WILLIAMS v. CAROLINA COACH CO.

STERLING HUTCHESON, Chief Judge.

This is another case involving the segregation of races on common carriers. Paradoxically, the legal question presented does not involve racial discrimination but this action is one involving Clause 3, Section 8, Article 1, of the Constitution of the United States, commonly referred to as the Commerce Clause.

This memorandum is intended to serve as findings of fact and conclusions of law under Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.A.

The plaintiff is a colored citizen of the State of North Carolina. He alleges that after purchasing a ticket entitling him to be transported from Norfolk, Virginia, to Spring Hope, North Carolina and return, as a passenger on a motor bus operated by the Carolina Coach Company, he boarded said bus at Spring Hope to begin his return trip and became a subject of interstate commerce.

When the plaintiff boarded the bus at Spring Hope there were a number of vacant seats, some to the rear of the one selected by him and some forward. Upon arrival at Rocky Mount, North Carolina, additional passengers of both white and colored races boarded the bus in a sufficient number to cause all the seats to be occupied and some of the passengers were required to stand, although it is not clear whether these were white or colored or some of both. Among the white passengers there was one with his leg in a cast. A seat next to the one occupied by the plaintiff was also occupied by a colored man. In undertaking to rearrange the passengers the driver acting pursuant to a rule and regulation of the defendant requiring colored passengers to seat from the rear forward, and white passengers from the front to the rear, requested the plaintiff as well as the individual seated beside him, to change to the seat immediately back of the one in which they were sitting, it being the opinion of the driver and his superior that the above mentioned regulation gave to the driver the authority to arrange and rearrange the seating of passengers as the occasion required. The passenger seated beside plaintiff complied with the request but plaintiff declined to do so, stating that he was comfortable where he was. The request was repeated several times and substantially the same response was made by the plaintiff. The driver thereupon left the bus, telephoned the police station and requested that an officer be sent to the bus station. Shortly thereafter two officers of the Town of Rocky Mount appeared, one of whom entered the bus and the driver pointed out the plaintiff to the officer. The officer requested plaintiff to change his seat and when he again refused to do so, at the direction of the officer he left the bus. On the platform the officer and the plaintiff were joined by the second officer and at their direction plaintiff entered the police car. The bus driver then gave to one of the police officers the unused portion of plaintiff's ticket to Norfolk and the officer later transmitted this ticket to the plaintiff. At the direction of the police officer a warrant was issued by a local Justice of the Peace, charging the plaintiff with violation of a statute of North Carolina requiring the segregation of members of white and colored races on common carriers. Plaintiff was detained at the police station for several hours until arrangements were made to post bond. Subsequently the criminal warrant was dismissed although in the meantime plaintiff had incurred expenses amounting to $101 in locating witnesses, employing counsel and loss of time from his work.

For the purpose of this case I think it clear that the removal and arrest of the plaintiff by the officers was instigated by the bus driver although he did not specifically request a warrant but merely requested the officers to undertake to prevail upon the plaintiff to change his seat. However, the fact is that he pointed out to the officers the plaintiff who was then in the status of one violating a state law. Whiteside v. Southern Bus Lines, 6 Cir., 177 F.2d 949.

It is to be borne in mind that unlike the case of Day v. Atlantic Greyhound Corporation, 4 Cir., 171 F.2d 59, 60, the gravamen of this complaint is not unlawful racial discriminatory practice but it is the alleged wrongful usurpation by the defendant of powers granted Congress by the several states.

In the Day case the United States Court of Appeals Fourth Circuit, used the following language:

Following this language the Court in that case referred to the fact that the bus company had on file with the Interstate Commerce Commission, pursuant to requirements of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., and pursuant to the regulation of the Commission, regulations of the bus company dealing with the segregation of passengers. The same situation applied in the instant case. The Court, after expressing the opinion that a regulation of the course of conduct on the part of a carrier involving the repeated shifting of seats by colored passengers would amount to discriminatory treatment, pointed out that that was not the case there since the plaintiff Day could have made the change without substantial inconvenience and used the following language:

As in the Day case, the evidence shows that the plaintiff in the case at bar could have made the shift without substantial inconvenience either to himself or to other passengers. However, as before mentioned, this case is not based upon an alleged violation of the Fourteenth Amendment to the Constitution but involves the assertion of rights under Article 1, Clause 3, Section 8 of the Constitution dealing with commerce.

In this connection it may not be amiss to point to the fact that while the constitutional provision declares that "Congress shall have Power * * * To regulate Commerce * * *", Congress has not seen fit to enact legislation pertinent to the facts here disclosed, although such legislation has been considered. However, the constitutional provision has been the subject of judicial interpretation upon a number of occasions with results both interesting and far-reaching in consequences.

