美国经典判例Plessy v. Ferguson

U.S. Supreme Court

PLESSY v. FERGUSON, 163 U.S. 537 (1896)

163 U.S. 537

PLESSY

v.

FERGUSON.

No. 210.

May 18, 1896.

[163 U.S. 537, 538]

This was a petition for writs of

prohibition and certiorari originally filed in the supreme court of the

state by Plessy, the plaintiff in error, against the Hon. John H. Ferguson,

judge of the criminal district court for the parish of Orleans, and setting

forth, in substance, the following facts:

That petitioner was a citizen of the United States and a resident of the

state of Louisiana, of mixed descent, in the proportion of seven-e ghths

Caucasian and one-eighth African blood; that the mixture of colored blood

was not discernible in him, and that he was entitled to every recognition,

right, privilege, and immunity secured to the citizens of the United

States of the white race by its constitution and laws; that on June 7,

1892, he engaged and paid for a first-class passage on the East Louisiana

Railway, from New Orleans to Covington, in the same state, and thereupon

entered a passenger train, and took possession of a vacant seat in a coach

where passengers of the white race were accommodated; that such railroad

company was incorporated by the laws of Louisiana as a common carrier,

and was not authorized to distinguish between citizens according to their

race, but, notwithstanding this, petitioner was required by the conductor,

under penalty of ejection from said train and imprisonment, to vacate said

coach, and occupy another seat, in a coach assigned by said company for

persons not of the white race, and for no other reason than that petitioner

was of the colored race; that, upon petitioner's refusal to comply with

such order, he was, with the aid of a police officer, forcibly ejected

from said coach, and hurried off to, and imprisoned in, the parish jail

of

[163 U.S. 537, 539]

New Orleans, and there held to answer a charge made

by such officer to the effect that he was guilty of having criminally

violated an act of the general assembly of the state, approved July 10,

1890, in such case made and provided.

The petitioner was subsequently brought before the recorder of the city

for preliminary examination, and committed for trial to the criminal

district court for the parish of Orleans, where an information was filed

against him in the matter above set forth, for a violation of the above

act, which act the petitioner affirmed to be null and void, because in

conflict with the constitution of the United States; that petitioner

interposed a plea to such information, based upon the unconstitutionality

of the act of the general assembly, to which the district attorney, on

behalf of the state, filed a demurrer; that, upon issue being joined upon

such demurrer and plea, the court sustained the demurrer, overruled the

plea, and ordered petitioner to plead over to the facts set forth in the

information, and that, unless the judge of the said court be enjoined by

a writ of prohibition from further proceeding in such case, the court will

proceed to fine and sentence petitioner to imprisonment, and thus deprive

him of his constitutional rights set forth in his said plea,

notwithstanding the unconstitutionality of the act under which he was

being prosecuted; that no appeal lay from such sentence, and petitioner

was without relief or remedy except by writs of prohibition and certiorari.

Copies of the information and other proceedings in the criminal district

court were annexed to the petition as an exhibit.

Upon the filing of this petition, an order was issued upon the respondent

to show cause why a writ of prohibition should not issue, and be made

perpetual, and a further order that the record of the proceedings had in

the criminal cause be certified and transmitted to the supreme court.

To this order the respondent made answer, transmitting a certified copy

of the proceedings, asserting the constitutionality of the law, and

averring that, instead of pleading or admitting that he belonged to the

colored race, the said Plessy declined and refused, either by pleading

or otherwise, to ad-

[163 U.S. 537, 540]

mit that he was in any sense or

in any proportion a colored man.

The case coming on for hearing before the supreme court, that court was

of opinion that the law under which the prosecution was had was

constitutional and denied the relief prayed for by the petitioner (Ex

parte Plessy, 45 La. Ann. 80, 11 South. 948); whereupon petitioner prayed

for a writ of error from this court, which was allowed by the chief justice

of the supreme court of Louisiana.

Mr. Justice Harlan dissenting.

A. W. Tourgee and S. F. Phillips, for plaintiff in error.

Alex. Porter Morse, for defendant in error.

Mr. Justice BROWN, after stating the facts in the foregoing language,

delivered the opinion of the court.

This case turns upon the constitutionality of an act of the general

assembly of the state of Louisiana, passed in 1890, providing for separate

railway carriages for the white and colored races. Acts 1890, No. 111,

p. 152.

The first section of the statute enacts 'that all railway companies

carrying passengers in their coaches in this state, shall provide equal

but separate accommodations for the white, and colored races, by providing

two or more passenger coaches for each passenger train, or by dividing

the passenger coaches by a partition so as to secure separate

accommodations: provided, that this section shall not be construed to

apply to street railroads. No person or persons shall be permitted to

occupy seats in coaches, other than the ones assigned to them, on account

of the race they belong to.'

By the second section it was enacted 'that the officers of such passenger

trains shall have power and are hereby required

[163 U.S. 537, 541]

to

assign each passenger to the coach or compartment used for the race to

which such passenger belongs; any passenger insisting on going into a

coach or compartment to which by race he does not belong, shall be liable

to a fine of twenty-five dollars, or in lieu thereof to imprisonment for

a period of not more than twenty days in the parish prison, and any officer

of any railroad insisting on assigning a passenger to a coach or

compartment other than the one set aside for the race to which said

passenger belongs, shall be liable to a fine of twenty-five dollars, or

in lieu thereof to imprisonment for a period of not more than twenty days

in the parish prison; and should any passenger refuse to occupy the coach

or compartment to which he or she is assigned by the officer of such railway,

said officer shall have power to refuse to carry such passenger on his

train, and for such refusal neither he nor the railway company which he

represents shall be liable for damages in any of the courts of this state.'

The third section provides penalties for the refusal or neglect of the

officers, directors, conductors, and employees of railway companies to

comply with the act, with a proviso that 'nothing in this act shall be

construed as applying to nurses attending children of the other race.'

