Untitled Texas Attorney General Opinion ( 1945 )

I
,
E EY GENE-I.
AUSTIN 11. TEXAS
GROVER SELLERS
Hbnorable Olin Culbepson, Chairman
RtillroadCoinmissionof Texas
Auztin, Texas
Dear Sir; Qpfnion No. O-6&24
Re: ColoPed passenggrs to be peMitted
to eat thtilr'Mealsitithe dining
c&r separate and apart from white
passengers.
You request thi%ideptirtmerit's
opfnlon on the legality
of the practice of certain Parlroad companies operatfnijin'
Texas in periuittingcolored passengers to eat thelp meals in
the dining car with white passengers.
Our state, exePclslng its legislatfve wisdom to giierd
the public peace and safety and under its"police power, has
Passed statutes with reference to the separation of its white
and colored citizens.
Revised Statutes, APtfcle 6417 and Penal Code Articles'
1659-60 ape ertfnent to your inquulfrg,The relevant provisions
of Article 6It
17 follows:
"1 . Every railwag company, street ca,rconi:-'
pany, a,ndintemrban railway company, lessee mana-
ge?, OP rbceiver thereof, doing business in this-
Sti3teas a common``ciwrier'
of passengerk'for hire.;
shall provide separate coaches'or comptiptments,as
herein&fter provided, for the accommodation of
white and negro passengers, tihichseparate coach
or compaPtments shall be equal in all points of
comfort and convenience. (Underscorfng ours)
"2 . *****
,,,
,,
3* 'Sipapate coach' defined. - Eatih"comBartment
6P'a pailroad coach divfded by gobd sub%tantial"woodefi^"
pai?titionswith a d'dorthepeln $.hall,b'6
deetieda separate
co~bK'with1~ the tieanlngof this law, and'each- -.~
L&par&te~'~oakhshall be&P 1n"some consplduous place
appropriate Voids ii3plain letters indicating the
race for which it is set apart; 0 . . .
c
Honorable Olin Culberson - page 2 O-6424
"4 . ***i*
“5 .Excections. - This article shall n& l + ~,
**ppr;lilroad ; dining
orcafe cars or chair cars attached to their
traTn@ to be used exclusively br eitheG&pbs
separately but not^".iolntf&or to prev
from"'travellnn-1n'~'ans
coach or compartmenl
: Vith
their employer, or employes upon the trainsor
cars in the dkoharge of their duty. (Under-
scoring ours)
"6 . l ****
.,.
"7.'"Duty of'conductor. - Conductors of pass-
e?igertrains, str'eetcars';or'interurban lines-'
Interurban car shall'have authorRg,~ana it shaLl*
be his-duty",to'rembve from a coach or 'street car,
'orInterurban car, any passenger not entitl‘edto
ride therein under the provisions of this law."
(Underscoring ours)
Penal Code, Article 1659, provlaes in part as follows:
"1 . Every railway comp@ng; street.caP'%ompany
and'lnterurban railway company, lessee, manager,
or receiver thereof doing business in this State
as a commoncarrier"of passenger'sfor hire shall
provide separate coaches or compartments fos
accommodation of white and negro passengers. (Un-
derscoring ours)
"2. *****
"3. 'Separate coach' defined. - Each'.compart-
ment of a railroad coach divldeaby good and sub-
stantial wooden partltibns with a door therein
shall be~deemed a~separate~cq%?h.Qithin~themeaning
of'this law, and each separate coach shall bearin
some conspicu-busplace appropriate words in plain
letters indicating the race for which It Is set a-
part; *it*
-', "4. Violatfng separate coach law. - If any ".
passenger upon a train or street car or Interurban
.. .^_
Honorable Olin Culberson - page 3 O-6424
car provided wf%h separate coaches or compartments
atiabove pPOVid8d S"nal1Pid8 fn an,ycoach OPcom-
partment not designated for hfs race af%er bavfng
been forbidden to do so by %he conductor fn~"charge
of the trafn, he shall be fined no% less than ffve
nor more thin twenty-ffve dollars.
