CHAPTER IX

SEPARATION OF RACES IN PUBLIC CONVEYANCES

There is perhaps no phase of the American race problem which has been discussed so much within the last decade as the so-called “Jim Crow” laws, the statutes requiring separate accommodations for white and colored passengers in public conveyances. This arises largely from the fact that these legislative enactments are of general concern, while the other legal distinctions have directly affected only certain classes of each race. Laws prohibiting intermarriage, for instance, concern only those of marriageable age; suffrage restrictions apply only to males of voting age; and statutes requiring separate schools affect immediately only children and youths; but the laws requiring white and colored passengers to occupy separate seats, compartments, or coaches concern every man, woman, and child, who travels, the country over. They affect not only those living in the States where the laws are in force, but the entire traveling public. The white man or the Negro in Massachusetts may not care anything about the suffrage restrictions of South Carolina, but, if he travels through the South, he must experience the requirements of the “Jim Crow” laws.

ORIGIN OF “JIM CROW”

The phrase “Jim Crow” has become so inseparably affixed to the laws separating the races in public conveyances that two States, North Carolina and Maryland, have indexed the laws on that subject under “J” in some of their annual statutes. The earliest public use of the phrase appears to have been in 1835, when Thomas D. Rice, the first Negro minstrel, brought out in Washington a dramatic song and Negro dance called “Jim Crow.” The late actor, Joseph Jefferson, when only four years old, appeared in this dance.[517] In 1841 “Jim Crow” was first used in Massachusetts to apply to a railroad car set apart for the use of Negroes.[518] The phrase, then, has a somewhat more dignified origin than is ordinarily attributed to it by those who have considered it as only an opprobrious comparison of the color of the Negro with that of the crow.

DEVELOPMENT OF LEGISLATION PRIOR TO 1875

The first “Jim Crow” laws are those of Florida and Mississippi in 1865, and Texas in 1866. The laws[519] of Florida provided: “That if any Negro, mulatto, or other person of color shall intrude himself into ... any railroad car or other public vehicle set apart for the exclusive accommodation of white people, he shall be deemed guilty of a misdemeanor and, upon conviction, shall be sentenced to stand in pillory for one hour, or be whipped, not exceeding thirty-nine stripes, or both, at the discretion of the jury, nor shall it be lawful for any white person to intrude himself into any railroad car or other public vehicle set apart for the exclusive accommodation of persons of color, under the same penalties.” The law[520] of Mississippi was as follows: “That it shall be unlawful for any officer, station agent, conductor, or employee on any railroad in this State, to allow any freedman, Negro, or mulatto, to ride in any first-class passenger cars, set apart, or used by, and for white persons; and any person offending against the provisions of this section shall be deemed guilty of a misdemeanor, and on conviction thereof, before the circuit court of the county in which said offence was committed, shall be fined not less than fifty dollars, nor more than five hundred dollars; and shall be imprisoned in the county jail until such fine and costs of prosecution are paid: Provided, that this section of this act shall not apply in the case of Negroes or mulattoes, traveling with their mistresses, in the capacity of nurses.” Texas[521] simply provided that every railroad company should be required to attach to each passenger train run by it one car for the special accommodation of freedmen.

Other Southern States, perhaps, would have undertaken similar legislation, had the legislatures been left unfettered; but under the Reconstruction régime, a number of the States even passed laws prohibiting discrimination against Negroes in public conveyances. In 1870, the Georgia legislature[522] enacted a statute requiring the railroads in the State to furnish equal accommodations to all, without regard to race, color, or previous condition, when a greater amount of fare was exacted than had been exacted before January 1, 1861, which had been at that time half-fare for persons of color. Texas,[523] in 1871, repealed the law of 1866 and prohibited public carriers “from making any distinctions in the carrying of passengers” on account of race, color, or previous condition, making the violation of the law a misdemeanor punishable by a fine of not less than one hundred nor more than five hundred dollars, or imprisonment for not less than thirty or more than ninety days, or both. In 1873, Louisiana[524] prohibited common carriers from making any discrimination against any citizen of the State or of the United States on account of race or color, and went further still by prohibiting common carriers from other States from making such discriminations while in the State. Out of this latter provision arose the great case of Hall v. DeCuir, which will be discussed later. In 1874, Arkansas[525] prohibited any public carrier from making any rules for the government or control of his business which should not affect all persons alike, without regard to race or color.

In the meantime, some of the States outside the South were taking steps to adjust the privileges of persons of color. In 1866, Massachusetts[526] made it unlawful’“to exclude persons from or restrict them in ... any public conveyance ... except for good cause.” The following year, Pennsylvania[527] enacted a statute prohibiting railroads from excluding persons from their cars or requiring them to ride in different parts of the cars on account of color or race, also prohibiting the conductor or other agent of the railroad from throwing the car off the track to prevent such persons from riding. This law was passed just a few days before the famous case of West Chester and Philadelphia Railway Company v. Mills was decided, which case will also be discussed later.