In Hall v. DeCuir, 95 U.S. 485, 24 L.Ed. 547, an act of the legislature of Louisiana prohibiting the segregation of races on common carriers was considered at great length and the principle laid down that such a statute enacted by a state is a regulation of interstate commerce and unconstitutional and void. In that opinion the Court held that the carrier may make rules and regulations concerning the accommodations of passengers provided they are reasonable, using the following language:

In his concurring opinion Mr. Justice Clifford used the following language:

In Chiles v. Chesapeake & O. Railway Company, 218 U.S. 71, 30 S.Ct. 667, 54 L. Ed. 936, the plaintiff, while a passenger, with a ticket to another state, was removed for refusing to occupy a car set apart for colored persons. The case involved not a state statute but the rules and regulations of the railroad company. It was held that a reasonable regulation requiring the separation of races, with equal accommodations for both, was valid. On page 77 of 218 U.S., on page 669 of 30 S.Ct. the Court used the following language:

The Court referred to Hall v. DeCuir, supra, and Plessy v. Ferguson, 163 U.S. 537, 540, 16 S.Ct. 1138, 41 L.Ed. 256.

The case of Mitchell v. United States, 313 U.S. 80, 61 S.Ct. 873, 85 L.Ed. 1201, involved equality of accommodations and I do not find it authority either for or against a rule requiring segregation of passengers.

Then in Morgan v. Com. of Virginia, 328 U.S. 373, 66 S.Ct. 1050, 1052, 90 L.Ed. 1317, the Supreme Court had before it the question of the constitutionality of an act of the State of Virginia, Code 1942, § 4097z et seq., requiring "all passenger motor vehicle carriers, both interstate and intrastate, to separate without discrimination the white and colored passengers in their motor buses so that contiguous seats will not be occupied by persons of different races at the same time."

There were two assignments of error, the first being that the decision of the state court upholding the statute is repugnant to Clause 3, Section 8, Article 1 of the Constitution, and the second is the holding of the Court that powers reserved to the states by the Tenth Amendment include the power to require an interstate motor passenger to occupy a seat restricted for use of members of his race.

The Court said:

After asserting the principle that state legislation which materially affects interstate commerce is invalid, even where Congress has not acted, the Court came to the conclusion that the statute "burdens interstate commerce or so infringes the requirements of national uniformity as to be invalid", making reference to the fact that conditions vary between northern and western states, the industrial states and the states of the deep south, all with varying densities of white and colored races in certain localities. Mr. Justice Reed then used the following language:

In his concurring opinion Mr. Justice Frankfurter said:

Mr. Justice Black filed a concurring opinion which will be referred to later.

Thereafter, the United States Court of Appeals, Sixth Circuit, had before it in 1949 the case of Whiteside v. Southern Bus Lines, supra. In that case the plaintiff purchased a ticket in St. Louis, Missouri, for transportation to Paducah, Kentucky, via Cairo, Illinois. Upon arrival at Wickliffe, Kentucky, she was requested to move to another seat in the rear of the bus on account of her race. Upon her refusal to move the bus operator procured the assistance of a police officer and the passenger was ejected from the vehicle. In her action the plaintiff relied upon the Fifth and Fourteenth Amendments to the Constitution and the Commerce Clause. After making reference to the many cases, referred to as "legion", dealing with the authority of states to compel or prohibit the segregation of races in consideration of the Fourteenth Amendment, the Court expressed the view that no useful purpose would be served by their citation or analysis. Stating that it conceived itself constrained in large measure by the doctrine of stare decisis, the Court declined to reach a decision by consideration of cases which do not dispose of the present problem but may seem to indicate a new approach to the problem of racial segregation. It stated further that if Chiles v. Chesapeake & O., supra, and Plessy v. Ferguson, supra, are to be disregarded, it may not be by that Court, which then used the following language [177 F.2d 951]:

After discussing the Morgan case, the Court referred to the fact that Kentucky has no statute compelling the segregation of races similar to that of Virginia, but pointed to long-settled usage and custom in Kentucky, crystallized into unwritten law. The Court then said:

The Court analyzed Simmons v. Atlantic Greyhound Corporation, D.C., 75 F.Supp. 166, and Henderson v. Interstate Commerce Commission, D.C., 80 F.Supp. 32, then on appeal to the Supreme Court, Henderson v. U. S., 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302. Incidentally, the Court pointed to the fact that in the Simmons case a defense was offered concerning the ejection of the plaintiff by the joint efforts of an officer and the bus driver, stating that since the driver invoked the exercise of authority the defendant would still be liable for having procured the ejection indirectly. The opinion closed, as follows:

Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 844, 94 L.Ed. 1302, involved the question of whether the rules and practices of the Southern Railway with respect to segregation on dining cars violate Section 3(1) of the Interstate Commerce Act. In the language of the Court:

In the opinion by Mr. Justice Burton, who dissented in the Morgan case, the Court held that the rules and practices involved violate the Act.

