The Journal of Negro History, Volume 6, 1921

The United States Supreme Court finally reached the position of following the decision of Ex Parte Plessy which justified the discrimination in railway cars on the grounds that it is not a badge of slavery contrary to the Thirteenth Amendment. This decision, in short, is: So long, at least, as the facilities or accommodations provided are substantially equal, statutes providing separate cars for the races do not abridge any privilege or immunity of citizens or otherwise contravene the Fourteenth Amendment of the United States Constitution. In such matters equality and not identity or community of accommodations is the extreme test of conformity to the requirements of the amendment. The regulation of domestic commerce is as exclusively a State function as the regulation of interstate commerce is a Federal function. The separate car law is an exercise of police power in the interest of public order, peace and comfort. It is a matter of legislative power and discretion with which Federal courts cannot interfere.

In Hennington v. Georgia,35 it was later emphasized that it had been held that legislative enactments of the States, passed under the admitted police powers, and having a real relation to the domestic peace, order, health, and safety of their people, but which by their necessary operation, affect, to some extent, or for a limited time, the conduct of commerce among the States, are yet not invalid by force alone of the grant of power of Congress to regulate such commerce; and, if not obnoxious to some other constitutional provision or destructive of some right secured by the fundamental law, are to be respected in the courts of the Union until they are superseded and displaced by some act of Congress passed in execution of power granted to it by the Constitution. Of course, there was no other provision to which such laws could be contrary after the Supreme Court had whittled away the war amendments.

In the case of Plessy v. Ferguson36 the most inexcusable inconsistency of the court was shown when the persons of color aggrieved attacked the separate car law of Louisiana on the ground that it conflicted with the Fourteenth Amendment. Giving the opinion of the court, Justice Brown said: "So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned or the corresponding acts of State legislatures."

Justice Harlan dissented, saying that he was of the opinion that the Statute of Louisiana is inconsistent with personal liberty of white and black in that State and hostile to both in the letter and spirit of the Constitution of the United States. Justice Harlan rightly contended that laws can have no regard to race according to the Constitution. If they do, they conflict with the rights of State and national citizenship and with personal liberty. The Thirteenth and Fourteenth Amendments removed race from our governmental system. But what has the court to do with the policy or expediency of legislation? "A statute may be valid, and yet upon grounds of public policy, may well be characterized as unreasonable." Accordingly Mr. Sedgwick, a distinguished authority, says: "The Courts have no other duty to perform than to execute the legislative will, without regard to their views as to the wisdom or justice of the particular enactment." "Statutes," said Justice Harlan, "must always have a reasonable construction. Sometimes they are to be construed strictly; sometimes, liberally, in order to carry out the legislative will. But, however construed, the intent of the legislature is to be respected."

The decisions in the cases of M. K. and T. Railway v. Haber37 and Crutcher v. Kentucky,38 are of some importance. In these cases the court reiterated the doctrine that the regulation of the enjoyment of the relative rights and the performance of the duties, of all persons within the jurisdiction of a State belong primarily to such a State under its reserved power to provide for the safety of all persons and property within its limits; and that even if the subject of such regulations be one that may be taken under the exclusive control of Congress, and be reached by national legislation, any action taken by the State upon that subject that does not directly interfere with rights secured by the Constitution of the United States or by some valid act of Congress, must be respected until Congress intervenes.39 The court by this time, however, had all but held that the Constitution secured to the Negro no civil or political rights except that of exemption from involuntary servitude, and that law for the Negro is the will of the white man.

Further development of the doctrine as to the right of the State to deprive a Negro of citizenship is brought out in the Lauder Case.40 The case was this: Lauder's wife purchased a first class ticket from Hopkinsville to Mayfield, both places within the State of Kentucky. She took her place in what was called the "ladies' coach" and was ejected therefrom by the conductor and assigned a seat in a smoking car, which was alleged to be small, badly ventilated, unclean and fitted with greatly inferior accommodations. This road ran from Evansville, Indiana, to Hopkinsville, Kentucky. It was held in the Court of Appeals that the decision of the United States Supreme Court in Louisville, New Orleans and Railway v. Mississippi41 and Plessy v. Ferguson42 was conclusive of the constitutionality of the act so far as the plaintiffs were concerned; and that the mere fact that the railroad extended to Evansville, in the State of Indiana, could in no wise render the statute in question invalid as to the duty of the railroad to respect it.

