Plessy v. Ferguson

No. 210

Argued April 18, 1886

Decided May 18, 1886

163 U.S. 537

ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA

Syllabus



The statute of Louisiana, acts of 1890, c. 111, requiring railway

companies carrying passengers in their coaches in that State, to 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; and providing that no person shall be permitted to

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

[163 U.S. 538] of the race they belong to; and requiring the officer of

the passenger train to assign each passenger to the coach or compartment

assigned for the race to which he or she belong; and imposing fines or

imprisonment upon passengers insisting on going into a coach or

compartment other than the one set aide for the race to which he or she

belongs; and conferring upon officers of the train power to refuse to

carry on the train passengers refusing to occupy the coach or

compartment assigned to them, and exempting the railway company from

liability for such refusal, are not in conflict with the provisions

either of the Thirteenth Amendment or of the Fourteenth Amendment to the

Constitution of the United States.



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 eighths

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. 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.



That 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 admit [163 U.S. 540] that he was in any sense or in any

proportion a colored man.



The case coming on for a 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.  Whereupon petitioner prayed for a writ of

error from this court, which was allowed by the Chief Justice of the

Supreme Court of Louisiana. BROWN, J., lead opinion



MR. JUSTICE BROWN, after stating the case, 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 admitted 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. 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-eighths 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. 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 as 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

Slaughterhouse 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, 24, 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. 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 argument 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 theatre, 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 reestablish 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 Slaughterhouse 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. 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 distinguished 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 has 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. 19, 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, p. 206,

"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

establishment [163 U.S. 545] 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, Rev.Stat.D.C.  281, 282, 283, 310, 319,

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. 198; Lehew v. Brummell, 15 S.W.Rep. 765; Ward v. Flood, 48

California 36; Bertonneau v. School Directors, 3 Woods 177; People v.

Gallagher, 93 N.Y. 438; Cory v. Carter, 48 Indiana 897; Dawson v. Lee, 3

Kentucky 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 Indiana 389.



The distinction between laws interfering with the political equality of

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

schools, theatres 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 toward 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. Rives, 100 U.S. 313; Neal v. Delaware, 103

U.S. 370; Bush v. Kentucky, 107 U.S. 110; Gibson v. Mississippi, 162

U.S. 565.  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. 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's

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

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

Railroad Company 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. 48.  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 Case, 109 U.S. 3, 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, theatres 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 counteracting 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. 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, New Orleans &c. Railway v. Mississippi, 133 U.S. 587,

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 aspect

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 Mississippi

662, 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, p. 591, 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 passengers [163 U.S. 548]

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 the State ex rel.

Abbott v. Hicks, Judge, et al., 44 La.Ann. 770, 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 Railway

Co. v. State, 66 Mississippi 662, and affirmed by this court in 133 U.S.

587.  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 to races upon

public conveyances were held to be constitutional 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; The Sue, 22 Fed.Rep. 83; Logwood v. Memphis &c. Railroad, 23

Fed.Rep. 318; McGuinn v. Forbes, 37 Fed.Rep. 639; People v. King, 18

N.E.Rep. 245; Houck v. South Pac. Railway, 38 Fed.Rep. 226; Heard v.

Georgia Railroad Co., 3 Int.Com.Com'n 111; S.C., 1 Ibid. 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 compensation [163 U.S.

549] 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 any 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. 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 for the public good,

and not for the annoyance or oppression of a particular class.  Thus, in

Yick Wo v. Hopkins, 118 U.S. 356, 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 Company v. Husen, 95 U.S. 465; Louisville & Nashville Railroad

v. Kentucky, 161 U.S. 677, and cases cited 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 Ohio St. 66; Hulseman v.

Rems, 41 Penn. St. 396; Orman v. Riley, 1 California 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. 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 underlying 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. 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. Chaver, 5

Jones [N.C.] 1, p. 11); 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, 4 Michigan 406; Jones

v. Commonwealth, 80 Virginia 538).  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. HARLAN, J., dissenting



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 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 his race.  If a passenger insists upon going into a

coach or compartment not set apart for persons of his race, [163 U.S.

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 Navigation 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. 554] this court in

Olcott v. The 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 Railroad Corporation, 4 Met. 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 rights 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. 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 everyone 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  as 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. 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

and however well qualified in other respects to discharge the duties of

jurymen, was repugnant to the Fourteenth Amendment.  Strauder v. West

Virginia, 100 U.S. 303, 306, 307; Virginia v. Rives, 100 U.S. 313; Ex

parte Virginia, 100 U.S. 339; Neal v. Delaware, 103 U.S. 370, 386; Bush

v. Kentucky, 107 U.S. 110, 116.  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. Mississippi,162 U.S. 565.



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 as said in argument that the statute of Louisiana does [163 U.S. 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.  Everyone 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

accommodation 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 a 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.Com. *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 streetcars or in open vehicles on a public

road [163 U.S. 558] or street?  Why may it not require sheriffs to

assign whites to one side of a courtroom 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 law.  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. Stat. & Const.Constr. 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 coordinate and separate. 

Each must keep within the limits defined by the Constitution.  And the

courts best discharge their duty by executing the will of the lawmaking

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 liberally, in order to carry out the

legislative [163 U.S. 559] 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 guaranteed

by the supreme 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 the 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. 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. 19 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 guarantee 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. 561] war under the pretence 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 street 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 objecting, and ought never to

cease objecting, to the proposition that citizens of the white and black

race 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. 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 anyone, 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 courtroom to

consult as to their verdict, such partition, if it be a moveable 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 courtroom happens to be

stationary, provision could be made for screens with openings through

[163 U.S. 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 here, 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 statute 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. 564] People of the

United States, for whom and by whom, through representatives, our

government is administered.  Such a system is inconsistent with the

guarantee 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 reasons stated, I am constrained to withhold my assent from the

opinion and judgment of the majority.



MR. JUSTICE BREWER did not hear the argument or participate in the

decision of this case.