A statute of Delaware[528] of 1875, as has been seen, declared that the carriers of passengers might make such arrangements in their business as would, if necessary, assign a particular place in their cars, carriages, or boats to such of their customers as they might choose to place there, and whose presence elsewhere would be offensive to the major part of the traveling public, where their business was conducted; but the accommodations must be equal for all if the same price for carriage was required from all.

LEGISLATION BETWEEN 1865 AND 1881

Before considering the “Jim Crow” laws of the Southern States, it will be instructive to look into some of the court decisions between 1865 and 1881, the latter being the date of adoption of the first “Jim Crow” law of the second period, to see what steps the railroad, street car, and steamboat companies had taken to separate the races, in the absence of State legislation upon the subject.

In 1865, a colored woman ejected from a street car in Philadelphia[529] brought action against the conductor, who pleaded that there was a rule established by the road superintendent that Negroes should be excluded from the cars. The court held that the conductor had no right to eject a passenger on account of race or color, and that a regulation of the company would not be a defence to the action.

Just a few days after the Pennsylvania legislature passed the act prohibiting discriminations against persons of color in public conveyances, to which reference has been made, the Supreme Court of the State ruled[530] that it was not an unreasonable regulation of the railroad company to separate the passengers so as to promote personal comfort and convenience. This is interesting because it is the earliest case found supporting the legality of the separation of races in public conveyances. Since the case arose before the Civil Rights Bill of the Commonwealth was adopted, it does not purport to rule upon the constitutionality of that act.

In San Francisco,[531] in 1868, a street car conductor refused to stop for a colored woman, saying, “We don’t take colored people in the cars,” whereupon she brought an action against the company and was awarded damages by the lower court. Here there is an implication that the railroad company had a regulation excluding persons of color from street cars.

In 1870, the Chicago and Northwestern Railway Company[532] refused to admit a colored woman to the car set apart for ladies and gentlemen accompanying them. Whereupon she brought an action and recovered two hundred dollars damages. It does not appear from the case that the railroad had set apart any car or part of a car for the exclusive accommodation of colored persons.

A steamboat company in Iowa, in 1873, had a regulation that colored passengers should not eat at the regular tables, but at a table on the “guards” of the boat. The Supreme Court of that State held[533] that this rule was unreasonable and, therefore, illegal.

The first case to reach the Supreme Court of the United States involving the separation of white and colored passengers on cars was one brought against the Washington, Alexandria, and Georgetown Railroad Company, in 1873. This road was chartered by Congress in 1863 with the provision that no person should be excluded from the cars on account of color. A Negro woman, with an ordinary first-class ticket, was made to ride in a separate coach precisely like that used by the white passengers. The court ruled[534] that the Act of 1863 meant that persons of color should travel in the same cars as white persons without any distinction being made; that, therefore, the law was not satisfied by the company’s providing cars assigned exclusively to persons of color, though they were as good as those assigned to white passengers.

In 1869, the Louisiana[535] legislature passed a law prohibiting railroad, street car, and steamboat companies from making any discrimination on account of race or color. In the often-cited case of Hall v. DeCuir,[536] a test case arising under this act in 1875, the Supreme Court ruled that the Louisiana act was unconstitutional because it was an interference with interstate commerce. Chief Justice Waite, in delivering the opinion of the court, said: “If each State was at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not but be productive of great inconvenience and unnecessary hardship.” This case has stood as a warning to the Southern States that they must be careful to mention in their “Jim Crow” laws that they apply only to intrastate passengers. But, as will be seen later, though this case has not been overruled, it has been refined upon.

In a case[537] arising in the Federal District Court of Texas in 1877, it was held that for a railroad employee to deny to a passenger the right to ride in the only car appropriated for the use of ladies, because she was a colored woman, was a violation of the Civil Rights Bill. But the judge, in charging the jury at the trial, said that, if there were two cars equally fit and appropriate, then the white and colored passengers might be separated.

The above are only a few of the many cases which arose between 1865 and 1881, involving the separation of white and colored passengers; they are cited to show that, in the absence of legislative authority, many of the public conveyance companies had regulations of their own separating the races. The “Jim Crow” laws, in other words, coming later, did scarcely more than to legalize an existing and widespread custom.

SEPARATION OF PASSENGERS ON STEAMBOATS

As already suggested, the “Jim Crow” laws apply to three classes of vehicles, namely: steamboats, railroad cars, and street cars. There is comparatively little legislation about white and colored passengers on steamboats. North Carolina[538] is the only State to include steamboats in the regular “Jim Crow” law. It requires all steamboat companies engaged as common carriers in the transportation of passengers for hire to provide separate but equal accommodations for the white and colored races of all steamboats carrying passengers. The violation of this law is punishable by a fine of one hundred dollars; each day is considered a separate offence.