The fourth section is immaterial.

The information filed in the criminal district court charged, in substance,

that Plessy, being a passenger between two stations within the state of

Louisiana, was assigned by officers of the company to the coach used for

the race to which he belonged, but he insisted upon going into a coach

used by the race to which he did not belong. Neither in the information

nor plea was his particular race or color averred.

The petition for the writ of prohibition averred that petitioner was

seven-eights Caucasian and one-eighth African blood; that the mixture of

colored blood was not discernible in him; and that he was entitled to every

right, privilege, and immunity secured to citizens of the United States

of the white race; and that, upon such theory, he took possession of a

vacant seat in a coach where passengers of the white race were accommodated,

and was ordered by the conductor to vacate

[163 U.S. 537, 542]

said coach,

and take a seat in another, assigned to persons of the colored race, and,

having refused to comply with such demand, he was forcibly ejected, with

the aid of a police officer, and imprisoned in the parish jail to answer

a charge of having violated the above act.

The constitutionality of this act is attacked upon the ground that it

conflicts both with the thirteenth amendment of the constitution,

abolishing slavery, and the fourteenth amendment, which prohibits certain

restrictive legislation on the part of the states.

1. That it does not conflict with the thirteenth amendment, which

abolished slavery and involuntary servitude, except a punishment for

crime, is too clear for argument. Slavery implies involuntary

servitude,-a state of bondage; the ownership of mankind as a chattel, or,

at least, the control of the labor and services of one man for the benefit

of another, and the absence of a legal right to the disposal of his own

person, property, and services. This amendment was said in the

Slaughter-House Cases, 16 Wall. 36, to have been intended primarily to

abolish slavery, as it had been previously known in this country, and that

it equally forbade Mexican peonage or the Chinese coolie trade, when they

amounted to slavery or involuntary servitude, and that the use of the word

'servitude' was intended to prohibit the use of all forms of involuntary

slavery, of whatever class or name. It was intimated, however, in that

case, that this amendment was regarded by the statesmen of that day as

insufficient to protect the colored race from certain laws which had been

enacted in the Southern states, imposing upon the colored race onerous

disabilities and burdens, and curtailing their rights in the pursuit of

life, liberty, and property to such an extent that their freedom was of

little value; and that the fourteenth amendment was devised to meet this

exigency.

So, too, in the Civil Rights Cases, 109 U.S. 3 , 3 Sup. Ct. 18, it was

said that the act of a mere individual, the owner of an inn, a public

conveyance or place of amusement, refusing accommodations to colored

people, cannot be justly regarded as imposing any badge of slavery or

servitude upon the applicant, but

[163 U.S. 537, 543]

only as involving

an ordinary civil injury, properly cognizable by the laws of the state,

and presumably subject to redress by those laws until the contrary appears.

'It would be running the slavery question into the ground,' said Mr.

Justice Bradley, 'to make it apply to every act of discrimination which

a person may see fit to make as to the guests he will entertain, or as

to the people he will take into his coach or cab or car, or admit to his

concert or theater, or deal with in other matters of intercourse or

business.'

A statute which implies merely a legal distinction between the white and

colored races-a distinction which is founded in the color of the two races,

and which must always exist so long as white men are distinguished from

the other race by color-has no tendency to destroy the legal equality of

the two races, or re-establish a state of involuntary servitude. Indeed,

we do not understand that the thirteenth amendment is strenuously relied

upon by the plaintiff in error in this connection.

2. By the fourteenth amendment, all persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are made citizens

of the United States and of the state wherein they reside; and the states

are forbidden from making or enforcing any law which shall abridge the

privileges or immunities of citizens of the United States, or shall

deprive any person of life, liberty, or property without due process of

law, or deny to any person within their jurisdiction the equal protection

of the laws.

The proper construction of this amendment was first called to the

attention of this court in the Slaughter-House Cases, 16 Wall. 36, which

involved, however, not a question of race, but one of exclusive privileges.

The case did not call for any expression of opinion as to the exact rights

it was intended to secure to the colored race, but it was said generally

that its main purpose was to establish the citizenship of the negro, to

give definitions of citizenship of the United States and of the states,

and to protect from the hostile legislation of the states the privileges

and immunities of citizens of the United States, as distinguished from

those of citizens of the states.

[163 U.S. 537, 544]

The object of the

amendment was undoubtedly to enforce the absolute equality of the two

races before the law, but, in the nature of things, it could not have been

intended to abolish distinctions based upon color, or to enforce social,

as distinguish d from political, equality, or a commingling of the two

races upon terms unsatisfactory to either. Laws permitting, and even

requiring, their separation, in places where they are liable to be brought

into contact, do not necessarily imply the inferiority of either race to

the other, and have been generally, if not universally, recognized as

within the competency of the state legislatures in the exercise of their

police power. The most common instance of this is connected with the

establishment of separate schools for white and colored children, which

have been held to be a valid exercise of the legislative power even by

courts of states where the political rights of the colored race have been

longest and most earnestly enforced.

One of the earliest of these cases is that of Roberts v. City of Boston,

5 Cush. 198, in which the supreme judicial court of Massachusetts held

that the general school committee of Boston had power to make provision

for the instruction of colored children in separate schools established

exclusively for them, and to prohibit their attendance upon the other

schools. 'The great principle,' said Chief Justice Shaw, 'advanced by the

learned and eloquent advocate for the plaintiff [Mr. Charles Sumner], 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 and various conditions of persons in society, it will not

warrant the assertion that men and women are legally clothed with the same

civil and political powers, and that children and adults are legally to

have the same functions and be subject to the same treatment; but only

that the rights of all, as they are settled and regulated by law, are

equally entitled to the paternal consideration and protection of the law

for their maintenance and security.' It was held that the powers of the

committee extended to the establish-

[163 U.S. 537, 545]

ment of separate

schools for children of different ages, sexes and colors, and that they

might also establish special schools for poor and neglected children, who

have become too old to attend the primary school, and yet have not acquired

the rudiments of learning, to enable them to enter the ordinary schools.

