U.S. Supreme Court
PLESSY v. FERGUSON, 163 U.S. 537 (1896)
163 U.S. 537
PLESSY
v.
FERGUSON.
No. 210.
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May 18, 1896. [163 U.S. 537, 538]
This was a petition for writs of prohibition and certiorari originally filed in
the supreme court of the state by Plessy, the plaintiff in error, against the
Hon. John H. Ferguson, judge of the criminal district court for the parish of
Orleans, and setting forth, in substance, the following facts:
That petitioner was a citizen of the United States and a resident of the
state of Louisiana, of mixed descent, in the proportion of seven-eighths
Caucasian and one-eighth African blood; that the mixture of colored blood was
not discernible in him, and that he was entitled to every recognition, right,
privilege, and immunity secured to the citizens of the United States of the
white race by its constitution and laws; that on June 7, 1892, he engaged and
paid for a first-class passage on the East Louisiana Railway, from New Orleans
to Covington, in the same state, and thereupon entered a passenger train, and
took possession of a vacant seat in a coach where passengers of the white race
were accommodated; that such railroad company was incorporated by the laws of
Louisiana as a common carrier, and was not authorized to distinguish between
citizens according to their race, but, notwithstanding this, petitioner was
required by the conductor, under penalty of ejection from said train and
imprisonment, to vacate said coach, and occupy another seat, in a coach assigned
by said company for persons not of the white race, and for no other reason than
that petitioner was of the colored race; that, upon petitioner's refusal to
comply with such order, he was, with the aid of a police officer, forcibly
ejected from said coach, and hurried off to, and imprisoned in, the parish jail
of [163 U.S. 537, 539] New Orleans, and there held
to answer a charge made by such officer to the effect that he was guilty of
having criminally violated an act of the general assembly of the state, approved
July 10, 1890, in such case made and provided.
The petitioner was subsequently brought before the recorder of the city for
preliminary examination, and committed for trial to the criminal district court
for the parish of Orleans, where an information was filed against him in the
matter above set forth, for a violation of the above act, which act the
petitioner affirmed to be null and void, because in conflict with the
constitution of the United States; that petitioner interposed a plea to such
information, based upon the unconstitutionality of the act of the general
assembly, to which the district attorney, on behalf of the state, filed a
demurrer; that, upon issue being joined upon such demurrer and plea, the court
sustained the demurrer, overruled the plea, and ordered petitioner to plead over
to the facts set forth in the information, and that, unless the judge of the
said court be enjoined by a writ of prohibition from further proceeding in such
case, the court will proceed to fine and sentence petitioner to imprisonment,
and thus deprive him of his constitutional rights set forth in his said plea,
notwithstanding the unconstitutionality of the act under which he was being
prosecuted; that no appeal lay from such sentence, and petitioner was without
relief or remedy except by writs of prohibition and certiorari. Copies of the
information and other proceedings in the criminal district court were annexed to
the petition as an exhibit.
Upon the filing of this petition, an order was issued upon the respondent to
show cause why a writ of prohibition should not issue, and be made perpetual,
and a further order that the record of the proceedings had in the criminal cause
be certified and transmitted to the supreme court.
To this order the respondent made answer, transmitting a certified copy of
the proceedings, asserting the constitutionality of the law, and averring that,
instead of pleading or admitting that he belonged to the colored race, the said
Plessy declined and refused, either by pleading or otherwise, to ad-
[163 U.S. 537, 540] mit that he was in any sense or in any proportion a
colored man.
The case coming on for hearing before the supreme court, that court was of
opinion that the law under which the prosecution was had was constitutional and
denied the relief prayed for by the petitioner (Ex parte Plessy, 45 La. Ann. 80,
11 South. 948); whereupon petitioner prayed for a writ of error from this court,
which was allowed by the chief justice of the supreme court of Louisiana.
Mr. Justice Harlan dissenting.
A. W. Tourgee and S. F. Phillips, for plaintiff in error.
Alex. Porter Morse, for defendant in error.
Mr. Justice BROWN, after stating the facts in the foregoing language,
delivered the opinion of the court.
This case turns upon the constitutionality of an act of the general assembly
of the state of Louisiana, passed in 1890, providing for separate railway
carriages for the white and colored races. Acts 1890, No. 111, p. 152.
The first section of the statute enacts 'that all railway companies carrying
passengers in their coaches in this state, shall provide equal but separate
accommodations for the white, and colored races, by providing two or more
passenger coaches for each passenger train, or by dividing the passenger coaches
by a partition so as to secure separate accommodations: provided, that this
section shall not be construed to apply to street railroads. No person or
persons shall be permitted to occupy seats in coaches, other than the ones
assigned to them, on account of the race they belong to.'
By the second section it was enacted 'that the officers of such passenger
trains shall have power and are hereby required [163 U.S.
537, 541] to assign each passenger to the coach or compartment used for
the race to which such passenger belongs; any passenger insisting on going into
a coach or compartment to which by race he does not belong, shall be liable to a
fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of
not more than twenty days in the parish prison, and any officer of any railroad
insisting on assigning a passenger to a coach or compartment other than the one
set aside for the race to which said passenger belongs, shall be liable to a
fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of
not more than twenty days in the parish prison; and should any passenger refuse
to occupy the coach or compartment to which he or she is assigned by the officer
of such railway, said officer shall have power to refuse to carry such passenger
on his train, and for such refusal neither he nor the railway company which he
represents shall be liable for damages in any of the courts of this state.'
The third section provides penalties for the refusal or neglect of the
officers, directors, conductors, and employees of railway companies to comply
with the act, with a proviso that 'nothing in this act shall be construed as
applying to nurses attending children of the other race.' The fourth section is
immaterial.
