*1 BOYNTON VIRGINIA. 5, Argued December 1960.
No. 7. October 1960. Decided Thurgood argued petitioner. Marshall cause for Martin, him With on the brief Martin A. Clarence were Newsome, W. H. Greenberg, Jack Louis Poliak and Motley. Constance Baker E. Rogers, Special Attorney
Walter Assistant *2 Virginia, argued respondent. General of the cause for Jr., Harrison, him A. Attorney With on the brief were S. III, General of R. D. Mcllwaine Assistant Virginia, Attorney General. Rankin, Attorney
Solicitor General Assistant General Elman, Tyler, H. Rubin Philip Harold Greene and David curiae, a brief for urging filed the United as amicus reversal.
Mr. Justice Black opinion delivered the of the Court. question presented The basic in this case is whether an passenger interstate bus a statutory denied federal a right constitutional when a bus terminal by the along used its route discriminates in serving passenger solely food to the because of his color. a Negro student,
Petitioner, bought Trailways law a bus Washington, C., ticket from D. Montgomery, to Ala- bama. He p. boarded a bus at 8 m. which arrived at Richmond, Virginia, p. about 10:40 m. When the bus pulled up “Trailways at the Richmond Bus Terminal” the forty-minute bus driver a stopover announced there. got Petitioner off the bus went into the bus terminal get In something to eat. the station he found a res- taurant in which one part was people used serve white Negroes. and one to division, serve Disregarding this sat down on stool in the white section. A waitress asked him to move over to the other section where there were “facilities” serve people. colored Petitioner told her he was an interstate passenger, refused to move and ordered sandwich and tea. The waitress then brought the Assistant Manager, peti- who “instructed” portion tioner to “leave the white of the restaurant and advised him he be portion.” could served the colored Upon petitioner’s refusal leave an officer was called and petitioner was arrested and later tried, convicted and of Richmond Court in the Police Justice’s dollars
fined ten “Unlawfully remain on the did that he charge a Richmond, Terminal Restaurant Bus premises Assistant to do so” forbidden having been Inc. after charge was based The supplied.) Manager. (Emphasis as amended of the Code on § 18-225 provides part: (1958), authority go law shall without person “If premises another, the lands or upon or remain upon owner, do so forbidden to having after been lawfully charge person or other lessee, custodian mis- of a guilty ... shall be land, of such he deemed *3 be pun- thereof shall demeanor, upon and conviction a fine not more than one hundred dollars by ished of thirty jail exceeding days, not confinement (Emphasis fine imprisonment.” and both supplied.) Hustings his appealed
Petitioner conviction where, Court, as in the Police he Richmond, Court the portion that he had remained the white admitted not to do so. His although Terminal Restaurant ordered right was that he federal as defense both courts had an be without passenger Trailways interstate served the bus discrimination restaurant used On passengers. for the accommodation of its interstate this basis he was on the restaurant petitioner claimed that premises lawfully, “unlawfully” charged, with, authority not “without of law.” he remained there spelled His to this effect was out in motion federal claim Hustings Court, was over- to dismiss the warrant ruled after the evidence was heard. Point- both before and integral part an the restaurant was of the ing out petitioner, such as bus service him dis- asserting refusal to serve was a color, charged crimination on the motion to dismiss based that application petitioner law to vio- lated the Act Equal Interstate Commerce and the Pro- Due tection, Process Commerce Federal Clauses appeal Constitution. On Virginia Supreme Court held that the “plainly conviction was right” affirmed with- opinion, thereby out rejecting petitioner’s assignments of error based on the grounds same discrimination set out in his motion to dismiss in Hustings specifi- Court but not cally charging that the discrimination violated the Inter- think, however, state Commerce Act. We claims of discrimination previously made under Act are suf- closely ficiently assignments related that were made to be scope presented considered within the the issues Supreme the State granted Court. We certiorari because of the questions concerning serious federal raised discrimination based on color. 361 S. 958. U.