In the case of Chesapeake and Ohio Railway Company v. Kentucky,43 this doctrine was carried to its logical conclusion. The question was whether a proper construction of the separate car law confines its operation to passengers whose journeys commence and end within the boundaries of the State or whether a reasonable interpretation of the act requires Negro passengers to be assigned to separate coaches when traveling from or to points in other States. In other such cases the Supreme Court of the United States had interpreted the local law as applying only to interstate commerce. The language of the first section of the Kentucky statute made it very clear that it applied to all carriers. The first section of the Kentucky law follows:

"Any railroad company or corporation, person or persons, running or otherwise operation of railroad cars or coaches by steam or otherwise, in any railroad line or track within this State, and all railroad companies, person or persons, doing business in this State, whether upon lines or railroads owned in part or whole, or leased by them; and all railroad companies, person or persons, operating railroad lines that may hereafter be built under existing charters, or charters that may hereafter be granted in this State; and all foreign corporations, companies, person or persons, organized under charters granted, or that may be hereafter granted by any other State, who may be now, or may hereafter be engaged in running or operating any of the railroads of this State, whether in part or whole, are hereby required to furnish separate coaches or cars for travel or transportation of the white and colored passengers on their respective lines of railroad."

Any sane man can see that this law undertook to regulate interstate commerce. Justice Brown, however, tried to square the opinion with that of the Kentucky Supreme Court, upholding the law on the grounds that it was constitutional in as much as it applied only to intrastate passenger traffic, although the law plainly applies also to interstate traffic.

Speaking further for the court, Justice Brown said: "Indeed we are by no means satisfied that the Court of Appeals did not give the correct construction to this statute in limiting its operation to domestic commerce. It is scarcely courteous to impute to a legislature the enactment of a law which it knew to be unconstitutional and if it were well settled that a separate coach law was unconstitutional, as applied to interstate commerce, the law applying on its face to all passengers should be limited to such as the legislature were competent to deal with. The Court of Appeals has found such to be the intention of the General Assembly in this case, or at least, that if such were not its intention, the law may be supported as applying alone to domestic commerce. In thus holding the act to be severable it is laying down a principle of construction from which there is no appeal."

"While we do not deny the force of the railroad's argument in this connection, we cannot say that the General Assembly would not have enacted this law if it had supposed it applied only to domestic commerce; and if it were in doubt on that point, we should unhesitatingly defer to the opinion of the Court of Appeals, which held that it would give it that construction if the case called for it. In view of the language above quoted it would be unbecoming for us to say that the Court of Appeals would not construe the law as applicable to domestic commerce alone, and if it did, the case would fall directly within the Mississippi Case.44 We, therefore, feel compelled to give it that construction ourselves and so construe it that there can be no doubt as to its constitutionality." Here we have a plain case of the United States Supreme Court declaring an act severable because thereby it could apparently justify as constitutional a measure depriving the Negroes of civil and political rights, whereas in some other cases it has held other acts not severable to reach the same end.

The court continued its reactionary course. In Chiles v. Chesapeake and Ohio R. R. Company45 the court reiterated that "Congressional inaction is equivalent to a declaration that a carrier may, by its regulations, separate white and Negro interstate passengers. In McCabe v. Atchinson, Topeka and Santa Fe Railway Company,46 Justice Hughes giving the opinion of the court, followed the Plessy v. Ferguson decision. He did not believe, moreover, "that the contention that an act though 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, is applicable where it is the administration of the provisions of a separate coach law by carriers, which is claimed to produce the discrimination. The separate coach provisions of Oklahoma47 apply to transportation wholly intrastate in absence of a different construction by State courts and do not contravene the commerce clause of the Federal court. The court held, however, that so much of the Oklahoma separate coach law as permits carriers to provide sleeping cars, dining cars, and chair cars for white persons, and to provide no similar accommodations for Negroes, denies the latter the equal protection of the laws guaranteed by the Constitution.

The most recent case, that of the South Covington and Cincinnati Street Railway, Plaintiff in error v. Commonwealth of Kentucky shows another step in the direction of complete surrender to caste. This company was a Kentucky corporation, each of the termini of the railroad of which was in Kentucky. The complainant hoped to prevent the segregation of passengers carried from Ohio into Kentucky. The decision was that a Kentucky street railway may be required by statute of that State to furnish either separate cars or separate compartments in the same car for white and Negro passengers although its principal business is the carriage of passengers in interstate commerce between Cincinnati, Ohio, and Kentucky across the Ohio River. Such a requirement affects interstate commerce only incidentally, and does not subject it to unreasonable demands. In other words, this inconvenience to the carrier is not very much and the humiliation and burden which it entails upon persons of color thus segregated should not concern the court, although they are supposed to be citizens of the United States.

