Syllabus
The statute of Louisiana, acts of 1890, c. 111, requiringrailway companies carrying passengers in their coaches in thatState, to provide equal, but separate, accommodations for the whiteand colored races, by providing two or more passenger coaches foreach passenger train, or by dividing the passenger coaches by apartition so as to secure separate accommodations; and providingthat no person shall be permitted to occupy seats in coaches otherthan the ones assigned to them, on account
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of the race they belong to; and requiring the officer of thepassenger train to assign each passenger to the coach orcompartment assigned for the race to which he or she belong; andimposing fines or imprisonment upon passengers insisting on goinginto a coach or compartment other than the one set aide for therace to which he or she belongs; and conferring upon officers ofthe train power to refuse to carry on the train passengers refusingto occupy the coach or compartment assigned to them, and exemptingthe railway company from liability for such refusal, are not inconflict with the provisions either of the Thirteenth Amendment orof the Fourteenth Amendment to the Constitution of the UnitedStates.
This was a petition for writs of prohibition and certiorari,originally filed in the Supreme Court of the State by Plessy, theplaintiff in error, against the Hon. John H. Ferguson, judge of thecriminal District Court for the parish of Orleans, and settingforth in substance the following facts:
That petitioner was a citizen of the United States and aresident of the State of Louisiana, of mixed descent, in theproportion of seven eighths Caucasian and one eighth African blood;that the mixture of colored blood was not discernible in him, andthat he was entitled to every recognition, right, privilege andimmunity secured to the citizens of the United States of the whiterace by its Constitution and laws; that, on June 7, 1892, heengaged and paid for a first class passage on the East LouisianaRailway from New Orleans to Covington, in the same State, andthereupon entered a passenger train, and took possession of avacant seat in a coach where passengers of the white race wereaccommodated; that such railroad company was incorporated by thelaws of Louisiana as a common carrier, and was not authorized todistinguish between citizens according to their race. But,notwithstanding this, petitioner was required by the conductor,under penalty of ejection from said train and imprisonment, tovacate said coach and occupy another seat in a coach assigned bysaid company for persons not of the white race, and for no otherreason than that petitioner was of the colored race; that, uponpetitioner's refusal to comply with such order, he was, with theaid of a police officer, forcibly ejected from said coach andhurried off to and imprisoned in the parish jail of
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New Orleans, and there held to answer a charge made by suchofficer to the effect that he was guilty of having criminallyviolated an act of the General Assembly of the State, approved July10, 1890, in such case made and provided.
That petitioner was subsequently brought before the recorder ofthe city for preliminary examination and committed for trial to thecriminal District Court for the parish of Orleans, where aninformation was filed against him in the matter above set forth,for a violation of the above act, which act the petitioner affirmedto be null and void, because in conflict with the Constitution ofthe United States; that petitioner interposed a plea to suchinformation based upon the unconstitutionality of the act of theGeneral Assembly, to which the district attorney, on behalf of theState, filed a demurrer; that, upon issue being joined upon suchdemurrer and plea, the court sustained the demurrer, overruled theplea, and ordered petitioner to plead over to the facts set forthin the information, and that, unless the judge of the said court beenjoined by a writ of prohibition from further proceeding in suchcase, the court will proceed to fine and sentence petitioner toimprisonment, and thus deprive him of his constitutional rights setforth in his said plea, notwithstanding the unconstitutionality ofthe act under which he was being prosecuted; that no appeal layfrom such sentence, and petitioner was without relief or remedyexcept by writs of prohibition and certiorari. Copies of theinformation and other proceedings in the criminal District Courtwere annexed to the petition as an exhibit.
Upon the filing of this petition, an order was issued upon therespondent to show cause why a writ of prohibition should not issueand be made perpetual, and a further order that the record of theproceedings had in the criminal cause be certified and transmittedto the Supreme Court.
To this order the respondent made answer, transmitting acertified copy of the proceedings, asserting the constitutionalityof the law, and averring that, instead of pleading or admittingthat he belonged to the colored race, the said Plessy declined andrefused, either by pleading or otherwise, to admit
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that he was in any sense or in any proportion a colored man.
The case coming on for a hearing before the Supreme Court, thatcourt was of opinion that the law under which the prosecution washad was constitutional, and denied the relief prayed for by thepetitioner. Ex parte Plessy, 45 La. Ann. 80. Whereuponpetitioner prayed for a writ of error from this court, which wasallowed by the Chief Justice of the Supreme Court of Louisiana.
MR. JUSTICE BROWN, after stating the case, delivered the opinionof the court.
This case turns upon the constitutionality of an act of theGeneral Assembly of the State of Louisiana, passed in 1890,providing for separate railway carriages for the white and coloredraces. Acts 1890, No. 111, p. 152.
The first section of the statute enacts "that all railwaycompanies carrying passengers in their coaches in this State shallprovide equal but separate accommodations for the white and coloredraces by providing two or more passenger coaches for each passengertrain, or by dividing the passenger coaches by a partition so as tosecure separate accommodations: Provided, That thissection shall not be construed to apply to street railroads. Noperson or persons, shall be admitted to occupy seats in coachesother than the ones assigned to them on account of the race theybelong to."
By the second section, it was enacted "that the officers of suchpassenger trains shall have power and are hereby required
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to assign each passenger to the coach or compartment used forthe race to which such passenger belongs; any passenger insistingon going into a coach or compartment to which by race he does notbelong shall be liable to a fine of twenty-five dollars, or in lieuthereof to imprisonment for a period of not more than twenty daysin the parish prison, and any officer of any railroad insisting onassigning a passenger to a coach or compartment other than the oneset aside for the race to which said passenger belongs shall beliable to a fine of twenty-five dollars, or in lieu thereof toimprisonment for a period of not more than twenty days in theparish prison; and should any passenger refuse to occupy the coachor compartment to which he or she is assigned by the officer ofsuch railway, said officer shall have power to refuse to carry suchpassenger on his train, and for such refusal neither he nor therailway company which he represents shall be liable for damages inany of the courts of this State."