Similar laws have been enacted by congress under its general power of

legislation over the District of Columbia (sections 281- 283, 310, 319,

Rev. St. D. C.), as well as by the legislatures of many of the states,

and have been generally, if not uniformly, sustained by the courts. State

v. McCann, 21 Ohio St. 210; Lehew v. Brummell (Mo. Sup.) 15 S. W. 765;

Ward v. Flood, 48 Cal. 36; Bertonneau v. Directors of City Schools, 3 Woods,

177, Fed. Cas. No. 1,361; People v. Gallagher, 93 N. Y. 438; Cory v. Carter,

48 Ind. 337; Dawson v. Lee, 83 Ky. 49.

Laws forbidding the intermarriage of the two races may be said in a

technical sense to interfere with the freedom of contract, and yet have

been universally recognized as within the police power of the state. State

v. Gibson, 36 Ind. 389.

The distinction between laws interfering with the political equality of

the negro and those requiring the separation of the two races in schools,

theaters, and railway carriages has been frequently drawn by this court.

Thus, in Strauder v. West Virginia, 100 U.S. 303 , it was held that a law

of West Virginia limiting to white male persons 21 years of age, and

citizens of the state, the right to sit upon juries, was a discrimination

which implied a legal inferiority in civil society, which lessened the

security of the right of the colored race, and was a step towards reducing

them to a condition of servility. Indeed, the right of a colored man that,

in the selection of jurors to pass upon his life, liberty, and property,

there shall be no exclusion of his race, and no discrimination against

them because of color, has been asserted in a number of cases. Virginia

v. Rivers, 100 U.S. 313 ; Neal v. Delaware, 103 U.S. 370 ; ush v. Com.,

107 U.S. 110 , 1 Sup. Ct. 625; Gibson v. Mississippi, 162 U.S. 565 , 16

Sup. Ct. 904. So, where the laws of a particular locality or the charter

of a particular railway corporation has provided that no person shall be

excluded from the cars on account of

[163 U.S. 537, 546]

color, we have

held that this meant that persons of color should travel in the same car

as white ones, and that the enactment was not satisfied by the company

providing cars assigned exclusively to people of color, though they were

as good as those which they assigned exclusively to white persons.

Railroad Co. v. Brown, 17 Wall. 445.

Upon the other hand, where a statute of Louisiana required those engaged

in the transportation of passengers among the states to give to all persons

traveling within that state, upon vessels employed in that business, equal

rights and privileges in all parts of the vessel, without distinction on

account of race or color, and subjected to an action for damages the owner

of such a vessel who excluded colored passengers on account of their color

from the cabin set aside by him for the use of whites, it was held to be,

so far as it applied to interstate commerce, unconstitutional and void.

Hall v. De Cuir, 95 U.S. 485 . The court in this case, however, expressly

disclaimed that it had anything whatever to do with the statute as a

regulation of internal commerce, or affecting anything else than commerce

among the states.

In the Civil Rights Cases, 109 U.S. 3 , 3 Sup. Ct. 18, it was held that

an act of congress entitling all persons within the jurisdiction of the

United States to the full and equal enjoyment of the accommodations,

advantages, facilities, and privileges of inns, public conveyances, on

land or water, theaters, and other places of public amusement, and made

applicable to citizens of every race and color, regardless of any previous

condition of servitude, was unconstitutional and void, upon the ground

that the fourteenth amendment was prohibitory upon the states only, and

the legislation authorized to be adopted by congress for enforcing it was

not direct legislation on matters respecting which the states were

prohibited from making or enforcing certain laws, or doing certain acts,

but was corrective legislation, such as might be necessary or proper for

counter-acting and redressing the effect of such laws or acts. In

delivering the opinion of the court, Mr. Justice Bradley observed that

the fourteenth amendment 'does not invest congress with power to legislate

upon subjects that are within the

[163 U.S. 537, 547]

domain of state

legislation, but to provide modes of relief against state legislation or

state action of the kind referred to. It does not authorize congress to

create a code of municipal law for the regulation of private rights, but

to provide modes of redress against the operation of state laws, and the

action of state officers, executive or judicial, when these are subversive

of the fundamental rights specified in the amendment. Positive rights and

privileges are undoubtedly secured by the fourteenth amendment; but they

are secured by way of prohibition against state laws and state proceedings

affecting those rights and privileges, and by power given to congress to

legislate for the purpose of carrying such prohibition into effect; and

such legislation must necessarily be predicated upon such supposed state

laws or state proceedings, and be directed to the correction of their

operation and effect.'

Much nearer, and, indeed, almost directly in point, is the case of the

Louisville, N. O. & T. Ry. Co. v. State, 133 U.S. 587 , 10 Sup. Ct. 348,

wherein the railway company was indicted for a violation of a statute of

Mississippi, enacting that all railroads carrying passengers should

provide equal, but separate, accommodations for the white and colored

races, by providing two or more passenger cars for each passenger train,

or by dividing the passenger cars by a partition, so as to secure separate

accommodations. The case was presented in a different aspe t from the one

under consideration, inasmuch as it was an indictment against the railway

company for failing to provide the separate accommodations, but the

question considered was the constitutionality of the law. In that case,

the supreme court of Mississippi (66 Miss. 662, 6 South. 203) had held

that the statute applied solely to commerce within the state, and, that

being the construction of the state statute by its highest court, was

accepted as conclusive. 'If it be a matter,' said the court (page 591,

133 U. S., and page 348, 10 Sup. Ct.), 'respecting commerce wholly within

a state, and not interfering with commerce between the states, then,

obviously, there is no violation of the commerce clause of the federal

constitution. ... No question arises under this section as to the power

of the state to separate in different compartments interstate pas-

[163

U.S. 537, 548]

sengers, or affect, in any manner, the privileges and

rights of such passengers. All that we can consider is whether the state

has the power to require that railroad trains within her limits shall have

separate accommodations for the two races. That affecting only commerce

within the state is no invasion of the power given to congress by the

commerce clause.'

