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culties arising from a statute that requires commingling of the races, as in the DeCuir case, are increased by one that requires separation, as here.30 Other federal courts have looked upon racial separation statutes as applied to interstate passengers as burdens upon commerce.
In weighing the factors that enter into our conclusion as to whether this statute so burdens interstate commerce or so infringes the requirements of national uniformity as to be invalid, we are mindful of the fact that conditions
30 South Covington & Cincinnati R. Co. v. Kentucky, 252 U. S. 399, relied upon by appellee, does not decide to the contrary of the holding in Hall v. DeCuir. In that case a carrier corporation was convicted in the Kentucky courts of violation of a state statute that required it to furnish cars with separate compartments for white and colored. It operated street cars interstate over the lines of another corporation that owned tracks that were wholly intrastate. The Court of Appeals of Kentucky held the conviction good on the ground that the offending act was the operation of the intrastate railroad in violation of the state statute. It was said that the statute did not apply to an interstate passenger. South Covington & Cincinnati Street R. Co. v. Commonwealth, 181 Ky. 449, 454, 205 S. W. 603. The Court of Appeals referred, with continual approval, at that point to Chiles v. Chesapeake & Ohio R. Co., 125 Ky. 299, 304: "It is admitted that sections 795-801 of the Kentucky Statutes, requiring all railroad companies to furnish separate coaches for transportation of white and colored passengers, and imposing upon the company and conductors a penalty for refusing or failing to carry out the provisions of the law, does not apply to appellant, who was an interstate passenger; it being conceded that the statute is only operative within the territorial limits of this State, and effective as to passengers who travel from one point within the State to another place within its border." This Court accepted this application of the state statute and said it "is not a regulation of interstate commerce." Page 403. Probably what was meant by the opinions was that under the Kentucky act the company with wholly intrastate mileage must operate cars with separate compartments for intrastate passengers.
31 Anderson v. Louisville & N. R. Co.. 62 F. 46, 48; Washington, B. & A. R. Co. v. Waller, 53 App. D. C. 200, 289 F. 598. See also Hart v. State, 100 Md. 595, 60 A. 457; Carrey v. Spencer, 36 N. Y. Supp.
vary between northern or western states such as Maine or Montana, with practically no colored population; industrial states such as Illinois, Ohio, New Jersey and Pennsylvania with a small, although appreciable, percentage of colored citizens; and the states of the deep south with percentages of from twenty-five to nearly fifty per cent. colored, all with varying densities of the white and colored races in certain localities. Local efforts to promote amicable relations in difficult areas by legislative segregation in interstate transportation emerge from the latter racial distribution. As no state law can reach beyond its own border nor bar transportation of passengers across its boundaries, diverse seating requirements for the races in interstate journeys result. As there is no federal act dealing with the separation of races in interstate transportation, we must decide the validity of this Virginia statute on the challenge that it interferes with commerce, as a matter of balance between the exercise of the local police power and the need for national uniformity in the regulations for interstate travel. It seems clear to us that seating arrangements for the different races in interstate motor travel require a single, uniform rule to promote and protect national travel. Consequently, we hold the Virginia statute in controversy invalid.
MR. JUSTICE RUTLEDGE Concurs in the result.
MR. JUSTICE JACKSON took no part in the consideration or decision of this case.
MR. JUSTICE BLACK, concurring.
The Commerce Clause of the Constitution provides that "Congress shall have power
to regulate com
among the several States." I have believed,
and still believe, that this provision means that Congress
can regulate commerce and that the courts cannot. But in a series of cases decided in recent years this Court over my protest has held that the Commerce Clause justifies this Court in nullifying state legislation which this Court concludes imposes an "undue burden" on interstate commerce.' I think that whether state legislation imposes an "undue burden" on interstate commerce raises pure questions of policy, which the Constitution intended should be resolved by the Congress.
Very recently a majority of this Court reasserted its power to invalidate state laws on the ground that such legislation put an undue burden on commerce. Nippert v. Richmond, supra; Southern Pacific Co. v. Arizona, supra. I thought then, and still believe, that in these cases the Court was assuming the role of a "super-legislature" in determining matters of governmental policy. Id., at 788, n. 4.