"5": rn%y of conductor. - Conductors of-passen-
ger trafk3, streiztears,"or interurban lines provided
wit& 'Separatecoaches shall have the authority-to re-
fuse any passenger admi%%ance %o any coach or compart-
ment fn whfcb they are not'entitled to rfde under
thb provisions of %Ris law, and"the conductor"fn
chaPg8 of the &rain orstree% car or interurban car
Shall have au%horfty, and 1% shall be his duty.;tom '
PemOV@ from a coach or Street car, or int8rLWban car,
any pasuenger no% entitled to ride %berein'under the
p~ovfsfons of thfs"law, am3 upon his refusal to do
so kn0wFngl.yhe shall be finednot less than ffve
nor more %han twenty-five dollarse' -1,
The proviSionS,of Penal Code,~Ar%icle 1660, are similar
with those of geotfon 5 of Revised Sta%u%es, Article 6417.
As to %b.epurpose and valfdity of such legislation we
quote from our opfnfon No, 0-5642, approved October 20, 19-63,
wherein we said:
"The puppose of'such legfslation, as revealed
by the emergency clause of %he b111 under consfder-
atfon, is very aptly std.& tap the court in the ease
of WestcRes'%er& Phfiadelphfa W. Co, v. Miles, 55
Penn. 209, 93 Am. Dee, 744:
9,
,....I% fs no% an unreasonable regulation to
.
seat passengers so as %o preserve order'and decorum
and to prevent con%ac%s and collisfons'arfsing from
natural or well-known cuS%omary repugnances, which
are likely to breed dis%urbances by promfscuous"sit-
ting. It 1s much easier %o prevent difficulty among
passengers by regulation for their proper separation
than it Is to quell them. The dangep to the peace
engendered by a feeling of ave~tisionbetaaeenindivf-
duals of the different races cannot be denied, It
is the fact wi%h whfch the company must deai., If
a negro takes a sea% beside a wbi%e man;or his wife
or daughter, %he law canno.%repress the anger or con-
quer the aversion which some will feel, Kowevep un-
wise ft may"be %o fndulge %Re feelfng, human lnfir-
mfty is not always proof against f't. 1% fs much
Honorable Olin Culberson, page 4 O-6424
wiser to avert the consequences of this repulsion of
race by separation than to punish"afterwards the
breach of the peace it may haV8 caused.'
"The principle followed by the Federal and
State courts as to whether OP not segregation of
races contravene any constitutional provisibn is
not thenidentity of the accommodation butrather
the equality of the acbommodation. (Citing author-
sties) By this, we mean the test is not whether
a race or a portion of a race fs separated from
other Paces OP groups thereof, but Whether the
aci:omm&iationsoffered each race or portion are
reasonably equal in every respect and no undue
discrimination is present. * *'* The law was en-
acted for the protection of passengers, white and
negro alike; the separation wl.ll"prev8i5fcondi-
tions most likely to provbke unlawful acts and thus
ward off for both races pains of the nature of
physical suffering and pains of the nature of"fines.
The accommodations Offered both races are equal in
every respect; the comforts and convenlencespro-
vided are the same notwithstanding Pace or color.'
In South Covln ton & C. Street R. Co. vs. Kentucky.(lglg),
252 U.S. 399, PO 404, 2 4 L. Rd. 399; the Kentucky statute re-
quiring separate but equal accommodations to be furnlshed,for '
bolored and white passengers traveling between Cincinnati, Ohio';
aiidKentucky cities across the Ohio river was upheld. The court
said: "The regulation of the act affects interstate business'
incidentally, and does not subject it to unreasonable demands."
Where one was denied admission to a state school "upon
the sole ground"of his race" the Court inMissouri Xx Rel
Gaines v. Canada, 305 U.S. 337, p- 344, said:
"In answering petitioner's contention that this
discPiminationconstituted a denial of his constl-
tutional right, the state court has fully Pecognized
the``obllgatlonof the State to provide negroes with
advantages'for higher education substantially equal
to'the advantages afforded to white students. The
State has sought to fulf?.llthat obligation by furn-
ishing equal facilities In separate schools, a method
the validity of which has been sustained by our
decisions,"
Mr. Chief Justice-Hughes in Mftchell v. U.S.-313, U.S.,
80, p. 94, 85 L. Ed. 1201, 61 Supreme COW% Reporter, 873 P. E?76,
said:
. . .
