Untitled Texas Attorney General Opinion ( 1943 )

ORNEY GENERAP~
OFTEXAS
Honorable Faul T. Rolt
County Attorney
Travis County
Austin,Texss
Attention: Wm. Pelderman
Dear Sir: opinion No. o-5642
Re: Construction of Chapter 370,
page 651, Ads of 1943, now
Article 1661, 1, Vernon's Revised
Civil Statutes.
This will acknowledge receipt of your letter of recent date r&iuesting
the opinion of this department as to tha proper construction to be
placed upon the above designated chapter enacted by the 48th Legis-
labre. We quote in part from your letter as follows:
"Conditions existing in this County, psrticularly In the
C3ty of Austin, make it necessary to construe the Act of
1943, 48th Legislature, p. 651, Chapter 370, now Art. 1661.1,
Pocket Parts, Vernon-3 Revised Statutes, 1943.
"The Act seems to me to be indefinite and uncertain in
several respects, among others, aYe these:
"16 The Act provides that the owners, etc., of motor buses
'shall provide and require that all white persons boarding
their buses for transportation or passage shall take seats
in the forward or front end of the bus, filling the buses
from the front end, and that all negro passengers boeidin@;'the
bus for transportation or passage still take seats in the
back or rear end of the bus, filling the bus from the back
or rear end.'
"Does the words 'fill%gthe bus' mean filling the seats on.ly
or fiUing the seats and standing room in the aisles as wcU.
"2. Assume that all seats in the bus are filled by one race
before any of the other ram cntars the bus, has the operator
of the bus the legal authority to require any of the race so
seated to vacate their scats to make room for members of tIm
other race entering the bus after all the seats wsre occupied.
Honorable Paul T. Halt, page 2 o-5642
“3. Assume that all seats in the bus are occupied as
stated in '2' above by uegroes, andfhere is nothing but
standing room left, and white passengers enter, can they
lawfully take their places in the rear of the bus or are
they required to begin standing in the front end of the
aisle?
"4. Assume the bus was filled with white passengers beginning
at the front and negro passengers beginning at the rear of
the bus, and negro passengers leave the bus while white pas-
sengers are standing, can the operator lawfully require nego
passengers imediate~J behind the whites to take the
vacated seats and make room for the standing white passengers,
and in case white passengers leave the car and leave colored
passengers standing, could the operator lawfully require white
passengers immediately in fron: of the negro Tassengers to
get up and occupy the vacated seats and make room for the
standing negro passengers?
“5. Assume the bus were filling up with white or negro pas-
sengers at a point where passengers of the other race always
boarded the bus or were standing off waiting to enter, could
the operator lawfully re¶uire the race filling the bus to
leave seats for the other race in its proper end of the bus?
In other words, would the operator have the legal right to
require the race entering the car to reserve seats for the
race expected or waiting to enter.
“6. Has the operator of a bus the legal right to require
either race to reserve or leave seats for the others in its
proper end of the car?
"7. In instances where sufficient numbers of one or the
other race hasboarded the buses and occupied all seating
space, and then persons of the opposite race began boarding
the bus, has the operator of the bus the legal authority to
require seated passengers of either race to relinquish
seats, and move backward or forward, filling standing and
seating room in their end of the bus in order that the
races might be kept separated, or should the seated
passengers be permitted to retain their seats, and boarding
passengers forced to stand in the aisles between seated
persons of the opposite race?
"8. Under the provisions of the Act, has a transportation
company the legal authority to make provision for the
reservation, when needed, of one or more seats for negroes,
at the rear of the bus, and, when needed, one-``opr
'& more seats
at the front of the bus for white persons? '3,
. .
Honorable Paul T. Halt, page 3 O-3642
“9. Where capacity of seat is greater than neceassry to reserve
for either race, can apace on seat be sepsrskd by bar or snrlca,
to provide for seating of both races on 6sma seat?
u10. Where more than one seat of two or more cspscity Is
occupied by a member of the same race, oan they ba required
to seat themselves together in order to provlde~ more seats
for the opposite race?
“11. If the Act under consideration is inoperative and wd$d,
for any reason, has the City Council of the City of Austin~the
legal authority to pass an Ordinance providing for reprate
space in buses for the white and colored races?
“I.2 . Has the City Council the authority to pace an ~dlnanas
authorizing the operator of a bus to reserve seats for tha
colored people in the rear and seats for tha whitc~peopla In
the front of the bus?
“13. Is the Act under consideration’valld and constitutional
or is it void for uncertainty?
” 9,
. . . .
Article 1661.1, Vernon’s Revised Civil Statutes, in part, providas:,
%ection 1. Separation of Races’ in Motor Buses,.
“‘That every transportation company, lessee, manager, receiver
and owner thereof, operating motor buses in this State es e
carrier of passengers for hire shall provide and require that
all White passengers boarding their buses for transporatation
or‘passage shell take seats in the forward ore front at&of
the bus, filling the bus from the front and end, thsh::s)l ,;
Begro psbsengers boarcling their buaae. for trsMports$iOa
or passage ~&all tska ‘-seats in the’ ‘beck or Pear ~a*d.of .’
m, filring ‘the bum from the bsck ...or rear and&’ :,’ !- .::
I, . . . .