Justice Day dissented and Justices Van DeVanter and Putney concurred on the ground that the attachment of a different car upon the Kentucky side on so short a journey would burden interstate commerce as to cost and in the practical operation of the traffic. The provision for a separate compartment for the use of only interstate Negro passengers would lead to confusion and discrimination. The same interstate transportation would be subject to conflicting regulation in the two States in which it is conducted. They believed that it imposed an unreasonable burden and according to the dissentients was, therefore, void.

Justice in the Courts

One of the most important constitutional rights denied the Negroes is that of justice in the courts. In as much as their former masters felt enraged against the freedmen because of their sudden release from bondage, they too often perpetrated upon the freedmen crimes for which the Negro had no redress in courts, for white persons constituted the accusers, the prosecutors, the judges, and the juries. Immediately following the Civil War, before the amendments of the Constitution enacted in the special behalf of the race were effected, Negroes were by the Black Codes deprived of all of the rights of citizens and nothing bore more grievously upon them than the deprivation of the right to serve on juries. Some States had special laws carrying out this prohibition. The first case of consequence requiring an interpretation of the State law to this effect was that of Strauder v. West Virginia,48 already mentioned above. In this case the court took high constitutional ground. It was held that "a law of West Virginia limiting to white persons, twenty-one years of age and citizens of the State, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step toward reducing them to a condition of servility." The right of a man of color that, in the selection of jurors to pass upon his life, liberty, and property, there shall be no exclusion of his race and no discrimination against them because of color, was asserted in a number of cases, to wit: Virginia v. Rives,49 Neal v. Delaware,50 Gibbons v. Kentucky.51

In the case of Bush v. The Commonwealth of Kentucky52 the Negro faced an additional difficulty in that the court held that wherein there was no specific law excluding persons from service upon juries because of their race or color, that the petitioner would have to show evidence to that effect. In the case of Smith v. The State of Mississippi53 it was held that the omission or refusal of officers to include Negro citizens in the list from which jurors might be drawn is not, as to a Negro subsequently brought to trial, a denial of equal protection of laws. In the case of Murray v. The State of Louisiana54 the decision was that the fact that a law confers on the jury commissioners judicial power in the selection of citizens for jury service, does not involve a conflict with the Fourteenth Amendment of the Constitution of the United States, although in the exercise of such power they might not select Negroes for jury service.

The case of Williams v. Mississippi was more interesting. The law of that State prescribed the qualifications of voters and of grand and petit juries and invested the administrative officers with a large discretion in determining what citizens have the necessary qualifications. As it appeared that in the use of their discretion they would exclude Negroes from such juries it was contended that the act of Mississippi was a violation of the Fourteenth Amendment. The court held, however, that the Mississippi law could not be held repugnant to the Fourteenth Amendment merely on a showing that the law might operate as a discrimination against the Negro race, in absence of proof of an actual discrimination in the case under consideration. This ground has often proved convenient for the Supreme Court of the United States in dodging the question whether or not the Negroes must be protected in the rights guaranteed them by the Constitution.

This case was decided in 1897 and two years later Mr. Justice Gray, giving the opinion of the court in the case of Carter v. Texas,55 said that the exclusion of all persons of African race from a grand jury which finds an indictment against a Negro in a State court, when they are excluded solely because of their race or color denies him the equal protection of the laws in violation of the Fourteenth Amendment of the Constitution of the United States, whether such exclusion is done through the action of the legislature, through the courts, or through the executive or administrative officers of the State. This was substantially the position taken in the case of Strauder v. West Virginia twenty years earlier.

The Negroes received some encouragement, too, from the decision of Rogers v. Alabama.56 It was held that there had been a denial of the equal protection of the laws by a ruling of a State court upon the motion to quash an indictment on account of the exclusion of Negroes from the grand jury list, which motion, though because of its being in two printed octavos, was struck from the files under the color of local practice for prolixity, contained an allegation that certain provisions of the newly adopted State constitution, claimed to have the effect of disfranchising Negroes because of their race, when such action worked as a consideration in the minds of the jury commissioners in reaching their decision. The court held in Martin v. The State of Texas, however,57 that a discrimination against Negroes because of their race in the selection of grand or petit jurors as forbidden by the Fourteenth Amendment is not shown by written motion to quash, respectively, the indictment of the panel of petit jurors, charging such discrimination where no evidence was introduced to establish the facts stated in the omissions. It is not sufficient merely to prove that no persons of color were on the jury.