The information filed in the criminal district court charged, in substance,
that Plessy, being a passenger between two stations within the state of
Louisiana, was assigned by officers of the company to the coach used for the
race to which he belonged, but he insisted upon going into a coach used by the
race to which he did not belong. Neither in the information nor plea was his
particular race or color averred.
The petition for the writ of prohibition averred that petitioner was
seven-eighths Caucasian and one-eighth African blood; that the mixture of
colored blood was not discernible in him; and that he was entitled to every
right, privilege, and immunity secured to citizens of the United States of the
white race; and that, upon such theory, he took possession of a vacant seat in a
coach where passengers of the white race were accommodated, and was ordered by
the conductor to vacate [163 U.S. 537, 542] said
coach, and take a seat in another, assigned to persons of the colored race, and,
having refused to comply with such demand, he was forcibly ejected, with the aid
of a police officer, and imprisoned in the parish jail to answer a charge of
having violated the above act.
The constitutionality of this act is attacked upon the ground that it
conflicts both with the thirteenth amendment of the constitution, abolishing
slavery, and the fourteenth amendment, which prohibits certain restrictive
legislation on the part of the states.
1. That it does not conflict with the thirteenth amendment, which
abolished slavery and involuntary servitude, except a punishment for crime, is
too clear for argument. Slavery implies involuntary servitude,-a state of
bondage; the ownership of mankind as a chattel, or, at least, the control of the
labor and services of one man for the benefit of another, and the absence of a
legal right to the disposal of his own person, property, and services. This
amendment was said in the Slaughter-House Cases, 16 Wall. 36, to have been
intended primarily to abolish slavery, as it had been previously known in this
country, and that it equally forbade Mexican peonage or the Chinese coolie
trade, when they amounted to slavery or involuntary servitude, and that the use
of the word 'servitude' was intended to prohibit the use of all forms of
involuntary slavery, of whatever class or name. It was intimated, however, in
that case, that this amendment was regarded by the statesmen of that day as
insufficient to protect the colored race from certain laws which had been
enacted in the Southern states, imposing upon the colored race onerous
disabilities and burdens, and curtailing their rights in the pursuit of life,
liberty, and property to such an extent that their freedom was of little value;
and that the fourteenth amendment was devised to meet this exigency.
So, too, in the Civil Rights Cases, 109 U.S. 3 , 3 Sup.
Ct. 18, it was said that the act of a mere individual, the owner of an inn, a
public conveyance or place of amusement, refusing accommodations to colored
people, cannot be justly regarded as imposing any badge of slavery or servitude
upon the applicant, but [163 U.S. 537, 543] only as
involving an ordinary civil injury, properly cognizable by the laws of the
state, and presumably subject to redress by those laws until the contrary
appears. 'It would be running the slavery question into the ground,' said Mr.
Justice Bradley, 'to make it apply to every act of discrimination which a person
may see fit to make as to the guests he will entertain, or as to the people he
will take into his coach or cab or car, or admit to his concert or theater, or
deal with in other matters of intercourse or business.'
A statute which implies merely a legal distinction between the white and
colored races-a distinction which is founded in the color of the two races, and
which must always exist so long as white men are distinguished from the other
race by color-has no tendency to destroy the legal equality of the two races, or
re-establish a state of involuntary servitude. Indeed, we do not understand that
the thirteenth amendment is strenuously relied upon by the plaintiff in error in
this connection.
2. By the fourteenth amendment, all persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are made citizens of the
United States and of the state wherein they reside; and the states are forbidden
from making or enforcing any law which shall abridge the privileges or
immunities of citizens of the United States, or shall deprive any person of
life, liberty, or property without due process of law, or deny to any person
within their jurisdiction the equal protection of the laws.
The proper construction of this amendment was first called to the attention
of this court in the Slaughter-House Cases, 16 Wall. 36, which involved,
however, not a question of race, but one of exclusive privileges. The case did
not call for any expression of opinion as to the exact rights it was intended to
secure to the colored race, but it was said generally that its main purpose was
to establish the citizenship of the negro, to give definitions of citizenship of
the United States and of the states, and to protect from the hostile legislation
of the states the privileges and immunities of citizens of the United States, as
distinguished from those of citizens of the states. [163
U.S. 537, 544] 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 distinguish d 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. The most common
instance of this is connected with the establishment of separate schools for
white and colored children, which have been held to be a valid exercise of the
legislative power even by courts of states where the political rights of the
colored race have been longest and most earnestly enforced.
One of the earliest of these cases is that of Roberts v. City of Boston, 5
Cush. 198, in which the supreme judicial court of Massachusetts held that the
general school committee of Boston had power to make provision for the
instruction of colored children in separate schools established exclusively for
them, and to prohibit their attendance upon the other schools. 'The great
principle,' said Chief Justice Shaw, 'advanced by the learned and eloquent
advocate for the plaintiff [Mr. Charles Sumner], is that, by the constitution
and laws of Massachusetts, all persons, without distinction of age or sex, birth
or color, origin or condition, are equal before the law. ... But, when this
great principle comes to be applied to the actual and various conditions of
persons in society, it will not warrant the assertion that men and women are
legally clothed with the same civil and political powers, and that children and
adults are legally to have the same functions and be subject to the same
treatment; but only that the rights of all, as they are settled and regulated by
law, are equally entitled to the paternal consideration and protection of the
law for their maintenance and security.' It was held that the powers of the
committee extended to the establish- [163 U.S. 537, 545]
ment of separate schools for children of different ages, sexes and colors, and
that they might also establish special schools for poor and neglected children,
who have become too old to attend the primary school, and yet have not acquired
the rudiments of learning, to enable them to enter the ordinary schools. Similar
laws have been enacted by congress under its general power of legislation over
the District of Columbia (sections 281- 283, 310, 319, Rev. St. D. C.), as well
as by the legislatures of many of the states, and have been generally, if not
uniformly, sustained by the courts. State v. McCann, 21 Ohio St. 210; Lehew v.