The third section provides penalties for the refusal or neglectof the officers, directors, conductors, and employees of railwaycompanies to comply with the act, with a proviso that "nothing inthis act shall be construed as applying to nurses attendingchildren of the other race." The fourth section is immaterial.
The information filed in the criminal District Court charged insubstance that Plessy, being a passenger between two stationswithin the State of Louisiana, was assigned by officers of thecompany to the coach used for the race to which he belonged, but heinsisted upon going into a coach used by the race to which he didnot belong. Neither in the information nor plea was his particularrace or color averred. The petition for the writ of prohibitionaverred that petitioner was seven-eighths Caucasian and one eighthAfrican blood; that the mixture of colored blood was notdiscernible in him, and that he was entitled to every right,privilege and immunity secured to citizens of the United States ofthe white race; and that, upon such theory, he took possession of avacant seat in a coach where passengers of the white race wereaccommodated, and was ordered by the conductor to vacate
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said coach and take a seat in another assigned to persons of thecolored race, and, having refused to comply with such demand, hewas forcibly ejected with the aid of a police officer, andimprisoned in the parish jail to answer a charge of having violatedthe above act.
The constitutionality of this act is attacked upon the groundthat it conflicts both with the Thirteenth Amendment of theConstitution, abolishing slavery, and the Fourteenth Amendment,which prohibits certain restrictive legislation on the part of theStates.
1. That it does not conflict with the Thirteenth Amendment,which abolished slavery and involuntary servitude, except as apunishment for crime, is too clear for argument. Slavery impliesinvoluntary servitude -- a state of bondage; the ownership ofmankind as a chattel, or at least the control of the labor andservices of one man for the benefit of another, and the absence ofa legal right to the disposal of his own person, property andservices. This amendment was said in the Slaughterhouse Cases,16 Wall. 36, to have been intended primarily to abolish slavery asit had been previously known in this country, and that it equallyforbade Mexican peonage or the Chinese coolie trade when theyamounted to slavery or involuntary servitude, and that the use ofthe word "servitude" was intended to prohibit the use of all formsof involuntary slavery, of whatever class or name. It wasintimated, however, in that case that this amendment was regardedby the statesmen of that day as insufficient to protect the coloredrace from certain laws which had been enacted in the SouthernStates, imposing upon the colored race onerous disabilities andburdens and curtailing their rights in the pursuit of life, libertyand property to such an extent that their freedom was of littlevalue; and that the Fourteenth Amendment was devised to meet thisexigency.
So, too, in the Civil Rights Cases, 109 U. S. 3, 24, it wassaid that the act of a mere individual, the owner of an inn, apublic conveyance or place of amusem*nt, refusing accommodations tocolored people cannot be justly regarded as imposing any badge ofslavery or servitude upon the applicant, but
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only as involving an ordinary civil injury, properly cognizableby the laws of the State and presumably subject to redress by thoselaws until the contrary appears. "It would be running the slaveryargument into the ground," said Mr. Justice Bradley, "to make itapply to every act of discrimination which a person may see fit tomake as to the guests he will entertain, or as to the people hewill take into his coach or cab or car, or admit to his concert ortheatre, or deal with in other matters of intercourse orbusiness."
A statute which implies merely a legal distinction between thewhite and colored races -- a distinction which is founded in thecolor of the two races and which must always exist so long as whitemen are distinguished from the other race by color -- has notendency to destroy the legal equality of the two races, orreestablish a state of involuntary servitude. Indeed, we do notunderstand that the Thirteenth Amendment is strenuously relied uponby the plaintiff in error in this connection.
2. By the Fourteenth Amendment, all persons born or naturalizedin the United States and subject to the jurisdiction thereof aremade citizens of the United States and of the State wherein theyreside, and the States are forbidden from making or enforcing anylaw which shall abridge the privileges or immunities of citizens ofthe United States, or shall deprive any person of life, liberty, orproperty without due process of law, or deny to any person withintheir jurisdiction the equal protection of the laws.
The proper construction of this amendment was first called tothe attention of this court in the Slaughterhouse Cases,16 Wall. 36, which involved, however, not a question of race, butone of exclusive privileges. The case did not call for anyexpression of opinion as to the exact rights it was intended tosecure to the colored race, but it was said generally that its mainpurpose was to establish the citizenship of the negro, to givedefinitions of citizenship of the United States and of the States,and to protect from the hostile legislation of the States theprivileges and immunities of citizens of the United States, asdistinguished from those of citizens of the States.
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The object of the amendment was undoubtedly to enforce theabsolute equality of the two races before the law, but, in thenature of things, it could not have been intended to abolishdistinctions based upon color, or to enforce social, asdistinguished from political, equality, or a commingling of the tworaces upon terms unsatisfactory to either. Laws permitting, andeven requiring, their separation in places where they are liable tobe brought into contact do not necessarily imply the inferiority ofeither race to the other, and have been generally, if notuniversally, recognized as within the competency of the statelegislatures in the exercise of their police power. The most commoninstance of this is connected with the establishment of separateschools for white and colored children, which has been held to be avalid exercise of the legislative power even by courts of Stateswhere the political rights of the colored race have been longestand most earnestly enforced.
One of the earliest of these cases is that of Roberts v.City of Boston, 5 Cush. 19, in which the Supreme JudicialCourt of Massachusetts held that the general school committee ofBoston had power to make provision for the instruction of coloredchildren in separate schools established exclusively for them, andto prohibit their attendance upon the other schools. "The greatprinciple," said Chief Justice Shaw, p. 206, "advanced by thelearned and eloquent advocate for the plaintiff" (Mr. CharlesSumner), "is that, by the constitution and laws of Massachusetts,all persons without distinction of age or sex, birth or color,origin or condition, are equal before the law....But when this great principle comes to be applied to the actual andvarious conditions of persons in society, it will not warrant theassertion that men and women are legally clothed with the samecivil and political powers, and that children and adults arelegally to have the same functions and be subject to the sametreatment, but only that the rights of all, as they are settled andregulated by law, are equally entitled to the paternalconsideration and protection of the law for their maintenance andsecurity."
