In the Louisville Railway Company v. Mississippi,32 however, in 1899, the court, evidently yielding to southern public opinion, reversed itself by the decision that an interstate carrier could not run a train through Mississippi without attaching thereto a separate car for Negroes and had the audacity to argue that this is not an interference with interstate commerce.33 To show how inconsistent this interpretation was one should bear in mind that in Hall v. DeCuir the court had held that this was exactly what a State could not do in that the statute acted not upon business through local instruments to be employed after coming into the State, but directly upon business as it comes into the State from without or goes out from within, although it purported only to control the carrier when engaged within the State. It necessarily influenced the conduct of the carrier to some extent in the management of his business throughout his entire voyage. "No carrier of passengers," said the court in Hall v. DeCuir, "can conduct his business with satisfaction to himself, or comfort to those employing him, if on one side of a State line his passengers, both white and colored, must be permitted to occupy the same cabin, and on the other to be kept separate. Uniformity in the regulation by which he is to be governed from one end to the other of his route is a necessity in his business, and to secure it, Congress, which is untrammelled by State lines, has been invested with exclusive legislative power of determining what such regulation should be."
Giving the opinion in the Mississippi case, however, Justice Brewer said: "It has been often held by this court that there is a commerce wholly within the State which is not subject to the constitutional provision and the distinctions between commerce among the States and the other class of commerce between citizens of a single State and conducted within its limits exclusively is one which has been fully recognized in this court, although it may not be always easy, where the lines of these classes approach each other, to distinguish between the one and the other."34 He might have added some other comment to the effect that this court will not definitely draw the line of distinction between such classes of commerce since it desires to leave adequate room for evasion, because it had been unusually easy to find such a line in cases in which the rights of Negroes were concerned and such definite interpretation might interfere with the rights of white men. Justices Harlan and Bradley dissented on the grounds that the law imposed a burden upon an interstate carrier in that he would be fined if he did not attach an additional car for race discrimination, and that the opinion was repugnant to the principles set forth in that of Hall v. DeCuir.
The United States Supreme Court finally reached the position of following the decision of Ex Parte Plessy which justified the discrimination in railway cars on the grounds that it is not a badge of slavery contrary to the Thirteenth Amendment. This decision, in short, is: So long, at least, as the facilities or accommodations provided are substantially equal, statutes providing separate cars for the races do not abridge any privilege or immunity of citizens or otherwise contravene the Fourteenth Amendment of the United States Constitution. In such matters equality and not identity or community of accommodations is the extreme test of conformity to the requirements of the amendment. The regulation of domestic commerce is as exclusively a State function as the regulation of interstate commerce is a Federal function. The separate car law is an exercise of police power in the interest of public order, peace and comfort. It is a matter of legislative power and discretion with which Federal courts cannot interfere.
In Hennington v. Georgia,35 it was later emphasized that it had been held that legislative enactments of the States, passed under the admitted police powers, and having a real relation to the domestic peace, order, health, and safety of their people, but which by their necessary operation, affect, to some extent, or for a limited time, the conduct of commerce among the States, are yet not invalid by force alone of the grant of power of Congress to regulate such commerce; and, if not obnoxious to some other constitutional provision or destructive of some right secured by the fundamental law, are to be respected in the courts of the Union until they are superseded and displaced by some act of Congress passed in execution of power granted to it by the Constitution. Of course, there was no other provision to which such laws could be contrary after the Supreme Court had whittled away the war amendments.
In the case of Plessy v. Ferguson36 the most inexcusable inconsistency of the court was shown when the persons of color aggrieved attacked the separate car law of Louisiana on the ground that it conflicted with the Fourteenth Amendment. Giving the opinion of the court, Justice Brown said: "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 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 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."
