SEPARATION OF PASSENGERS IN RAILROAD CARS
With the exception of the transient “Jim Crow” laws of Mississippi, Florida, and Texas of 1865–67, the first State to adopt a comprehensive law separating the white and colored passengers on railroad cars was Tennessee[[544]] which did so in 1881. The statute of that State stood alone until 1887, when a series of “Jim Crow” laws were enacted by the States in the following order: Florida,[[545]] 1887; Mississippi,[[546]] 1888; Texas,[[547]] 1889; Louisiana,[[548]] 1890; Alabama,[[549]] Kentucky,[[550]] Arkansas,[[551]] and Georgia,[[552]] 1891. For some years thereafter the subject remained untouched by the legislatures, save an amending statute now and then; but in 1898–99, the other Southern States began to fall into line: South Carolina,[[553]] 1898; North Carolina,[[554]] 1899; Virginia,[[555]] 1900; Maryland,[[556]] 1904; Oklahoma,[[557]] 1907. It appears that Missouri is the only Southern State which has not separated the races in railroad cars.
The details of the “Jim Crow” laws as to railroads are very nearly the same in all the Southern States. They require white persons, on the one hand, and “Negroes,” “persons of color,” “persons of African descent,” etc., on the other, to occupy separate seats, compartments, or coaches. The legal meaning of the above-mentioned phrases has already been considered. It is safe to say, as the Arkansas statute does declare, that, if one has a visible and distinct admixture of African blood, he must accept the accommodations furnished colored passengers.
Interstate and Intrastate Travel
The first great question that arises is the extent of application of the laws. The statutes declare that they apply to all railroads doing business in the State. But just what does this mean? It has been generally understood and the principle has been confirmed by judicial decisions[[558]] that States may pass laws separating passengers going one from one point to another in the same State. But how about passengers coming from or going to points outside the State? Suppose, for instance, a colored passenger were to board a train at Philadelphia for Evansville, Indiana, and go through Maryland, West Virginia, and Kentucky. Pennsylvania and West Virginia have no “Jim Crow” laws; Maryland and Kentucky have. When the colored passenger reaches the Maryland line, must he enter a car set apart for colored people? When he reaches the West Virginia line, may he go back into the coach with white passengers? When, again, he reaches the Kentucky line, will he be forced to return to the car set apart for his race? And, finally, when he comes to Indiana, may he once more return to the car for white passengers? Or, suppose a railroad from Ohio to Indiana has only a few miles of its track in Kentucky and only two depôts in that State. Must the railroad furnish separate accommodations for the white and colored passengers going between those two points in Kentucky? If these questions had been asked thirty years ago or at the time of the Hall v. DeCuir case, there is no doubt that the Federal courts would have held that it was an unwarranted interference with interstate commerce or would lead to too much confusion.
The law of Alabama of 1891 contained the provision that “this act shall not apply to cases where white or colored passengers enter this State upon such railroads under contract for their transportation made in other States where like laws to this do not prevail.” Since these laws, however, have become so prevalent throughout the South, the courts seem to have swung over to the side of public opinion. In 1889, the Supreme Court of Mississippi held[[559]] that though the “Jim Crow” law of that State applied only to intrastate travel, it was not an unwarranted burden upon interstate railroads to require them to furnish separate accommodations for the races as soon as they came across the State line.
In 1894, the “Jim Crow” law of Kentucky was declared unconstitutional by the Federal Circuit Court[[560]] because the language of the acts was so comprehensive as to embrace all passengers, whether their passage commenced or ended within the State or otherwise and thus interfered with interstate commerce. Four years later, however, the Court of Appeals[[561]] of Kentucky, considering the same statute, ruled that the law of that State was not in violation of the Fourteenth Amendment or the “interstate commerce clause” of the Federal Constitution, arguing that, if it did apply to interstate passengers, which was not conceded, it would be construed to apply only to transportation within the State. Under this latter ruling apparently the colored passenger going from West Virginia to Indiana through Kentucky would have to ride in the car provided for his race in that State.
The same year, 1898, the Supreme Court[[562]] of Tennessee held that it was a proper exercise of the police power to require even interstate passengers to occupy separate accommodations while in that State. The last case[[563]] upon this point, decided April 16, 1907, held that a railroad company may, independently of statute, adopt and enforce rules requiring colored passengers, although they are interstate passengers, to occupy separate coaches or compartments.
Thus the matter stands. In the absence of a recent United States Supreme Court decision upon the point, it would be unsafe to make a generalization. But it is clear that there has been, in the point of view of the Federal judiciary, a reaction from the extreme doctrine of Hall v. DeCuir. All the lower courts, both State and Federal, are inclined to make the laws apply to all passengers, both intrastate and interstate, so long as they are within the borders of the particular State.