Brummell (Mo. Sup.) 15 S. W. 765; Ward v. Flood, 48 Cal. 36; Bertonneau v.
Directors of City Schools, 3 Woods, 177, Fed. Cas. No. 1,361; People v.
Gallagher, 93 N. Y. 438; Cory v. Carter, 48 Ind. 337; Dawson v. Lee, 83 Ky. 49.
Laws forbidding the intermarriage of the two races may be said in a technical
sense to interfere with the freedom of contract, and yet have been universally
recognized as within the police power of the state. State v. Gibson, 36 Ind.
389.
The distinction between laws interfering with the political equality of the
negro and those requiring the separation of the two races in schools, theaters,
and railway carriages has been frequently drawn by this court. Thus, in Strauder
v. West Virginia, 100 U.S. 303 , it was held that a law of
West Virginia limiting to white male persons 21 years of age, and citizens of
the state, the right to sit upon juries, was a discrimination which implied a
legal inferiority in civil society, which lessened the security of the right of
the colored race, and was a step towards reducing them to a condition of
servility. Indeed, the right of a colored man that, in the selection of jurors
to pass upon his life, liberty, and property, there shall be no exclusion of his
race, and no discrimination against them because of color, has been asserted in
a number of cases. Virginia v. Rivers, 100 U.S. 313 ; Neal
v. Delaware, 103 U.S. 370 ; ush v. Com., 107
U.S. 110 , 1 Sup. Ct. 625; Gibson v. Mississippi, 162 U.S.
565 , 16 Sup. Ct. 904. So, where the laws of a particular locality or the
charter of a particular railway corporation has provided that no person shall be
excluded from the cars on account of [163 U.S. 537, 546]
color, we have held that this meant that persons of color should travel in the
same car as white ones, and that the enactment was not satisfied by the company
providing cars assigned exclusively to people of color, though they were as good
as those which they assigned exclusively to white persons. Railroad Co. v.
Brown, 17 Wall. 445.
Upon the other hand, where a statute of Louisiana required those engaged in
the transportation of passengers among the states to give to all persons
traveling within that state, upon vessels employed in that business, equal
rights and privileges in all parts of the vessel, without distinction on account
of race or color, and subjected to an action for damages the owner of such a
vessel who excluded colored passengers on account of their color from the cabin
set aside by him for the use of whites, it was held to be, so far as it applied
to interstate commerce, unconstitutional and void. Hall v. De Cuir,
95 U.S. 485 . The court in this case, however, expressly disclaimed that
it had anything whatever to do with the statute as a regulation of internal
commerce, or affecting anything else than commerce among the states.
In the Civil Rights Cases, 109 U.S. 3 , 3 Sup. Ct. 18, it
was held that an act of congress entitling all persons within the jurisdiction
of the United States to the full and equal enjoyment of the accommodations,
advantages, facilities, and privileges of inns, public conveyances, on land or
water, theaters, and other places of public amusement, and made applicable to
citizens of every race and color, regardless of any previous condition of
servitude, was unconstitutional and void, upon the ground that the fourteenth
amendment was prohibitory upon the states only, and the legislation authorized
to be adopted by congress for enforcing it was not direct legislation on matters
respecting which the states were prohibited from making or enforcing certain
laws, or doing certain acts, but was corrective legislation, such as might be
necessary or proper for counter-acting and redressing the effect of such laws or
acts. In delivering the opinion of the court, Mr. Justice Bradley observed that
the fourteenth amendment 'does not invest congress with power to legislate upon
subjects that are within the [163 U.S. 537, 547]
domain of state legislation, but to provide modes of relief against state
legislation or state action of the kind referred to. It does not authorize
congress to create a code of municipal law for the regulation of private rights,
but to provide modes of redress against the operation of state laws, and the
action of state officers, executive or judicial, when these are subversive of
the fundamental rights specified in the amendment. Positive rights and
privileges are undoubtedly secured by the fourteenth amendment; but they are
secured by way of prohibition against state laws and state proceedings affecting
those rights and privileges, and by power given to congress to legislate for the
purpose of carrying such prohibition into effect; and such legislation must
necessarily be predicated upon such supposed state laws or state proceedings,
and be directed to the correction of their operation and effect.'
Much nearer, and, indeed, almost directly in point, is the case of the
Louisville, N. O. & T. Ry. Co. v. State, 133 U.S. 587, 10
Sup. Ct. 348, wherein the railway company was indicted for a violation of a
statute of Mississippi, enacting that all railroads carrying passengers should
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 a partition, so as to secure separate accommodations. The
case was presented in a different aspect from the one under consideration,
inasmuch as it was an indictment against the railway company for failing to
provide the separate accommodations, but the question considered was the
constitutionality of the law. In that case, the supreme court of Mississippi (66
Miss. 662, 6 South. 203) had held that the statute applied solely to commerce
within the state, and, that being the construction of the state statute by its
highest court, was accepted as conclusive. 'If it be a matter,' said the court
(page 591, 133 U. S., and page 348, 10 Sup. Ct.), 'respecting commerce wholly
within a state, and not interfering with commerce between the states, then,
obviously, there is no violation of the commerce clause of the federal
constitution. ... No question arises under this section as to the power of the
state to separate in different compartments interstate pas-
[163 U.S. 537, 548] sengers, or affect, in any manner, the privileges and
rights of such passengers. All that we can consider is whether the state has the
power to require that railroad trains within her limits shall have separate
accommodations for the two races. That affecting only commerce within the state
is no invasion of the power given to congress by the commerce clause.'