It was held that the powers of the committee extended to theestablishment
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of separate schools for children of different ages, sexes andcolors, and that they might also establish special schools for poorand neglected children, who have become too old to attend theprimary school and yet have not acquired the rudiments of learningto enable them to enter the ordinary schools. Similar laws havebeen enacted by Congress under its general power of legislationover the District of Columbia, Rev.Stat.D.C. §§ 281, 282, 283, 310,319, as well as by the legislatures of many of the States, and havebeen generally, if not uniformly, sustained by the courts.State v. McCann, 21 Ohio St. 198; Lehew v.Brummell, 15 S.W. Rep. 765; Ward v. Flood, 48California 36; Bertonneau v. School Directors, 3 Woods177; People v. Gallagher, 93 N.Y. 438; Cory v.Carter, 48 Indiana 897; Dawson v. Lee, 3 Kentucky49.
Laws forbidding the intermarriage of the two races may be saidin a technical sense to interfere with the freedom of contract, andyet have been universally recognized as within the police power ofthe State. State v. Gibson, 36 Indiana 389.
The distinction between laws interfering with the politicalequality of the negro and those requiring the separation of the tworaces in schools, theatres and railway carriages has beenfrequently drawn by this court. Thus, in Strauder v. WestVirginia, 100 U.S. 303, it was held that a law of West Virginia limiting towhite male persons, 21 years of age and citizens of the State, theright to sit upon juries was a discrimination which implied a legalinferiority in civil society, which lessened the security of theright of the colored race, and was a step toward reducing them to acondition of servility. Indeed, the right of a colored man that, inthe selection of jurors to pass upon his life, liberty andproperty, there shall be no exclusion of his race and nodiscrimination against them because of color has been asserted in anumber of cases. Virginia v. Rives, 100 U. S. 313; Nealv. Delaware, 103U. S. 370; Bush v. Kentucky, 107 U. S. 110; Gibsonv. Mississippi, 162 U. S. 565. So, wherethe laws of a particular locality or the charter of a particularrailway corporation has provided that no person shall be excludedfrom the cars on account of
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color, we have held that this meant that persons of color shouldtravel in the same car as white ones, and that the enactment wasnot satisfied by the company's providing cars assigned exclusivelyto people of color, though they were as good as those which theyassigned exclusively to white persons. Railroad Company v.Brown, 17 Wall. 445.
Upon the other hand, where a statute of Louisiana required thoseengaged in the transportation of passengers among the States togive to all persons traveling within that State, upon vesselsemployed in that business, equal rights and privileges in all partsof the vessel, without distinction on account of race or color, andsubjected to an action for damages the owner of such a vessel, whoexcluded colored passengers on account of their color from thecabin set aside by him for the use of whites, it was held to be, sofar as it applied to interstate commerce, unconstitutional andvoid. Hall v. De Cuir, 95 U. S. 48. The court inthis case, however, expressly disclaimed that it had anythingwhatever to do with the statute as a regulation of internalcommerce, or affecting anything else than commerce among theStates.
In the Civil Rights Case, 109 U. S. 3, it was heldthat an act of Congress entitling all persons within thejurisdiction of the United States to the full and equal enjoymentof the accommodations, advantages, facilities and privileges ofinns, public conveyances, on land or water, theatres and otherplaces of public amusem*nt, and made applicable to citizens ofevery race and color, regardless of any previous condition ofservitude, was unconstitutional and void upon the ground that theFourteenth Amendment was prohibitory upon the States only, and thelegislation authorized to be adopted by Congress for enforcing itwas not direct legislation on matters respecting which the Stateswere prohibited from making or enforcing certain laws, or doingcertain acts, but was corrective legislation such as might benecessary or proper for counteracting and redressing the effect ofsuch laws or acts. In delivering the opinion of the court, Mr.Justice Bradley observed that the Fourteenth Amendment "does notinvest Congress with power to legislate upon subjects that arewithin the
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domain of state legislation, but to provide modes of reliefa*gainst state legislation or state action of the kind referred to.It does not authorize Congress to create a code of municipal lawfor the regulation of private rights, but to provide modes ofredress against the operation of state laws and the action of stateofficers, executive or judicial, when these are subversive of thefundamental rights specified in the amendment. Positive rights andprivileges are undoubtedly secured by the Fourteenth Amendment, butthey are secured by way of prohibition against state laws and stateproceedings affecting those rights and privileges, and by powergiven to Congress to legislate for the purpose of carrying suchprohibition into effect, and such legislation must necessarily bepredicated upon such supposed state laws or state proceedings, andbe directed to the correction of their operation and effect."
Much nearer, and, indeed, almost directly in point is the caseof the Louisville, New Orleans &c. Railway v.Mississippi, 133U. S. 587, wherein the railway company was indicted for aviolation of a statute of Mississippi enacting that all railroadscarrying passengers should provide equal but separateaccommodations for the white and colored races by providing two ormore passenger cars for each passenger train, or by dividing thepassenger cars by a partition so as to secure separateaccommodations. The case was presented in a different aspect fromthe one under consideration, inasmuch as it was an indictmentagainst the railway company for failing to provide the separateaccommodations, but the question considered was theconstitutionality of the law. In that case, the Supreme Court ofMississippi, 66 Mississippi 662, had held that the statute appliedsolely to commerce within the State, and that, being theconstruction of the state statute by its highest court, wasaccepted as conclusive. "If it be a matter," said the court, p.591, "respecting commerce wholly within a State, and notinterfering with commerce between the States, then obviously thereis no violation of the commerce clause of the FederalConstitution.... No question arises under thissection as to the power of the State to separate in differentcompartments interstate passengers
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or affect in any manner the privileges and rights of suchpassengers. All that we can consider is whether the State has thepower to require that railroad trains within her limits shall haveseparate accommodations for the two races; that affecting onlycommerce within the State is no invasion of the power given toCongress by the commerce clause."