On February 9, 1900, the Virginia[539] legislature enacted a statute requiring the separation of white and colored passengers on all steamboats carrying passengers and plying in the waters within the jurisdiction of the State in the sitting, sleeping, and eating apartments, so far as the “construction of the boat and due consideration for comfort of passengers” would permit. There must be no difference in the quality of accommodations. The law makes an exception of nurses and other attendants traveling with their employers, and officers in charge of prisoners. For disobeying the law, the boat officer is guilty of a misdemeanor punishable by a fine of not less than twenty-five dollars nor more than one hundred dollars. Any passenger wilfully disobeying the law is guilty of a misdemeanor punishable by a fine of not less than five dollars nor more than fifty dollars or by imprisonment for not less than thirty days, or both. The boat officer may eject an offending passenger at any landing place, and neither he nor the steamboat company will be liable. In 1901, the above law[540] was made more stringent by omitting the provision about the construction of the boat and consideration for the comfort of the passengers, quoted above. In 1904, South Carolina[541] required all ferries to have separate cabins for white and colored passengers.

The above legislation seems to be the only legislation as to steamboats up to the present; but it does not measure the separation of the races on steamboats, inasmuch as the companies in the various States have adopted regulations requiring separate accommodations for the races. This custom applies to interstate as well as to intrastate travel. The steamers plying between Boston and the ports of the South, for instance, provide separate dining tables, separate toilet rooms, and separate smoking rooms for the white and colored passengers. This regulation of interstate travel is upheld by two Federal cases, one in Georgia[542] in 1879 and the other in Maryland[543] in 1885, which held in substance, that, inasmuch as Congress has enacted no law which forbids interstate common carriers from separating white and colored passengers so long as the accommodations are equal, during congressional inaction, the companies may make their own regulations.

SEPARATION OF PASSENGERS IN RAILROAD CARS

With the exception of the transient “Jim Crow” laws of Mississippi, Florida, and Texas of 1865–67, the first State to adopt a comprehensive law separating the white and colored passengers on railroad cars was Tennessee[544] which did so in 1881. The statute of that State stood alone until 1887, when a series of “Jim Crow” laws were enacted by the States in the following order: Florida,[545] 1887; Mississippi,[546] 1888; Texas,[547] 1889; Louisiana,[548] 1890; Alabama,[549] Kentucky,[550] Arkansas,[551] and Georgia,[552] 1891. For some years thereafter the subject remained untouched by the legislatures, save an amending statute now and then; but in 1898–99, the other Southern States began to fall into line: South Carolina,[553] 1898; North Carolina,[554] 1899; Virginia,[555] 1900; Maryland,[556] 1904; Oklahoma,[557] 1907. It appears that Missouri is the only Southern State which has not separated the races in railroad cars.

The details of the “Jim Crow” laws as to railroads are very nearly the same in all the Southern States. They require white persons, on the one hand, and “Negroes,” “persons of color,” “persons of African descent,” etc., on the other, to occupy separate seats, compartments, or coaches. The legal meaning of the above-mentioned phrases has already been considered. It is safe to say, as the Arkansas statute does declare, that, if one has a visible and distinct admixture of African blood, he must accept the accommodations furnished colored passengers.

_Interstate and Intrastate Travel_

The first great question that arises is the extent of application of the laws. The statutes declare that they apply to all railroads doing business in the State. But just what does this mean? It has been generally understood and the principle has been confirmed by judicial decisions[558] that States may pass laws separating passengers going one from one point to another in the same State. But how about passengers coming from or going to points outside the State? Suppose, for instance, a colored passenger were to board a train at Philadelphia for Evansville, Indiana, and go through Maryland, West Virginia, and Kentucky. Pennsylvania and West Virginia have no “Jim Crow” laws; Maryland and Kentucky have. When the colored passenger reaches the Maryland line, must he enter a car set apart for colored people? When he reaches the West Virginia line, may he go back into the coach with white passengers? When, again, he reaches the Kentucky line, will he be forced to return to the car set apart for his race? And, finally, when he comes to Indiana, may he once more return to the car for white passengers? Or, suppose a railroad from Ohio to Indiana has only a few miles of its track in Kentucky and only two depôts in that State. Must the railroad furnish separate accommodations for the white and colored passengers going between those two points in Kentucky? If these questions had been asked thirty years ago or at the time of the Hall v. DeCuir case, there is no doubt that the Federal courts would have held that it was an unwarranted interference with interstate commerce or would lead to too much confusion.

The law of Alabama of 1891 contained the provision that “this act shall not apply to cases where white or colored passengers enter this State upon such railroads under contract for their transportation made in other States where like laws to this do not prevail.” Since these laws, however, have become so prevalent throughout the South, the courts seem to have swung over to the side of public opinion. In 1889, the Supreme Court of Mississippi held[559] that though the “Jim Crow” law of that State applied only to intrastate travel, it was not an unwarranted burden upon interstate railroads to require them to furnish separate accommodations for the races as soon as they came across the State line.

In 1894, the “Jim Crow” law of Kentucky was declared unconstitutional by the Federal Circuit Court[560] because the language of the acts was so comprehensive as to embrace all passengers, whether their passage commenced or ended within the State or otherwise and thus interfered with interstate commerce. Four years later, however, the Court of Appeals[561] of Kentucky, considering the same statute, ruled that the law of that State was not in violation of the Fourteenth Amendment or the “interstate commerce clause” of the Federal Constitution, arguing that, if it did apply to interstate passengers, which was not conceded, it would be construed to apply only to transportation within the State. Under this latter ruling apparently the colored passenger going from West Virginia to Indiana through Kentucky would have to ride in the car provided for his race in that State.