The petition only for certiorari granted presented we questions: two first, whether the conviction is invalid as a burden I, commerce violation of Art. 8, cl. 3 Constitution; whether the second, conviction Equal violates the Due Process Protection Clauses of the Fourteenth Amendment. Ordinarily we questions limit our review to the presented an applica- tion for certiorari. think persuasive We there are rea- *4 sons, however, why this decided, case should be if can, it on the Interstate Commerce Act contention raised Virginia courts. Discrimination because of color is the core questions two broad presented constitutional just to us petitioner, as it is the core the Interstate question presented Commerce Act courts. Under these circumstances we appropriate think not to reach the questions proceed constitutional but to at once the statutory to issue.
The Interstate Act, Commerce as we have uses said, language of the broadest type to bar discriminations all kinds. United v. States Baltimore & Ohio R. 333
458 have held We 175, and eases cited. S. 169,
U. in service to dining cars discriminate railroad Act forbids Henderson of their color. account passengers Mitchell v. United States, 816; see also 339 U. S. United States, 97. 313 S.U. Part II the Interstate Commerce (d)
Section applies carriers, to motor (d), which § 49 U. S. C. Act, provides part: any
“It be unlawful for common shall foreign or in interstate engaged motor vehicle unrea- any or cause undue or give, make, commerce to advantage any particular preference sonable subject whatsoever; or to any respect ... person unjust person ... discrimi- any particular any unjust prejudice unreasonable nation or . . .” disadvantage any respect whatsoever . problem, provisions far relevant to our So (1) in 3 (d) quoted § are the same as those refers to except that latter Act, §3(1), S. C. U. I of motor of the Act instead railroads as defined Part 3(1) in Part II. Section was the basis as defined carriers States, holding in Henderson v. United this Court’s supra, prejudice” an “undue or unreasonable it was dining under that for a its car section railroad to divide signs in curtains, separate passen- order to partitions according §3(1) to race. The Court said that under gers is hold- dining car available to “[w]here ing entitling it, passenger tickets them to use each such equally entitled its facilities accordance with reason- Id., regulations.” S., able 339 U. at 824. The Henderson largely supra, on Mitchell v. United case rested that while the pointed might out railroads be required by dining facilities, yet they to furnish car if law persons equality traveling substantial treatment of did,
459 under like conditions could not consistently be refused It (1). upset §with 3 is also of relevance that both cases Interstate Commerce holdings, Commission the Court stating in Mitchell that since the “discrimination shown unjust was palpably and forbidden the Act” no room left judgment for administrative or expert with Id., practical reference to S., difficulties. 313 at 97. U. It follows from the Mitchell and Henderson as a cases matter of course that should buses transit decide to supply dining service, discrimination kind shown (d). § here would violate Cf. Williams v. Carolina Co., Coach Supp. F. 408, 207 F. 2d aff'd, Keys Co., v. Carolina Coach 64 M. C. Although C. 769. this Court has not decided whether the same result would from a follow similar discrimination service by a restaurant in a terminal, railroad we have no reasoning doubt underlying Mitchell compel Henderson cases would the same decision as to the unlawfulness of discrimination in transportation against services interstate in terminals and terminal operated restaurants owned controlled interstate carriers. This is true as to railroad terminals they because expressly are (3) (a) made carriers § C. 1 (3) 49 U. S. Act,1 (a), § as to bus termi (a) nals (19) because Act, §203 S. C. U. (a) § 303 (19), specifically includes transporta tion property operated facilities and or controlled 1See National Association People the Advancement Colored v. St. F. 335, 347-348, Louis-S. R. 297 I. C. C. in which the Interstate Commerce Commission held railroad terminal (1) discriminates in waiting violation of 3 if it maintains rooms for Negroes. the exclusive use regarded assignment The Commission to accommodations or solely facilities in a railroad terminal on the implication basis of inferiority race as an of inherent and found it to be unreasonable. *6 and of “services” the definition carrier within
motor provisions the motor carrier to which “transportation” apply.2 the Act that, what- points out, however,
Respondent correctly
facts,
record does
may be the
the evidence
ever
or
actively operates
or
company
that the bus
owns
show
in it.