A like course of reasoning applies to the case underconsideration, since the Supreme Court of Louisiana in the case ofthe State ex rel. Abbott v. Hicks, Judge, et al., 44La.Ann. 770, held that the statute in question did not apply tointerstate passengers, but was confined in its application topassengers traveling exclusively within the borders of the State.The case was decided largely upon the authority of Railway Co.v. State, 66 Mississippi 662, and affirmed by this court in133 U. S. 587. Inthe present case, no question of interference with interstatecommerce can possibly arise, since the East Louisiana Railwayappears to have been purely a local line, with both its terminiwithin the State of Louisiana. Similar statutes for the separationof the to races upon public conveyances were held to beconstitutional in West Chester &c. Railroad v. Miles,55 Penn.St. 209; Day v. Owen, 5 Michigan 520; Chicago&c. Railway v. Williams, 5 Illinois 185; Chesapeake&c. Railroad v. Wells, 85 Tennessee 613; Memphis&c. Railroad v. Benson, 85 Tennessee 627; TheSue, 22 Fed.Rep. 83; Logwood v. Memphis &c.Railroad, 23 Fed.Rep. 318; McGuinn v. Forbes, 37Fed.Rep. 639; People v. King, 18 N.E.Rep. 245; Houckv. South Pac. Railway, 38 Fed.Rep. 226; Heard v. GeorgiaRailroad Co., 3 Int.Com.Com'n 111; S.C., 1Ibid. 428.
While we think the enforced separation of the races, as appliedto the internal commerce of the State, neither abridges theprivileges or immunities of the colored man, deprives him of hisproperty without due process of law, nor denies him the equalprotection of the laws within the meaning of the FourteenthAmendment, we are not prepared to say that the conductor, inassigning passengers to the coaches according to their race, doesnot act at his peril, or that the provision of the second sectionof the act that denies to the passenger compensation
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in damages for a refusal to receive him into the coach in whichhe properly belongs is a valid exercise of the legislative power.Indeed, we understand it to be conceded by the State's Attorneythat such part of the act as exempts from liability the railwaycompany and its officers is unconstitutional. The power to assignto a particular coach obviously implies the power to determine towhich race the passenger belongs, as well as the power to determinewho, under the laws of the particular State, is to be deemed awhite and who a colored person. This question, though indicated inthe brief of the plaintiff in error, does not properly arise uponthe record in this case, since the only issue made is as to theunconstitutionality of the act so far as it requires the railway toprovide separate accommodations and the conductor to assignpassengers according to their race.
It is claimed by the plaintiff in error that, in any mixedcommunity, the reputation of belonging to the dominant race, inthis instance the white race, is property in the same sense that aright of action or of inheritance is property. Conceding this to beso for the purposes of this case, we are unable to see how thisstatute deprives him of, or in any way affects his right to, suchproperty. If he be a white man and assigned to a colored coach, hemay have his action for damages against the company for beingdeprived of his so-called property. Upon the other hand, if he be acolored man and be so assigned, he has been deprived of noproperty, since he is not lawfully entitled to the reputation ofbeing a white man.
In this connection, it is also suggested by the learned counselfor the plaintiff in error that the same argument that will justifythe state legislature in requiring railways to provide separateaccommodations for the two races will also authorize them torequire separate cars to be provided for people whose hair is of acertain color, or who are aliens, or who belong to certainnationalities, or to enact laws requiring colored people to walkupon one side of the street and white people upon the other, orrequiring white men's houses to be painted white and colored men'sblack, or their vehicles or business signs to be of differentcolors, upon the theory that one side
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of the street is as good as the other, or that a house orvehicle of one color is as good as one of another color. The replyto all this is that every exercise of the police power must bereasonable, and extend only to such laws as are enacted in goodfaith for the promotion for the public good, and not for theannoyance or oppression of a particular class. Thus, in Yick Wov. Hopkins, 118U. S. 356, it was held by this court that a municipal ordinanceof the city of San Francisco to regulate the carrying on of publiclaundries within the limits of the municipality violated theprovisions of the Constitution of the United States if it conferredupon the municipal authorities arbitrary power, at their own willand without regard to discretion, in the legal sense of the term,to give or withhold consent as to persons or places without regardto the competency of the persons applying or the propriety of theplaces selected for the carrying on of the business. It was held tobe a covert attempt on the part of the municipality to make anarbitrary and unjust discrimination against the Chinese race. Whilethis was the case of a municipal ordinance, a like principle hasbeen held to apply to acts of a state legislature passed in theexercise of the police power. Railroad Company v. Husen,95 U. S. 465;Louisville & Nashville Railroad v. Kentucky, 161 U. S. 677, and casescited on p. 700; Duggett v. Hudson, 43 Ohio St. 548;Capen v. Foster, 12 Pick. 48; State ex rel. Wood v.Baker, 38 Wisconsin 71; Monroe v. Collins, 17 OhioSt. 66; Hulseman v. Rems, 41 Penn. St. 396; Orman v.Riley, 1 California 48.
So far, then, as a conflict with the Fourteenth Amendment isconcerned, the case reduces itself to the question whether thestatute of Louisiana is a reasonable regulation, and, with respectto this, there must necessarily be a large discretion on the partof 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 thepromotion of their comfort and the preservation of the public peaceand good order. Gauged by this standard, we cannot say that a lawwhich authorizes or even requires the separation of the two racesin public conveyances
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is unreasonable, or more obnoxious to the Fourteenth Amendmentthan the acts of Congress requiring separate schools for coloredchildren in the District of Columbia, the constitutionality ofwhich does not seem to have been questioned, or the correspondingacts of state legislatures.
