Bowie v. Birmingham Railway & Electric Co.

TYSON, J. There are two questions presented for consideration by the record, in this case. The first in — 405 — volves tlie reasonableness of a rule or regulation of the* defendant requiring white passengers to occupy seats in one portion off the cars operated by it on a certain line-of its road, and negroes to occupy seats in the other portion. The car upon which the plaintiff was a passenger-when the regulation under consideration was enforced. against her, was an open car,'the seats for passengers extending across the entire width, separated by aisles; so-that passengers hoarding the car did so by first stepping: from the ground upon a running hoard, which ran the: full length of it upon either side, and from this running; board into the aisle facing the seats. The evidence is undisputed that the plaintiff ivas a: negro woman, and declined to occupy a vacant seat in: that portion of the car set apart for negroes, hut insisted: upon sitting iu -a seat in that portion assigned )by the conductor to white people. It ivas also 'without dispute that a rule or regulation had been enforced on this line ever-since cars had been operated over it, to the effect that-negro passengers should occupy the seats in the front: end of the car and ivhite passengers should occupy the' seats in the rear end. That this rule was generally 'known and conformed to by both ivhite and colored passengers. It was also generally known that the conductor of the car required passengers to conform to- this regulation. That six or eight months before this occurrence, the plaintiff was ejected from one of the cars for refusing to comply '-with this rule. This rule or regulation ivas promulgated by the manager off the defendant’^ company by being posted and published in a bulletin- order directing and requiring conductors on this line of road operated by defendant to observe and enforce it, and was in force at the time the injury to the plaintiff, here complained of, was suffered. The dividing line-between the seats to be occupied by wdiite and negro-passengers was not fixed by the rule, but was left to the conductor to fix and enforce, as, in his judgment, the circumstances and number of passengers of each race might require. The; seats in all parts of the car wore in all respects alike. The question here presented wras ably considered in — 406 — an opinion delivered by Justice Aoniíw of the Supreme Court of Pennsylvania in the case of West Chester & Philadelphia Railroad Co. v. Miles, 55 Pa. St. 209, from which we quote at length as the reasons he gives for sustaining the reasonableness of the regulation are so forcibly stated, and the status of the two races with reference to each other, as stated by him to exist in Pennsylvania in 1867, is the status of the two in Alabama today. The facts of that case were these; “Mary E. -Miles, a colored woman, the plaintiff, got into -the car of the defendant at Philadelphia to go to Oxford and •took a seat at or near the middle of 'it. A rule of the road required the conductor to make colored persons sit at one end of the car. He got a seat for her at the place fixed by the rule and asked her to take it. She declined positively and persistently to do it. The conductor told 'her of the rule, requested her to take the other seat, warned her that he must require her to leave the car if she refused, and at last put 'her out. The simple question is, whether a public carrier may, in the exercise of bis private right of property, and in the due performance of 'his public duty, separate passengers by any other well-defined characterization than that of sex. The ladies’ car is known upon every well regulated railroad, implies no loss of equal right on the part of the excluded sex, and its propriety is doubted by none. “This question must be decided upon reasonable grounds. If there be no clear and reasonable difference to base it upon, separation cannot be justified by mere prejudice. Nor is merit a test. The negro may be proud of iris service in the field as a defender of his country. But it was not thought indefensible to separate even white soldiers from other passengers. There was a clear and well founded difference between the civil and military character, and the separation of soldiers from citizens implied no want of equality, but a sound regulation of the right of transit. “The right of the carrier to sepai’ate his passengers is founded upon two grounds — his right of private property in the means of conveyance, and the public in — 407 — •terest. The private means he uses belong wholly to himself, and imply the right of .control for the protection of Ms own interest, as well as the performance of his public duty. He may use his property, therefore, in a reasonable manner. It is not an unreasonable regulation to seat passengers so as to preserve order and .decorum, and to prevent contacts and collisions arising from natural or well 'known customary repugnancies, which are likely to breed disturbances by a promiscuous ■sitting. This is a proper use of the right of private property, because it tends to protect the interests of the carrier as well as the interests of those he carries. If the ground of regulation be reasonable, courts of justice cannot interfere with has right of property. The right •of the passenger is only that of being carried safely, and with a due regard to his personal comfort and convenience, which are promoted by a sound and well regulated separation of passengers. An analogy and an illustration are found in the case of an innkeeper, who, if he have room, is bound to entertain pamper guests, and so a carrier is bound to receive passengers. But a guest at an inn cannot select his room or his 'bed at pleasure; nor can a voyager take possession of a cabin or a berth at will or refuse to obey the