or
bus terminal
directly controls the
protections
says that the
(a) (19)
fact that
203§
But the
of the Act extend
carrier provisions
of the motor
by
or
no means
operated
so
controlled
“include” facilities
from
interpreted
exempt motor carriers
their
should be
should
duty
(d)
§ 216
not to discriminate
statutory
under
provide
passengers
their
with
they choose to
through
transportation
an integral part
services that are
operate.
own,
nor
they
use of facilities
neither
control
discriminatory
protections
by
against
the Act
The
afforded
transportation
narrowly
are not so
limited. We
services
statutory duty
have held that a railroad cannot
its'
escape
shippers
treat its
alike either
use of facilities it does
arrangement
or
the owner
not own
contractual
with
Ohio R.
of those facilities. United States v. Baltimore &
if
supra.
contracts,
And
here,
regard
so
without
res-
to make terminal and
the bus carrier has volunteered
taurant
facilities and
to its interstate
services available
regular part
of their
transportation,
acquiesced
cooper-
restaurant have
terminal
ated in this
terminal and restaurant
undertaking,
perform
pro-
must
these services without discriminations
In the
performance
hibited
the Act.
these services
‘transportation’
applies
chapter-
“The
to which this
‘services’
any
by, for,
operated
or in the
motor
include all vehicles
interest
ownership
contract,
irrespective
express
implied,
or of
together
operated
property
with all
or controlled
facilities
any
transportation
pas
carriers,
such carrier or
used in the
sengers
property
foreign
in interstate or
commerce
in the
performance
service in connection therewith.”
such
under
conditions the terminal and restaurant stand
place
of the bus company in the
performance
its
transportation
Plummer,
obligations.
Derrington
Cf.
The manager of the restaurant testified that it was in any affiliated way Trailways with the Bus Com- pany and that company the bus had no control over operation of the restaurant, but that while the restau- rant had “quite bit of from people, business” local primarily partly for the service the passengers Trailways bus. This last statement was perhaps of an much as understatement, shown the lease agree- ment executed in and writing signed both the “Trail- ways Bus Terminal, Inc.,” as lessor, the “Bus Terminal Restaurant of Richmond, Inc.,” lessee. The as part first of the document that Trailways showed Termi- nal was then constructing a “bus station” with built-in operation facilities “for the of a restaurant, soda fountain, and news stand.”. Terminal to covenanted lease this space to Restaurant for use; its to grant Restaurant right exclusive to sell foods things usually and other sold in restaurants, newsstands, soda fountains lunch keep counters; to building good repair terminal and to furnish certain utilities. Restaurant on its part agreed space its to use for the sale of agreed commodities prices “just reasonable”; on at that are to sell no com- usually modities not sold or installed in a bus terminal permission; concession without Terminal’s to discontinue any commodity the sale objectionable Terminal; to to replace buy, maintain, equipment to Ter- subject minal’s approval writing as quality; to its to make only alterations and additions after Terminal’s written approval; consent and to make no “sales on buses only “through but bus station” and out said operating neat employees to its buses”; keep of said the windows than other no service perform terminal clean; agreed its as restaurant operation to the pertaining employees were nor its that neither Restaurant on; and give information kind transportation to “sell matters, or transportation rates pertaining schedules, of” proper agents inquiries but shall refer all such agreed, Terminal and Restaurant short, In Terminal. and the said stands shall operation “the maintained character service keeping be with the an modern bus terminal.” up-to-date, building, this terminal things show that
