Whiteside v. Southern Bus Lines

• Decision Date: 23 November 1949
• Docket Number: No. 10799.,10799.
• Citation: 177 F.2d 949
• Parties: WHITESIDE v. SOUTHERN BUS LINES, Inc.
• Court: U.S. Court of Appeals — Sixth Circuit

177 F.2d 949 (1949)

WHITESIDE v. SOUTHERN BUS LINES, Inc.

No. 10799.

United States Court of Appeals Sixth Circuit.

November 23, 1949.

Martin A. Martin, Richmond Va., Robert L. Carter, New York City (Joseph S. Freeland, Paducah, Ky., Oliver W. Hill, Martin A. Martin, Spottswood W. Robinson, III, Richmond, Va., Robert L. Carter, Thurgood Marshall, New York City., on the brief), for appellant.

Henry O. Whitlow, Paducah, Ky. (Davis, Boehl, Viser & Marcus, Paducah, Ky., Waller, Threlkeld & Whitlow, Paducah, Ky., on the brief), for appellee.

Before HICKS, Chief Judge, and SIMONS and McALLISTER, Circuit Judges.

SIMONS, Circuit Judge.

The question here to be decided in our view narrows to this: Whether a regulation adopted by the appellee for the seating of passengers upon its buses when enforced against the appellant, while a passenger upon an interstate bus, because of her race and color, imposes an undue burden upon interstate commerce. If it does, the appellee was not immune from liability for ejecting the appellant from the vehicle when she refused to change her seat.

The basic facts are not in dispute. The appellant purchased a ticket from an agent of the appellee in St. Louis, Missouri, for transportation over its lines to Paducah, Kentucky, via Cairo, Illinois. From Cairo to the Kentucky line she occupied, without objection, a seat in the front part of the bus, but upon its arrival at Wickliffe, Kentucky, she was requested to move to another seat in the rear of the bus because she was a Negro. Upon her refusal to move, the bus operator procured the assistance of a police officer in Wickliffe and together they ejected her from the vehicle. Claiming that she had been severely injured and had lost articles of personal property, she sued the appellee for damages. The appellee admits that it is a common carrier engaged in transporting persons traveling in interstate commerce; that the appellant had a ticket entitling her to transportation from Cairo, Illinois, to Paducah, Kentucky; that its agent procured the services of a police officer in Wickliffe, and that the appellant was forcibly ejected from the bus because of her race and color. It alleged, however, that under its rules and regulations filed with the Interstate Commerce Commission and the Kentucky Division of Motor Transportation, the appellant was seated in a portion of the bus set aside for the exclusive use and occupancy of white persons, and that her refusal to move was the sole cause of her ejection. It claims as authority for its regulation, Rule 15(b) of its Rules and Regulations Tariff filed with the Interstate Commerce Commission in 1946, which states, "This company reserves to itself full control and discretion as to the seating of passengers and reserves the right to change such seating at any time during the trip."

The case was tried to the district judge without a jury and at the conclusion of the evidence he made findings of fact to the effect that the appellant had in force at Wickliffe, Kentucky, a rule requiring that colored passengers, including the plaintiff who was an interstate passenger, be loaded from the rear of its bus and white passengers from the front; that the rule had been orally communicated to the defendant's drivers, including the driver of the bus on which the plaintiff was riding; that this rule was one of general application and was well known to the traveling public; that it was reasonable and necessary for the safety, comfort and convenience of passengers and that the plaintiff was ejected pursuant to the rule without the use of excessive force. He concluded as a matter of law that the defendant had the right and duty to seat the passengers on its buses in pursuance of the rule and to eject the plaintiff who failed to abide by it. The complaint was thereupon dismissed and this appeal followed. It was argued here with ability and commendable restraint.

The appellant challenges the judgment on the ground that the segregation rule of the appellee was neither reasonable nor necessary for the safety, comfort and convenience of its passengers, and that the appellee had no legal or constitutional right to adopt or enforce it. She relies upon the Fifth and Fourteenth Amendments to the Constitution of the United States, upon the Commerce Clause, article 1, § 8, cl. 3, and the public policy of the United States evidenced in recent Supreme Court decisions. The appellee defends the judgment on the ground that as a common carrier of passengers for hire it was required to exercise the highest degree of care for their safety, comfort and convenience; that pursuant to this duty and in view of its observations and experiences in the community, the separate seating of white and colored passengers was both reasonable and necessary. It presented evidence, not controverted, that upon a number of occasions there had been trouble upon its buses when the rule was not observed. It contends that racial segregation of interstate passengers is not forbidden by any provision of the Federal Constitution, the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., or any other Act of Congress so long as there is equality of accommodations for the different races.

The cases, federal and state, which deal with the authority of states to compel or prohibit the segregation of races in public places or upon the instrumentalities of transportation in consideration of the Fourteenth Amendment, are legion. No useful purpose will be served by their citation or analysis. It may be that in a period when the democratic way of life is challenged by another political and economic faith, the times invite a reappraisal of the scope of the Fourteenth Amendment to the end that in our effort to contain ideological concepts of government conflicting with our own (which have already, ostensibly at least, swept over half of Europe and great areas of Asia, calling for great expenditure of treasure and the possible expenditure of human life), local practices may more nearly conform to our democratic professions. If this is to be done, however, it must be by judicial authority superior to ours, for we conceive ourselves still constrained, in large measure, by the doctrine of stare decisis, however that doctrine may be denied its full impact upon highest authority in constitutional cases.

Nor do we permit ourselves to be persuaded to decision by consideration of cases which, though not dispositive of the present problem, may seem to indicate a new approach to the problem of the segregation of persons based upon race or color, such as Shelly v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441, and Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L. Ed. 1187 (the restrictive covenant cases), and Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28, 68 S.Ct. 358, 92 L.Ed. 455. If Chiles v. Chesapeake & O. R. Co., 218 U.S. 71, 30 S.Ct. 667, 54 L.Ed. 936, 20 Ann.Cas. 980, and Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 1147, 41 L.Ed. 256, are to be disregarded it may not be by us. If the observation of Mr. Justice Harlan, dissenting in the Plessy case, "The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution. * * * The thin disguise of `equal' accommodations for passengers in railroad coaches will not mislead anyone * * *", will influence future adjudications as so much dissenting reasoning has, we are unable to say. We have upon occasion observed that we are not endowed with the gift of prophecy.

We confine ourselves, therefore, to the question whether the regulation of the appellee, as enforced by it upon the appellant while an interstate passenger under the asserted sanction or compulsion of Kentucky law, constitutes a burden upon interstate commerce, and in the narrow compass within which we may, with confidence, arrive at decision, we consider mainly two adjudications of the Supreme Court of the United States, both controlling upon us, namely, the early case of Hall v. DeCuir, 95 U.S. 485, 24 L.Ed. 547, and the comparatively recent case of Morgan v. Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317, 165 A.L.R. 574, in the first of which a Louisiana statute inhibiting segregation and in the second a Virginia s...