LEGISLATION BETWEEN 1865 AND 1881
Before considering the “Jim Crow” laws of the Southern States, it will be instructive to look into some of the court decisions between 1865 and 1881, the latter being the date of adoption of the first “Jim Crow” law of the second period, to see what steps the railroad, street car, and steamboat companies had taken to separate the races, in the absence of State legislation upon the subject.
In 1865, a colored woman ejected from a street car in Philadelphia[[529]] brought action against the conductor, who pleaded that there was a rule established by the road superintendent that Negroes should be excluded from the cars. The court held that the conductor had no right to eject a passenger on account of race or color, and that a regulation of the company would not be a defence to the action.
Just a few days after the Pennsylvania legislature passed the act prohibiting discriminations against persons of color in public conveyances, to which reference has been made, the Supreme Court of the State ruled[[530]] that it was not an unreasonable regulation of the railroad company to separate the passengers so as to promote personal comfort and convenience. This is interesting because it is the earliest case found supporting the legality of the separation of races in public conveyances. Since the case arose before the Civil Rights Bill of the Commonwealth was adopted, it does not purport to rule upon the constitutionality of that act.
In San Francisco,[[531]] in 1868, a street car conductor refused to stop for a colored woman, saying, “We don’t take colored people in the cars,” whereupon she brought an action against the company and was awarded damages by the lower court. Here there is an implication that the railroad company had a regulation excluding persons of color from street cars.
In 1870, the Chicago and Northwestern Railway Company[[532]] refused to admit a colored woman to the car set apart for ladies and gentlemen accompanying them. Whereupon she brought an action and recovered two hundred dollars damages. It does not appear from the case that the railroad had set apart any car or part of a car for the exclusive accommodation of colored persons.
A steamboat company in Iowa, in 1873, had a regulation that colored passengers should not eat at the regular tables, but at a table on the “guards” of the boat. The Supreme Court of that State held[[533]] that this rule was unreasonable and, therefore, illegal.
The first case to reach the Supreme Court of the United States involving the separation of white and colored passengers on cars was one brought against the Washington, Alexandria, and Georgetown Railroad Company, in 1873. This road was chartered by Congress in 1863 with the provision that no person should be excluded from the cars on account of color. A Negro woman, with an ordinary first-class ticket, was made to ride in a separate coach precisely like that used by the white passengers. The court ruled[[534]] that the Act of 1863 meant that persons of color should travel in the same cars as white persons without any distinction being made; that, therefore, the law was not satisfied by the company’s providing cars assigned exclusively to persons of color, though they were as good as those assigned to white passengers.
In 1869, the Louisiana[[535]] legislature passed a law prohibiting railroad, street car, and steamboat companies from making any discrimination on account of race or color. In the often-cited case of Hall v. DeCuir,[[536]] a test case arising under this act in 1875, the Supreme Court ruled that the Louisiana act was unconstitutional because it was an interference with interstate commerce. Chief Justice Waite, in delivering the opinion of the court, said: “If each State was at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not but be productive of great inconvenience and unnecessary hardship.” This case has stood as a warning to the Southern States that they must be careful to mention in their “Jim Crow” laws that they apply only to intrastate passengers. But, as will be seen later, though this case has not been overruled, it has been refined upon.
In a case[[537]] arising in the Federal District Court of Texas in 1877, it was held that for a railroad employee to deny to a passenger the right to ride in the only car appropriated for the use of ladies, because she was a colored woman, was a violation of the Civil Rights Bill. But the judge, in charging the jury at the trial, said that, if there were two cars equally fit and appropriate, then the white and colored passengers might be separated.