes to the dining car and
observation car. The principles there announced applied equally to
those facilities.
[
Footnote 8]
That specific denial of service was condemned by the Commission
and the District Court as a violation of § 3(1). Review of
that condemnation is not sought here.