A like course of reasoning applies to the case under consideration, since

the supreme court of Louisiana, in the case of State v. Judge, 44 La. Ann.

770, 11 South. 74, held that the statute in question did not apply to

interstate passengers, but was confined in its application to passengers

traveling exclusively within the borders of the state. The case was

decided largely upon the authority of Louisville, N. O. & T. Ry. Co. v.

State, 66 Miss. 662, 6 South, 203, and affirmed by this court in 133 U.S.

587 , 10 Sup. Ct. 348. In the present case no question of interference

with interstate commerce can possibly arise, since the East Louisiana

Railway appears to have been purely a local line, with both its termini

within the state of Louisiana. Similar statutes for the separation of the

two races upon public conveyances were held to be constitutional in

Railroad v. Miles, 55 Pa. St. 209; Day v. Owen 5 Mich. 520; Railway Co.

v. Williams, 55 Ill. 185; Railroad Co. v. Wells, 85 Tenn. 613; 4 S. W.

5; Railroad Co. v. Benson, 85 Tenn. 627, 4 S. W. 5; The Sue, 22 Fed. 843;

Logwood v. Railroad Co., 23 Fed. 318; McGuinn v. Forbes, 37 Fed. 639;

People v. King ( N. Y. App.) 18 N. E. 245; Houck v. Railway Co., 38 Fed.

226; Heard v. Railroad Co., 3 Inter St. Commerce Com. R. 111, 1 Inter St.

Commerce Com. R. 428.

While we think the enforced separation of the races, as applied to the

internal commerce of the state, neither abridges the privileges or

immunities of the colored man, deprives him of his property without due

process of law, nor denies him the equal protection of the laws, within

the meaning of the fourteenth amendment, we are not prepared to say that

the conductor, in assigning passengers to the coaches according to their

race, does not act at his peril, or that the provision of the second section

of the act that denies to the passenger compensa-

[163 U.S. 537, 549]

tion

in damages for a refusal to receive him into the coach in which he properly

belongs is a valid exercise of the legislative power. Indeed, we

understand it to be conceded by the state's attorney that such part of

the act as exempts from liability the railway company and its officers

is unconstitutional. The power to assign to a particular coach obviously

implies the power to determine to which race the passenger belongs, as

well as the power to determine who, under the laws of the particular state,

is to be deemed a white, and who a colored, person. This question, though

indicated in the brief of the plaintiff in error, does not properly arise

upon the record in this case, since the only issue made is as to the

unconstitutionality of the act, so far as it requires the railway to

provide separate accommodations, and the conductor to assign passengers

according to their race.

It is claimed by the plaintiff in error that, in an mixed community, the

reputation of belonging to the dominant race, in this instance the white

race, is 'property,' in the same sense that a right of action or of

inheritance is property. Conceding this to be so, for the purposes of this

case, we are unable to see how this statute deprives him of, or in any

way affects his right to, such property. If he be a white man, and assigned

to a colored coach, he may have his action for damages against the company

for being deprived of his so-called 'property.' Upon the other hand, if

he be a colored man, and be so assigned, he has been deprived of no property,

since he is not lawfully entitled to the reputation of being a white man.

In this connection, it is also suggested by the learned counsel for the

plaintiff in error that the same argument that will justify the state

legislature in requiring railways to provide separate accommodations for

the two races will also authorize them to require separate cars to be

provided for people whose hair is of a certain color, or who are aliens,

or who belong to certain nationalities, or to enact laws requiring colored

people to walk upon one side of the street, and white people upon the other,

or requiring white men's houses to be painted white, and colored men's

black, or their vehicles or business signs to be of different colors, upon

the theory that one side

[163 U.S. 537, 550]

of the street is as good as

the other, or that a house or vehicle of one color is as good as one of

another color. The reply to all this is that every exercise of the police

power must be reasonable, and extend only to such laws as are enacted in

good faith for the promotion of the public good, and not for the annoyance

or oppression of a particular class. Thus, in Yick Wo v. Hopkins, 118 U.S.

356 , 6 Sup. Ct. 1064, it was held by this court that a municipal ordinance

of the city of San Francisco, to regulate the carrying on of public

laundries within the limits of the municipality, violated the provisions

of the constitution of the United States, if it conferred upon the

municipal authorities arbitrary power, at their own will, and without

regard to discretion, in the legal sense of the term, to give or withhold

consent as to persons or places, without regard to the competency of the

persons applying or the propriety of the places selected for the carrying

on of the business. It was held to be a covert attempt on the part of the

municipality to make an arbitrary and unjust discrimination against the

Chinese race. While this was the case of a municipal ordinance, a like

principle has been held to apply to acts of a state legislature passed

in the exercise of the police power. Railroad Co. v. Husen, 95 U.S. 465 ;

Louisville & N. R. Co. v. Kentucky, 161 U.S. 677 , 16 Sup. Ct. 714, and

cases cited on page 700, 161 U. S., and page 714, 16 Sup. Ct.; Daggett

v. Hudson, 43 Ohio St. 548, 3 N. E. 538; Capen v. Foster, 12 Pick. 485;

State v. Baker, 38 Wis. 71; Monroe v. Collins, 17 Ohio St. 665; Hulseman

v. Rems, 41 Pa. St. 396; Osman v. Riley, 15 Cal. 48.