As certain States wished to make the government further secure in the elimination of Negroes from juries, after making the qualifications for voters unusually rigid so as to exclude persons of African descent, they easily established the same qualifications for jurors, to relieve persons of color also from that service. In the case of Franklin v. South Carolina58 the court held that there was no discrimination against Negroes because of their race in the selection of the grand jury made by the laws of South Carolina,59 giving the jury commissioner the right to select electors of good moral character such as they may deem qualified to serve as jurors, being persons of sound mind and free from all legal exceptions. A motion, therefore, to quash an indictment against a Negro for disqualification of the grand jurors who must be electors, because of a change in the State constitution of South Carolina respecting the qualifications of electors, did not violate the Act of Congress, June 25, 1868, and, therefore, did not present to the Supreme Court of the United States a question of a denial of Federal right where there is nothing in the record to show that the grand jury as actually impaneled contained any person who was not qualified as an elector under the earlier State constitution, which was, according to the allegation, so made up as to exclude Negroes on account of their color. The Supreme Court of the United States then took no account of the intent or the spirit of the law maker as this tribunal had been accustomed to do in cases of constitutional import and left upon the Negro the burden of performing the difficult task of showing that he had been discriminated against on account of his color when the discrimination could be easily effected without the possibility of his actually producing any evidence that on the face of itself could convince the court.

Suffrage

As already mentioned above the Negroes during this period were struggling to retain the right of suffrage and, of course, were attacking in the courts those restrictions primarily directed toward the elimination of the Negroes from the electorate. The Supreme Court of the United States generally shrank from these cases by disclaiming jurisdiction. In Ex Parte Siebold,60 Ex Parte Yarborough,61 and In re Coy,62 however, the general jurisdiction of Federal courts over matters involved in the election of national officers was affirmed. The court held that it had jurisdiction in the election case in Wiley v. Sinkler,63 when there was brought an action to recover damages of an election board for wilfully rejecting a citizen's vote for a member of the House of Representatives. In Swafford v. Templeton64 a suit was brought for damages for the alleged wrongful refusal by the defendants at an election of officers to permit the plaintiff to vote at a national election for a member of the House of Representatives. It was held that the court had jurisdiction.

From the Supreme Court of the United States, however, the Negroes received little encouragement, in as much as the right of suffrage, with its requirements of property ownership and the literacy test, could be withheld from the Negro without specifically discriminating against any one on account of race or color. In Southy v. Virginia, 181 U. S., Revised Statutes, of the United States, Cont. St. 1901, pages 37-42, providing that every person who prevents, hinders, controls or intimidates another from exercising the right of suffrage, to whom that right is guaranteed by the Fifteenth Amendment of the Constitution of the United States, by means of bribery, etc., shall be punished, was held invalid as it was considered to be beyond the constitutional power of Congress to act in such a case except in that of race discrimination. If the discrimination is in a State or municipal election, however, Congress may intervene, if the discrimination is shown, but not until then.

In the case of Giles v. Harris65 there was brought to the Supreme Court a bill in equity, complaining that Negroes qualified to vote for members of Congress had been refused on account of their color by virtue of the Alabama constitution, whereas white men were registered to vote at such an election. Relief was asked for on the basis of the Revised Statutes, Sec. 1979, praying that the Supreme Court should order that the petitioner be registered and declare null and void the special clause of the Alabama constitution. The court answered this petition with certain observations disclaiming jurisdiction largely for "want of merit in the averments which were made in the complaint as to the violation of Federal rights."

The court held that if the registrars acting at this election in Alabama had no authority under the new constitution, which the petitioner prayed that the court might declare null and void, they could not legally register the plaintiff. If they had authority, they were within their right to use their discretion. If this clause in the constitution should be struck down according to the prayer of the plaintiff, there would be no board to which the mandamus could be issued. The Supreme Court, therefore, held that no damage had been suffered because no refusal to register by a board constituted in defiance of the Federal Constitution could disqualify a legal voter otherwise entitled to exercising the electorate franchise, since this amounts to a decision upon an independent non-Federal ground sufficient to sustain the judgment without reference to the Federal question presented. It observed, moreover, that the bill imported that the great mass of the white population intended to keep the blacks from voting. To meet such an intent something more than ordering the plaintiff named to be inscribed upon the lists of 1902 would be needed.