All these single pur- project one grounds, its constituted with or more bus of one and that was serve pose, The res- Trailways' passengers. companies certainly — into the designed built specifically taurant area was fill needs beginning structure from *8 modern bus terminal.” passengers “up-to-date, this immediate con- title or may have had technical Whoever terminal, in the activities trol of details of various infor- of schedule waiting-room seating, furnishing such as they were all mation, sales, service, ticket and restaurant passen- their geared companies the service of bus and to though people might happen local who to come gers, even be accom- might into the or its restaurant also terminal smoothly have a and modated. Thus we well-coordinated cooperative transporta- for functioning plan continuous tion terminal, services between the the restaurant All Trailways stopovers like made there. buses that Trailways’ plus this evidence use on this occasion shows Trailways utilizing was not terminal and res- merely sporadic taurant or occasional basis. services just as and neces- plainly This bus terminal essential matter, passengers available to sary, and as Trailways it, though carriers that used such carriers like legal complete had title control over all its activ- passengers very ities.3 Interstate have eat, terms of the lease of the built-in space this terminal a recognition constitute of the essential need passengers get conveniently interstate to be able to food journey on their and an undertaking the restaurant fulfill that passengers paid need. Such transit on a Trailways journey right expect had a this transportation voluntarily essential4 food service provided for them under such circumstances would be prohibited without discrimination the Inter- rendered state Commerce Act. Under the circumstances this case, therefore, petitioner right had a federal to remain portion white the restaurant. He was there under “authority of law”—the Interstate Commerce Act—and it was error for the Supreme Court of Virginia to affirm his conviction. arguments
Because some made here is neces- sary say about word what we are not deciding. We holding are not that every stops wholly a bus time at a independent roadside restaurant the Interstate Commerce requires Act that restaurant service be supplied in har- mony provisions with the of that Act. only We decide on its case, facts, where circumstances show that the terminal and restaurant operate integral part as an of the Atchison, Topeka Cf. 634-635, & S. F. R. I. C. C. in which the Commission held that railroad-owned hotels and restau rants used for employees, railroad and as an incident operation management railroad, should be accorded *9 a common-carrier classification. 4Because the evidence shows that this terminal restaurant was integral part utilized as an transportation pas the of interstate sengers, we need not decide whether discrimination on the basis of (d) color a bus terminal lessee restaurant would violate 216 in § the absence of such circumstances. Cf. National Association the for People supra, Advancement Colored St. F. v. Louis-S. R. at 343-344. passen- for interstate transportation service bus carrier’s passenger circumstances, an interstate gers. Under into of title or contractual inquire documents need right has a whether he order to determine arrangements without discrimination. to be served is Virginia Supreme Court judgment The the for Court is remanded to that reversed and the cause opinion. with this not inconsistent proceedings remanded. Reversed and Whittaker, whom Mr. Justice Justice with Mr. joins, dissenting. Clark Virginia Supreme Appeals Court of
Neither the on the nor in his for certiorari or his brief petition challenge judgment petitioner merits in this Court did the the ground the it was obtained violation of on respectfully I sub- Interstate Act. therefore Commerce question that, mit under our rules and no such decisions, if presented is consideration here.1 But even open for proceeded, it has properly may proceed, Court at all on the Act, decide case under that and not consti- grounds on I solely by petitioner,2 must tutional relied say, facts in do deference, with all this record trespass not show petitioner was convicted Act. violation of that me, question
For decisive in this is whether case legal right had a remain in the restaurant . (1) (c) 40(1) (d)(1); See our Rules Lawn United 339, 362, 16, 355 U. S. n. and cases cited. only grounds by petitioner Supreme The relied Court Appeals petition his and in and brief on certiorari the merits in this Court were that his conviction invalid as an I, 8, undue burden on interstate commerce in violation of Art. cl. Equal and also violated the Due Protection Process Clauses of the Fourteenth Amendent of United States Constitution.