So far, then, as a conflict with the fourteenth amendment is concerned,

the case reduces itself to the question whether the statute of Louisiana

is a reasonable regulation, and with respect to this there must

necessarily be a large discretion on the part of 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 the promotion of their comfort, and the preservation

of the public peace and good order. Gauged by this standard, we cannot

say that a law which authorizes or even requires the separation of the

two races in public conveyances

[163 U.S. 537, 551]

is unreasonable, or

more obnoxious to the fourteenth amendment than the acts of congress

requiring separate schools for colored children in the District of

Columbia, the constitutionality of which does not seem to have been

questioned, or the corresponding acts of state legislatures.

We consider the u derlying fallacy of the plaintiff's argument to consist

in the assumption that the enforced separation of the two races stamps

the colored race with a badge of inferiority. If this be so, it is not

by reason of anything found in the act, but solely because the colored

race chooses to put that construction upon it. The argument necessarily

assumes that if, as has been more than once the case, and is not unlikely

to be so again, the colored race should become the dominant power in the

state legislature, and should enact a law in precisely similar terms, it

would thereby relegate the white race to an inferior position. We imagine

that the white race, at least, would not acquiesce in this assumption.

The argument also assumes that social prejudices may be overcome by

legislation, and that equal rights cannot be secured to the negro except

by an enforced commingling of the two races. We cannot accept this

proposition. If the two races are to meet upon terms of social equality,

it must be the result of natural affinities, a mutual appreciation of each

other's merits, and a voluntary consent of individuals. As was said by

the court of appeals of New York in People v. Gallagher, 93 N. Y. 438,

448: 'This end can neither be accomplished nor promoted by laws which

conflict with the general sentiment of the community upon whom they are

designed to operate. When the government, therefore, has secured to each

of its citizens equal rights before the law, and equal opportunities for

improvement and progress, it has accomplished the end for which it was

organized, and performed all of the functions respecting social

advantages with which it is endowed.' Legislation is powerless to

eradicate racial instincts, or to abolish distinctions based upon

physical differences, and the attempt to do so can only result in

accentuating the difficulties of the present situation. If the civil and

political rights of both races be equal, one cannot be inferior to the

other civilly

[163 U.S. 537, 552]

or politically. If one race be inferior

to the other socially, the constitution of the United States cannot put

them upon the same plane.

It is true that the question of the proportion of colored blood necessary

to constitute a colored person, as distinguished from a white person, is

one upon which there is a difference of opinion in the different states;

some holding that any visible admixture of black blood stamps the person

as belonging to the colored race (State v. Chavers, 5 Jones [N. C.] 1);

others, that it depends upon the preponderance of blood ( Gray v. State,

4 Ohio, 354; Monroe v. Collins, 17 Ohio St. 665); and still others, that

the predominance of white blood must only be in the proportion of

three-fourths (People v. Dean, 14 Mich. 406; Jones v. Com., 80 Va. 544).

But these are questions to be determined under the laws of each state,

and are not properly put in issue in this case. Under the allegations of

his petition, it may undoubtedly become a question of importance whether,

under the laws of Louisiana, the petitioner belongs to the white or colored

race.

The judgment of the court below is therefore affirmed.

Mr. Justice BREWER did not hear the argument or participate in the decision

of this case.

Mr. Justice HARLAN dissenting.

By the Louisiana statute the validity of which is here involved, all

railway companies (other than street-railroad companies) carry

passengers in that state are required to have separate but equal

accommodations for white and colored persons, 'by providing two or more

passenger coaches for each passenger train, or by dividing the passenger

coaches by a partition so as to secure separate accommodations.' Under

this statute, no colored person is permitted to occupy a seat in a coach

assigned to white persons; nor any white person to occupy a seat in a coach

assigned to colored persons. The managers of the railroad are not allowed

to exercise any discretion in the premises, but are required to assign

each passenger to some coach or compartment set apart for the exclusive

use of is race. If a passenger insists upon going into a coach or

compartment not set apart for persons of his race,

[163 U.S. 537, 553]

he

is subject to be fined, or to be imprisoned in the parish jail. Penalties

are prescribed for the refusal or neglect of the officers, directors,

conductors, and employees of railroad companies to comply with the

provisions of the act.

Only 'nurses attending children of the other race' are excepted from the

operation of the statute. No exception is made of colored attendants

traveling with adults. A white man is not permitted to have his colored

servant with him in the same coach, even if his condition of health

requires the constant personal assistance of such servant. If a colored

maid insists upon riding in the same coach with a white woman whom she

has been employed to serve, and who may need her personal attention while

traveling, she is subject to be fined or imprisoned for such an exhibition

of zeal in the discharge of duty.

While there may be in Louisiana persons of different races who are not

citizens of the United States, the words in the act 'white and colored

races' necessarily include all citizens of the United States of both races

residing in that state. So that we have before us a state enactment that

compels, under penalties, the separation of the two races in railroad

passenger coaches, and makes it a crime for a citizen of either race to

enter a coach that has been assigned to citizens of the other race.

Thus, the state regulates the use of a public highway by citizens of the

United States solely upon the basis of race.

However apparent the injustice of such legislation may be, we have only

to consider whether it is consistent with the constitution of the United

States.

That a railroad is a public highway, and that the corporation which owns

or operates it is in the exercise of public functions, is not, at this

day, to be disputed. Mr. Justice Nelson, speaking for this court in New

Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 382, said that a

common carrier was in the exercise 'of a sort of public office, and has

public duties to perform, from which he should not be permitted to

exonerate himself without the assent of the parties concerned.' Mr.

Justice Strong, delivering the judgment of

[163 U.S. 537, 554]

this court

in Olcott v. Supervisors, 16 Wall. 678, 694, said: 'That railroads, though

constructed by private corporations, and owned by them, are public

highways, has been the doctrine of nearly all the courts ever since such

conveniences for passage and transportation have had any existence. Very

early the question arose whether a state's right of eminent domain could

be exercised by a private corporation created for the purpose of

constructing a railroad. Clearly, it could not, unless taking land for

such a purpose by such an agency is taking land for public use. The right

of eminent domain nowhere justifies taking property for a private use.

