Mobile & O.R. Co. v. Spenny

• Decision Date: 15 December 1914
• Docket Number: 138
• Citation: 67 So. 740,12 Ala.App. 375
• Court: Alabama Court of Appeals
• Parties: MOBILE & O.R. CO. v. SPENNY.

67 So. 740

12 Ala.App. 375

MOBILE & O.R. CO. v. SPENNY.

No. 138

Court of Appeals of Alabama

December 15, 1914

Rehearing Denied Jan. 12, 1915

Appeal from Circuit Court, Autauga County; W.W. Pearson, Judge.

Action by V.A. Spenny against the Mobile & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Thomas J., dissenting in part.

Steiner Crum & Weil, of Montgomery, for appellant.

Hill Hill, Whiting & Stern, of Montgomery, for appellee.

THOMAS J.

The action is by the appellee, Spenny, against appellant railroad company for damages for ejecting him from one of the latter's passenger trains. The facts of the case are practically without dispute and may, so far as material to the consideration here, be briefly stated as follows: The appellee is a white man, and was, at the time of such ejection, sheriff of Autauga county, Ala., and had then in his custody a negro prisoner, with whom he had boarded said train at Montgomery, Ala., for transportation to Prattville, Ala., having then in his possession, for which he had paid full fare, two regular tickets for the journey over appellant's line of railway, one for himself and one for the prisoner. Upon boarding the train he went with his prisoner into the smoking compartment thereof that was set aside as such for white passengers; and where he and the negro prisoner were each seated when the conductor of the train came through and, upon informing appellee that, under his (the conductor's) understanding of the requirements of the law and of the rules of the company, he (the appellee) was not permitted to keep the negro prisoner in such smoking compartment provided for white people, directed that appellee carry the prisoner into the adjoining compartment provided for passengers of the negro race, and left it optional with the appellee whether he would remain in there with the prisoner or return and be seated in the compartment for white people. Appellee refused to comply with the order, but asserted a right to keep the negro prisoner in the white smoking compartment with him (appellee); whereupon, for disobedience to the order of the conductor, the appellee with his prisoner was ejected from the train at Montgomery, no violence having been used, nor indignity offered, nor abuse indulged in, in doing so.

Whether or not, therefore, the appellee has a case depends, of course, upon the question as to whether the ejection was rightful or wrongful. There can be no question as to the authority of a conductor to eject any passenger for disobedience to any lawful order, direction, or requirement made and rendered necessary in the proper and lawful management and conduct of the train of which the conductor has charge. 5 Am. & Eng.Ency.Law, 594 et seq.; Code, § 5492. Was the order or requirement made by the conductor on the appellee in this case a lawful one? The answer to this question depends upon what construction should be and is given to sections 5487, 5488, and 7684 of the Code, which read as follows:

"(5487) All railroads carrying passengers in this state, other than street railroads, shall provide equal but separate accommodations for the white and colored races, by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by partitions, so as to secure separate accommodations."

"(5488) The conductor of each passenger train is authorized and required to assign each passenger to the car or the division of the car, when it is divided by a partition, designated for the race to which such passenger belongs; and if any passenger refuses to occupy the car, or the division of the car, to which he is assigned by the conductor, such conductor may refuse to carry such passenger on the train, and for such refusal neither the conductor nor the railroad company shall be liable in damages. But this section shall not apply to cases of white or colored passengers entering this state upon railroads under contracts for their transportation made in another state where like laws do not prevail."

"(7684) Any person who, contrary to the provision of the statute providing for equal and separate accommodations for the white and negro races on railroad passenger trains, rides, or attempts to ride, in a coach, or division of a coach, designated for the race to which he does not belong, must, on conviction, be fined not more than one hundred dollars."