But the Court, at least for the present, seems committed to this interpretation of the Commerce Clause. In the Southern Pacific Company case, the Court, as I understand its opinion, found an "undue burden" because a State's requirement for shorter trains increased the cost of railroad operations and thereby delayed interstate commerce and impaired its efficiency. In the Nippert case a small tax imposed on a sales solicitor employed by concerns located outside of Virginia was found to be an "undue burden" even though a solicitor for Virginia concerns engaged in the same business would have been required to pay the same tax.
So long as the Court remains committed to the "undue burden on commerce formula," I must make decisions under it. The "burden on commerce" imposed by the
1 Nippert v. Richmond, 327 U. S. 416; Southern Pacific Co. v. Arizona, 325 U. S. 761; McCarroll v. Dixie Greyhound Lines, 309 U. S. 176; Gwin, White & Prince v. Henneford, 305 U. S. 434; Adams Mfg. Co. v. Storen, 304 U. S. 307.
Virginia law here under consideration seems to me to be of a far more serious nature than those of the Nippert or Southern Pacific Company cases. The Southern Pacific Company opinion, moreover, relied in part on the rule announced in Hall v. DeCuir, 95 U. S. 485, which case held that the Commerce Clause prohibits a state from passing laws which require that "on one side of a State line. passengers, both white and colored, must be permitted to occupy the same cabin, and on the other be kept separate." The Court further said that "uniformity in the regulations by which . . . [a carrier] is to be governed from one end to the other of his route is a necessity in his business" and that it was the responsibility of Congress, not the states, to determine "what such regulations shall be." The "undue burden on commerce formula" consequently requires the majority's decision. In view of the Court's present disposition to apply that formula, I acquiesce.
MR. JUSTICE FRANKFURTER, Concurring.
But for me Hall Since it was de
My brother Burton has stated with great force reasons for not invalidating the Virginia statute. v. DeCuir, 95 U. S. 485, is controlling. cided nearly seventy years ago, that case on several occasions has been approvingly cited and has never been questioned. Chiefly for this reason I concur in the opinion of the Court.
The imposition upon national systems of transportation of a crazy-quilt of State laws would operate to burden commerce unreasonably, whether such contradictory and confusing State laws concern racial commingling or racial segregation. This does not imply the necessity for a nationally uniform regulation of arrangements for passengers on interstate carriers. Unlike other powers of Congress (see Art. I, § 8, cl. 1, concerning "Duties, Imposts
and Excises"; Art. I, § 8, cl. 4, concerning "Naturalization"; Art. I, § 8, cl. 4, concerning "Bankruptcies"), the power to regulate commerce does not require geographic uniformity. Congress may devise a national policy with due regard to varying interests of different regions. E. g., 37 Stat. 699, 27 U. S. C. § 122; Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311; 45 Stat. 1084, 49 U. S. C. § 60; Whitfield v. Ohio, 297 U. S. 431. The States cannot impose diversity of treatment when such diverse treatment would result in unreasonable burdens on commerce. But Congress may effectively exercise its power under the Commerce Clause without the necessity of a blanket rule for the country.
MR. JUSTICE BURTON, dissenting.
On the application of the interstate commerce clause of the Federal Constitution to this case, I find myself obliged to differ from the majority of the Court. I would sustain the Virginia statute against that clause. The issue is neither the desirability of the statute nor the constitutionality of racial segregation as such. The opinion of the Court does not claim that the Virginia statute, regulating seating arrangements for interstate passengers in motor vehicles, violates the Fourteenth Amendment or is in conflict with a federal statute. The Court holds this statute unconstitutional for but one reason. It holds that the burden imposed by the statute upon the nation's interest in interstate commerce so greatly outweighs the contribution made by the statute to the State's interest in its public welfare as to make it unconstitutional.
The undue burden upon interstate commerce thus relied upon by the Court is not complained of by the Federal Government, by any state, or by any carrier. This statute has been in effect since 1930. The carrier concerned is operating under regulations of its own which conform