We consider the underlying fallacy of the plaintiff's argumentto consist in the assumption that the enforced separation of thetwo races stamps the colored race with a badge of inferiority. Ifthis be so, it is not by reason of anything found in the act, butsolely because the colored race chooses to put that constructionupon it. The argument necessarily assumes that if, as has been morethan once the case and is not unlikely to be so again, the coloredrace should become the dominant power in the state legislature, andshould enact a law in precisely similar terms, it would therebyrelegate the white race to an inferior position. We imagine thatthe white race, at least, would not acquiesce in this assumption.The argument also assumes that social prejudices may be overcome bylegislation, and that equal rights cannot be secured to the negroexcept by an enforced commingling of the two races. We cannotaccept this proposition. If the two races are to meet upon terms ofsocial equality, it must be the result of natural affinities, amutual appreciation of each other's merits, and a voluntary consentof individuals. As was said by the Court of Appeals of New York inPeople v. Gallagher, 93 N.Y. 438, 448, "this end canneither be accomplished nor promoted by laws which conflict withthe general sentiment of the community upon whom they are designedto operate. When the government, therefore, has secured to each ofits citizens equal rights before the law and equal opportunitiesfor improvement and progress, it has accomplished the end for whichit was organized, and performed all of the functions respectingsocial advantages with which it is endowed."
Legislation is powerless to eradicate racial instincts or toabolish distinctions based upon physical differences, and theattempt to do so can only result in accentuating the difficultiesof the present situation. If the civil and political rights of bothraces be equal, one cannot be inferior to the other civilly
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or politically. If one race be inferior to the other socially,the Constitution of the United States cannot put them upon the sameplane.
It is true that the question of the proportion of colored bloodnecessary to constitute a colored person, as distinguished from awhite person, is one upon which there is a difference of opinion inthe different States, some holding that any visible admixture ofblack blood stamps the person as belonging to the colored race(State v. Chaver, 5 Jones [N.C.] 1, p. 11); others that itdepends upon the preponderance of blood (Gray v. State, 4Ohio 354; Monroe v. Collins, 17 Ohio St. 665); and stillothers that the predominance of white blood must only be in theproportion of three-fourths. (People v. Dean, 4 Michigan406; Jones v. Commonwealth, 80 Virginia 538). But theseare questions to be determined under the laws of each State, andare not properly put in issue in this case. Under the allegationsof his petition, it may undoubtedly become a question of importancewhether, under the laws of Louisiana, the petitioner belongs to thewhite or colored race.
The judgment of the court below is, therefore,
Affirmed.
MR. JUSTICE HARLAN, dissenting.
By the Louisiana statute the validity of which is here involved,all railway companies (other than street railroad companies)carrying passengers in that State are required to have separate butequal accommodations for white and colored persons "by providingtwo or more passenger coaches for each passenger train, or bydividing the passenger coaches by a partition so as to secureseparate accommodations."
Under this statute, no colored person is permitted to occupy aseat in a coach assigned to white persons, nor any white person tooccupy a seat in a coach assigned to colored persons. The managersof the railroad are not allowed to exercise any discretion in thepremises, but are required to assign each passenger to some coachor compartment set apart for the exclusive use of his race. If apassenger insists upon going into a coach or compartment not setapart for persons of his race,
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he is subject to be fined or to be imprisoned in the parishjail. Penalties are prescribed for the refusal or neglect of theofficers, directors, conductors and employees of railroad companiesto comply with the provisions of the act.
Only "nurses attending children of the other race " are exceptedfrom the operation of the statute. No exception is made of coloredattendants traveling with adults. A white man is not permitted tohave his colored servant with him in the same coach, even if hiscondition of health requires the constant, personal assistance ofsuch servant. If a colored maid insists upon riding in the samecoach with a white woman whom she has been employed to serve, andwho may need her personal attention while traveling, she is subjectto be fined or imprisoned for such an exhibition of zeal in thedischarge of duty.
While there may be in Louisiana persons of different races whoare not citizens of the United States, the words in the act "whiteand colored races" necessarily include all citizens of the UnitedStates of both races residing in that State. So that we have beforeus a state enactment that compels, under penalties, the separationof the two races in railroad passenger coaches, and makes it acrime for a citizen of either race to enter a coach that has beenassigned to citizens of the other race.
Thus, the State regulates the use of a public highway bycitizens of the United States solely upon the basis of race.
However apparent the injustice of such legislation may be, wehave only to consider whether it is consistent with theConstitution of the United States.
That a railroad is a public highway, and that the corporationwhich owns or operates it is in the exercise of public functions,is not, at this day, to be disputed. Mr. Justice Nelson, speakingfor this court in New Jersey Steam NavigationCo. v. Merchants' Bank, 6 How. 344, 382, said that acommon carrier was in the exercise "of a sort of public office, andhas public duties to perform, from which he should not be permittedto exonerate himself without the assent of the partiesconcerned."
Mr. Justice Strong, delivering the judgment of
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this court in Olcott v. TheSupervisors, 16 Wall. 678, 694, said: "That railroads,though constructed by private corporations and owned by them, arepublic highways has been the doctrine of nearly all the courts eversince such conveniences for passage and transportation have had anyexistence. Very early the question arose whether a State's right ofeminent domain could be exercised by a private corporation createdfor the purpose of constructing a railroad. Clearly it could notunless taking land for such a purpose by such an agency is takingland for public use. The right of eminent domain nowhere justifiestaking property for a private use. Yet it is a doctrine universallyaccepted that a state legislature may authorize a privatecorporation to take land for the construction of such a road,making compensation to the owner. What else does this doctrine meanif not that building a railroad, though it be built by a privatecorporation, is an act done for a public use."