The same year, 1898, the Supreme Court[562] of Tennessee held that it was a proper exercise of the police power to require even interstate passengers to occupy separate accommodations while in that State. The last case[563] upon this point, decided April 16, 1907, held that a railroad company may, independently of statute, adopt and enforce rules requiring colored passengers, although they are interstate passengers, to occupy separate coaches or compartments.

Thus the matter stands. In the absence of a recent United States Supreme Court decision upon the point, it would be unsafe to make a generalization. But it is clear that there has been, in the point of view of the Federal judiciary, a reaction from the extreme doctrine of Hall v. DeCuir. All the lower courts, both State and Federal, are inclined to make the laws apply to all passengers, both intrastate and interstate, so long as they are within the borders of the particular State.

_Sleeping Cars_

In a number of the “Jim Crow” laws there are special provisions about Pullman cars. Oklahoma and Texas provide that carriers may haul sleeping or chair cars for the exclusive use of either race separately, but not jointly. Georgia goes farthest in legislation on this point. In 1899, the legislature provided that, in assigning seats and berths on sleeping cars, white and colored passengers must be separated; but declared that nothing in the act should be construed to compel sleeping-car companies to carry persons of color in sleeping or parlor cars. The act does not apply to nurses and servants with their employers, who may enter and ride in the car with their employers. The conductors are made special policemen to enforce the law, and the failure or refusal to do so is punishable as a misdemeanor. The “Jim Crow” laws in Maryland, North Carolina, and Virginia do not apply to Pullman cars or to through express trains; nor, in South Carolina, to through vestibule trains.

The Court of Appeals of Texas,[564] in 1897, held that a colored passenger in a Pullman car, going from a point outside of Texas into that State, might be compelled, upon reaching the Texas line, to enter a Pullman car set apart for passengers of his own race, provided the accommodations were equal. This decision is in harmony with those already considered with reference to day coaches.

_Waiting-Rooms_

Three States, Arkansas, Louisiana, and Oklahoma, require separate waiting-rooms at railroad depôts. In Mississippi, the railroad commission was given power in 1888 to designate separate waiting-rooms, if it deemed such proper. In most, if not all, of the other Southern States, separate waiting-rooms are provided by the railroad companies on their own initiative, and this action on their part was held constitutional[565] in South Carolina in 1893.

The most recent legislation along this line was an act of South Carolina of February 23, 1906, requiring a separation of the races in all station restaurants and eating-houses, imposing a heavy fine for its violation. It is probable that the necessity or propriety of this law was suggested by the disturbance which arose at Hamlet, North Carolina, near the South Carolina line, when the proprietor of the Seaboard Air Line Railway eating-house at that place allowed a party of Negroes, one of whom was Dr. Booker T. Washington, to eat in the main dining room, while the white guests were fed in a side room.

_Trains to which Laws do not Apply_

There are certain classes of trains to which the “Jim Crow” laws do not apply. In Maryland, Oklahoma, Texas, and Virginia, they do not apply to freight trains carrying passengers in the caboose cars. South Carolina exempts narrow-gauged roads from the requirements of the law. North Carolina gives its railroad commissioners power to exempt branch lines and narrow-gauged roads if, in their judgment, separation is unnecessary to secure the comfort of passengers. South Carolina provides that, where a railroad is under forty miles in length and operates both a freight and a passenger train daily, the law applies only to the passenger train. These two States also except relief trains in case of accident. Whether there is statutory exemption or not, the railway company cannot be held responsible for not separating the passengers in case of an accident.[566] Oklahoma allows the running of extra or special trains or cars for the exclusive accommodation of either race, if the regular trains or cars are operated upon regular schedule. Texas provides that the provisions of its act shall not apply to any excursion train run strictly as such for the benefit of either race.

_Passengers to whom Law does not Apply_

Certain classes of passengers are exempt from the laws. There is, for instance, an exemption in favor of nurses attending the children or sick of the other race in Florida, Georgia, Kentucky, Louisiana, Maryland, North Carolina, South Carolina, Texas, and Virginia. The Florida provision is that nothing in the act shall be construed to prevent female colored nurses having the care of children or sick persons from riding in cars for white passengers. North Carolina excepts “Negro servants in attendance on their employers.” These two qualifications sound innocent enough, but probably upon a test they would be declared unconstitutional. It would be considered class legislation in that _colored_ nurses and _Negro_ servants are specifically mentioned instead of exempting nurses and servants in general. In fact, the point has been decided in the case of street-car provisions with similar wording.

Arkansas, Kentucky, Maryland, Oklahoma, Texas, and Virginia expressly exempt the employees of a railroad in the discharge of their duty from the requirements of the “Jim Crow” laws. Where such exemption is not so made in the statute, it must be taken for granted, for it would be manifestly unreasonable to prohibit a white conductor from going into the colored coach to collect tickets, or a colored porter from going into the coach for white passengers to regulate the ventilation or for any other purpose of his employment. It may be noted, however, that in States where these laws apply, the white conductor usually assists the white passengers in entering and leaving the cars, while colored porters attend to the colored passengers.