A like course of reasoning applies to the case under consideration, since the
supreme court of Louisiana, in the case of State v. Judge, 44 La. Ann. 770, 11
South. 74, held that the statute in question did not apply to interstate
passengers, but was confined in its application to passengers traveling
exclusively within the borders of the state. The case was decided largely upon
the authority of Louisville, N. O. & T. Ry. Co. v. State, 66 Miss. 662, 6 South,
203, and affirmed by this court in 133 U.S. 587 , 10 Sup.
Ct. 348. In the present case no question of interference with interstate
commerce can possibly arise, since the East Louisiana Railway appears to have
been purely a local line, with both its termini within the state of Louisiana.
Similar statutes for the separation of the two races upon public conveyances
were held to be constitutional in Railroad v. Miles, 55 Pa. St. 209; Day v. Owen
5 Mich. 520; Railway Co. v. Williams, 55 Ill. 185; Railroad Co. v. Wells, 85
Tenn. 613; 4 S. W. 5; Railroad Co. v. Benson, 85 Tenn. 627, 4 S. W. 5; The Sue,
22 Fed. 843; Logwood v. Railroad Co., 23 Fed. 318; McGuinn v. Forbes, 37 Fed.
639; People v. King ( N. Y. App.) 18 N. E. 245; Houck v. Railway Co., 38 Fed.
226; Heard v. Railroad Co., 3 Inter St. Commerce Com. R. 111, 1 Inter St.
Commerce Com. R. 428.
While we think the enforced separation of the races, as applied to the
internal commerce of the state, neither abridges the privileges or immunities of
the colored man, deprives him of his property without due process of law, nor
denies him the equal protection of the laws, within the meaning of the
fourteenth amendment, we are not prepared to say that the conductor, in
assigning passengers to the coaches according to their race, does not act at his
peril, or that the provision of the second section of the act that denies to the
passenger compensa- [163 U.S. 537, 549] tion in
damages for a refusal to receive him into the coach in which he properly belongs
is a valid exercise of the legislative power. Indeed, we understand it to be
conceded by the state's attorney that such part of the act as exempts from
liability the railway company and its officers is unconstitutional. The power to
assign to a particular coach obviously implies the power to determine to which
race the passenger belongs, as well as the power to determine who, under the
laws of the particular state, is to be deemed a white, and who a colored,
person. This question, though indicated in the brief of the plaintiff in error,
does not properly arise upon the record in this case, since the only issue made
is as to the unconstitutionality of the act, so far as it requires the railway
to provide separate accommodations, and the conductor to assign passengers
according to their race.
It is claimed by the plaintiff in error that, in an mixed community, the
reputation of belonging to the dominant race, in this instance the white race,
is 'property,' in the same sense that a right of action or of inheritance is
property. Conceding this to be so, for the purposes of this case, we are unable
to see how this statute deprives him of, or in any way affects his right to,
such property. If he be a white man, and assigned to a colored coach, he may
have his action for damages against the company for being deprived of his
so-called 'property.' Upon the other hand, if he be a colored man, and be so
assigned, he has been deprived of no property, since he is not lawfully entitled
to the reputation of being a white man.
In this connection, it is also suggested by the learned counsel for the
plaintiff in error that the same argument that will justify the state
legislature in requiring railways to provide separate accommodations for the two
races will also authorize them to require separate cars to be provided for
people whose hair is of a certain color, or who are aliens, or who belong to
certain nationalities, or to enact laws requiring colored people to walk upon
one side of the street, and white people upon the other, or requiring white
men's houses to be painted white, and colored men's black, or their vehicles or
business signs to be of different colors, upon the theory that one side
[163 U.S. 537, 550] of the street is as good as the other, or that a
house or vehicle of one color is as good as one of another color. The reply to
all this is that every exercise of the police power must be reasonable, and
extend only to such laws as are enacted in good faith for the promotion of the
public good, and not for the annoyance or oppression of a particular class.
Thus, in Yick Wo v. Hopkins, 118 U.S. 356 , 6 Sup. Ct. 1064,
it was held by this court that a municipal ordinance of the city of San
Francisco, to regulate the carrying on of public laundries within the limits of
the municipality, violated the provisions of the constitution of the United
States, if it conferred upon the municipal authorities arbitrary power, at their
own will, and without regard to discretion, in the legal sense of the term, to
give or withhold consent as to persons or places, without regard to the
competency of the persons applying or the propriety of the places selected for
the carrying on of the business. It was held to be a covert attempt on the part
of the municipality to make an arbitrary and unjust discrimination against the
Chinese race. While this was the case of a municipal ordinance, a like principle
has been held to apply to acts of a state legislature passed in the exercise of
the police power. Railroad Co. v. Husen, 95 U.S. 465;
Louisville & N. R. Co. v. Kentucky, 161 U.S. 677, 16 Sup.
Ct. 714, and cases cited on page 700, 161 U. S., and page 714, 16 Sup. Ct.;
Daggett v. Hudson, 43 Ohio St. 548, 3 N. E. 538; Capen v. Foster, 12 Pick. 485;
State v. Baker, 38 Wis. 71; Monroe v. Collins, 17 Ohio St. 665; Hulseman v.
Rems, 41 Pa. St. 396; Osman v. Riley, 15 Cal. 48.
So far, then, as a conflict with the fourteenth amendment is concerned, the
case reduces itself to the question whether the statute of Louisiana 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 authorizes or even
requires the separation of the two races in public conveyances
[163 U.S. 537, 551] 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.