So, in Townshipof Pine Grove v. Talcott, 19 Wall. 666, 676: "Though thecorporation [a railroad company] was private, its work was public,as much so as if it were to be constructed by the State." So, inInhabitants of Worcester v. Western Railroad Corporation,4 Met. 564: "The establishment of that great thoroughfare isregarded as a public work, established by public authority,intended for the public use and benefit, the use of which issecured to the whole community, and constitutes, therefore, like acanal, turnpike or highway, a public easem*nt. It is true that thereal and personal property necessary to the establishment andmanagement of the railroad is vested in the corporation, but it isin trust for the public."
In respect of civil rights common to all citizens, theConstitution of the United States does not, I think, permit anypublic authority to know the race of those entitled to be protectedin the enjoyment of such rights. Every true man has pride of race,and, under appropriate circ*mstances, when the rights of others,his equals before the law, are not to be affected, it is hisprivilege to express such pride and to take such action based uponit as to him seems proper. But I deny that any legislative body orjudicial tribunal may have regard to the
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race of citizens when the civil rights of those citizens areinvolved. Indeed, such legislation as that here in question isinconsistent not only with that equality of rights which pertainsto citizenship, National and State, but with the personal libertyenjoyed by everyone within the United States.
The Thirteenth Amendment does not permit the withholding or thedeprivation of any right necessarily inhering in freedom. It notonly struck down the institution of slavery as previously existingin the United States, but it prevents the imposition of any burdensor disabilities that constitute badges of slavery or servitude. Itdecreed universal civil freedom in this country. This court has soadjudged. But that amendment having been found inadequate to theprotection of the rights of those who had been in slavery, it wasfollowed by the Fourteenth Amendment, which added greatly to thedignity and glory of American citizenship and to the security ofpersonal liberty by declaring that "all persons born or naturalizedin the United States, and subject to the jurisdiction thereof, arecitizens of the United States and of the State wherein theyreside," and that "no State shall make or enforce any law whichshall abridge the privileges or immunities of citizens of theUnited States; nor shall any State deprive any person of life,liberty or property without due process of law, nor deny to anyperson within its jurisdiction the equal protection of thelaws."
These two amendments, if enforced according to their true intentand meaning, will protect all the civil rights that pertain tofreedom and citizenship. Finally, and to the end that no citizenshould be denied, on account of his race, the privilege ofparticipating in the political control of his country, it asdeclared by the Fifteenth Amendment that "the right of citizens ofthe United States to vote shall not be denied or abridged by theUnited States or by any State on account of race, color or previouscondition of servitude."
These notable additions to the fundamental law were welcomed bythe friends of liberty throughout the world. They removed the raceline from our governmental systems. They had, as this court hassaid, a common purpose, namely to secure "to a race recentlyemancipated, a race that through
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many generations have been held in slavery, all the civil rightsthat the superior race enjoy."
They declared, in legal effect, this court has further said,"that the law in the States shall be the same for the black as forthe white; that all persons, whether colored or white, shall standequal before the laws of the States, and, in regard to the coloredrace, for whose protection the amendment was primarily designed,that no discrimination shall be made against them by law because oftheir color."
We also said: "The words of the amendment, it is true, areprohibitory, but they contain a necessary implication of a positiveimmunity, or right, most valuable to the colored race -- the rightto exemption from unfriendly legislation against them distinctivelyas colored -- exemption from legal discriminations, implyinginferiority in civil society, Lessening the security of theirenjoyment of the rights which others enjoy, and discriminationswhich are steps towards reducing them to the condition of a subjectrace."
It was, consequently, adjudged that a state law that excludedcitizens of the colored race from juries, because of their race andhowever well qualified in other respects to discharge the duties ofjurymen, was repugnant to the Fourteenth Amendment. Strauder v.West Virginia, 100 U. S. 303, 306, 307;Virginia v. Rives, 100 U. S. 313; Exparte Virginia, 100 U. S. 339; Nealv. Delaware, 103U. S. 370, 386; Bush v. Kentucky, 107 U. S. 110, 116. Atthe present term, referring to the previous adjudications, thiscourt declared that "underlying all of those decisions is theprinciple that the Constitution of the United States, in itspresent form, forbids, so far as civil and political rights areconcerned, discrimination by the General Government or the Statesagainst any citizen because of his race. All citizens are equalbefore the law." Gibson v. Mississippi, 162 U.S. 565.
The decisions referred to show the scope of the recentamendments of the Constitution. They also show that it is notwithin the power of a State to prohibit colored citizens, becauseof their race, from participating as jurors in the administrationof justice.
It as said in argument that the statute of Louisiana does
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not discriminate against either race, but prescribes a ruleapplicable alike to white and colored citizens. But this argumentdoes not meet the difficulty. Everyone knows that the statute inquestion had its origin in the purpose not so much to exclude whitepersons from railroad cars occupied by blacks as to exclude coloredpeople from coaches occupied by or assigned to white persons.Railroad corporations of Louisiana did not make discriminationamong whites in the matter of accommodation for travelers. Thething to accomplish was, under the guise of giving equalaccommodation for whites and blacks, to compel the latter to keepto themselves while traveling in railroad passenger coaches. No onewould be so wanting in candor a to assert the contrary. Thefundamental objection, therefore, to the statute is that itinterferes with the personal freedom of citizens. "Personalliberty," it has been well said, "consists in the power oflocomotion, of changing situation, or removing one's person towhatsoever places one's own inclination may direct, withoutimprisonment or restraint unless by due course of law." 1 Bl.Com.*134. If a white man and a black man choose to occupy the samepublic conveyance on a public highway, it is their right to do so,and no government, proceeding alone on grounds of race, can preventit without infringing the personal liberty of each.