reasonable orders of the ■captain of a vessel. But, on the other hand, who would maintain that it is a reasonable regulation, dither of an inn or a vessel, to compel, the passengers, black and white, to room and bed together? If a right, of private property confers no right of control, who shall decide a contest between passengers for 'seats or berths? Courts of justice may interpose to compel those who perform a business concerning the public, by the úse of private means, to fulfill their duty to the public — but not a whit beyond. “The public also lias an interest in the proper regulation of public conveyances for the preservation of the public' peace. A railroad company has the right and is bound to make reasonable regulations to preserve order 'in their cars. It is the duty of the conductor to repress tumults as far as he reasonably-can, and-he may, on •extraordinary occasions, stop his train and eject the — 408 — unruly and tumultuous. He cannot interfere in the quarrels of others at will merely. In order to preserve and enforce his 'authority as the 'servant of the company it must have a power to establish proper regulations for the carriage of passengers. It is much easier 'to prevent difficulties among- passengers by regulations for their separation, than it is to quell them. The danger of the peace engendered by the feeling of aversion between individuals of the different faces cannot be-denied. It is the fact with which the company must deal. * * * These views axe sustained by high authority. Judge Story, in his Law of Bailments, stating the duty of 'passengers 'to submit to such reasonable regulations as the proprietors may adopt for the convenience and comfort of the other passengers, a® well as for their own proper interests/ says: 'The importance of the doctrine is felt more strikingly in case® of steamboats and railroad cars.’ — § 591, a; see also § 476, a; Angelí on Carriers, § 528; 1 American Railway-Cases, 393, 394., "The right to separate being clear in proper cases,, and it being the subject of sound regulation, the ques^ tion remaining to be considered is, whether there is such a difference between the white and black races within this State, resulting from nature, law and custom, as. makes it a reasonable ground of separation. The question is one of difference, not of superiority or inferiority.. Why the Creator made one black and the other white;, we know not; but the fact is apparent and the naces distinct, each producing its own kind, and following the peculiar law of its constitution. Conceding equality; with natures as perfect and rights as sacred, yet God has made them dissimilar, with those natural instincts- and feelings which He always imparts to His creatures when He intends that they shall not overstep the natural boundaries He has assigned to them. The natural law which forbids their .intermarriage and that social amalgamation -which leads to a corruption of races, is a® clearly divine as that which imparted to them different natures. The tendency of intimate social intermixture is to amalgamation, contrary to the law of' races; The — 409 — separation of the white and black races upon the surface-of the globe is a fact equally apparent. Why this is suit is not necessary to speculate; but the 'fact of a distribution of men by race -and color is as visible in the providential arrangement of the earth as that of heat and cold. The natural separation of the races is, therefore, an undeniable fact, and all social -organizations which lead to their amalgamation are repugnant to the law -of nature. From social amalgamation it is but a step to-illicit intercourse, and but another to intermarriage. But to assert separateness is not to declare inferiority in either; it is not to declare one a slave and the other a freeman — that would be to draw the illogical sequence of inferiority from difference only. It is -simply to -say that, following the order of Divine Providence, human-authority ought not to compel these widely separated races to intermix. The right of such to be free from, social contact .is as clear as to be free -from intermarriage. The former m-ay be less repulsive as a condition,, but not less entitled to protection as a right. When, therefore, we declare a right to- maintain separate relations, as far as is reasonably practicable, but in a spirit of kindness and charity, -and with due regard to equality of rights, it is not prejudice nor caste, nor injustice of any kind, but -simply to suffer men to follow the law of' races established by the Creator himself, and not to compel them to intermix contrary to their instincts. “ * * * * Never has there been -an inter-mixture of the two races, socially, religiously, civilly or politically. By uninterrupted usage the (blacks live apart, visit and entertain among themselves, occupy separate places of worship and amusement, and fill no civil or political stations, not even sitting to decide their own causes. In fact, there is not an institution of the State in which they have mingled indiscriminately with the whites. Even the common school law provides-for separate -schools when their numbers, are -adequate. In the military service, also, they were not intermixed with the white soldiers, but were separated into companies and regiments of color, and this not by way of disparagement, but fro-m motives of wi-s-dom and pru — 410 — deuce, to avoid the antagonism of variant and immiscible races. Law and custom having sanctioned a separation of races, it is not the province of the judiciary to ' legislate it away. We cannot say there was no difference in fact, when the law and the voice of the people had said there was. The laws of the State are founded on its constitution, statutes, institutions and general customs. It is to these sources judges must resort to discover them. If they