We consider the underlying fallacy of the plaintiff's argument to consist in
the assumption that the enforced separation of the two races stamps the colored
race with a badge of inferiority. If this be so, it is not by reason of anything
found in the act, but solely because the colored race chooses to put that
construction upon it. The argument necessarily assumes that if, as has been more
than once the case, and is not unlikely to be so again, the colored race should
become the dominant power in the state legislature, and should enact a law in
precisely similar terms, it would thereby relegate the white race to an inferior
position. We imagine that the white race, at least, would not acquiesce in this
assumption. The argument also assumes that social prejudices may be overcome by
legislation, and that equal rights cannot be secured to the negro except by an
enforced commingling of the two races. We cannot accept this proposition. If the
two races are to meet upon terms of social equality, it must be the result of
natural affinities, a mutual appreciation of each other's merits, and a
voluntary consent of individuals. As was said by the court of appeals of New
York in People v. Gallagher, 93 N. Y. 438, 448: 'This end can neither be
accomplished nor promoted by laws which conflict with the general sentiment of
the community upon whom they are designed to operate. When the government,
therefore, has secured to each of its citizens equal rights before the law, and
equal opportunities for improvement and progress, it has accomplished the end
for which it was organized, and performed all of the functions respecting social
advantages with which it is endowed.' Legislation is powerless to eradicate
racial instincts, or to abolish distinctions based upon physical differences,
and the attempt to do so can only result in accentuating the difficulties of the
present situation. If the civil and political rights of both races be equal, one
cannot be inferior to the other civilly [163 U.S. 537,
552] or politically. If one race be inferior to the other socially, the
constitution of the United States cannot put them upon the same plane.
It is true that the question of the proportion of colored blood necessary to
constitute a colored person, as distinguished from a white person, is one upon
which there is a difference of opinion in the different states; some holding
that any visible admixture of black blood stamps the person as belonging to the
colored race (State v. Chavers, 5 Jones [N. C.] 1); others, that it depends upon
the preponderance of blood ( Gray v. State, 4 Ohio, 354; Monroe v. Collins, 17
Ohio St. 665); and still others, that the predominance of white blood must only
be in the proportion of three-fourths (People v. Dean, 14 Mich. 406; Jones v.
Com., 80 Va. 544). But these are questions to be determined under the laws of
each state, and are not properly put in issue in this case. Under the
allegations of his petition, it may undoubtedly become a question of importance
whether, under the laws of Louisiana, the petitioner belongs to the white or
colored race.
The judgment of the court below is therefore affirmed.
Mr. Justice BREWER did not hear the argument or participate in the decision
of this case.
Mr. Justice HARLAN dissenting.
By the Louisiana statute the validity of which is here involved, all railway
companies (other than street-railroad companies) carry passengers in that state
are required to have separate but equal accommodations for white and colored
persons, 'by providing two or more passenger coaches for each passenger train,
or by dividing the passenger coaches by a partition so as to secure separate
accommodations.' Under this statute, no colored person is permitted to occupy a
seat in a coach assigned to white persons; nor any white person to occupy a seat
in a coach assigned to colored persons. The managers of the railroad are not
allowed to exercise any discretion in the premises, but are required to assign
each passenger to some coach or compartment set apart for the exclusive use of
is race. If a passenger insists upon going into a coach or compartment not set
apart for persons of his race, [163 U.S. 537, 553]
he is subject to be fined, or to be imprisoned in the parish jail. Penalties are
prescribed for the refusal or neglect of the officers, directors, conductors,
and employees of railroad companies to comply with the provisions of the act.
Only 'nurses attending children of the other race' are excepted from the
operation of the statute. No exception is made of colored attendants traveling
with adults. A white man is not permitted to have his colored servant with him
in the same coach, even if his condition of health requires the constant
personal assistance of such servant. If a colored maid insists upon riding in
the same coach with a white woman whom she has been employed to serve, and who
may need her personal attention while traveling, she is subject to be fined or
imprisoned for such an exhibition of zeal in the discharge of duty.
While there may be in Louisiana persons of different races who are not
citizens of the United States, the words in the act 'white and colored races'
necessarily include all citizens of the United States of both races residing in
that state. So that we have before us a state enactment that compels, under
penalties, the separation of the two races in railroad passenger coaches, and
makes it a crime for a citizen of either race to enter a coach that has been
assigned to citizens of the other race.
Thus, the state regulates the use of a public highway by citizens of the
United States solely upon the basis of race.
However apparent the injustice of such legislation may be, we have only to
consider whether it is consistent with the constitution of the United States.
That a railroad is a public highway, and that the corporation which owns or
operates it is in the exercise of public functions, is not, at this day, to be
disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Nav.
Co. v. Merchants' Bank, 6 How. 344, 382, said that a common carrier was in the
exercise 'of a sort of public office, and has public duties to perform, from
which he should not be permitted to exonerate himself without the assent of the
parties concerned.' Mr. Justice Strong, delivering the judgment of
[163 U.S. 537, 554] this court in Olcott v. Supervisors, 16 Wall. 678,
694, said: 'That railroads, though constructed by private corporations, and
owned by them, are public highways, has been the doctrine of nearly all the
courts ever since such conveniences for passage and transportation have had any
existence. Very early the question arose whether a state's right of eminent
domain could be exercised by a private corporation created for the purpose of
constructing a railroad. Clearly, it could not, unless taking land for such a
purpose by such an agency is taking land for public use. The right of eminent
domain nowhere justifies taking property for a private use. Yet it is a doctrine
universally accepted that a state legislature may authorize a private
corporation to take land for the construction of such a road, making
compensation to the owner. What else does this doctrine mean if not that
building a railroad, though it be built by a private corporation, is an act done
for a public use?' So, in Township of Pine Grove v. Talcott, 19 Wall. 666, 676:
'Though the corporation [a railroad company] was private, its work was public,
as much so as if it were to be constructed by the state.' So, in Inhabitants of
Worcester v. Western R. Corp., 4 Metc. (Mass.) 564: 'The establishment of that
great thoroughfare is regarded as a public work, established by public
authority, intended for the public use and benefit, the use of which is secured
to the whole community, and constitutes, therefore, like a canal, turnpike, or
highway, a public easement.' 'It is true that the real and personal property,
necessary to the establishment and management of the railroad, is vested in the
corporation; but it is in trust for the public.'