.’ I
“Sec. 3. Authority of Bus Operator.
“‘The operators of all passenger motor buses in this State
shall have authority to refuse any passenger or person the
right to sit or stand in any motor bus unless such psssenger
or person shall comply with the provisions of this Act, and
such operator shall have the right and it shall be his duty
to call any peace officer of the State of Texas for the purpose
Honorable Paul T. Halt, paga 4 O-5642
of removing from any bus any passenger who does not comply
with the provisions of this Act, and any such peace officer
shall have the right and it shall be his duty to remove from
said bus, and to arrest any such passenger so violating this
Act, the same as if such person were committing a breach of
the peace in the presence of such officer.'
"Sec. 4. Penalty.
"'If any passenger upon any bus in this State shall ride or
attempt to ride on said bus in a place prohibited under the
provisions of this Act, he shall be guilty of a misdemeanor
and upon conviction thereof shall be flnad not less than
Five Dollars ($5) nor more than Twenty-five Dollars ($25).'
" . . . .n
We will render our opinion upon your submitted queries by a general
discussion in lieu of specific examination of each particular
question and thus prevent undue repitition of our views and the
reasons in support thereof.
Article 1661.1, supra, was presumably passed by the recent Legislature
in the spirit in which previous legislation with reference to segregation
of races by carriers has been enacted. The subject matter of the Act
under discussion is nothing new in legislation; in Texas there has been
such a statute, commonly called'&paxate Coach Law,# in effect since
1891 dealing with carriers which operate upon rails. See Article 6417,
Vernon's Revised Civil Statutes and Article 1659, Penal Code. The
purpose for such legislation, as revealed by the emergency clause of
the bill under consideration, is very aptly stated by the court in the
case of Westchester & Philadelphia R. Co. v. Miles, 55 Pa. 209, 93
Am. Dec. 744;
. . ~ It is not an unreasonable regulation to seat passengers
so ss to preserve order and decorum and to prevent contacts
anu collision arising from natural or well-known customary
repugnances, which are likely to breed di&.rbances by prom!scuous
sitting. It is much easier to prevent difficulty among pas-
sengers by regulation for their proper separation than it is
to quell them. Tha danger to the peace engendered by a feeling
of aversion between individuals of the different races cannot
be denied. :Ithis3.he;factwith.whicLthe company m~t``deal~.
If a ,negro takes*a~.aeat.beaidea whit&man, ,orhis ,wife,or~I
daughter, the,law,ca$anOtnepress,~the,angeror conquer,Lhe ~,,
a,version~wbich,sqme:wi?lfeel.~,``Howeverunwise'it maybe to
indaLge the PQelXng,,human.infIrm~ty..isnoLalw?ys proof' .~
against.%t..:I~4a much xiaer~to avert the:.conaequesccs_of
this reg~si,oa~:Qfuracalb~,separation thas,ta punish Gterwar~ds
the bxgach Of the,$aace .i%,msybave,,cau+ed,.?'
IionoreblePaul T. Halt, page 5 O-5642
T::eprinciple followed by the Federal and State courts as to whether
3r not segregation of mces contravene any constitutional provision
is mt the Ldentity of the accomodatiou but rather the equality of
the accomodation. Hall Y. De Cuir, 95 U.S. 505, 24 L. Ed. 547;
Plessy v. Ferguson, 163 U.S. 537, 16 SW. ct. 1138, 41 L. ~a. 256;
& P. Ry. Co. V. Baker, 215 S.W. 556 (Corn.App.); Chiles v.
T~cx;as
& 0. Ry. Co., 101s. W. 386 (Ky). By this, we mean,
C!-,esapeake
the test is not whether a race or 8 portion of a race is separated
f?on other races or moups thereof, but whether Yne accomodations
offered each race or portion me reasonably equal in every respect
and no undue discrimination is present. We are of the opinion
A7tic:e lLXl.1, supra, causes no undue discrimination between the
races. The law was enacted for the protection of passengers,
white and r,ego alike; the seTmotion will prevent conditions most
likely to provoke unlawful acts and thus xacd off for both races
pains of l&e nature of physical sufferi~:~dud pains of the nature
of fines. The accomodotions offered both reces aYe equal in every
Fespect; the ccmforts and conveniences provided me the same not
withstanding -ace 0~ color.
It ;s quite evident from reading Section 1 of Article 1651.1, supra,
Yhei the white and negrc passengers should be separated; the former
bzing placed at the front end of the bus and the latter placed at the
resi, and keeping with- in the spirit of the law, the races should
‘se jqiaj"*t?dWC
'iethers?ttinfior standing.
yric& ;;.::
li:
$u*e ?~r,
enacting this bill saw fit to provide a~penalty only
ol.:';i