It is one thing for railroad carriers to furnish, or to berequired by law to furnish, equal accommodations for all whom theyare under a legal duty to carry. It is quite another thing forgovernment to forbid citizens of the white and black races fromtraveling in the same public conveyance, and to punish officers ofrailroad companies for permitting persons of the two races tooccupy the same passenger coach. If a State can prescribe, as arule of civil conduct, that whites and blacks shall not travel aspassengers in the same railroad coach, why may it not so regulatethe use of the streets of its cities and towns as to compel whitecitizens to keep on one side of a street and black citizens to keepon the other? Why may it not, upon like grounds, punish whites andblacks who ride together in streetcars or in open vehicles on apublic road
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or street? Why may it not require sheriffs to assign whites toone side of a courtroom and blacks to the other? And why may it notalso prohibit the commingling of the two races in the galleries oflegislative halls or in public assemblages convened for theconsideration of the political questions of the day? Further, ifthis statute of Louisiana is consistent with the personal libertyof citizens, why may not the State require the separation inrailroad coaches of native and naturalized citizens of the UnitedStates, or of Protestants and Roman Catholics?
The answer given at the argument to these questions was thatregulations of the kind they suggest would be unreasonable, andcould not, therefore, stand before the law. Is it meant that thedetermination of questions of legislative power depends upon theinquiry whether the statute whose validity is questioned is, in thejudgment of the courts, a reasonable one, taking all thecirc*mstances into consideration? A statute may be unreasonablemerely because a sound public policy forbade its enactment. But Ido not understand that the courts have anything to do with thepolicy or expediency of legislation. A statute may be valid andyet, upon grounds of public policy, may well be characterized asunreasonable. Mr. Sedgwick correctly states the rule when he saysthat, the legislative intention being clearly ascertained, "thecourts have no other duty to perform than to execute thelegislative will, without any regard to their views as to thewisdom or justice of the particular enactment." Stat. & Const.Constr. 324. There is a dangerous tendency in these latter days toenlarge the functions of the courts by means of judicialinterference with the will of the people as expressed by thelegislature. Our institutions have the distinguishingcharacteristic that the three departments of government arecoordinate and separate. Each must keep within the limits definedby the Constitution. And the courts best discharge their duty byexecuting the will of the lawmaking power, constitutionallyexpressed, leaving the results of legislation to be dealt with bythe people through their representatives. Statutes must always havea reasonable construction. Sometimes they are to be construedstrictly; sometimes liberally, in order to carry out thelegislative
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will. But however construed, the intent of the legislature is tobe respected, if the particular statute in question is valid,although the courts, looking at the public interests, may conceivethe statute to be both unreasonable and impolitic. If the powerexists to enact a statute, that ends the matter so far as thecourts are concerned. The adjudged cases in which statutes havebeen held to be void because unreasonable are those in which themeans employed by the legislature were not at all germane to theend to which the legislature was competent.
The white race deems itself to be the dominant race in thiscountry. And so it is in prestige, in achievements, in education,in wealth and in power. So, I doubt not, it will continue to be forall time if it remains true to its great heritage and holds fast tothe principles of constitutional liberty. But in view of theConstitution, in the eye of the law, there is in this country nosuperior, dominant, ruling class of citizens. There is no castehere. Our Constitution is color-blind, and neither knows nortolerates classes among citizens. In respect of civil rights, allcitizens are equal before the law. The humblest is the peer of themost powerful. The law regards man as man, and takes no account ofhis surroundings or of his color when his civil rights asguaranteed by the supreme law of the land are involved. It istherefore to be regretted that this high tribunal, the finalexpositor of the fundamental law of the land, has reached theconclusion that it is competent for a State to regulate theenjoyment by citizens of their civil rights solely upon the basisof race.
In my opinion, the judgment this day rendered will, in time,prove to be quite as pernicious as the decision made by thistribunal in the Dred Scott Case. It was adjudged in thatcase that the descendants of Africans who were imported into thiscountry and sold as slaves were not included nor intended to beincluded under the word "citizens" in the Constitution, and couldnot claim any of the rights and privileges which that instrumentprovided for and secured to citizens of the United States; that, atthe time of the adoption of the Constitution, they were "consideredas a subordinate and inferior class of beings, who had beensubjugated by the dominant
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race, and, whether emancipated or not, yet remained subject totheir authority, and had no rights or privileges but such as thosewho held the power and the government might choose to grant them."19 How. 393, 404. The recent amendments of the Constitution, it wassupposed, had eradicated these principles from our institutions.But it seems that we have yet, in some of the States, a dominantrace -- a superior class of citizens, which assumes to regulate theenjoyment of civil rights, common to all citizens, upon the basisof race. The present decision, it may well be apprehended, will notonly stimulate aggressions, more or less brutal and irritating,upon the admitted rights of colored citizens, but will encouragethe belief that it is possible, by means of state enactments, todefeat the beneficent purposes which the people of the UnitedStates had in view when they adopted the recent amendments of theConstitution, by one of which the blacks of this country were madecitizens of the United States and of the States in which theyrespectively reside, and whose privileges and immunities, ascitizens, the States are forbidden to abridge. Sixty millions ofwhites are in no danger from the presence here of eight millions ofblacks. The destinies of the two races in this country areindissolubly linked together, and the interests of both requirethat the common government of all shall not permit the seeds ofrace hate to be planted under the sanction of law. What can morecertainly arouse race hate, what more certainly create andperpetuate a feeling of distrust between these races, than stateenactments which, in fact, proceed on the ground that coloredcitizens are so inferior and degraded that they cannot be allowedto sit in public coaches occupied by white citizens. That, as allwill admit, is the real meaning of such legislation as was enactedin Louisiana.
