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of their journey, be compelled to share their cabin accommodations with passengers of another race was a question of interstate commerce, and to be determined by Congress alone." We have seen that it was decided in Hall v. DeCuir that the inaction of Congress was equivalent to the declaration that a carrier could by regulations separate colored and white interstate passengers.

In Plessy v. Ferguson, 163 U. S. 540, a statute of Louisiana which required railroad companies to provide separate accommodations for the white and colored races was considered. The statute was attacked on the ground that it violated the Thirteenth and Fourteenth Amendments of the Constitution of the United States. The opinion of the court, which was by Mr. Justice Brown, reviewed prior cases, and not only sustained the law but justified as reasonable the distinction between the races on account of which the statute was passed and enforced. It is true the power of a legislature to recognize a racial distinction was the subject considered, but if the test of reasonableness in legislation be, as it was declared to be, "the established usages, customs and traditions of the people" and the "promotion of their comfort and the preservation of the public peace and good order," this must also be the test of the reasonableness of the regulations of a carrier, made for like purpose and to secure like results. Regulations which are induced by the general sentiment of the community for whom they are made and upon whom they operate, cannot be said to be unreasonable. See also Chesapeake & Ohio Ry. Company v. Kentucky, 179 U. S. 388.

The extent of the difference based upon the distinction between the white and colored races which may be observed in legislation or in the regulations of carriers has been discussed so much that we are relieved from further enlargement upon it. We may refer to Mr. Justice Clifford's concurring opinion in Hall v. DeCuir for a review

of the cases. They are also cited in Plessy v. Ferguson at page 550. We think the judgment should be affirmed. It is so ordered.

MR. JUSTICE HARLAN dissents from the opinion and judgment.



No. 168. Argued April 22, 25, 1910.-Decided May 31, 1910.

While the pleadings and proofs should correspond, a rigid exactitude is not required, and no variance should be regarded as material where the allegation and proof substantially correspond. Even if there is a variance between declaration and proof, if, as in this case, defendant is not misled, makes no objection to plaintiff's proof but replies to it by testimony of like kind, is familiar with the facts, does not indicate the variance and does not move for continuance, the variance cannot be regarded as fatal.

The extent of the knowledge of a defendant employer as to the use made of appliances by an employé by whose act another employé is injured and the conclusions to be drawn therefrom are questions for the jury and cannot be reviewed here.

The substitution of "would" for "could" in an instruction to the jury in this case held not to have affected the minds of the jurors. In this case there was no reversible error because the court did not impress upon the jurors the fact that interest may affect credibility of witnesses; and, quare whether a party testifying exercises a privilege which may be emphasized as affecting his credibility. 31 App. D. C. 371, affirmed.

THE facts are stated in the opinion.

Mr. A. Leftwich Sinclair and Mr. Joseph J. Darlington, for plaintiff in error:

To entitle a plaintiff to go to the jury, the evidence


(235 U.S. 151 (1914))


No. 15. Argued October 26, 1914.-Decided November 30, 1914.

Under the Enabling Act the State of Oklahoma was admitted to the Union on an equal footing with the original States, and has the same authority to enact public legislation not in conflict with the Federal Constitution as other States may enact. Coyle v. Oklahoma, 221 U. S. 559.

It is not an infraction of the Fourteenth Amendment for a State to require separate, but equal, accommodations for the white and African races. Plessy v. Ferguson, 163 U. S. 537.

While a state statute, although fair on its face, may be so unequally and oppressively administered by the public authorities as to amount to an unconstitutional discrimination by the State itself, Yick Wo v. Hopkins, 118 U. S. 356, no discriminations unauthorized by the statute appear to have been practiced in this case under state authority.