In respect of civil rights, common to all citizens, the constitution of the
United States does not, I think, permit any public authority to know the race of
those entitled to be protected in the enjoyment of such rights. Every true man
has pride of race, and under appropriate circumstances, when the rights of
others, his equals before the law, are not to be affected, it is his privilege
to express such pride and to take such action based upon it as to him seems
proper. But I deny that any legislative body or judicial tribunal may have
regard to the [163 U.S. 537, 555] race of citizens
when the civil rights of those citizens are involved. Indeed, such legislation
as that here in question is inconsistent not only with that equality of rights
which pertains to citizenship, national and state, but with the personal liberty
enjoyed by every one within the United States.
The thirteenth amendment does not permit the withholding or the deprivation
of any right necessarily inhering in freedom. It not only struck down the
institution of slavery as previously existing in the United States, but it
prevents the imposition of any burdens or disabilities that constitute badges of
slavery or servitude. It decreed universal civil freedom in this country. This
court has so adjudged. But, that amendment having been found inadequate to the
protection of the rights of those who had been in slavery, it was followed by
the fourteenth amendment, which added greatly to the dignity and glory of
American citizenship, and to the security of personal liberty, by declaring that
'all persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state wherein
they reside,' and that 'no state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall
any state deprive any person of life, liberty or property without due process of
law, nor deny to any person within its jurisdiction the equal protection of the
laws.' These two amendments, if enforced according to their true intent and
meaning, will protect all the civil rights that pertain to freedom and
citizenship. Finally, and to the end that no citizen should be denied, on
account of his race, the privilege of participating in the political control of
his country, it was declared by the fifteenth amendment that 'the right of
citizens of the United States to vote shall not be denied or abridged by the
United States or by any state on account of race, color or previous condition of
servitude.'
These notable additions to the fundamental law were welcomed by the friends
of liberty throughout the world. They removed the race line from our
governmental systems. They had, as this court has said, a common purpose,
namely, to secure 'to a race recently emancipated, a race that through
[163 U.S. 537, 556] many generations have been held in slavery, all the
civil rights that the superior race enjoy.' They declared, in legal effect, this
court has further said, 'that the law in the states shall be the same for the
black as for the white; that all persons, whether colored or white, shall stand
equal before the laws of the states; and in regard to the colored race, for
whose protection the amendment was primarily designed, that no discrimination
shall be made against them by law because of their color.' We also said: 'The
words of the amendment, it is true, are prohibitory, but they contain a
necessary implication of a positive immunity or right, most valuable to the
colored race,-the right to exemption from unfriendly legislation against them
distinctively as colored; exemption from legal discriminations, implying
inferiority in civil society, lessening the security of their enjoyment of the
rights which others enjoy; and discriminations which are steps towards reducing
them to the condition of a subject race.' It was, consequently, adjudged that a
state law that excluded citizens of the colored race from juries, because of
their race, however well qualified in other respects to discharge the duties of
jurymen, was repugnant to the fourteenth amendment. Strauder v. West Virginia,
100 U.S. 303, 306 , 307 S.; Virginia v. Rives, Id. 313; Ex parte
Virginia, Id. 339; Neal v. Delaware, 103 U.S. 370 , 386;
Bush v. Com., 107 U.S. 110, 116 , 1 S. Sup. Ct. 625. At the
present term, referring to the previous adjudications, this court declared that
'underlying all of those decisions is the principle that the constitution of the
United States, in its present form, forbids, so far as civil and political
rights are concerned, discrimination by the general government or the states
against any citizen because of his race. All citizens are equal before the law.'
Gibson v. State, 162 U.S. 565 , 16 Sup. Ct. 904.
The decisions referred to show the scope of the recent amendments of the
constitution. They also show that it is not within the power of a state to
prohibit colored citizens, because of their race, from participating as jurors
in the administration of justice.
It was said in argument that the statute of Louisiana does
[163 U.S. 537, 557] not discriminate against either race, but prescribes
a rule applicable alike to white and colored citizens. But this argument does
not meet the difficulty. Every one knows that the statute in question had its
origin in the purpose, not so much to exclude white persons from railroad cars
occupied by blacks, as to exclude colored people from coaches occupied by or
assigned to white persons. Railroad corporations of Louisiana did not make
discrimination among whites in the matter of accommodation for travelers. The
thing to accomplish was, under the guise of giving equal accommodation for
whites and blacks, to compel the latter to keep to themselves while traveling in
railroad passenger coaches. No one would be so wanting in candor as to assert
the contrary. The fundamental objection, therefore, to the statute, is that it
interferes with the personal freedom of citizens. 'Personal liberty,' it has
been well said, 'consists in the power of locomotion, of changing situation, or
removing one's person to whatsoever places one's own inclination may direct,
without imprisonment or restraint, unless by due course of law.' 1 Bl. Comm.
*134. If a white man and a black man choose to occupy the same public conveyance
on a public highway, it is their right to do so; and no government, proceeding
alone on grounds of race, can prevent it without infringing the personal liberty
of each.
It is one thing for railroad carriers to furnish, or to be required by law to
furnish, equal accommodations for all whom they are under a legal duty to carry.