abandon these guides they pronounce their own opinions, not the laws of those whose officers they are. Following these guides, we are compelled to declare that, at the time of the alleged injury, there was that natural, legal and customary difference between the white and black races in this State which made their separation as passengers in a public conveyance the subject of a sound regulation to secure order, promote comfort, preserve the peace and maintain the rights of both carriers and passengers.” In Hall v. McCuir, 95 U. S. 485, which was a suit by •a negro woman against the owner of a steámbo'at for •refusing her accommodations, on account of her color, in' the cabin specially set apart for white persons, the court, after citing approvingly the case above quoted ‘from, said: “Where the passenger embarks without making any special contract, and without knowledge as to what accommodations will be 'afforded, the law implies a contract which obliges the carrier to furnish suitable accommodations, according to the room at his •disposal; Ibut the passenger in such a case is not entitled to any particular apartments or special accommodations. Substantial equality of right is the law of the State and of the United. States; but equality does not •mean identity, as, in the nature of things, identity in the accommodation afforded to passengers, whether colored or white, is impossible, unless our commercial marine •shall undergo an entire change. Adult male passengers are never allowed a passage in the ladies’ cabin, nor can all be accommodated, if the company is large, in the staterooms. Passengers are entitled to proper diet- and lodging; but the laws of the United States do not require the master of a steamer to- put persons in the same — 411 — ¡apartment who would be repulsive or disagreeable to <each .other. “Steamers carrying’ passengers as a material part of .their employment are common carriers, and as such .enjoy the rights and are subject to the duties and obligations of such carriers; but there was and is not any •law of Congress which forbids such a carrier from providing separate apartments for its passengers. What the passenger has a right to require is such accommodation as he has contracted for; or, in the absence of any special contract, such suitable accommodations as .the room .and means at the disposal of the carrier enable him .to supply; and in locating his passengers in .■apartments and at their meals, it is not only the right iqf the master, but his duty, to exercise such reasonable discretion and control as mill promote, as far as practicable, the comfort and convenience of his whole company.” Boothe on Street Railways (§ 325), says: “The doctrine that, in the absence of statutory inhilbition, a '■common carrier may lawfully make color a basis of classification and require its white and colored passengers to occupy separate cars or different parts of the -same car when like accommodations are provided, has received the support of many of the courts, both State and Federal, and is the rule which has been followed in the greater number of decisions heretofore rendered.” 'See also cases cited by Boothe on Street Railways in note '3 on page 443, and note 1 on page 444; Plessy v. Ferguson, 163 U. S. 537. The other question presented is whether the reasonableness of the rule is a mixed question of law and fact, or merely a question of law for the court. The principle upon which the reasonableness of the rule is sustained in this case is that the carrier’s right of property in the means of the conveyance and the public interest are best subserved by a separation of negro and white passengers; that their separation tends to -secure order, promote comfort, preserve the peace and maintain the rights of both carrier and passengers. "When the rule is established by the evidence and its — 412 — violation shown by a passenger undisputedly, it is a question of law for the court. It is of no consequence that the defendant company operated other lines and no such regulation is enforced by it upon them. The fact that it does not exercise the right to establish and enforce 'such a regulation upon its other lines, affords no reason for saying that the regulation established and enforced in this case is unreasonable, or that the company lias no right to establish such a rule. On this phase of the case, the court could have instructed the jury affirmatively, if requested in writing, leaving for' consideration by the jury, as it did, the single question whether the conductor used more force than was necessary, in enforcing the rule, under the circumstances. Charges 1, 3, 4, S, 9 and 10, given at the request of the defendant, -were in conformity with the principles here announced by us and, therefore, there was no1 error in the giving of them. Charges 5 and 7 are admitted by appellant to involve no error. Charge 6 is insisted to be erroneous for three reasons : (1st) It directs a verdict for the defendant without referring to the jury the amount of force used by the conductor iu ejecting the plaintiff. (2d.) It directs a verdict 'for defendant without referring to the jury whether there was a vacant seat in the car for plaintiff to take; and (3d) It withdraws from the jury the question of the reasonableness of the defendant’s regulation. A sufficient answer to these criticisms of the' charge is to call attention to the averments of the complaint, which disclosed that the alleged assault or ejection from the car was committed jointly by the conductor and motorman. The plaintiff must prove her cause of action in manner and form as alleged. The charges refused to the plaintiff are not insisted upon in argument and we will not consider them, except to sav that they contravene the principles here declared, and there was no error in their refusal. The judgment is affirmed.