Sleeping Cars
In a number of the “Jim Crow” laws there are special provisions about Pullman cars. Oklahoma and Texas provide that carriers may haul sleeping or chair cars for the exclusive use of either race separately, but not jointly. Georgia goes farthest in legislation on this point. In 1899, the legislature provided that, in assigning seats and berths on sleeping cars, white and colored passengers must be separated; but declared that nothing in the act should be construed to compel sleeping-car companies to carry persons of color in sleeping or parlor cars. The act does not apply to nurses and servants with their employers, who may enter and ride in the car with their employers. The conductors are made special policemen to enforce the law, and the failure or refusal to do so is punishable as a misdemeanor. The “Jim Crow” laws in Maryland, North Carolina, and Virginia do not apply to Pullman cars or to through express trains; nor, in South Carolina, to through vestibule trains.
The Court of Appeals of Texas,[[564]] in 1897, held that a colored passenger in a Pullman car, going from a point outside of Texas into that State, might be compelled, upon reaching the Texas line, to enter a Pullman car set apart for passengers of his own race, provided the accommodations were equal. This decision is in harmony with those already considered with reference to day coaches.
Waiting-Rooms
Three States, Arkansas, Louisiana, and Oklahoma, require separate waiting-rooms at railroad depôts. In Mississippi, the railroad commission was given power in 1888 to designate separate waiting-rooms, if it deemed such proper. In most, if not all, of the other Southern States, separate waiting-rooms are provided by the railroad companies on their own initiative, and this action on their part was held constitutional[[565]] in South Carolina in 1893.
The most recent legislation along this line was an act of South Carolina of February 23, 1906, requiring a separation of the races in all station restaurants and eating-houses, imposing a heavy fine for its violation. It is probable that the necessity or propriety of this law was suggested by the disturbance which arose at Hamlet, North Carolina, near the South Carolina line, when the proprietor of the Seaboard Air Line Railway eating-house at that place allowed a party of Negroes, one of whom was Dr. Booker T. Washington, to eat in the main dining room, while the white guests were fed in a side room.
Trains to which Laws do not Apply
There are certain classes of trains to which the “Jim Crow” laws do not apply. In Maryland, Oklahoma, Texas, and Virginia, they do not apply to freight trains carrying passengers in the caboose cars. South Carolina exempts narrow-gauged roads from the requirements of the law. North Carolina gives its railroad commissioners power to exempt branch lines and narrow-gauged roads if, in their judgment, separation is unnecessary to secure the comfort of passengers. South Carolina provides that, where a railroad is under forty miles in length and operates both a freight and a passenger train daily, the law applies only to the passenger train. These two States also except relief trains in case of accident. Whether there is statutory exemption or not, the railway company cannot be held responsible for not separating the passengers in case of an accident.[[566]] Oklahoma allows the running of extra or special trains or cars for the exclusive accommodation of either race, if the regular trains or cars are operated upon regular schedule. Texas provides that the provisions of its act shall not apply to any excursion train run strictly as such for the benefit of either race.
Passengers to whom Law does not Apply
Certain classes of passengers are exempt from the laws. There is, for instance, an exemption in favor of nurses attending the children or sick of the other race in Florida, Georgia, Kentucky, Louisiana, Maryland, North Carolina, South Carolina, Texas, and Virginia. The Florida provision is that nothing in the act shall be construed to prevent female colored nurses having the care of children or sick persons from riding in cars for white passengers. North Carolina excepts “Negro servants in attendance on their employers.” These two qualifications sound innocent enough, but probably upon a test they would be declared unconstitutional. It would be considered class legislation in that colored nurses and Negro servants are specifically mentioned instead of exempting nurses and servants in general. In fact, the point has been decided in the case of street-car provisions with similar wording.
Arkansas, Kentucky, Maryland, Oklahoma, Texas, and Virginia expressly exempt the employees of a railroad in the discharge of their duty from the requirements of the “Jim Crow” laws. Where such exemption is not so made in the statute, it must be taken for granted, for it would be manifestly unreasonable to prohibit a white conductor from going into the colored coach to collect tickets, or a colored porter from going into the coach for white passengers to regulate the ventilation or for any other purpose of his employment. It may be noted, however, that in States where these laws apply, the white conductor usually assists the white passengers in entering and leaving the cars, while colored porters attend to the colored passengers.
Most of the States provide that the laws do not apply to officers in charge of prisoners. Arkansas declares that “officers accompanying prisoners may be assigned to the coach or room to which said prisoners belong by reason of race.” Louisiana, on the contrary, exempts prisoners in the charge of officers from the “Jim Crow” laws. The South Carolina law exempts lunatics as well. The law of Kentucky exempts “officers in charge of prisoners.” When, in a case which arose in Kentucky, a sheriff went to take a Negro lunatic over the road, the conductor required the lunatic to stay in the colored coach, and gave the sheriff the choice of staying with the lunatic or leaving him and riding in the car for white passengers. The court[[567]] upheld the action of the conductor, ruling that the exemption applied only to the officers, not to the prisoners. The law has the same effect as if it said that the officer should ride in the car set apart for the race of the prisoner or lunatic, because it is his duty to guard his charge, and, if the prisoner or lunatic must stay in the car for his race, the officer must stay there with him. North Carolina, South Carolina, and Maryland exempt prisoners from the requirements of the “Jim Crow” laws.