Yet it is a doctrine universally accepted that a state legislature may

authorize a private corporation to take land for the construction of such

a road, making compensation to the owner. What else does this doctrine

mean if not that building a railroad, though it be built by a private

corporation, is an act done for a public use?' So, in Township of Pine

Grove v. Talcott, 19 Wall. 666, 676: 'Though the corporation [a railroad

company] was private, its work was public, as much so as if it were to

be constructed by the state.' So, in Inhabitants of Worcester v. Western

R. Corp., 4 Metc. (Mass.) 564: 'The establishment of that great

thoroughfare is regarded as a public work, established by public authority,

intended for the public use and benefit, the use of which is secured to

the whole community, and constitutes, therefore, like a canal, turnpike,

or highway, a public easement.' 'It is true that the real and personal

property, necessary to the establishment and management of the railroad,

is vested in the corporation; but it is in trust for the public.'

In respect of civil r ghts, common to all citizens, the constitution of

the United States does not, I think, permit any public authority to know

the race of those entitled to be protected in the enjoyment of such rights.

Every true man has pride of race, and under appropriate circumstances,

when the rights of others, his equals before the law, are not to be affected,

it is his privilege to express such pride and to take such action based

upon it as to him seems proper. But I deny that any legislative body or

judicial tribunal may have regard to the

[163 U.S. 537, 555]

race of

citizens when the civil rights of those citizens are involved. Indeed,

such legislation as that here in question is inconsistent not only with

that equality of rights which pertains to citizenship, national and state,

but with the personal liberty enjoyed by every one within the United

States.

The thirteenth amendment does not permit the withholding or the

deprivation of any right necessarily inhering in freedom. It not only

struck down the institution of slavery as previously existing in the

United States, but it prevents the imposition of any burdens or

disabilities that constitute badges of slavery or servitude. It decreed

universal civil freedom in this country. This court has so adjudged. But,

that amendment having been found inadequate to the protection of the

rights of those who had been in slavery, it was followed by the fourteenth

amendment, which added greatly to the dignity and glory of American

citizenship, and to the security of personal liberty, by declaring that

'all persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the state

wherein they reside,' and that 'no state shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life, liberty or property

without due process of law, nor deny to any person within its jurisdiction

the equal protection of the laws.' These two amendments, if enforced

according to their true intent and meaning, will protect all the civil

rights that pertain to freedom and citizenship. Finally, and to the end

that no citizen should be denied, on account of his race, the privilege

of participating in the political control of his country, it was declared

by the fifteenth amendment that 'the right of citizens of the United States

to vote shall not be denied or abridged by the United States or by any

state on account of race, color or previous condition of servitude.'

These notable additions to the fundamental law were welcomed by the

friends of liberty throughout the world. They removed the race line from

our governmental systems. They had, as this court has said, a common

purpose, namely, to secure 'to a race recently emancipated, a race that

through

[163 U.S. 537, 556]

many generations have been held in slavery,

all the civil rights that 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 for the white; that all persons, whether

colored or white, shall stand equal before the laws of the states; and

in regard to the colored race, for whose protection the amendment was

primarily designed, that no discrimination shall be made against them by

law because of their color.' We also said: 'The words of the amendment,

it is true, are prohibitory, but they contain a necessary implication of

a positive immunity or right, most valuable to the colored race,-the right

to exemption from unfriendly legislation against them distinctively as

colored; exemption from legal discriminations, implying inferiority in

civil society, lessening the security of their enjoyment of the rights

which others enjoy; and discriminations which are steps towards reducing

them to the condition of a subject race.' It was, consequently, adjudged

that a state law that excluded citizens of the colored race from juries,

because of their race, however well qualified in other respects to dischar

e the duties of jurymen, was repugnant to the fourteenth amendment.

Strauder v. West Virginia, 100 U.S. 303, 306 , 307 S.; Virginia v. Rives,

Id. 313; Ex parte Virginia, Id. 339; Neal v. Delaware, 103 U.S. 370 , 386;

Bush v. Com., 107 U.S. 110, 116 , 1 S. Sup. Ct. 625. At the present term,

referring to the previous adjudications, this court declared that

'underlying all of those decisions is the principle that the constitution

of the United States, in its present form, forbids, so far as civil and

political rights are concerned, discrimination by the general government

or the states against any citizen because of his race. All citizens are

equal before the law.' Gibson v. State, 162 U.S. 565 , 16 Sup. Ct. 904.

The decisions referred to show the scope of the recent amendments of the

constitution. They also show that it is not within the power of a state

to prohibit colored citizens, because of their race, from participating

as jurors in the administration of justice.

It was said in argument that the statute of Louisiana does

[163 U.S. 537,

557]

not discriminate against either race, but prescribes a rule

applicable alike to white and colored citizens. But this argument does

not meet the difficulty. Every one knows that the statute in question had

its origin in the purpose, not so much to exclude white persons from

railroad cars occupied by blacks, as to exclude colored people from

coaches occupied by or assigned to white persons. Railroad corporations

of Louisiana did not make discrimination among whites in the matter of

commodation for travelers. The thing to accomplish was, under the guise

of giving equal accommodation for whites and blacks, to compel the latter

to keep to themselves while traveling in railroad passenger coaches. No

one would be so wanting in candor as to assert the contrary. The

fundamental objection, therefore, to the statute, is that it interferes

with the personal freedom of citizens. 'Personal liberty,' it has been

well said, 'consists in the power of locomotion, of changing situation,

or removing one's person to whatsoever places one's own inclination may

direct, without imprisonment or restraint, unless by due course of law.'

