Henderson v. United States

• Decision Date: 17 December 1945
• Docket Number: Civil Action No. 2455.
• Citation: 63 F. Supp. 906
• Parties: HENDERSON v. UNITED STATES et al.
• Court: U.S. District Court — District of Maryland

63 F. Supp. 906

HENDERSON v. UNITED STATES et al.

Civil Action No. 2455.

District Court, D. Maryland.

December 17, 1945.

COPYRIGHT MATERIAL OMITTED

Belford V. Lawson, of Washington, D. C., and Josiah F. Henry, Jr., of Baltimore, Md., for plaintiff.

Charles Clark, of Washington, D. C., for Southern Railway.

Daniel W. Knowlton and Edward M. Reidy, both of Washington, D. C., for Interstate Commerce Commission.

Before SOPER, Circuit Judge, and COLEMAN and CHESNUT, District Judges.

COLEMAN, District Judge.

This is a suit under the provisions of 28 U.S.C.A. §§ 41(28), 43-48, 792, and 49 U.S.C.A. § 17(9), whereby the plaintiff seeks to set aside an order of the Interstate Commerce Commission, entered May 13, 1944, with respect to dining car service on the Southern Railway.

On October 10, 1942, the plaintiff filed a complaint with the Commission alleging (as amended at the original hearing) that the Southern Railway, on May 17, 1942, had, with respect to its dining car service, unjustly discriminated against him in violation of the provisions of Section 3(1) of the Interstate Commerce Act, 49 U.S.C.A. § 3(1), and Section 2, Par. 1 of Article IV of the Constitution of the United States, by failing to furnish him dining car service equal to that furnished white passengers. The complaint prayed that the Commission require the carrier to cease and desist from the alleged discrimination; in the future to afford complainant and other interested Negro passengers dining car facilities and such other services and facilities as the Commission might deem reasonable and just, equal to those accorded its white passengers, and asked also for damages to be assessed against the carrier because of the alleged discrimination.

The Southern Railway answered the complaint, denying that it had violated any Constitutional provision or any provision of the Interstate Commerce Act or of any other law. The complaint, according to the usual procedure, was referred by the Commission to an examiner for the purpose of conducting a hearing, which was held on February 24, 1943. At this hearing, complainant alone testified in his own behalf and six witnesses were heard for the railroad.

The examiner filed his report on May 28, 1943, recommending that the Commission should find that complainant had been subjected to unjust discrimination and prejudice, but that the situation had been corrected for the future and that, therefore, the complaint should be dismissed. Complainant excepted to the examiner's report, alleging that the Virginia segregation statute, Virginia Code 1942 (Michie), §§ 3962-3968, upon which the examiner relied in part, was inapplicable; that segregation of races is contrary to the Federal Constitution and the Interstate Commerce Act; that damages should be assessed, and that the alleged discrimination and prejudice had not been corrected for the future. Thereupon, the complainant was granted a hearing before Division No. 2 of the Commission, briefs were filed and oral arguments submitted, and on May 13, 1944, that Division filed its report (Henderson v. Southern R. Co., 258 I.C.C. 413), making detailed findings of fact and conclusions based thereon, all of which are substantially in accord with the examiner's report and recommendations.

The material facts as found by the Commission and set forth in its report, are not disputed by the parties in the present proceeding and are as follows: On May 17, 1942, the complainant, a Negro, citizen of the United States, left Washington at approximately two p.m. aboard the Southern Railway's Train No. 35, for Atlanta, Georgia, traveling as a first class Pullman passenger. The train consisted of 1 combination baggage-passenger car, 6 coaches, 2 Pullman cars and 1 dining car with seats for 36 persons. It carried approximately 300 passengers, about 100 more than the usual number, which necessitated the use of 3 extra coaches. The Pullman cars were in the rear of the dining car, thus making it necessary for Pullman passengers desiring dining car service to enter the diner alongside the kitchen of the dining car. From this end the tables on the left side of the diner accommodated 4 persons and those on the right side, 2 persons. The diner was equipped with curtains which, when drawn, separated the two tables nearest the kitchen from the other tables, these curtains extending, when drawn, from the sides of the diner to but not across its center aisle, nor along the aisle side of either of these end tables.