Justice Harlan dissented, saying that he was of the opinion that the Statute of Louisiana is inconsistent with personal liberty of white and black in that State and hostile to both in the letter and spirit of the Constitution of the United States. Justice Harlan rightly contended that laws can have no regard to race according to the Constitution. If they do, they conflict with the rights of State and national citizenship and with personal liberty. The Thirteenth and Fourteenth Amendments removed race from our governmental system. But what has the court 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." Accordingly Mr. Sedgwick, a distinguished authority, says: "The Courts have no other duty to perform than to execute the legislative will, without regard to their views as to the wisdom or justice of the particular enactment." "Statutes," said Justice Harlan, "must always have a reasonable construction. Sometimes they are to be construed strictly; sometimes, liberally, in order to carry out the legislative will. But, however construed, the intent of the legislature is to be respected."
The decisions in the cases of M. K. and T. Railway v. Haber37 and Crutcher v. Kentucky,38 are of some importance. In these cases the court reiterated the doctrine that the regulation of the enjoyment of the relative rights and the performance of the duties, of all persons within the jurisdiction of a State belong primarily to such a State under its reserved power to provide for the safety of all persons and property within its limits; and that even if the subject of such regulations be one that may be taken under the exclusive control of Congress, and be reached by national legislation, any action taken by the State upon that subject that does not directly interfere with rights secured by the Constitution of the United States or by some valid act of Congress, must be respected until Congress intervenes.39 The court by this time, however, had all but held that the Constitution secured to the Negro no civil or political rights except that of exemption from involuntary servitude, and that law for the Negro is the will of the white man.
Justice Harlan dissented, saying that he was of the opinion that the Statute of Louisiana is inconsistent with personal liberty of white and black in that State and hostile to both in the letter and spirit of the Constitution of the United States. Justice Harlan rightly contended that laws can have no regard to race according to the Constitution. If they do, they conflict with the rights of State and national citizenship and with personal liberty. The Thirteenth and Fourteenth Amendments removed race from our governmental system. But what has the court 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." Accordingly Mr. Sedgwick, a distinguished authority, says: "The Courts have no other duty to perform than to execute the legislative will, without regard to their views as to the wisdom or justice of the particular enactment." "Statutes," said Justice Harlan, "must always have a reasonable construction. Sometimes they are to be construed strictly; sometimes, liberally, in order to carry out the legislative will. But, however construed, the intent of the legislature is to be respected."
The decisions in the cases of M. K. and T. Railway v. Haber37 and Crutcher v. Kentucky,38 are of some importance. In these cases the court reiterated the doctrine that the regulation of the enjoyment of the relative rights and the performance of the duties, of all persons within the jurisdiction of a State belong primarily to such a State under its reserved power to provide for the safety of all persons and property within its limits; and that even if the subject of such regulations be one that may be taken under the exclusive control of Congress, and be reached by national legislation, any action taken by the State upon that subject that does not directly interfere with rights secured by the Constitution of the United States or by some valid act of Congress, must be respected until Congress intervenes.39 The court by this time, however, had all but held that the Constitution secured to the Negro no civil or political rights except that of exemption from involuntary servitude, and that law for the Negro is the will of the white man.
Further development of the doctrine as to the right of the State to deprive a Negro of citizenship is brought out in the Lauder Case.40 The case was this: Lauder's wife purchased a first class ticket from Hopkinsville to Mayfield, both places within the State of Kentucky. She took her place in what was called the "ladies' coach" and was ejected therefrom by the conductor and assigned a seat in a smoking car, which was alleged to be small, badly ventilated, unclean and fitted with greatly inferior accommodations. This road ran from Evansville, Indiana, to Hopkinsville, Kentucky. It was held in the Court of Appeals that the decision of the United States Supreme Court in Louisville, New Orleans and Railway v. Mississippi41 and Plessy v. Ferguson42 was conclusive of the constitutionality of the act so far as the plaintiffs were concerned; and that the mere fact that the railroad extended to Evansville, in the State of Indiana, could in no wise render the statute in question invalid as to the duty of the railroad to respect it.