1 Bl. Comm. *134. If a white man and a black man choose to occupy the same

public conveyance on a public highway, it is their right to do so; and

no government, proceeding alone on grounds of race, can prevent it without

infringing the personal liberty of each.

It is one thing for railroad carriers to furnish, or to be required by

law to furnish, equal accommodations for all whom they are under a legal

duty to carry. It is quite another thing for government to forbid citizens

of the white and black races from traveling in the same public conveyance,

and to punish officers of railroad companies for permitting persons of

the two races to occupy the same passenger coach. If a state can prescribe,

as a rule of civil conduct, that whites and blacks shall not travel as

passengers in the same railroad coach, why may it not so regulate the use

of the streets of its cities and towns as to compel white citizens to keep

on one side of a street, and black citizens to keep on the other? Why may

it not, upon like grounds, punish whites and blacks who ride together in

street cars or in open vehicles on a public road

[163 U.S. 537, 558]

or

street? Why may it not require sheriffs to assign whites to one side of

a court room, and blacks to the other? And why may it not also prohibit

the commingling of the two races in the galleries of legislative halls

or in public assemblages convened for the consideration of the political

questions of the day? Further, if this statute of Louisiana is consistent

with the personal liberty of citizens, why may not the state require the

separation in railroad coaches of native and naturalized citizens of the

United States, or of Protestants and Roman Catholics?

The answer given at the argument to these questions was that regulations

of the kind they suggest would be unreasonable, and could not, therefore,

stand before the la . Is it meant that the determination of questions of

legislative power depends upon the inquiry whether the statute whose

validity is questioned is, in the judgment of the courts, a reasonable

one, taking all the circumstances into consideration? A statute may be

unreasonable merely because a sound public policy forbade its enactment.

But I do not understand that the courts have anything to do with the policy

or expediency of legislation. A statute may be valid, and yet, upon grounds

of public policy, may well be characterized as unreasonable. Mr. Sedgwick

correctly states the rule when he says that, the legislative intention

being clearly ascertained, 'the courts have no other duty to perform than

to execute the legislative will, without any regard to their views as to

the wisdom or justice of the particular enactment.' Sedg. St. & Const.

Law, 324. There is a dangerous tendency in these latter days to enlarge

the functions of the courts, by means of judicial interference with the

will of the people as expressed by the legislature. Our institutions have

the distinguishing characteristic that the three departments of

government are co-ordinate and separate. Each much keep within the limits

defined by the constitution. And the courts best discharge their duty by

executing the will of the law-making power, constitutionally expressed,

leaving the results of legislation to be dealt with by the people through

their representatives. Statutes must always have a reasonable

construction. Sometimes they are to be construed strictly, sometimes

literally, in order to carry out the legisla-

[163 U.S. 537, 559]

tive will.

But, however construed, the intent of the legislature is to be respected

if the particular statute in question is valid, although the courts,

looking at the public interests, may conceive the statute to be both

unreasonable and impolitic. If the power exists to enact a statute, that

ends the matter so far as the courts are concerned. The adjudged cases

in which statutes have been held to be void, because unreasonable, are

those in which the means employed by the legislature were not at all

germane to the end to which the legislature was competent.

The white race deems itself to be the dominant race in this country. And

so it is, in prestige, in achievements, in education, in wealth, and in

power. So, I doubt not, it will continue to be for all time, if it remains

true to its great heritage, and holds fast to the principles of

constitutional liberty. But in view of the constitution, in the eye of

the law, there is in this country no superior, dominant, ruling class of

citizens. There is no caste here. Our constitution is color-blind, and

neither knows nor tolerates classes among citizens. In respect of civil

rights, all citizens are equal before the law. The humblest is the peer

of the most powerful. The law regards man as man, and takes no account

of his surroundings or of his color when his civil rights as guarantied

by the spreme law of the land are involved. It is therefore to be regretted

that this high tribunal, the final expositor of the fundamental law of

the land, has reached the conclusion that it is competent for a state to

regulate the enjoyment by citizens of their civil rights solely upon the

basis of race.

In my opinion, the judgment this day rendered will, in time, prove to be

quite as pernicious as the decision made by this tribunal in the Dred Scott

Case.

It was adjudged in that case that the descendants of Africans who were

imported into this country, and sold as slaves, were not included nor

intended to be included under the word 'citizens' in the constitution,

and could not claim any of the rights and privileges which that instrument

provided for and secured to citizens of the United States; that, at time

of the adoption of the constitution, they were 'considered as a

subordinate and inferior class of beings, who had been subjugated by the

dominant

[163 U.S. 537, 560]

race, and, whether emancipated or not, yet

remained subject to their authority, and had no rights or privileges but

such as those who held the power and the government might choose to grant

them.' 17 How. 393, 404. The recent amendments of the constitution, it

was supposed, had eradicated these principles from our institutions. But

it seems that we have yet, in some of the states, a dominant race,-a

superior class of citizens,-which assumes to regulate the enjoyment of

civil rights, common to all citizens, upon the basis of race. The present

decision, it may well be apprehended, will not only stimulate aggressions,

more or less brutal and irritating, upon the admitted rights of colored

citizens, but will encourage the belief that it is possible, by means of

state enactments, to defeat the beneficent purposes which the people of

the United States had in view when they adopted the recent amendments of

the constitution, by one of which the blacks of this country were made

citizens of the United States and of the states in which they respectively

reside, and whose privileges and immunities, as citizens, the states are

forbidden to abridge. Sixty millions of whites are in no danger from the

presence here of eight millions of blacks. The destinies of the two races,

in this country, are indissolubly linked together, and the interests of

both require that the common government of all shall not permit the seeds

of race hate to be planted under the sanction of law. What can more

certainly arouse race hate, what more certainly create and perpetuate a

feeling of distrust between these races, than state enactments which, in

fact, proceed on the ground that colored citizens are so inferior and

degraded that they cannot be allowed to sit in public coaches occupied

by white citizens? That, as all will admit, is the real meaning of such

legislation as was enacted in Louisiana.