Most of the States provide that the laws do not apply to officers in charge of prisoners. Arkansas declares that “officers accompanying prisoners may be assigned to the coach or room to which said prisoners belong by reason of race.” Louisiana, on the contrary, exempts prisoners in the charge of officers from the “Jim Crow” laws. The South Carolina law exempts lunatics as well. The law of Kentucky exempts “officers in charge of prisoners.” When, in a case which arose in Kentucky, a sheriff went to take a Negro lunatic over the road, the conductor required the lunatic to stay in the colored coach, and gave the sheriff the choice of staying with the lunatic or leaving him and riding in the car for white passengers. The court[567] upheld the action of the conductor, ruling that the exemption applied only to the officers, not to the prisoners. The law has the same effect as if it said that the officer should ride in the car set apart for the race of the prisoner or lunatic, because it is his duty to guard his charge, and, if the prisoner or lunatic must stay in the car for his race, the officer must stay there with him. North Carolina, South Carolina, and Maryland exempt prisoners from the requirements of the “Jim Crow” laws.

_Nature of Accommodations_

As to the nature of railroad accommodations, all “Jim Crow” laws provide, in substance, that the accommodations for white and colored passengers must be equal for both races. Florida provides that the coaches for colored passengers (with first-class tickets) must be equally good and provided with the same facilities for comfort as those for white passengers with first-class tickets. Kentucky, Maryland, and Virginia prohibit any difference in quality, convenience, or accommodation. Tennessee provides that the first-class coaches for colored passengers must “be kept in good repair, and with the same convenience and subject to the same rules governing other first-class cars, preventing smoking and obscene language.”

There is no one point upon which the courts are more in accord than that there is no ground of action so long as the accommodations are substantially equal.[568] The great working principle was enunciated in 1885 in the Circuit Court[569] of Tennessee in the doctrine that equality of accommodation does not mean identity of accommodation. And, indeed, the railroad company is not liable for damages even for inequality of accommodation, unless it is proved that the plaintiff actually sustained damages by such inequality.[570]

_Means of Separation_

The actual separation of the races is accomplished by requiring railroads to furnish on each passenger train either separate cars or one car divided into separate compartments by a partition. Each State gives the choice. In case of the division of the car into compartments, the partition must, in Arkansas, Oklahoma, and Kentucky, be made of wood; in Kentucky, Maryland, Oklahoma, and Texas, it must be “substantial”; and in Maryland and Texas, it must have a door in it. Arkansas requires only a partitioned car on roads less than thirty miles long, but separate cars on longer roads, though a train on any road may carry one partitioned car.

Maryland and North Carolina provide that, in case the car or compartment for either race becomes filled and no extra cars can be obtained and the increased number of passengers could not have been foreseen, the conductor may assign a portion of the car or compartment for one race to the passengers of the other race.

_Designation of Separation_

Several States specify a means by which the public shall be notified of the existence of the “Jim Crow” requirements. Arkansas requires the law to be posted in each coach and waiting-room; Louisiana, in each coach and ticket-office; Texas, in each coach and depôt. In Kentucky, Maryland, Oklahoma, and Texas, each coach or compartment must bear in some conspicuous place appropriate words, in plain letters, to indicate the race for which it was set apart.

_Punishment for Violating Law_

Certain liabilities are incurred for the violation of the “Jim Crow” laws. The three parties concerned are the passenger, the conductor or manager of the train, and the railroad company itself. If a passenger refuses to occupy the coach or compartment to which he, by his race, belongs, the conductor may refuse to carry him and may eject him if he is already on the train; and for this neither the conductor nor the railroad company is liable. In Georgia and Texas, conductors are given express power to enforce the law, and in other States the power is implied. Some States punish passengers for wilfully riding in the wrong car by a fine ranging from a minimum of five dollars in Maryland and Texas to a maximum of one thousand dollars in Georgia, or imprisonment from twenty days in Louisiana to six months in Georgia.

The conductor is liable for two kinds of offences: (1) for assigning a passenger to a car or compartment to which he does not by race belong, and (2) for failing to separate passengers. Most of the States consider the two violations as one. Only Arkansas and Louisiana prescribe separate punishments for assigning the passenger to the wrong car—a fine of twenty-five dollars in Arkansas and a fine of twenty-five dollars or twenty days’ imprisonment in Louisiana. The punishment for refusing to enforce the law is a fine varying from a minimum of five dollars in Texas to a maximum of one thousand dollars in Georgia, or, in a few States, imprisonment of varying length. In Texas, the fines collected are applied to the common school fund of the State.

The fine imposed upon railroad companies for failing or refusing to furnish separate accommodations, varies between twenty-five dollars and one thousand dollars for each offence, and for this purpose each trip that the train makes is considered a separate offence. If, however, the railroad company provides the required separate cars or compartments and the conductor fails to enforce the law or violates its provisions, it is the conductor, not the company, who is liable.[571]

_Separation of Postal Clerks_

A special question has arisen out of the Federal postal cars on which both white and colored clerks are employed. At present, they are obliged to sleep in the same cars, and at the terminals of long runs dormitories are provided for them, but without any race separation. The post-office department has said that such regulation is beyond its control.[572] Thus the matter stands, with a growing discontent on the part of the white postal clerks to be so intimately associated with the colored clerks.