Honorable Olin Culberson, page 5 O-6424
"The undisputed facts showed conclusively
that, having paid a first-class fare forthe en-
tire journey from Chicago to Hot Springs, and
having offered to"pay the proper charge for a
seat which was available in the Pullman cai+ for
the trip from Memphis to Ho% Springs, he was com-
pelled, In accordance with custom, to leave that
car and to rfde ln a second-classycar and was thus
denied the standard conveniences and privileges"'
afforded~to first-class passengers. This was man-
ifestly a discrimination against him in the course
of his interstate journey and admfttedly that
discrimination was based solely Upon the fact
that he was a negroi The question Whether thrs
was a discriminatiotiforbidden by the Interstate
Commerce Act is not a auestlon of seareuatlon
but one of equality of treatment.' The denial to
appellant of equality oftaccommodations b8CaUS8 of
his race would be an invasion of a fundamental in-
dividual right which is guaranteed against &ate
action by the FoUr%eenth Amendment (citing author-
ities) and in view of the nature of the right aiid
of'our constitutional policy it cannot be maintained
that the dlscriminatl~n+a~,,itwas alleged was not
essentially unjust, (Underscoring ours)
Shelton v, Chicago R, I. & P, R. Co,, 139 Term. 378,
201 S.W. 521, L. R. A, 1918 Dall. 707, pa 708 presented a like
question* The court said:
"The tionstructionof the statute contended
for by plaintiff might be so onerous on railway
companies as to lead to'conSeqU8nC8s no% desirable
for either race, the abandonment of'dining cars in
certain trains, and on those railroads whicR would
not be justified in going to the expense of main-
taining separate diners, and find it impracticable
to partition one of them. In %his case a full-length
dining car was nbt operated - only one half of a ear
was found necessary for and devoted to buffet serviCe -
and it would be quite out of the bounds of reason to
subdivfde this space into two compartments, as a
practical proposition,
"A statute, when possible, should not be given
a tionsbuction that woUld make it not sensible, or
that would lead to manifest Inconvenience, so sePious
as to work injustice. * + * *'
. .
Honorable Olin Culberson, page 6 o-6424
"When, therefore, dining cars were Introduced
they were the subjects of regulation.by the rall-
road companies as to the use to be made of them
by passengers of the white and negro races, under
common ,law power to that end,
"It appears, however, that the defendant rall-
way company had established a rule for the purpose
of providing equal but separate and sufficient ac-
commoaation in Itsdining cars for the two races.
.
The partition it made of the car for use-'wasbv hours
during which members of the resnective ractismlnht
resort to the dining car for food. It-seems tb us
that.this rule was not only reasonable, but that~it
was a wise and fair one,,and perhaps the best that
in the circumstances'could be adopted to serve the
same ends the legislature had~lh mind when theg en-
acted laws in relation to separation of the races
iiipassenger coaches. The rule of~the highway com-
pany In operation was that white passengers were
served first; three separate meal calls were made in'
the day coaches and sleepers for the white passengers.
If there were any negro passengers desiring the meal,
they were not served~until the lapse of"a reasonable
time following the making of the last call, when there
was no probability of other white passengers coming
into the car for service. In OUP opinion we should
not read into the'statute anything that would prevent
such a just regulation by the CSIPPI~P, unless compelled
to do so. The ruleradmits of railway trains malntain-
ing schedules that are not slowed down by stops for
roadside meals, and It does not lead to denial of
meals to members of either race, OP to reasonable in-
convenience." (Underscoring ours)
We therefore answer your question as follows: .Itis;
under Revised Statutes, 1925, Art. 6417 and Penal Code, 1925,
Arts, 1659-60 (known as our Jim CPOW Law)'unlawful for rail-
roads to serve whites'and blacks in the same dining car at the
sametime. However, as held by the Tennessee Supreme Court,
we can see no-'objectionto the railroad companies using the
same dining car to serve both whlte~people and colored ~so.long
as they are.'servedat different hours so that the dining or
cafe car shall be-used exclusively by either race separately,
but not jointly; and the accommodations shall be equal in all
points of comfort and convenience.
- . .
Honorable Olin Culberson, page 7 O-6424
Yours very truly
ATTORNEYGENERAL OF TEXAS
By s/David Wuntch
David Wuntch
Assistant
DW:zd:wc
APPRom MAR 6, 1945
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/%f.BChairman