The sure guaranty of the peace and security of each race is the clear,

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 United States, without regard to

race. State enactments regulating the enjoyment of civil rights upon the

basis of race, and cunningly devised to defeat legitimate results of the

[163 U.S. 537, 561]

war, under the pretense of recognizing equality of

rights, can have no other result than to render permanent peace impossible,

and to keep alive a conflict of races, the continuance of which must do

harm to all concerned. This question is not met by the suggestion that

social equality cannot exist between the white and black races in this

country. That argument, if it can be properly regarded as one, is scarcely

worthy of consideration; for social equality no more exists between two

races when traveling in a passenger coach or a public highway than when

members of the same races sit by each other in a street car or in the jury

box, or stand or sit with each other in a political assembly, or when they

use in common the streets of a city or town, or when they are in the same

room for the purpose of having their names placed on the registry of voters,

or when they approach the ballot box in order to exercise the high

privilege of voting.

There is a race so different from our own that we do not permit those

belonging to it to become citizens of the United States. Persons belonging

to it are, with few exceptions, absolutely excluded from our country. I

allude to the Chinese race. But, by the statute in question, a Chinaman

can ride in the same passenger coach with white citizens of the United

States, while citizens of the black race in Louisiana, many of whom,

perhaps, risked their lives 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, from

public stations of any kind, and who have all the legal rights that belong

to white citizens, are yet declared to be criminals, liable to

imprisonment, if they ride in a public coach occupied by citizens of the

white race. It is scarcely just to say that a colored citizen should not

object to occupying a public coach assigned to his own race. He does not

object, nor, perhaps, would he object to separate coaches for his race

if his rights under the law were recognized. But he does object, and he

ought never to cease objecting, that citizens of the white and black races

can be adjudged criminals because they sit, or claim the right to sit,

in the same public coach on a public highway.

[163 U.S. 537, 562]

The

arbitrary separation of citizens, on the basis of race, while they are

on a public highway, is a badge of servitude wholly inconsistent with the

civil freedom and the equality before the law established by the

constitution. It cannot be justified upon any legal grounds.

If evils will result from the commingling of the two races upon public

highways established for the benefit of all, they will be infinitely less

than those that will surely come from state legislation regulating the

enjoyment of civil rights upon the basis of race. We boast of the freedom

enjoyed by our people above all other peoples. But it is difficult to

reconcile that boast with a state of the law which, practically, puts the

brand of servitude and degradation upon a large class of our fellow

citizens,-our equals before the law. The thin disguise of 'equal'

accommodations for passengers in railroad coaches will not mislead any

one, nor atone for the wrong this day done.

The result of the whole matter is that while this court has frequently

adjudged, and at the present term has recognized the doctrine, that a state

cannot, consistently with the constitution of the United States, prevent

white and black citizens, having the required qualifications for jury

service, from sitting in the same jury box, it is now solemnly held that

a state may prohibit white and black citizens from sitting in the same

passenger coach on a public highway, or may require that they be separated

by a 'partition' when in the same passenger coach. May it not now be

reasonably expected that astute men of the dominant race, who affect to

be disturbed at the possibility that the integrity of the white race may

be corrupted, or that its supremacy will be imperiled, by contact on public

highways with black people, will endeavor to procure statutes requiring

white and black jurors to be separated in the jury box by a 'partition,'

and that, upon retiring from the court room to consult as to their verdict,

such partition, if it be a movable one, shall be taken to their

consultation room, and set up in such way as to prevent black jurors from

coming too close to their brother jurors of the white race. If the

'partition' used in the court room happens to be stationary, provision

could be made for screens with openings through

[163 U.S. 537, 563]

which

jurors of the two races could confer as to their verdict without coming

into personal contact with each other. I cannot see but that, according

to the principles this day announced, such state legislation, although

conceived in hostility to, and enacted for the purpose of humiliating,

citizens of the United States of a particular race, would be held to be

consistent with the constitution.

I do not deem it necessary to review the decisions of state courts to which

reference was made in argument. Some, and the most important, of them,

are wholly inapplicable, because rendered prior to the adoption of the

last amendments of the constitution, when colored people had very few

rights which the dominant race felt obliged to respect. Others were made

at a time when public opinion, in 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,

race prejudice was, practically, the supreme law of the land. Those

decisions cannot be guides in the era introduced by the recent amendments

of the supreme law, which established universal civil freedom, gave

citizenship to all born or naturalized in the United States, and residing

ere, obliterated the race line from our systems of governments, national

and state, and placed our free institutions upon the broad and sure

foundation of the equality of all men before the law.

I am of opinion that the state of Louisiana is inconsistent with the

personal liberty of citizens, white and black, in that state, and hostile

to both the spirit and letter of the constitution of the United States.

If laws of like character should be enacted in the several states of the

Union, the effect would be in the highest degree mischievous. Slavery,

as an institution tolerated by law, would, it is true, have disappeared

from our country; but there would remain a power in the states, by sinister

legislation, to interfere with the full enjoyment of the blessings of

freedom, to regulate civil rights, common to all citizens, upon the basis

of race, and to place in a condition of legal inferiority a large body

of American citizens, now constituting a part of the political community,

called the

[163 U.S. 537, 564]

'People of the United States,' for whom,

and by whom through representatives, our government is administered. Such

a system is inconsistent with the guaranty given by the constitution to

each state of a republican form of government, and may be stricken down

by congressional action, or by the courts in the discharge of their solemn

duty to maintain the supreme law of the land, anything in the constitution

or laws of any state to the contrary notwithstanding.

For the reason stated, I am constrained to withhold my assent from the

opinion and judgment of the majority.