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.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.1o

19

99 20

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. Burdens upon commerce are those actions of a state which directly "impair the usefulness of its facilities for such traffic." "1 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 (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).

18 See Southern Pacific Co. v. Arizona, 325 U. S. at 770.

19

146.

Compare United States v. Carolene Products Co., 304 U. S. 144,

20 Kansas City Southern R. Co. v. Kaw Valley Dist., 233 U. S. 75, 79.

21 Illinois Central R. Co. v. Illinois, 163 U. S. 142, 154.

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.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." 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.

99 23

Interstate passengers traveling via motor buses 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

22 The Virginia Code of 1942, § 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. §§ 1574 and 5099a.

23 § 4097bb.

local regulation impracticable. Eighteen states, it appears, prohibit racial separation on public carriers." Ten require separation on motor carriers.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." 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.

26

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." In the other states which require the separation of the races in

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, Ch. 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.

25 Ala. Code, 1940, Tit. 48, § 268; Ark. Stat., 1937 (Pope), §§ 69216927, Acts 1943, p. 379; Ga. Code, 1933, § 68-616; La. Gen. Stat. (Dart), 1939, §§ 5307-5309; 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.

26 Ala. Code 1940, Tit. 48, § 268.

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.

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.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. DeCuir, 95 U. S. 485.

The DeCuir 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 travelling 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 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

28 Compare Va. Code, 1887, § 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.

stated in the words of Mr. Chief Justice Waite." As our previous discussion demonstrates, the transportation diffi

29 95 U. S. at 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 untrammelled 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 inter-state 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 any one 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, 590-91.

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, 547. This Court said at 547-48:

"If Covington can regulate these matters, certainly Cincinnati can, and interstate business might be impeded by conflicting and varying regulations in this respect, with which it might be impossible to comply. On one side of the river one set of regulations might be enforced, and on the other side quite a different set, and both seeking to control a practically continuous movement of cars. As was said in Hall v. DeCuir, 95 U. S. 485, 489, 'commerce cannot flourish in the midst of such embarrassments.'"