stances is enough to satisfy any reasonable demand for specialized training. It appears that never before has a negro applied for admission to the Law School and none has ever asked that Lincoln University provide legal instruction.

The problem presented obviously is a difficult and highly practical one. A fair effort to solve it has been made by offering adequate opportunity for study when sought in good faith. The State should not be unduly hampered through theorization inadequately restrained by experi

ence.

This proceeding commenced in April, 1936. Petitioner then twenty-four years old asked mandamus to compel his admission to the University in September, 1936, notwithstanding plain legislative inhibition. Mandamus is not a writ of right but is granted only in the court's discretion upon consideration of all the circumstances. Duncan Townsite Co. v. Lane, 245 U. S. 308, 311; United States ex rel. Arant v. Lane, 249 U. S. 367, 371.

The Supreme Court of Missouri did not consider the propriety of granting the writ under the theory of the law now accepted here. That, of course, will be matter open for its consideration upon return of the cause.

MR. JUSTICE BUTLER Concurs in the above views.

MORGAN v. VIRGINIA.

(328 U.S. 373 (1945))

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA.

No. 704. Argued March 27, 1946.-Decided June 3, 1946.

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. 374, 380, 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. 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. 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. 377, 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. 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. 386.

William H. Hastie and Thurgood Marshall argued the cause for appellant. With them on the brief was Leon A. Ransom.

Abram P. Staples, Attorney General of Virginia, argued the cause and filed a brief for appellee.

Briefs were filed as amici curiae by Gregory Hankin, Osmond K. Fraenkel and Arthur Garfield Hays for the American Civil Liberties Union, and by Harold A. Stevens for the Workers Defense League, in support of appellant.

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,' which requires all passenger motor vehicle carriers, both interstate and intrastate, to separate without discrimination" 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. 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."

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 car

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.

2 Id., §§ 4097z, 4097m, 4097s; Morgan v. Commonwealth, 184 Va. 24, 39, 34 S. E. 2d 491.

3 Id., § 4097aa.

Id.. § 4097z; § 4097bb.

5 Id., § 4097bb.

rier, 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 § 4097dd of the Virginia Code. On a writ of error the conviction was affirmed by the Supreme Court of Appeals of Virginia. 184 Va. 24. The Court of Appeals interpreted the Virginia statute as applicable to appellant since the statute "embraces all motor vehicles and all

• "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 twentyfive 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."

passengers, both interstate and intrastate." " 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., at 38. No complaint is made as to these interpretations of the Virginia statute by the Virginia court."

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, § 8, Article I of the Constitution of the United States, 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."

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." 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 com

"Morgan v. Commonwealth, supra, 37. Cf. Smith v. State, 100 Tenn. 494, 46 S. W. 566; Alabama & Vicksburg R. Co. v. Morris, 103 Miss. 511, 60 So. 11; Southern R. Co. v. Norton, 112 Miss. 302, 73 So. 1.

8 Compare Hebert v. Louisiana, 272 U. S. 312, 317; General Trading Co. v. Tax Comm'n, 322 U. S. 335, 337.

9 "Section 8. The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes:

10 Case v. Bowles, 327 U. S. 92, 101-102.

11 Cf. Edwards v. California, 314 U. S. 160, 172, n. 1.