The sure guarantee of the peace and security of each race is theclear, distinct, unconditional recognition by our governments,National and State, of every right that inheres in civil freedom,and of the equality before the law of all citizens of the UnitedStates, without regard to race. State enactments regulating theenjoyment of civil rights upon the basis of race, and cunninglydevised to defeat legitimate results of the
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war under the pretence of recognizing equality of rights, canhave no other result than to render permanent peace impossible andto keep alive a conflict of races the continuance of which must doharm to all concerned. This question is not met by the suggestionthat social equality cannot exist between the white and black racesin this country. That argument, if it can be properly regarded asone, is scarcely worthy of consideration, for social equality nomore exists between two races when traveling in a passenger coachor a public highway than when members of the same races sit by eachother in a street car or in the jury box, or stand or sit with eachother in a political assembly, or when they use in common thestreet of a city or town, or when they are in the same room for thepurpose of having their names placed on the registry of voters, orwhen they approach the ballot box in order to exercise the highprivilege of voting.
There is a race so different from our own that we do not permitthose belonging to it to become citizens of the United States.Persons belonging to it are, with few exceptions, absolutelyexcluded from our country. I allude to the Chinese race. But, bythe statute in question, a Chinaman can ride in the same passengercoach with white citizens of the United States, while citizens ofthe black race in Louisiana, many of whom, perhaps, risked theirlives for the preservation of the Union, who are entitled, by law,to participate in the political control of the State and nation,who are not excluded, by law or by reason of their race, frompublic stations of any kind, and who have all the legal rights thatbelong to white citizens, are yet declared to be criminals, liableto imprisonment, if they ride in a public coach occupied bycitizens of the white race. It is scarcely just to say that acolored citizen should not object to occupying a public coachassigned to his own race. He does not object, nor, perhaps, wouldhe object to separate coaches for his race if his rights under thelaw were recognized. But he objecting, and ought never to ceaseobjecting, to the proposition that citizens of the white and blackrace can be adjudged criminals because they sit, or claim the rightto sit, in the same public coach on a public highway.
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The arbitrary separation of citizens on the basis of race whilethey are on a public highway is a badge of servitude whollyinconsistent with the civil freedom and the equality before the lawestablished by the Constitution. It cannot be justified upon anylegal grounds.
If evils will result from the commingling of the two races uponpublic highways established for the benefit of all, they will beinfinitely less than those that will surely come from statelegislation regulating the enjoyment of civil rights upon the basisof race. We boast of the freedom enjoyed by our people above allother peoples. But it is difficult to reconcile that boast with astate of the law which, practically, puts the brand of servitudeand degradation upon a large class of our fellow citizens, ourequals before the law. The thin disguise of "equal" accommodationsfor passengers in railroad coaches will not mislead anyone, noratone for the wrong this day done.
The result of the whole matter is that, while this court hasfrequently adjudged, and at the present term has recognized thedoctrine, that a State cannot, consistently with the Constitutionof the United States, prevent white and black citizens, having therequired qualifications for jury service, from sitting in the samejury box, it is now solemnly held that a State may prohibit whiteand black citizens from sitting in the same passenger coach on apublic highway, or may require that they be separated by a"partition," when in the same passenger coach. May it not now bereasonably expected that astute men of the dominant race, whoaffect to be disturbed at the possibility that the integrity of thewhite race may be corrupted, or that its supremacy will beimperiled, by contact on public highways with black people, willendeavor to procure statutes requiring white and black jurors to beseparated in the jury box by a "partition," and that, upon retiringfrom the courtroom to consult as to their verdict, such partition,if it be a moveable one, shall be taken to their consultation roomand set up in such way as to prevent black jurors from coming tooclose to their brother jurors of the white race. If the "partition"used in the courtroom happens to be stationary, provision could bemade for screens with openings through
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which jurors of the two races could confer as to their verdictwithout coming into personal contact with each other. I cannot seebut that, according to the principles this day announced, suchstate legislation, although conceived in hostility to, and enactedfor the purpose of humiliating, citizens of the United States of aparticular race, would be held to be consistent with theConstitution.
I do not deem it necessary to review the decisions of statecourts to which reference was made in argument. Some, and the mostimportant, of them are wholly inapplicable because rendered priorto the adoption of the last amendments of the Constitution, whencolored people had very few rights which the dominant race feltobliged to respect. Others were made at a time when public opinionin many localities was dominated by the institution of slavery,when it would not have been safe to do justice to the black man,and when, so far as the rights of blacks were concerned, raceprejudice was, practically, the supreme law of the land. Thosedecisions cannot be guides in the era introduced by the recentamendments of the supreme law, which established universal civilfreedom, gave citizenship to all born or naturalized in the UnitedStates and residing here, obliterated the race line from oursystems of governments, National and State, and placed our freeinstitutions upon the broad and sure foundation of the equality ofall men before the law.
I am of opinion that the statute of Louisiana is inconsistentwith the personal liberty of citizens, white and black, in thatState, and hostile to both the spirit and letter of theConstitution of the United States. If laws of like character shouldbe enacted in the several States of the Union, the effect would bein the highest degree mischievous. Slavery, as an institutiontolerated by law would, it is true, have disappeared from ourcountry, but there would remain a power in the States, by sinisterlegislation, to interfere with the full enjoyment of the blessingsof freedom to regulate civil rights, common to all citizens, uponthe basis of race, and to place in a condition of legal inferioritya large body of American citizens now constituting a part of thepolitical community called the
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People of the United States, for whom and by whom, throughrepresentatives, our government is administered. Such a system isinconsistent with the guarantee given by the Constitution to eachState of a republican form of government, and may be stricken downby Congressional action, or by the courts in the discharge of theirsolemn duty to maintain the supreme law of the land, anything inthe constitution or laws of any State to the contrarynotwithstanding.
For the reasons stated, I am constrained to withhold my assentfrom the opinion and judgment of the majority.
MR. JUSTICE BREWER did not hear the argument or participate inthe decision of this case.
