Morgan v. Commonwealth

• Decision Date: 06 June 1945
• Citation: 184 Va. 24,34 S.E.2d 491
• Court: Virginia Supreme Court
• Parties: MORGAN . v. COMMONWEALTH.

34 S.E.2d 491

184 Va. 24

MORGAN .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 6, 1945.

Rehearing Denied Sept. 14, 1945.

Error to Circuit Court, Middlesex County; J. Douglas Mitchell, Judge.

Irene Morgan was convicted of violating Code 1942, § 4097dd, relating to the segregating of passengers according to color, and she brings error.

Affirmed.

Before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Hill, Martin & Robinson, of Richmond, and Leon A. Ransom, of Washington, D. C, for plaintiff in error.

Abram P. Staples, Atty. Gen., and M. Ray Doubles, Asst. Atty. Gen., for the Commonwealth.

GREGORY, Justice.

The plaintiff in error was found guilty of a violation of section 4097dd of the Virginia Code (Michie), Acts 1930, p. 344, and fined $10 and costs. She attacks the judgment of the lower court upon the ground that the statute does not apply to her because she was an interstate passenger on an interstate bus and, if it does, it is unconstitutional.

The facts, briefly, are as follows: On July 16, 1944, the plaintiff in error, who will be hereinafter referred to as the defendant, was a passenger upon a bus of the Richmond Greyhound Lines, Inc. She was a member of the Negro race, and had purchased a ticket at Hayes Store, in Gloucester county, Virginia, to Baltimore, Maryland. The bus on which she was riding was operated from Norfolk, Virginia, to Balti-more, Maryland. Upon arriving-at Saluda, Middlesex county, Virginia, she was sitting in the second seat toward the front from the long seat in the extreme rear of the bus. There were two vacant spaces upon the long rear seat, and six white passengers were standing. The bus driver requested the defendant and her seatmate, another woman of the Negro race, to change their seats and occupy the two vacant spaces on the rear seat. The seatmate attempted to make the change but as she sought to arise she was pulled back by the defendant. The defendant refused to change her seat as requested. The bus driver explained to her the rules and regulations of the company as to seating colored and white passengers on buses, and informed her that he was required to seat white passengers from the front of the bus toward the rear and colored passengers from the rear of the bus forward.

Exhibit "A" sets forth the regulation of the company. It is in this language:

"T-22 Rights Reserved: This company reserves the right to refuse transportation to any and all persons for the following reasons:

"(c) This company reserves full control and discretion as to the seating of passengers and the right to change such seating at any time during the trip except on divisions or runs where specific seat reservations are made, in which case, passengers shall retain the seats assigned them unless same be contrary to any laws or governmental regulations."

Upon the refusal of the defendant to change her seat the driver of the bus caused a warrant to be sworn out for her. The sheriff and a deputy boarded the bus with the warrant and requested the defendant to change her seat. The sheriff attempted to read the warrant to her but she snatched it out of his hand and threw it behind the seat. The woman seated beside the defendant moved but the defendant again refused to move, whereupon, the sheriff and his deputy arrested her and took her off the bus. When they attempted to remove her from the bus the defendant struck at the deputy but did not hit him. She kicked the sheriff three times on his leg, and reiterated that she would neither change her seat nor get off the bus. The officers placed her in jail.

In addition to being tried for a violation oi sec. 4097dd, she was also tried at the same time for resisting arrest and found guilty upon that charge and adjudged to pay a fine of $100 and costs. She has not sought a writ of error to this judgment. The writ of error here is to the judgment of the court finding the defendant guilty of a violation of section 4097dd.

There are two questions presented by the assignments of error: First, is the statute upon which the defendant was prosecuted, if construed as applicable to a passenger in interstate commerce, constitutional? Second, should the statute upon which the defendant was prosecuted be construed as limited in its operation to passengers in intrastate commerce, and therefore as inapplicable to the defendant?

The decisive questions present only questions of law. It is conceded by counsel for the defendant that the facts as found by the court below are binding upon the defendant.

Section 4097dd reads as follows:

"Violation by passengers; misdemeanor; ejection.-- All persons who fail while on any motor vehicle carrier, to take and occupy the scat 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 twenty-five 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, * * * neither the driver, operator, person in charge, owner, manager nor buscompany operating said vehicle shall be liable for damages in any court."

In 1930 the General Assembly of Virginia enacted the statute known as Chapter 128, found in the 1930 Acts at pages 343 and 344. The title of the Act is "An Act to provide for the separation of white and colored passengers in passenger motor vehicle carriers within the State; to constitute the drivers of said motor vehicles special policemen, with the same powers given to conductors and motormen of electric railways by general law." The present Code sec. 4097dd is the latter portion of the Act.

The Act provides that all passenger motor vehicles operating under Chapter 161A of the Code shall segregate passengers according to color, and that any carrier failing to comply shall be fined.

The Act also provides that those so operating motor vehicles shall make no difference or distinction in the quality or convenience of the accommodations provided for the two races.

The Act further provides that the driver or operator or other person in charge of any motor vehicle above-mentioned shall have the right, and he is directed, to require at any time when it may be necessary or proper for the comfort or convenience of passengers so to do, to change the designation so as to increase or decrease the amount of space or seats set apart for either race, and that any driver or operator of a bus who shall fail or refuse to carry out the provisions of this section shall be guilty of a misdemeanor.

The Act further provides that the operator of such vehicle shall be a special policeman and have all the powers of a conservator of the peace in the enforcement of the provisions of the Act.

Then follows the latter portion of the Act now known as sec. 4097dd of the present Code (Michie), which has already been quoted.

It is conceded that on the bus upon which the defendant was riding there were provided equal facilities for both races, and that there was no difference or discrimination in the quality or convenience of the accommodations provided for the two races.

The Attorney General has made a motion to dismiss the writ of error, but the ultimate view of the court will render it unnecessary to pass upon that motion.

The public policy of the Commonwealth of Virginia, as expressed in the various legislative Acts, is and has been since 1900 to separate the white and Negro races on public carriers. As to railroads, see Acts of 1899-1900, pages 236 and 237, carried in Michie's Code of 1942 as sees. 3962-3968; as to steamboats, see Acts of 1899-1900, page 340, carried in Michie's Code 1942 as sees. 4022-025; as to electric or street cars, see Acts of 1902-03-04, page 990, carried in Michie's Code 1942 as sees. 3978-3983; and as to motor vehicles see Acts of 1930, pages 343 and 344, carried in Michie's Code of 1942 as sees. 4097z, 4097aa, 4097bb, 4097cc, and 4097dd.

So far as we are advised no case contesting the validity of any of these segregation Acts as applied to interstate passengers has been previously before this court, or any attempt made to repeal them.

Article 1, sec. 8, clause 3, of the Constitution of the United States provides that Congress shall have the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." And Article 10 of the amendments to the Constitution of the United States provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Under the tenth amendment there is reserved to the States the right to exercise the police power. The State may enact legislation under the authority of the police power, even though such legislation may incidentally affect interstate commerce.

The Virginia segregation statutes have been enacted under the police power of the State reserved to it in the tenth amendment to the U. S. Constitution.

Unless it is shown that the statute here...