It is quite another thing for government to forbid citizens of the white and
black races from traveling in the same public conveyance, and to punish officers
of railroad companies for permitting persons of the two races to occupy the same
passenger coach. If a state can prescribe, as a rule of civil conduct, that
whites and blacks shall not travel as passengers in the same railroad coach, why
may it not so regulate the use of the streets of its cities and towns as to
compel white citizens to keep on one side of a street, and black citizens to
keep on the other? Why may it not, upon like grounds, punish whites and blacks
who ride together in street cars or in open vehicles on a public road
[163 U.S. 537, 558] or street? Why may it not require sheriffs to assign
whites to one side of a court room, and blacks to the other? And why may it not
also prohibit the commingling of the two races in the galleries of legislative
halls or in public assemblages convened for the consideration of the political
questions of the day? Further, if this statute of Louisiana is consistent with
the personal liberty of citizens, why may not the state require the separation
in railroad coaches of native and naturalized citizens of the United States, or
of Protestants and Roman Catholics?
The answer given at the argument to these questions was that regulations of
the kind they suggest would be unreasonable, and could not, therefore, stand
before the law. Is it meant that the determination of questions of legislative
power depends upon the inquiry whether the statute whose validity is questioned
is, in the judgment of the courts, a reasonable one, taking all the
circumstances into consideration? A statute may be unreasonable merely because a
sound public policy forbade its enactment. But I do not understand that the
courts have anything to do with the policy or expediency of legislation. A
statute may be valid, and yet, upon grounds of public policy, may well be
characterized as unreasonable. Mr. Sedgwick correctly states the rule when he
says that, the legislative intention being clearly ascertained, 'the courts have
no other duty to perform than to execute the legislative will, without any
regard to their views as to the wisdom or justice of the particular enactment.'
Sedg. St. & Const. Law, 324. There is a dangerous tendency in these latter days
to enlarge the functions of the courts, by means of judicial interference with
the will of the people as expressed by the legislature. Our institutions have
the distinguishing characteristic that the three departments of government are
co-ordinate and separate. Each much keep within the limits defined by the
constitution. And the courts best discharge their duty by executing the will of
the law-making power, constitutionally expressed, leaving the results of
legislation to be dealt with by the people through their representatives.
Statutes must always have a reasonable construction. Sometimes they are to be
construed strictly, sometimes literally, in order to carry out the legisla-
[163 U.S. 537, 559] tive will. But, however construed, the intent of the
legislature is to be respected if the particular statute in question is valid,
although the courts, looking at the public interests, may conceive the statute
to be both unreasonable and impolitic. If the power exists to enact a statute,
that ends the matter so far as the courts are concerned. The adjudged cases in
which statutes have been held to be void, because unreasonable, are those in
which the means employed by the legislature were not at all germane to the end
to which the legislature was competent.
The white race deems itself to be the dominant race in this country. And so
it is, in prestige, in achievements, in education, in wealth, and in power. So,
I doubt not, it will continue to be for all time, if it remains true to its
great heritage, and holds fast to the principles of constitutional liberty. But
in view of the constitution, in the eye of the law, there is in this country no
superior, dominant, ruling class of citizens. There is no caste here. Our
constitution is color-blind, and neither knows nor tolerates classes among
citizens. In respect of civil rights, all citizens are equal before the law. The
humblest is the peer of the most powerful. The law regards man as man, and takes
no account of his surroundings or of his color when his civil rights as
guarantied by the supreme law of the land are involved. It is therefore to be
regretted that this high tribunal, the final expositor of the fundamental law of
the land, has reached the conclusion that it is competent for a state to
regulate the enjoyment by citizens of their civil rights solely upon the basis
of race.
In my opinion, the judgment this day rendered will, in time, prove to be
quite as pernicious as the decision made by this tribunal in the Dred Scott
Case.
It was adjudged in that case that the descendants of Africans who were
imported into this country, and sold as slaves, were not included nor intended
to be included under the word 'citizens' in the constitution, and could not
claim any of the rights and privileges which that instrument provided for and
secured to citizens of the United States; that, at time of the adoption of the
constitution, they were 'considered as a subordinate and inferior class of
beings, who had been subjugated by the dominant [163 U.S.
537, 560] race, and, whether emancipated or not, yet remained subject to
their authority, and had no rights or privileges but such as those who held the
power and the government might choose to grant them.' 17 How. 393, 404. The
recent amendments of the constitution, it was supposed, had eradicated these
principles from our institutions. But it seems that we have yet, in some of the
states, a dominant race,-a superior class of citizens,-which assumes to regulate
the enjoyment of civil rights, common to all citizens, upon the basis of race.
The present decision, it may well be apprehended, will not only stimulate
aggressions, more or less brutal and irritating, upon the admitted rights of
colored citizens, but will encourage the belief that it is possible, by means of
state enactments, to defeat the beneficent purposes which the people of the
United States had in view when they adopted the recent amendments of the
constitution, by one of which the blacks of this country were made citizens of
the United States and of the states in which they respectively reside, and whose
privileges and immunities, as citizens, the states are forbidden to abridge.
Sixty millions of whites are in no danger from the presence here of eight
millions of blacks. The destinies of the two races, in this country, are
indissolubly linked together, and the interests of both require that the common
government of all shall not permit the seeds of race hate to be planted under
the sanction of law. What can more certainly arouse race hate, what more
certainly create and perpetuate a feeling of distrust between these races, than
state enactments which, in fact, proceed on the ground that colored citizens are
so inferior and degraded that they cannot be allowed to sit in public coaches
occupied by white citizens? That, as all will admit, is the real meaning of such
legislation as was enacted in Louisiana.