The Oklahoma statute, requiring separate, but equal, accommodations for the white and African races, must, in the absence of a different construction by the state court, be construed as applying exclusively to intrastate commerce; and, as so construed, it does not contravene the commerce clause of the Federal Constitution. The essence of the constitutional right to equal protection of the law is that it is a personal one and does not depend upon the number of persons affected; and any individual who is denied by a common carrier, under authority of the State, a facility or convenience which is furnished to another under substantially the same circumstances may properly complain that his constitutional privilege has been invaded. The Oklahoma Separate Coach Law does discriminate against persons of the African race in permitting carriers to provide sleeping cars, dining cars and chair cars to be used exclusively by persons of the white race; this provision none the less offends against the Fourteenth Amendment even if there is a limited demand for such accommodations by the African race as compared with the white race. In order to justify the granting of an injunction complainants must

show a personal need of it, and absence of adequate remedy at law. The fact that someone else, although of the same class as complainant, may be injured does not justify granting the remedy. In an action, brought in the Federal court by several persons of the African race before the Separate Coach Law of Oklahoma went into effect, to enjoin the enforcement thereof on the ground that it contravened the Fourteenth Amendment, held that the allegations in the bill were too vague and indefinite to warrant the relief sought by complainants; that none of the complainants had personally been refused accommodations equal to those afforded to others or had been notified that he would be so refused when the act went into effect; that it did not appear that in such event he would not have an adequate remedy at law, and that the action could not be maintained. 186 Fed. Rep. 966, affirmed.

THE facts, which involve the constitutionality of the Separate Coach Law of Oklahoma, are stated in the opinion.

Mr. William Harrison, with whom Mr. Edwin O. Tyler and Mr. Ethelbert T. Barbour were on the brief, for appellants:

The court erred in holding that the Oklahoma statute does not operate and deprive those of African descent of the equal protection of the laws within the meaning of the Constitution, which implies not merely equal accessibility to the court for the prevention or redress of wrongs and the enforcement of rights, but equal exemption with others in like condition from charges and liabilities of every kind.

The police power cannot be interposed to support a statute having no possible tendency to protect the community or for the preservation of the public safety, but which arbitrarily deprives the owner of liberty or property. Mugler v. Kansas, 123 U. S. 623, 661; Lawton v. Steele, 152 U. S. 133; Holden v. Hardy, 169 U. S. 366, 398; California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306; In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; Freund, Police Power, 525.

State police legislation may be invalid because it trenches on the sphere of the National Government under the Federal Constitution. Connolly v. Union Sewer Pipe Co., 184 U. S. 540.

So also as to police legislation which purports to deal with subjects beyond territorial jurisdiction. Morgan's Steamship Co. v. Louisiana, 118 U. S. 455, 464; Schollenberger v. Pennsylvania, 171 U. S. 1; Missouri &c. Ry. Co. v. Haber, 169 U. S. 618; Reid v. Colorado, 187 U. S. 137; New York &c. R. Co. v. New York, 165 U. S. 628; Allgeyer v. Louisiana, 165 U. S. 578.

A law not enacted in good faith for the promotion of the public good but passed from the sinister motive of annoying or oppressing a particular person or class is invalid. Yick Wo v. Hopkins, 118 U. S. 356.

The Oklahoma Act is violative of the commerce clause of the Constitution. Henderson v. New York, 92 U. S. 259; Welton v. Missouri, 91 U. S. 275; Wabash &c. Ry. Co. v. Illinois, 118 U. S. 557.

The act does restrict and affect interstate, to the same extent as intrastate, commerce; and in this respect the act is so plain and unambiguous as to leave no room for interpretation. Houghton v. Payne, 194 U. S. 88.

The doctrine of contemporaneous practical construction does not apply to statutes which are explicit and free from any ambiguity. Swift v. United States, 105 U. S. 695; United States v. Graham, 110 U. S. 219; Merrit v. Cameron, 137 U. S. 542, aff'g 102 Fed. Rep. 947; Franklin Sugar Co. v. United States, 153 Fed. Rep. 653.

The term negro as used in the act includes every person of African descent as defined by the Constitution.

Passengers coming into Oklahoma, and going out and going through Oklahoma, upon their failure to go to the coach or compartment designated for the race to which they belong have been ejected, arrested and confined in the common jails.

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