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Commerce among the commonwealths is traffic, transportation and intercourse between two points situated in different States. Wabash R. R. Co. v. Illinois, 118 U. S. 557; Louisville Ry. Co. v. Mississippi, 133 U. S. 587, 592; Ches. & Ohio Ry. Co. v. Kentucky, 179 U. S. 388, 395; Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. Rep. 1, 19. Pacific Express Co. v. Siebert, 142 U. S. 339, distinguished.
The statute is not separable as to interstate and intrastate commerce, and, therefore, the whole act is unconstitutional. United States v. Reese, 92 U. S. 214; Trade Mark Cases, 100 U. S. 82; Poindexter v. Greenhow, 114 U. S. 270; Pollock v. Farmers Trust Co., 158 U. S. 636. See also Cooley's Const. Lim., p. 209; State v. Denny, 21 N. E. Rep. 275; State v. Perry County Commissioners, 5 Ohio, 497; Island v. Louisiana, 103 U. S. 80; Spraigue v. Thompson, 118 U. S. 90, 94; Chi., Mil. & St. P. Ry. Co. v. Westby, 178 Fed. Rep. 619, 632.
The very fact that the act subjects every passenger to the provisions of the law and makes no distinction or exception as to interstate passengers, raises a conclusive legal presumption that the legislature intended to make no distinctions and exceptions, and the act is not subject to judicial construction. To so do would be unjustifiable judicial legislation. The rule is that which is not denied is granted. Hall v. DeCuir, 95 U. S. 485; Union Central Ins. Co. v. Champlin, 116 Fed. Rep. 858, 860; Wrightman v. Boone County, 88 Fed. Rep. 435, 437; Madden v. Lanchester Co., 65 Fed. Rep. 188, 194; Water Co. v. Omaha, 147 Fed. Rep. 1; Cella Commission Co. v. Bohlinger, 147 Fed. Rep. 419, 425; Mobile v. Kimball, 102 U. S. 691, 697; Brown v. Houston, 114 U. S. 622; Bowman v. Chicago &c. Ry. Co., 125 U. S. 465, 488.
The statute is so formed and applied that its application and operation can be used to discriminate against one class of citizens. Yick Wo v. Hopkins, 118 U. S. 356;.
Chy Lung v. Freeman, 92 U. S. 275; Ex parte Virginia, 100 U. S. 339; Neal v. Delaware, 103 U. S. 370, 374; Soon Hing v. Crowley, 113 U. S. 703.
The sleeping and parlor car proviso is an evasion as against prior existing rights and is a law without a remedy. The carriers operate under this law unevenly and oppressively to those of African descent.
The constitutional rights of citizens are not dependent upon considerations nor upon the varying conditions and circumstances. Citizens of African descent have no adequate remedy at law as the act provides no penalty for the failure or the refusal to provide equal accommodations, or chair cars, dining cars and sleeping cars, and said law is unconstitutional and void.
The act violates §§ 22 and 25 of the Enabling Act under which Oklahoma was admitted into the Union.
Race distinction in the law is any requirement by statute, constitutional, provisional or judicial legislation, that a person act differently if he is a member of one or another of the races in the United States. Congress intended that the only exception to the equality provision of the Enabling Act is that the State may establish and maintain separate schools for the white and colored children.
The State, after having accepted irrevocably the terms and all of the terms of the Enabling Act, cannot thereafter be heard to complain or to repudiate any or all of such terms. Frantz v. Autry, 91 Pac. Rep. 193.
The act conflicts with the Fourteenth Amendment. It is discriminatory. It was not passed for the health, safety and comfort of its citizens, but as a subterfuge under the guise of police power and police protection. The danger does not justify the degree of restraint imposed, but the act is wholly racial and based upon race and color as such.
An act that permits and even authorizes and directs the excluding of one class of persons, and in this case the
negroes, from privileges and immunities enjoyed by everybody else similarly situated, and excluding the negro, and leaving him without remedy, from the comforts and conveniences of chair cars, dining cars, sleeping cars, such as are enjoyed by all other men; which deprives the negro of the privileges and comforts which he enjoyed prior to the passage of such act; which now imposes a fine upon the negro if he attempts to exercise the rights which he enjoyed before the passage of such act, must defeat the purpose, defy the spirit, and violate the express provision of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U. S. 356; Strauder v. West Virginia, 100 U. S. 303, 306.
Mr. S. T. Bledsoe, Mr. Charles West, Attorney General of the State of Oklahoma, Mr. J. R. Cottingham, Mr. C. O). Blake, Mr. Clifford L. Jackson, Mr. R. A. Kleinschmidt and Mr. C. E. Warner, for appellees, submitted:
This court has not jurisdiction to entertain the appeal. The Oklahoma Separate Coach Law is not violative of the commerce clause of the Constitution of the United States.
There is no charge that the railway companies are applying the state statute to interstate passengers.
The constitutionality of the Separate Coach Act is not affected by the Enabling Act, nor does that law conflict with the Fourteenth Amendment.