In the case of Chesapeake and Ohio Railway Company v. Kentucky,43 this doctrine was carried to its logical conclusion. The question was whether a proper construction of the separate car law confines its operation to passengers whose journeys commence and end within the boundaries of the State or whether a reasonable interpretation of the act requires Negro passengers to be assigned to separate coaches when traveling from or to points in other States. In other such cases the Supreme Court of the United States had interpreted the local law as applying only to interstate commerce. The language of the first section of the Kentucky statute made it very clear that it applied to all carriers. The first section of the Kentucky law follows:
"Any railroad company or corporation, person or persons, running or otherwise operation of railroad cars or coaches by steam or otherwise, in any railroad line or track within this State, and all railroad companies, person or persons, doing business in this State, whether upon lines or railroads owned in part or whole, or leased by them; and all railroad companies, person or persons, operating railroad lines that may hereafter be built under existing charters, or charters that may hereafter be granted in this State; and all foreign corporations, companies, person or persons, organized under charters granted, or that may be hereafter granted by any other State, who may be now, or may hereafter be engaged in running or operating any of the railroads of this State, whether in part or whole, are hereby required to furnish separate coaches or cars for travel or transportation of the white and colored passengers on their respective lines of railroad."
Any sane man can see that this law undertook to regulate interstate commerce. Justice Brown, however, tried to square the opinion with that of the Kentucky Supreme Court, upholding the law on the grounds that it was constitutional in as much as it applied only to intrastate passenger traffic, although the law plainly applies also to interstate traffic.
Speaking further for the court, Justice Brown said: "Indeed we are by no means satisfied that the Court of Appeals did not give the correct construction to this statute in limiting its operation to domestic commerce. It is scarcely courteous to impute to a legislature the enactment of a law which it knew to be unconstitutional and if it were well settled that a separate coach law was unconstitutional, as applied to interstate commerce, the law applying on its face to all passengers should be limited to such as the legislature were competent to deal with. The Court of Appeals has found such to be the intention of the General Assembly in this case, or at least, that if such were not its intention, the law may be supported as applying alone to domestic commerce. In thus holding the act to be severable it is laying down a principle of construction from which there is no appeal."
"While we do not deny the force of the railroad's argument in this connection, we cannot say that the General Assembly would not have enacted this law if it had supposed it applied only to domestic commerce; and if it were in doubt on that point, we should unhesitatingly defer to the opinion of the Court of Appeals, which held that it would give it that construction if the case called for it. In view of the language above quoted it would be unbecoming for us to say that the Court of Appeals would not construe the law as applicable to domestic commerce alone, and if it did, the case would fall directly within the Mississippi Case.44 We, therefore, feel compelled to give it that construction ourselves and so construe it that there can be no doubt as to its constitutionality." Here we have a plain case of the United States Supreme Court declaring an act severable because thereby it could apparently justify as constitutional a measure depriving the Negroes of civil and political rights, whereas in some other cases it has held other acts not severable to reach the same end.
The court continued its reactionary course. In Chiles v. Chesapeake and Ohio R. R. Company45 the court reiterated that "Congressional inaction is equivalent to a declaration that a carrier may, by its regulations, separate white and Negro interstate passengers. In McCabe v. Atchinson, Topeka and Santa Fe Railway Company,46 Justice Hughes giving the opinion of the court, followed the Plessy v. Ferguson decision. He did not believe, moreover, "that the contention that an act though fair on its face may be so unequally and oppressively administered by the public authorities as to amount to an unconstitutional discrimination by the State itself, is applicable where it is the administration of the provisions of a separate coach law by carriers, which is claimed to produce the discrimination. The separate coach provisions of Oklahoma47 apply to transportation wholly intrastate in absence of a different construction by State courts and do not contravene the commerce clause of the Federal court. The court held, however, that so much of the Oklahoma separate coach law as permits carriers to provide sleeping cars, dining cars, and chair cars for white persons, and to provide no similar accommodations for Negroes, denies the latter the equal protection of the laws guaranteed by the Constitution.