Com. ex rel. v. Carolina Coach Co. of Va.
| Decision Date | 05 September 1951 |
| Docket Number | No. 3815,3815 |
| Citation | 66 S.E.2d 572,192 Va. 745 |
| Court | Virginia Supreme Court |
| Parties | COMMONWEALTH OF VIRGINIA, EX REL. V. CAROLINA COACH COMPANY OF VIRGINIA. Record |
Hill, Martin & Robinson, for the appellant.
John J. Wicker, Jr., E. Ballard Baker and Paul M. Shuford, for the appellee.
The Carolina Coach Company of Virginia is the holder of certificates of public convenience and necessity from the Virginia State Corporation Commission (hereinafter called the Commission) under which it is authorized to engage in the common carriage of passengers over designated State highways and along these routes it operates a fleet of busses and transports passengers for hire.
Under section 156(b) of the Constitution of Virginia and section 52-276, Code of Virginia, 1950, the Commission is empowered and required to supervise, regulate and control motor carriers doing business in this State and make and impose such rules and regulations upon them as are necessary to prevent unjust or unreasonable discrimination in favor of or against any person. (See also sec. 12-14, Code, 1950.)
An act of the General Assembly of Virginia, 1930, ch. 128, p. 343 (), provides for the separation and segregation of white and colored passengers in motor busses.
The pertinent parts of the Act are in the footnote below. 1
The motor carrier is required by the Act to separate white and colored passengers by designating in each bus a portion thereof or certain seats therein to be occupied by the passengers of the respective races, but no discrimination in quality or convenience of accommodations for or against either race is permitted, and when necessary for the convenience and comfort of the passengers, the driver is empowered and directed to increase or decrease the space or number of seats set apart for either race, 'but no contiguous seats on the same bench shall be occupied by white or colored passengers at the same time.' (Emphasis added.) The Act also provides that the passengers shall occupy the seat or seats or space assigned to them and shall change their seats from time to time as occasions may require 'pursuant to any lawful rule, regulation or custom in force' by the carrier 'as to assigning separate seats or other space to white and colored passengers.'
In conformity with the Act, rules and regulations were promulgated and published by the Company. The material parts of those rules are:
'NOTICE TO PASSENGERS.
'Rules and Regulations.
'To enable this Company to perform the duties it has undertaken, to protect its property and business, to preserve order and decorum, and for the safety, convenience, and comfort of its passengers, it hereby publishes the following rules and regulations:
* * *
'2. The Company reserves full control and discretion as to the seating of passengers, reserves the right to change such seating at any time during a trip, and reserves the right to transfer passengers from one vehicle to another whenever necessary.
'3. White passengers will occupy space nearest the front of the bus, and colored passengers will occupy space nearest the rear of the bus.
'4. The Company reserves the right to refuse to transport a person * * * whose conduct is such, or is likely to become such, as to make him or her objectionable to other passengers.
'5. Any passenger who shall engage in any disorderly conduct on a bus * * * or who shall fail or refuse to comply with these regulations, shall be subject to removal.
The facts bearing upon the legal question presented in this case are as follows:
On April 11, 1950, Everett Raney, herein called petitioner, a young negro man who resides in Suffolk, Virginia, and who was aware of the Virginia statutes and familiar with the rules and regulations of the Company, undertook to board one of the Company's busses for an intrastate trip to Norfolk, Virginia. He held a ticket from Suffolk to Norfolk, which provided that 'the purchaser of this ticket accepts it subject to the rules and regulations of this Company and of the carrying Company.'
The bus petitioner boarded was of the usual type, having a center aisle with a row of seats on each side with space on each seat for two passengers, and a longer seat or bench across the bus at the rear which accommodated several occupants. When he entered the bus it contained almost an equal number of white and colored passengers and all seats were occupied but one. This vacant seat was on the aisle near the front part of the bus and next to a white woman, that is, the white passenger occupied the position on the dual seat next to the window, leaving the half of the seat on the aisle vacant. The two sets of seats immediately behind this one were occupied by white passengers. Petitioner took the vacant seat near the front of the bus and when the driver noticed that he was seated on the same bench, beside and contiguous to a white passenger, he asked him to move, which he declined to do unless the driver secured him another seat.