The sure guaranty of the peace and security of each race is the clear,
distinct, unconditional recognition by our governments, national and state, of
every right that inheres in civil freedom, and of the equality before the law of
all citizens of the United States, without regard to race. State enactments
regulating the enjoyment of civil rights upon the basis of race, and cunningly
devised to defeat legitimate results of the [163 U.S. 537,
561] war, under the pretense of recognizing equality of rights, can have
no other result than to render permanent peace impossible, and to keep alive a
conflict of races, the continuance of which must do harm to all concerned. This
question is not met by the suggestion that social equality cannot exist between
the white and black races in this country. That argument, if it can be properly
regarded as one, is scarcely worthy of consideration; for social equality no
more exists between two races when traveling in a passenger coach or a public
highway than when members of the same races sit by each other in a street car or
in the jury box, or stand or sit with each other in a political assembly, or
when they use in common the streets of a city or town, or when they are in the
same room for the purpose of having their names placed on the registry of
voters, or when they approach the ballot box in order to exercise the high
privilege of voting.
There is a race so different from our own that we do not permit those
belonging to it to become citizens of the United States. Persons belonging to it
are, with few exceptions, absolutely excluded from our country. I allude to the
Chinese race. But, by the statute in question, a Chinaman can ride in the same
passenger coach with white citizens of the United States, while citizens of the
black race in Louisiana, many of whom, perhaps, risked their lives for the
preservation of the Union, who are entitled, by law, to participate in the
political control of the state and nation, who are not excluded, by law or by
reason of their race, from public stations of any kind, and who have all the
legal rights that belong to white citizens, are yet declared to be criminals,
liable to imprisonment, if they ride in a public coach occupied by citizens of
the white race. It is scarcely just to say that a colored citizen should not
object to occupying a public coach assigned to his own race. He does not object,
nor, perhaps, would he object to separate coaches for his race if his rights
under the law were recognized. But he does object, and he ought never to cease
objecting, that citizens of the white and black races can be adjudged criminals
because they sit, or claim the right to sit, in the same public coach on a
public highway. [163 U.S. 537, 562] 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. It cannot be
justified upon any legal grounds.
If evils will result from the commingling of the two races upon public
highways established for the benefit of all, they will be infinitely less than
those that will surely come from state legislation regulating the enjoyment of
civil rights upon the basis of race. We boast of the freedom enjoyed by our
people above all other peoples. But it is difficult to reconcile that boast with
a state of the law which, practically, puts the brand of servitude and
degradation upon a large class of our fellow citizens,-our equals before the
law. The thin disguise of 'equal' accommodations for passengers in railroad
coaches will not mislead any one, nor atone for the wrong this day done.
The result of the whole matter is that while this court has frequently
adjudged, and at the present term has recognized the doctrine, that a state
cannot, consistently with the constitution of the United States, prevent white
and black citizens, having the required qualifications for jury service, from
sitting in the same jury box, it is now solemnly held that a state may prohibit
white and black citizens from sitting in the same passenger coach on a public
highway, or may require that they be separated by a 'partition' when in the same
passenger coach. May it not now be reasonably expected that astute men of the
dominant race, who affect to be disturbed at the possibility that the integrity
of the white race may be corrupted, or that its supremacy will be imperiled, by
contact on public highways with black people, will endeavor to procure statutes
requiring white and black jurors to be separated in the jury box by a
'partition,' and that, upon retiring from the court room to consult as to their
verdict, such partition, if it be a movable one, shall be taken to their
consultation room, and set up in such way as to prevent black jurors from coming
too close to their brother jurors of the white race. If the 'partition' used in
the court room happens to be stationary, provision could be made for screens
with openings through [163 U.S. 537, 563] which
jurors of the two races could confer as to their verdict without coming into
personal contact with each other. I cannot see but that, according to the
principles this day announced, such state legislation, although conceived in
hostility to, and enacted for the purpose of humiliating, citizens of the United
States of a particular race, would be held to be consistent with the
constitution.
I do not deem it necessary to review the decisions of state courts to which
reference was made in argument. Some, and the most important, of them, are
wholly inapplicable, because rendered prior to the adoption of the last
amendments of the constitution, when colored people had very few rights which
the dominant race felt obliged to respect. Others were made at a time when
public opinion, in many localities, was dominated by the institution of slavery;
when it would not have been safe to do justice to the black man; and when, so
far as the rights of blacks were concerned, race prejudice was, practically, the
supreme law of the land. Those decisions cannot be guides in the era introduced
by the recent amendments of the supreme law, which established universal civil
freedom, gave citizenship to all born or naturalized in the United States, and
residing ere, obliterated the race line from our systems of governments,
national and state, and placed our free institutions upon the broad and sure
foundation of the equality of all men before the law.
I am of opinion that the state of Louisiana is inconsistent with the personal
liberty of citizens, white and black, in that state, and hostile to both the
spirit and letter of the constitution of the United States. If laws of like
character should be enacted in the several states of the Union, the effect would
be in the highest degree mischievous. Slavery, as an institution tolerated by
law, would, it is true, have disappeared from our country; but there would
remain a power in the states, by sinister legislation, to interfere with the
full enjoyment of the blessings of freedom, to regulate civil rights, common to
all citizens, upon the basis of race, and to place in a condition of legal
inferiority a large body of American citizens, now constituting a part of the
political community, called the [163 U.S. 537, 564]
'People of the United States,' for whom, and by whom through representatives,
our government is administered. Such a system is inconsistent with the guaranty
given by the constitution to each state of a republican form of government, and
may be stricken down by congressional action, or by the courts in the discharge
of their solemn duty to maintain the supreme law of the land, anything in the
constitution or laws of any state to the contrary notwithstanding.