When the diner was opened about 5:30 p.m. on May 17, 1942, and as the train was proceeding through the State of Virginia, a number of passengers were waiting to enter. It filled promptly. When all tables other than the two tables at the kitchen end of the car had been occupied, no Negro passenger having appeared, white passengers were seated at the end tables. Some of the passengers who were in line when the diner was opened, remained standing when the car was filled. Complainant did not take a position in the line but walked past people who were waiting to be served in turn. At least one seat at one of the end tables at the kitchen end of the diner was empty when complainant first demanded service but neither then nor later was either of these end tables entirely vacant. The diner was filled continuously, passengers from the line taking seats as soon as others vacated them, and from time to time diner patrons were served dinner until it became necessary to decline further service, in order that the car would be clear of patrons when the train reached Greensboro, North Carolina. Complainant was tendered and declined service in his Pullman car space without charge therefor in addition to the regular dining car prices. The service offered him differed from that furnished in the dining car only as respects the place of service. The steward did not send for complainant as he had promised to do because at no time during the meal period was there available space in which complainant could be served in the diner in a compartment separated from tables that were occupied by white passengers. Complainant was one of many passengers who sought dining car service and who had not been served when the car was removed from the train at approximately 9:00 p.m.

For many years, it was defendant's practice to serve meals to passengers of different races at different times. Negro passengers, being in the minority, were served either before or after the white passengers had eaten. The increase in passenger traffic in 1941, due to defense activities, made necessary some plan whereby both races could be accommodated at the same time. It was found that the length of time required for serving white passengers would extend into the time for the next meal, leaving no time in which to serve Negro passengers. The installation of curtains was designed to correct that situation. Since the time of complainant's journey, defendant's dining cars have been equipped with 4-seat tables on both sides, thereby increasing to 48 the capacity of the car, and to 8 the number of seats at the end tables.

In July 1941, defendant issued to its passenger department employees a circular of instructions concerning accommodations for passengers of different races, which contains the following:

"Dining Car Regulations

"Meals should be served to passengers of different races at separate times. If passengers of one race desire meals while passengers of a different race are being served in the dining car, such meals will be served in the room or seat occupied by the passenger without extra charge. If the dining car is equipped with curtains so that it can be divided into separate compartments, meals may be served to passengers of different races at the same time in the compartments set aside for them."

On August 6, 1942, these instructions were supplemented as follows:

"Effective at once please be governed by the following with respect to the race separation curtains in dining cars:

"Before starting each meal pull the curtains to service position and place a `Reserved' card on each of the two tables behind the curtains.

"These tables are not to be used by white passengers until all other seats in the car have been taken. Then if no colored passengers present themselves for meals, the curtain should be pushed back, cards removed and white passengers served at those tables.

"After the tables are occupied by white passengers, then should colored passengers present themselves they should be advised that they will be served just as soon as those compartments are vacated.

"`Reserved' cards are being supplied you."

As passengers enter the dining car when it is opened for meal service, it is defendant's practice to seat some of them at each waiter's "station," or group of tables, so that all the waiters may be engaged promptly and service expedited. If any Negro passengers are present, they are seated and served at the end tables. Relatively few Negro passengers use the dining car, and for that reason the end tables are not absolutely reserved for their exclusive use; but white passengers are not seated at them until the other tables are filled. Then, if no Negro passengers present themselves, the end tables are used for white passengers. If a Negro passenger requests service when both end tables are fully or partially occupied by white patrons, the practice is to offer him service in his Pullman space or at his coach seat, using a portable table, without the extra charge usually made for that service. When so served, the passenger receives the same food and waiter service that is furnished dining car patrons, and the dishes, silverware, and linens are those used in the dining car. Negro civilians are served in the dining car simultaneously with white passengers only at the end tables. White and Negro soldiers are served together, without distinction.

On these facts the Commission made three ultimate findings: (1) That defendant's...