The “Jim Crow” laws in the South, so far as the railroads are concerned, are very nearly complete. Missouri, as has been said, is the only one of the Southern States which has not, by express enactment, separated the races.

SEPARATION OF PASSENGERS IN STREET CARS

The third division of the subject is the separation of races in street cars. This is a field of much more active legislation than any of the preceding, in which much has been done recently and in which much more is likely to be done.

Of the thirteen separate coach laws just considered, six of them—those of Alabama, Arkansas, Louisiana, Mississippi, South Carolina, and Texas—except street railroads from their application. Georgia and Oklahoma alone make their laws all inclusive, embracing electric and street cars as well as railroad coaches. It is safe to assume that the laws of the other States refer only to railroad coaches.

_Present Extent of Separation_

With the exception of the early law of Georgia[573] of 1891, the “Jim Crow” street car laws came in with the new century. So far, eight of the Southern States have passed general statutes to separate the races on street cars, in the following order: Georgia,[573] 1891; Louisiana,[574] 1902; Mississippi,[575] 1904; Tennessee,[576] and Florida,[577] 1905; Virginia,[578] 1906, and North Carolina,[579] and Oklahoma,[580] 1907. The statute of Arkansas,[581] of 1903, might be included in the above list, but it applies only to cities of the first class. Some States passed laws of special application before they made them general. Thus, in 1902, the legislature of Virginia[582] separated the white and colored passengers on street cars going between Alexandria and points in Fairfax and Alexandria Counties; and in 1901, between Richmond and Seven Pines. And so Tennessee,[583] in 1903, made the regular separate coach law apply to street cars in counties having 150,000 inhabitants or over, as shown by the census of 1900 or any subsequent Federal census. Memphis only came within this law. In 1905, South Carolina[584] required the separation of the races on “electric railways outside of the corporate limits of cities and towns.” This State has not yet made the law general.

The extent of legislation at present is as follows: Georgia and Oklahoma, by their regular “Jim Crow” laws, require the white and colored passengers on street cars to be separated. Louisiana, Mississippi, Florida, Tennessee, Virginia, and North Carolina have separated the races by statutes specially applicable to street cars. Arkansas, by statute, requires a separation in cities of the first class; and South Carolina, on suburban lines. Maryland, South Carolina, Alabama, Texas, Kentucky and Missouri do not, by statute, require the races to be separated on street cars in cities. But the absence of legislative enactments does not mean at all that races are not actually separated on street cars. In order to find out the extent of actual separation, the author made inquiry of the mayors of every city of 10,000 or more inhabitants in the Southern States and in West Virginia and Kansas. Some generalizations may be made from the almost complete number of replies received. It may be assumed that the races are separated in the above-mentioned States which have statutes on the subject. It appears that the white and colored passengers are _not_ separated on the street cars of any of the cities of Kansas, Kentucky, Maryland, Missouri, and West Virginia. In the absence of State laws, either the municipal authorities or the street railway companies themselves provide for and require separation in the cities of Alabama and South Carolina. Thus, though there is no ordinance on the subject in Charleston, South Carolina, separation is required by the company itself.

_Method of Separation_

The city ordinances and regulations requiring separation on street cars are practically the same as the State statutes on the subject. The ordinances, regulations, and statutes all require that the accommodations for passengers of both races shall be equal. The three methods of separation are (1) separate cars, (2) partitioned cars, and (3) seats assigned to each race. The only city that unqualifiedly requires separate cars is Montgomery, Alabama. The ordinance was passed October 15, 1906, over the mayor’s veto, he vetoing it because he believed it would be impracticable. When the law went into effect, November 23, the service was materially reduced because of the scarcity of cars.[585] The State laws of Florida, Louisiana, and Mississippi give the choice of using two or more cars or partitioned cars. A number of the ordinances require that the cars be divided either by movable screens or partitions. They are movable so as to apportion the seating capacity to the requirements of each race. But in by far the greatest number of cases, the separation is accomplished by the conductor assigning white and colored passengers to different seats. Practically without exception, the colored passengers are required to be seated from the rear to the front of the car; the white, from the front to the rear. On railroad cars, the colored passengers are almost invariably assigned to the front compartments. The colored passengers on street cars are seated in the rear in order—to give the reason as stated by the mayor of Birmingham, Alabama—to do “away with the disagreeable odors that would necessarily follow the breezes.” In the closed cars of that city, however, the colored passengers are seated in front so as to give the white passengers the rear for smoking. In other cities, the two rear seats are reserved for smoking, so the colored passengers begin to sit on the third seat from the rear. As the car fills, the races get nearer and nearer to one another. North Carolina provides that white and colored passengers shall not occupy contiguous seats on the same bench. Virginia, likewise, prohibits white and colored passengers from sitting side by side on the same bench unless all the other seats are filled. The conductor has the power to require passengers to change their seats as often as is needful to secure actual separation of the races. The laws do not prohibit the running of special cars exclusively for either race, provided the regular cars are run.