Nature of Accommodations
As to the nature of railroad accommodations, all “Jim Crow” laws provide, in substance, that the accommodations for white and colored passengers must be equal for both races. Florida provides that the coaches for colored passengers (with first-class tickets) must be equally good and provided with the same facilities for comfort as those for white passengers with first-class tickets. Kentucky, Maryland, and Virginia prohibit any difference in quality, convenience, or accommodation. Tennessee provides that the first-class coaches for colored passengers must “be kept in good repair, and with the same convenience and subject to the same rules governing other first-class cars, preventing smoking and obscene language.”
There is no one point upon which the courts are more in accord than that there is no ground of action so long as the accommodations are substantially equal.[[568]] The great working principle was enunciated in 1885 in the Circuit Court[[569]] of Tennessee in the doctrine that equality of accommodation does not mean identity of accommodation. And, indeed, the railroad company is not liable for damages even for inequality of accommodation, unless it is proved that the plaintiff actually sustained damages by such inequality.[[570]]
Means of Separation
The actual separation of the races is accomplished by requiring railroads to furnish on each passenger train either separate cars or one car divided into separate compartments by a partition. Each State gives the choice. In case of the division of the car into compartments, the partition must, in Arkansas, Oklahoma, and Kentucky, be made of wood; in Kentucky, Maryland, Oklahoma, and Texas, it must be “substantial”; and in Maryland and Texas, it must have a door in it. Arkansas requires only a partitioned car on roads less than thirty miles long, but separate cars on longer roads, though a train on any road may carry one partitioned car.
Maryland and North Carolina provide that, in case the car or compartment for either race becomes filled and no extra cars can be obtained and the increased number of passengers could not have been foreseen, the conductor may assign a portion of the car or compartment for one race to the passengers of the other race.
Designation of Separation
Several States specify a means by which the public shall be notified of the existence of the “Jim Crow” requirements. Arkansas requires the law to be posted in each coach and waiting-room; Louisiana, in each coach and ticket-office; Texas, in each coach and depôt. In Kentucky, Maryland, Oklahoma, and Texas, each coach or compartment must bear in some conspicuous place appropriate words, in plain letters, to indicate the race for which it was set apart.
Punishment for Violating Law
Certain liabilities are incurred for the violation of the “Jim Crow” laws. The three parties concerned are the passenger, the conductor or manager of the train, and the railroad company itself. If a passenger refuses to occupy the coach or compartment to which he, by his race, belongs, the conductor may refuse to carry him and may eject him if he is already on the train; and for this neither the conductor nor the railroad company is liable. In Georgia and Texas, conductors are given express power to enforce the law, and in other States the power is implied. Some States punish passengers for wilfully riding in the wrong car by a fine ranging from a minimum of five dollars in Maryland and Texas to a maximum of one thousand dollars in Georgia, or imprisonment from twenty days in Louisiana to six months in Georgia.
The conductor is liable for two kinds of offences: (1) for assigning a passenger to a car or compartment to which he does not by race belong, and (2) for failing to separate passengers. Most of the States consider the two violations as one. Only Arkansas and Louisiana prescribe separate punishments for assigning the passenger to the wrong car—a fine of twenty-five dollars in Arkansas and a fine of twenty-five dollars or twenty days’ imprisonment in Louisiana. The punishment for refusing to enforce the law is a fine varying from a minimum of five dollars in Texas to a maximum of one thousand dollars in Georgia, or, in a few States, imprisonment of varying length. In Texas, the fines collected are applied to the common school fund of the State.
The fine imposed upon railroad companies for failing or refusing to furnish separate accommodations, varies between twenty-five dollars and one thousand dollars for each offence, and for this purpose each trip that the train makes is considered a separate offence. If, however, the railroad company provides the required separate cars or compartments and the conductor fails to enforce the law or violates its provisions, it is the conductor, not the company, who is liable.[[571]]
Separation of Postal Clerks
A special question has arisen out of the Federal postal cars on which both white and colored clerks are employed. At present, they are obliged to sleep in the same cars, and at the terminals of long runs dormitories are provided for them, but without any race separation. The post-office department has said that such regulation is beyond its control.[[572]] Thus the matter stands, with a growing discontent on the part of the white postal clerks to be so intimately associated with the colored clerks.
The “Jim Crow” laws in the South, so far as the railroads are concerned, are very nearly complete. Missouri, as has been said, is the only one of the Southern States which has not, by express enactment, separated the races.