The Court said that its decision was largely controlled by that in Mitchell v. United States, supra, and used the following language:

Then in 1951 the United States Court of Appeals, Fourth Circuit, rendered its opinion in Chance v. Lambeth and Atlantic Coast Line Railroad Company, Incorporated, 186 F.2d 879, 881, which was an appeal from a decision of this Court. In that case the plaintiff was a passenger on the defendant railroad company, holding a round-trip ticket from Rocky Mount, North Carolina, to Philadelphia, Pennsylvania. At the time here referred to he was on his return trip, having traveled from Philadelphia to Washington on the Pennsylvania Railroad and there changed to the Richmond, Fredericksburg and Potomac Railroad to Richmond, and then to the Atlantic Coast Line Railroad, for his destination. When the train left Washington, three passenger coaches first in line were designated for Negro passengers and the next two for white. The accommodations were equal. The three forward coaches were crowded at Washington and the plaintiff was directed to go to the rear, where he found a seat in the last coach, which was occupied from Washington to Richmond by both white and colored persons. At Richmond the passengers were segregated and the trainmen directed the white persons in the first three coaches to go to the rear and the colored persons in the last two coaches to go forward. The plaintiff refused to move and was told that if he persisted in such refusal he would be put off the train and the police would be called because the regulations of the company required segregation of the races. After the train left Richmond, local police officers at Emporia were requested by the railroad to meet the train, which they did and took the plaintiff off when he was pointed out by the conductor. His ticket was returned to him by the conductor and he was taken by the police officers to the police station, where he was charged with disorderly conduct. The charge of disorderly conduct was later withdrawn.

After stating that the Mitchell and Henderson cases held that discrimination against colored passengers with respect to Pullman seats or dining car service was held to violate Paragraph 1 of Section 3 of the Interstate Commerce Act, the Court of Appeals, Fourth Circuit, stated:

The Court then cited Hall v. DeCuir, supra, and Morgan v. Virginia, supra, previously discussed. As has been seen, both of those cases deal with state statutes.

The Court then again refers to Mitchell v. United States, supra, and Henderson v. United States, supra, where it said:

Continuing the opinion used the following language:

The Court then proceeded to refer to Whiteside v. Southern Bus Lines, supra, stating:

After reviewing the cases referred to it is my conclusion that this case is controlled by the Chance case, decided by the Fourth Circuit, which appears directly in point. The only distinction which I can draw is that Chance boarded the train at a point where segregation is not required by rule or regulation, for travel through a state and destination in another state where segregation is required. In the instant case the plaintiff's place of departure and destination were in separate states, in both of which segregation was required by company rules and regulations.

While in his opinion in the Morgan case Mr. Justice Frankfurter pointed to the fact that under the Commerce Clause Congress might devise a national policy having regard to varying interests of different geographic regions, it would appear that the courts have not deemed it appropriate to be guided by such considerations.1 Upon the contrary the sole test to be applied by the Courts appears to be whether the commerce involved is moving between different states. This is emphasized by repeating the language of the Supreme Court in the2 Henderson case and the language of the United States Court of Appeals, Fourth Circuit, in the3 Chance case.

If such regulation issued by a railroad is invalid it necessarily follows that its adoption by a bus company would not make it valid.

As has been said the so-called Commerce Clause has been extensively discussed and interpreted by the Courts. It doubtless will be the subject of further interpretation in time to come. Conflicting views have been and, no doubt, will be voiced. However, when called upon to decide a case this Court must follow the law as laid down by those Courts whose decisions are controlling.

In discussing whether it should base its decision in part upon public policy of the United States as evidenced in recent Supreme Court decisions and thereby reappraise the scope of certain constitutional provisions, the United States Court of Appeals, Sixth Circuit, in the Whiteside case said [177 F.2d 950]:

The force of this reasoning is aptly emphasized in the concurring opinion of Mr. Justice Black in the Morgan case [328 U.S. 373, 66 S.Ct. 1058], when he wrote:

And further:

No useful purpose could be served by prolonging this discussion of either the principles involved or the law applicable. In the present state of the law the Courts whose decisions are binding upon this Court have spoken. The pronouncements of those Courts are clear. The regulation in question, they hold, imposes an undue burden upon interstate commerce. When undue burden upon interstate commerce is caused by a regulation and Congress has not exercised the power conferred upon it by the Constitution, such regulation must be declared invalid by the Courts. Chance v. Lambeth, supra.

It follows that judgment for the plaintiff should be entered in this case as hereafter provided.

This leaves for determination the question of damages. From the evidence it appears that the plaintiff has incurred expenses amounting to approximately $101. No other damages have been shown excepting some personal inconvenience. However, there is a claim for exemplary or punitive damages.

In considering the claim for exemplary damages it should be said that no undue force was used nor was any actual hostility or animosity toward the plaintiff indicated by the evidence. To justify an award of exemplary damages under such facts it would be necessary that facts or circumstances existed showing an unreasonable or willful disregard on the part of the defendant of the known rights of the plaintiff. Considering the uncertain state of the law which has prevailed upon the subject during recent years it is my conclusion that no grounds have been shown for the allowance of exemplary damages against the defendant.

It is my opinion that there should be an award to the plaintiff for compensatory damages in the following amounts: $151 on the first count of the complaint charging unlawful ejectment, and $100 on that portion of the second count charging false arrest, making a total award in the amount of $251.

Upon consideration of the facts of the case it is my conclusion that they do not show the elements necessary to sustain that portion of the complaint alleging malicious prosecution. Accordingly, I find for the defendant upon that portion of the second count where malicious prosecution is alleged.