The driver surveyed the situation and ascertained that there was no other vacant sent nor could any be secured by rearranging the passengers. All seating room was taken except this space for one passenger beside the white occupant. The driver was aware that the Virginia statute and the 'Rules and Regulations' of the Company forbade him to move the bus with white and colored passengers occupying contiguous seats. He, therefore, explained this to petitioner and made further request of him that he vacate that seat, and upon his continued refusal to move, he was tendered back his ticket which he declined to accept.
The driver then sought the assistance of two city police officers who likewise requested Raney to move, but they were unsuccessful in their effort. All passengers were then asked by the driver to leave the bus. Upon their compliance, he drove the bus around the block and back to the terminal and began to reload the passengers. To comply with a company rule that 'through passengers' who temporarily get off a bus at stops along the route shall retain their seats, he undertook to readmit those passengers first. However, well before all 'through passengers' had re-entered the bus, Raney presented himself in the door and undertook to enter, but was directed to move by one of the police officers. He thereupon remarked, 'Thank you for helping me prove my case', and left.
In short, petitioner was not denied transportation, but was not allowed to sit in the one vacant seat on the bench with and contiguous to the white passenger, and being denied that seat, he declined to stand and left.
Petitioner thereupon instituted this proceeding before the State Corporation Commission under section 56-6, Code of Virginia, 1950, in which he alleged that as an individual and passenger upon the common carrier, he had been discriminated against because of his race and color. He prayed that an injunction issue restraining the carrier from again discriminating against him in its carriage of him as a passenger from Suffolk, Virginia, to Norfolk, Virginia, or elsewhere, and that it be compelled and required to perform its public duties by transporting him without discrimination. The Commission concluded that petitioner had not been discriminated against and no right guaranteed to him under the Fourteenth Amendment to the Constitution of the United States denied, and from an order refusing the injunction and denying the relief prayed for, he appealed.
There is no indication in the record that any occupant of the bus was an interstate passenger, nor from what point or points the bus had traveled before it reached Suffolk, Virginia, en route to Norfolk, Virginia. It is thus clear that no question concerning the transportation of interstate passengers is presented in this case.
In New v. Atlantic Greyhound Lines, 186 Va. 726, 43 S.E. (2d) 872, we held that the decision of Morgan v. Commonwealth, 328 U.S. 373, 66 S.Ct. 1050, 90 L.ed. 1317, 165 A.L.R. 574, ), did not render Acts of Assembly of 1930, ch. 128, p. 343, supra, wholly invalid and inoperative. In the Morgan Case, the Supreme Court of the United States in 1946 decided that when applied to interstate passengers the statute imposed undue and unreasonable burdens upon interstate commerce which requires uniformity and was thus beyond a state's power and invalid. Thereafter, in the New Case decided in 1947, we concluded and held that the sections of our Code in question might be applied to and were valid and operative upon intrastate passengers though inoperative as to interstate passengers. 11 Am. Jur., 'Constitutional Law', secs. 163, 164 and 165. The Act was held to be severable as to subject matter and legal operation as between intrastate and interstate commerce and could and would be applied solely to the former class of passengers, and when so applied, was reasonable and within the police power of the State.
Thus construed, the public policy of the State and the purpose of the Act are that white and colored passengers in intrastate carriage, though given equal accommodations, shall be separated from physical and intimate contact. That purpose and intent is unequivocally stated and made abundantly clear by the phrase in section 56-328, 'but no contiguous seats on the same bench shall be occupied by white and colored passengers at the same time.'
Petitioner does not contend that the sections of the Virginia Code in question really and in truth contravene the provisions of the Fourteenth Amendment of the...
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