The validity of these statutes as constitutional enactments in the exercise by the Legislature of the police power of the state is not at all, and could not successfully be, questioned. Like ones in other states have run the gauntlet of the Supreme Court of the United States, and their constitutionality there tested by the federal Constitution and upheld. Plessy v. Ferguson, 163 U.S. 537, 16 Sup.Ct. 1138, 41 L.Ed. 256. See, also, Ex parte Plessy, 45 La.Ann. 80, 11 So. 948, 18 L.R.A. 639; So. Ry. Co. v. Thurman, 121 Ky. 716, 90 S.W. 240, 2 L.R.A. (N.S.) 1108; Bowie v. Birmingham Ry. Co., 125 Ala. 397, 27 So. 1016, 50 L.R.A. 632, 82 Am.St.Rep. 247; Childs v. Chesapeake & Ohio R. Co., 125 Ky. 299, 101 S.W. 386, 11 L.R.A. (N.S.) 268, affirmed by U.S.Sup.Ct. in 218 U.S. 71, 30 Sup.Ct. 667, 54 L.Ed. 936.

The reasoning upon which all these cases proceed and are rounded is perhaps most tersely expressed in the case of Westchester, etc., R. Co. v. Mills, 55 Pa. 209, 93 Am.Dec. 744, decided by the Supreme Court of Pennsylvania as far back as the year 1867, cited by the Supreme Court of the United States in Plessy v. Ferguson, supra, and by the Supreme Court of Alabama in Bowie v. Birmingham Ry. Co., supra, and where, in upholding the reasonableness of rules adopted by a carrier that were of purport similar to the statute here, it was said:

"The right of the carrier to separate his passengers is founded upon two grounds--his right of private property *** and the public interest. The private means he uses belongs wholly to himself, and imply the right of control for the protection of his own interest, as well as for the performance of his public duty. He may use his property, therefore, in a reasonable manner. It is not an unreasonable regulation to seat passengers so as to preserve order and decorum, and to prevent contacts and collisions arising from natural or well-known customary repugnances, which are likely to breed disturbances from promiscuous sitting. *** It is much easier to prevent difficulties among passengers by regulations for their proper separation than it is to quell them. The danger to the peace engendered by the feeling of aversion between individuals of the different races cannot be denied. It is the fact with which the company must deal. If a negro takes his seat beside a white man,

his wife, or his daughter, the law cannot repress the anger, or conquer the aversion which some will feel. However unwise it may be to indulge the feeling, human infirmity is not always proof against it. It is much wiser to avert the consequences of this repulsion of race by separation, than to punish afterwards the breach of the peace it may have caused."

These considerations--a desire to promote the public peace by preventing and removing conditions which would likely, if not assuredly, endanger it, if persons of the white and negro races were permitted to be brought into such intimate contact, relationship, and association as they would be when occupying as fellow passengers with equal rights the same passenger car or compartment on a railroad train--led to the enactment of the statute here under consideration, providing, as seen, for "equal but separate accommodations" for each and prohibiting, under penalty, the member of either race from riding in the car or compartment designated and set aside by the carrier for members of the other race, and authorizing the conductor to eject any passenger not complying with the requirements of the statute when directed to do so.

What, then, are we to do with the case here, where a sheriff of one race (the white race) boards a train with a prisoner in his custody of a different race (the negro race)? Must the officer, who is responsible under the law for the custody and safe-keeping of his prisoner and criminally liable if he permits him to escape (Code, § 6858 et seq.), abandon him, after he boards a train with him for the purpose of removing or transferring him in pursuance of the law's requirements from one point to another, by leaving him in one coach and keeping himself in another coach, or compartment, during the journey; or must he, in order to avoid such absurdity and whenever necessity arises for such removal or transfer, adopt other modes or means of conveyance than that of railroads; or can we so construe the statute cited as to permit a white officer with a colored prisoner (or, what is the same proposition, a colored officer with a white prisoner--should that condition ever again happen) to ride in the same coach; if so, which coach shall it be, the white coach or the negro coach; and which coach shall they occupy when the officer is of one or the other race and has two prisoners, one white and the other a negro?

The field of investigation and research for authorities in aid of an answer to these pertinent questions seems to have been exhausted by the learned and zealous counsel representing opposing views, and we are cited to but two cases--these in the briefs of appellant's counsel--which appear to have any direct bearing on the proposition.

The first of these, however (L. & N.R.R. Co. v. Catron, 102 Ky. 323, 43 S.W. 443), while analogous to the case here as to the facts which evoked or occasioned the decision there, is yet so different, by reason of a provision found in the statute there under consideration, and not...