The cars or compartments are to be clearly designated to show to which race they belong. Several statutes and ordinances require that the placard “WHITE” or “COLORED,” in plain letters, not less than two inches high, shall be upon each end of the car or compartment, or upon the sides of the open cars. A recent case[586] in Mississippi would seem to hold that the sign must be large enough to be seen in all parts of the car. The laws of Mississippi and Louisiana require that the law be posted in the car; in Virginia, the substance of the law is posted in the car. In Houston, Texas, the race to which the seat belongs is posted on the back of the seat. In several cities, any one tampering with such a sign will be punished by a heavy fine.

The law of North Carolina probably contains a fatal defect in that it requires separation “as far as practicable.” Of course, this would allow the conductors or companies to make numberless exceptions. As a matter of fact, most of the North Carolina cities had been contemplating such a separation, and, when the law went into effect the first of April, 1907, were ready to regard and enforce it.

_Enforcement of Laws_

In practically all of the cities, the street-car conductors and motormen are special policemen to enforce the law. For the ejectment of a wilfully disobedient passenger, they incur no penalty either upon themselves or the company. North Carolina provides that the conductor shall not be liable if he makes the mistake of assigning a passenger to the wrong seat. In several of the cities, it is the duty of the regular police officers to arrest passengers whom they see riding in the wrong cars. The penalty upon the conductor for knowingly failing or refusing to enforce the law varies all the way from a minimum fine of one dollar in Montgomery, Alabama, to five hundred dollars in Jacksonville, Florida, or imprisonment from one to ninety days. The liability of the company is correspondingly heavy in proportion. Each trip made without providing for the requirements of the law is expressly declared a separate offence. In Pensacola, Florida, the fine upon the company for not furnishing separate accommodations is fifty dollars a day.

When a passenger consciously disobeys the law, he may be fined; and if he insists upon occupying the wrong seat, the conductor may eject him from the car. According to the Virginia law, “in case such passenger ejected shall have paid his fare upon said car, he shall not be entitled to any part of said fare.”

_Exemptions_

The only phase of these “Jim Crow” street-car laws which has given rise to any serious discussion is the question of the exemptions from application. Most of the States and cities simply except nurses of one race in attendance upon the children or sick of the other race, the nurse going into the car to which the child or sick person belongs. Of course, the street-car employees are excepted, and Virginia excepts officers in charge of prisoners and lunatics. But Florida and North Carolina declared that the law should not apply to _colored_ nurses in attendance upon _white_ children or _white_ sick people; and Augusta, Georgia, has the same in its ordinance. The constitutionality of the Florida law was tested five years ago in the Supreme Court[587] of that State, and was declared to violate the Fourteenth Amendment, the court, in its opinion, saying: “It gives to the Caucasian mistress the right to have her child attended in the Caucasian department of the car by its African nurse, and withholds from the African mistress the equal right to have her child attended in the African department by its Caucasian nurse.” This is the same discrimination as to the invalid adult Caucasian attended by a colored nurse. As soon as the Florida State law was declared unconstitutional, the cities passed ordinances making the provision apply to nurses of either race. The North Carolina law was never tested, for it was amended before a test case reached the courts. The North Carolina legislature[588] of 1909 obviated all possible difficulty by amending its law to the effect that the nurses of the children or sick or infirm of one race might ride in the car set apart for the race of the infant or sick or infirm person so attended.

NOTES

Footnote 517:

_Century Dictionary_, I, p. 546.

Footnote 518:

_Ibid._, IV, p. 3233.

Footnote 519:

Laws of Fla., 1865, p. 24.

Footnote 520:

Laws of Miss., 1865, pp. 231–32.

Footnote 521:

Laws of Texas, 1866, p. 97.

Footnote 522:

Laws of Ga., 1870, pp. 427–28.

Footnote 523:

Laws of Texas, 1871, 2d sess., p. 16.

Footnote 524:

Acts of La., 1873, pp. 156–57.

Footnote 525:

Acts of Ark., 1873, pp. 15–19.

Footnote 526:

Acts and Resolves of Mass., 1866–67, p. 242.

Footnote 527:

Laws of Pa., 1867, pp. 38–39.

Footnote 528:

Laws of Del., 1875–77, p. 322.

Footnote 529:

Derry v. Lowry, 1865, 6 Phila. Rep. 30.

Footnote 530:

West Chester and Phila. Ry. Co. v. Mills, 1867, 55 Pa. S. 209.

Footnote 531:

Pleasant v. N. B. & M. Ry. Co., 1868, 34 Calif. 586.

Footnote 532:

C. & N. W. Ry. Co. v. Williams, 1870, 55 Ill. 185.

Footnote 533:

Coger v. N. W. Union Packet Co., 1873, 37 Ia. 145.

Footnote 534:

Ry. Co. v. Brown, 1873, 17 Wall, 445.

Footnote 535:

Acts of La., 1869, p. 37.

Footnote 536:

95 U. S. 485, at p. 489 (1875).

Footnote 537:

U. S. v. Dodge, 1877, Fed. Case No. 14,976.

Footnote 538:

Pub. Laws of N. C., 1899, pp. 539–40.

