McCabe v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 10 February 1911
• Docket Number: 3,054.
• Citation: 186 F. 966
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: McCABE et al. v. ATCHISON, T. & S.F. RY. CO. et al.

186 F. 966

McCABE et al. v. ATCHISON, T. & S.F. RY. CO. et al.

No. 3,054.

United States Court of Appeals, Eighth Circuit.

February 10, 1911

E. O Tyler, E. T. Barbour, and William Harrison, for appellants.

S. T Bledsoe (J. R. Cottingham, C. O. Blake, Clifford L. Jackson R. A. Kleinschmidt, and C. E. Warner, on the brief), for appellees.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge.

This case turns upon the validity or true construction of an act of the Legislature of Oklahoma, approved December 18, 1907 (Comp. Laws Okl. 1909, p. 271, c. 9, art. 2, Sec. 434 et seq.), requiring every railroad company doing business in that state as a common carrier of passengers to provide separate coaches or compartments for the accommodation of the white and negro races, equal in all points of comfort and convenience, and to maintain separate waiting rooms at all their passenger depots for the accommodation of those races also equal in all points of comfort and convenience.

The complainants, five negro citizens of Oklahoma, instituted this suit against the defendants, several railway companies doing business throughout Oklahoma in state and interstate commerce, to enjoin them from obeying this law, on the grounds (1) that it violates the provisions of the act enabling the people of Oklahoma and the Indian Territory to form a constitution and be admitted into the Union, approved June 16, 1906 (part 1, 34 Stat. 267), in this: that it makes a distinction between the civil rights of the negro and white race of men, contrary to the condition imposed by section 25 of that act; (2) that it is in conflict with the fourteenth amendment to the Constitution of the United States, in that it abridges the privileges and immunities of citizens and deprives them of the equal protection of the laws; (3) that it violates the provisions of the commerce clause of the Constitution, in that it is an attempt to regulate commerce among the several states; and (4) that the several defendants are not in fact conforming to the requirements of the law by furnishing cars and waiting rooms for the negro race equal in point of comfort and convenience to those furnished for the white race. The learned trial judge sustained a demurrer to the bill, and, upon complainants declining to plead further, dismissed it. From this an appeal followed.

It is very clear, we think, that complainants cannot invoke the enabling act as in itself a prohibition against the legislation in question. The first paragraph of section 3 of that act reads as follows:

'That the delegates to the convention thus elected shall meet at the seat of government of said Oklahoma Territory, * * * and, after organization, shall declare on behalf of the people of said proposed state that they adopt the Constitution of the United States; whereupon the said convention shall, and is hereby authorized to form a constitution and state government for said proposed state. The Constitution shall be republican in form, and make no distinction in civil and political rights on account of race or color, and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.'

The authority conferred by this section with its limitations and prohibitions was most obviously addressed to the delegates chosen under the provisions of section 2 of the act, when they should have assembled in convention for the purpose of forming a constitution and state government. A constitution which should make no distinction in civil or political rights on account of race or color was the only kind of a constitution the delegates were empowered to make. When it should be made and the provisions of the enabling act found to have been 'complied with in the formation thereof' by the President, who was the arbiter constituted for that purpose by the fourth section of the act, the state became a member of the federal Union 'on an equal footing with the original states. ' The working obligation or instructions imposed by the enabling act in the respect now under consideration upon the delegates chosen to make the Constitution ceased to have force or effect when that instrument was made and found and proclaimed by the constituted umpire to be in accordance with the act which authorized it. Permoli v. First Municipality, 3 How. 589, 609, 11 L.Ed. 739; Escanaba Co. v. Chicago, 107 U.S. 678, 688, 2 Sup.Ct. 185, 27 L.Ed. 442; Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8 Sup.Ct. 811, 31 L.Ed. 629; Ward v. Race Horse, 163 U.S. 504, 16 Sup.Ct. 1076, 41 L.Ed. 244; Bolln v. Nebraska, 176 U.S. 83, 20 Sup.Ct. 287, 44 L.Ed. 382; United States ex rel. v. United States Express Co. (D.C.) 180 F. 1006.

The requirement of section 22 of the enabling act that the constitutional convention should accept the terms and provisions of that act and adopt an ordinance to that effect, to which our attention is specially directed by counsel for complainants, affords no additional warrant for their contention. The provisions which called the convention into being and fixed boundaries and limitations upon its powers were not enlarged by the adoption of that ordinance; neither were they diverted from their object and purpose as plainly expressed. Whatever effect the acceptance of the terms and provisions of the enabling act may have upon other questions to which they might be applicable, we are clearly of opinion it was never intended by the language employed to transfer the limitation upon the powers of the convention itself to the state Legislature after statehood should have been accomplished.

Therefore, even if the Oklahoma statute in some of its provisions made a distinction in civil rights on account of race or color contrary to the instructions of the enabling act (which, however, is not admitted), no cause of action could be predicated upon that act itself, and no relief could be granted unless the distinction (or discrimination as it was called in argument) violated some of the prohibitions of the federal Constitution, which after statehood became the exclusive federal chart of complainants' civil and political rights.

The argument is next made that the statute in question violates the fourteenth amendment to the Constitution of the United States, in that the enforced separation of the negro race from the white race in railroad cars and waiting rooms abridges the privileges and immunities of the former, and denies to it the equal protection of the laws. This question in our opinion is not an open one. The Supreme Court of the United States in Plessy v. Ferguson, 163 U.S. 537, 16 Sup.Ct. 1138, 41 L.Ed. 256, has foreclosed further discussion. Mr. Justice Brown, speaking for that court, made these observations:

'The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state Legislatures in the exercise of their police power. * * * So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana (similar to that here involved) 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 their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorized 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.'

In view of this decision further discussion of the general question is neither necessary nor seemly on our part.

But there is one special feature of the Oklahoma statute which counsel for the complainants contend is in itself discriminatory and operates to deprive the negro race of the equal protection of the laws within the meaning of the Constitution. This is found in the proviso to section 7, which reads as follows:

'Provided that nothing herein contained shall be construed to prevent railway companies in this state from hauling sleeping cars, dining or chair cars attached to their trains to be used exclusively by either white or negro passengers, separately, but not jointly. ' Laws 1907-08, c. 15.

In our opinion this contention is not sound. Other parts of the statute make ample provision for the actual transportation of both races in reasonable comfort and convenience. Separate coaches or compartments equal in all points of comfort and convenience must, under severe penalties, be carried on each trip by every train moving within the state. Sections 1 and 5. Sleeping cars, dining cars, and chair cars are comparatively speaking, luxuries, and properly enough no such imperative provisions are made concerning them as are made concerning the common and indispensable coach or compartment. The proviso imposes...