The statute is not divisible. Abbott v. Hicks, 44 La. Ann. 74; Arbuckle v. Blackburn, 191 U. S. 405; Atch., Top. & Santa Fe Ry. Co. v. State, 124 Pac. Rep. 56; Bonin v. Gulf Co., 198 U. S. 115; Bolln v. Nebraska, 176 U. S. 83; Butler Brothers v. U. S. Rubber Co., 156 Fed. Rep. 18; Ches. & Ohio Ry. Co. v. Kentucky, 179 U. S. 388; Chiles v. Ches. & Ohio Ry. Co., 218 U. S. 71; Oklahoma v. Atch., Top. & S. F. Ry. Co., 25 I. C. C. Rep. 120; Escanaba Co. v. Chicago, 107 U. S. 678, 688; Florida Central Co. v. Bell, 176 U. S. 321; Hanford v. Davies, 163 U. S. 274; Louisville
&c. R. R. Co. v. State, 6 So. Rep. 203; Louisville &c. R. R. Co v. Mississippi, 133 U. S. 587; McCabe v. Railway Co., 186 Fed. Rep. 966; Ohio Valley Ry. v. Lander, 47 S. W. Rep. 344; Pacific Exp. Co. v. Seibert, 142 U. S. 339; Permoli v. First Municipality, 3 How. 589, 609; Plessy v. Ferguson, 163 U. S. 537; Shoshone Mining Co. v. Rutter, 177 U. S. 505; Shulthis v. McDougal, 225 U. S. 561; So. Ry. Co. v. King, 217 U. S. 524; Thompkins v. M., K. & T. Ry. Co., 211 Fed. Rep. 391; Ward v. Race Horse, 163 U. S. 504; Willamette Bridge Co. v. Hatch, 125 U. S. 1.
The purpose of the case is to prevent separation of races, but the prayer only objects to distinction.
The proceeding cannot be one for mandatory injunction for equal facilities, nor is the action one for damages.
The state statute requires equal comforts. Neither the common law nor the Interstate Commerce Act gives a right of action enforceable in a Federal court before any application to the Interstate Commerce Commission as to interstate traffic.
The right of action cannot arise out of state law for want of jurisdiction in the lower court, nor can any right of action arise out of the Enabling Act or of the Constitution of the United States.
The plaintiffs do not allege lack of comforts under such circumstances as are sufficient to compel their furnishing, nor is any injury shown. Atlantic Coast Line v. Mazurky, 216 U. S. 122; Balt. & Ohio R. R. v. Pitcairn Coal Co., 215 U. S. 481; Coyle v. Smith, 221 U. S. 559; Covington v. Hagar, 203 U. S. 109; C., M. & St. P. v. Solon, 169 U. S. 133; Giles v. Harris, 189 U. S. 475; Int. Com. Com. v. Balt. & Ohio, 145 U. S. 263; Int. Com. Com. v. Ala. Co., 168 U. S. 165; Int. Com. Com. v. Louisville Co., 73 Fed. Rep. 409; M. & O. G. v. State, 29 Oklahoma, 640, 653; Rosenbaum v. Bauer, 120 U. S. 450; St. L. & St. Co. v. Sutton, 29 Oklahoma, 553; Taft v. So. Ry. Co., 123 Fed. Rep. 792; Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co.,
204 U. S. 426; United States v. L. S. & M. S. Ry., 197 U. S. 540; United States v. Norfolk Ry. Co., 109 Fed. Rep. 831; United States v. B. & O. R. R. Co., 145 U. S. 263; United States v. Hanley, 71 Fed. Rep. 673; United States v. Sayward, 160 U. S. 493; Compiled Laws of Oklahoma, 1910; 25 Stat. 862; 24 Stat. 24, 377.
MR. JUSTICE HUGHES delivered the opinion of the court.
The legislature of the State of Oklahoma passed an act, approved December 18, 1907 (Rev. Laws, Okla., 1910, §§ 860 et seq.), known as the 'Separate Coach Law.' It provided that 'every railway company doing business in this State, as a common carrier of passengers for hire' should 'provide separate coaches or compartments, for the accommodation of the white and negro races, which separate coaches or cars' should 'be equal in all points of comfort and convenience' (§ 1); that at passenger depots, there should be maintained 'separate waiting rooms,' likewise with equal facilities (§ 2); that the term negro, as used in the act, should include every person of African descent, as defined by the state constitution (§ 3); and that each compartment of a railway coach 'divided by a good and substantial wooden partition, with a door therein, shall be deemed a separate coach' within the meaning of the statute (§ 4).
It was further provided that nothing contained in the act should be construed to prevent railway companies from hauling sleeping cars, dining or chair cars attached to their trains to be used exclusively by either white or negro passengers, separately but not jointly' ($7).
Other sections prescribed penalties both for carriers, and for passengers, failing to observe the law (§§ 5, 6). The act was to take effect sixty days after its approval (§ 12). On February 15, 1908, just before the time when the statute, by its terms, was to become effective, five negro