Footnote 539:

Acts of Va., 1899–1900, p. 340.

Footnote 540:

_Ibid._, extra sess., 1901, pp. 329–30.

Footnote 541:

Acts of S. C., 1904, pp. 438–39.

Footnote 542:

Green v. “City of Bridgeton,” 1879, Fed. Case No. 5,754.

Footnote 543:

“The Sue,” 1885, 22 Fed. 843.

Footnote 544:

Laws of Tenn., 1881, pp. 211–12.

Footnote 545:

Laws of Fla., 1887, p. 116.

Footnote 546:

Laws of Miss., 1888, pp. 45 and 48.

Footnote 547:

Laws of Texas, 1889, pp. 132–33; 1891, pp. 44–45 and 165.

Footnote 548:

Acts of La., 1890, pp. 152–54; 1894, pp. 133–34.

Footnote 549:

Acts of Ala., 1890–91, pp. 412–13.

Footnote 550:

Acts of Ky., 1891–92–93, pp. 63–64.

Footnote 551:

Acts of Ark., 1891, pp. 15–17; 1893, pp. 200–01.

Footnote 552:

Laws of Ga., 1891, I, pp. 157–58; 1899, pp. 66–67.

Footnote 553:

Acts of S. C., 1898, pp. 777–78; 1903, p. 84; 1906, p. 76.

Footnote 554:

Pub. Laws of N. C., 1899, pp. 539–40; 1907, pp. 1238–39; 1909, p. 1256.

Footnote 555:

Acts of Va., 1899–1900, pp. 236–37.

Footnote 556:

Laws of Md., 1904, pp. 186–87.

Footnote 557:

Laws of Okla., 1907–08, pp. 201–04.

Footnote 558:

L. N. O. & T. Ry. Co. v. State, 1889, 6 S. 203; Plessy v. Ferguson, 1896, 163 U. S. 537; O. Val. Ry. Rec. v. Lander, 1898, 47 S. W. 344; C. & O. Ry. Co. v. Com. of Ky., 1899, 51 S. W. 160.

Footnote 559:

L. N. O. & T. Ry. Co. v. State, 1889, 6 S. 203.

Footnote 560:

Anderson v. L. & N. Ry. Co., 1894, 62 Fed. 46.

Footnote 561:

O. Val. Ry. Rec. v. Lander, 1898, 47 S. W. 344.

Footnote 562:

Smith v. State, 1898, 46 S. W. 566.

Footnote 563:

Chiles v. C. & O. Ry., 1907, 101 S. W. 386.

Footnote 564:

Pullman-Palace Car Co. v. Cain, 1897, 40 S. W. 220.

Footnote 565:

Smith v. Chamberlain, 1893, 17 S. E. 391.

Footnote 566:

C. & O. Ry. Co. v. Com. of Ky., 1905, 84 S. W. 566.

Footnote 567:

L. & N. Ry. Co. v. Catron, 1897, 43 S. W. 443.

Footnote 568:

West Chester and Phila. Ry. Co. v. Mills, 1867, 52 Pa. S. 209; U. S. v. Dodge, 1877, Fed. Case No. 14,976; Murphy v. W. & A. Ry. Co., 1885, 23 Fed. 637; Logwood v. M. & C. Ry. Co., 1885, 23 Fed. 318; Houck v. S. Pac. Ry. Co., 1888, 38 Fed. 226; Plessy v. Ferguson, 1896, 163 U. S. 537.

Footnote 569:

Logwood v. M. & C. Ry. Co., 1885, 23 Fed. 318.

Footnote 570:

Norwood v. G. H. & S. A. Ry. Co., 1896, 34 S. W. 180.

Footnote 571:

L. & N. Ry. Co. v. Com. of Ky., 1896, 37 S. W. 79.

Footnote 572:

Raleigh, N. C., _News and Observer_, March 12, 1907.

Footnote 573:

Laws of Ga., 1891, I, pp. 157–58.

Footnote 574:

Acts of La., 1902, pp. 89–90.

Footnote 575:

Laws of Miss., 1904, pp. 140–41.

Footnote 576:

Acts of Tenn., 1905, pp. 321–22.

Footnote 577:

Laws of Fla., 1905, pp. 99–100.

Footnote 578:

Acts of Va., 1906, pp. 92–94.

Footnote 579:

Pub. Laws of N. C., 1907, pp. 1238–39.

Footnote 580:

Laws of Okla., 1907–08, pp. 201–04.

Footnote 581:

Acts of Ark., 1903, pp. 178–79.

Footnote 582:

Acts of Va., 1901, extra sess., pp. 212–13; 1901–02, pp. 639–40.

Footnote 583:

Acts of Tenn., 1903, p. 75.

Footnote 584:

Laws of S. C., 1905, p. 954.

Footnote 585:

Raleigh, N. C., _News and Observer_, Nov. 23, 1906.

Footnote 586:

Walden v. Vicksburg Ry. and Light Co., 1906, 40 S. 751.

Footnote 587:

State v. Patterson, 1905, 39 S. 398, at p. 400.

Footnote 588:

Pub. Laws of N. C., 1909, p. 1256.