465
by it
being
proprietor.
after
ordered to leave
involved
If
he
legal right,
arising,
he did not have that
however
was
by
guilty
trespass and,
proscribed
unless
some federal
law,
legally adjudged
his conviction therefor was
under
Virginia.3
§ 18-225
the Code of
If
in
fairly
the facts
this record could
be said to show
that the
facility “operated
restaurant was a
or controlled
by any
carrier
and used
the trans-
carriers,
[motor]
portation of
property
or foreign
interstate
commerce,”
(a) (19)
§203
of Part
II of the Interstate
Commerce
49
I
Act,
(a) (19),
agree
S. C. 303§
U.
would
had legal
right to remain
and to insist
by
on service
and, hence,
guilty
was not
of trespass in so
insisting though
in defi-
remaining
manager’s
ance
leave,
(d)
order to
§
Act,
U. S. C. 316
for a
(d), makes
unlawful
motor
carrier
engaged
while
subject
interstate commerce “to
any particular
...
person
any unjust
discrimination,”
and this Court has held
discrimination
against
its
passenger
on account of his
color in
the use
its
an
dining
unjust
facilities is
dis-
States,
crimination. Henderson v. United
But I respectfully submit that those are not the facts shown As I it, record. read there is no evidence in this record even tending to show that the restaurant “operated or controlled by any directly such carrier,” or indirectly. all of Instead, the relevant evidence, none Virginia, Section 18-225 part, of the Code of provides: in relevant any person “If authority go shall without upon of law or remain upon premises another, having the lands or after been forbidden owner, to do so lessee, person lawfully custodian or other charge land, of such ... he shall guilty misdemeanor, be deemed of a upon punished by conviction thereof shall be a fine of not more than one hundred jail exceeding dollars confinement thirty days, byor both such fine imprisonment.” *11 the restaurant was shows that contradicted, of was which operated alone a noncarrier who owned and controlled was enterprise. The evidence private it a local and as (a lease) and the consisting only of an exhibit very brief, of of restaurant, the manager assistant testimony of the exhibit, the except of police petitioner all, a officer and — The printed record. on 10 of the being pages contained By form and terms. and common is in the usual lease Terminal, Trailways Bus building, of the it, the owner the lessor, as demised to Virginia corporation, Inc., Bus Terminal Restaurant Rich- company, as Virginia corporation, lessee, certain mond, Inc., in building in the lessor’s bus station “space” described a, restaurant, Richmond, Virginia, “for use Lessee for a term of stand,” and news lunchroom, soda fountain (with option an in the years five from December for an five- on the same additional renew, terms, lessee to in $30,000 (payable an annual year term), at rental equal monthly installments) plus gross lessee’s 12% receipts premises $275,000 from the excess demised (payable year).4 at the end of each provisions lease, covenanted, other the lessee Under acquire space, substance, that it at would and install the leased including wiring, expense, things, plumbing its all own and reasonably necessary equipment may operation be the to and restaurant; provide pay gas current, the for all and electric employees except lights; keep premises for overhead the operate keeping neat clean and to the restaurant “in with the up-to-date, character of service maintained in an modern termi nal”; keep any it machines would not coin-controlled or sell premises “any on the sales on buses intoxicants demised nor make station”; “comply operating in out that it would said bus [of] City Richmond, with all the ordinances of the and the laws of respect United States and the State conduct good premises”; to business of Lessee on the demised take care of premises, to surrender them at end of term in the “ordinary excepted.” tear same condition as when received wear and is any any There not a of evidence that carrier had word interest or control over lessee its restaurant. any suggestion Nor there in the record that the lease operations any- or the lessee’s restaurant under were thing other legitimate private than bona and for a fide purpose. Indeed, business there is not a word of evidence tending the record show that even had any interest in or corporation control over the lessor owned the In building. truth, the record does even name show the of the carrier on which traveling identify “Trailways.” it other than as On *12 5 Obviously recognizing glaring evidence, these deficiencies in the petitioner curiae, counsel for Government, and for the as amicus have copies submitted with their in briefs this Court of Annual certain Reports Virginia Stage Lines, (which of probably Inc. was the carrier traveling), Company, was Carolina Coach Trailways (the Terminal, of building Bus Inc. of owner the space occupied by of restaurant), lessor the the lessee’s Corporation Virginia, purporting State of Commission to show that companies doing Virginia 1959, those were business in in 1958 and copy pages by Virginia Report and a of certain of the Annual filed Stage Lines, Inc., with the Interstate Commerce Commission for the year 1959, purporting capital Trailways the show that stock Terminal, Inc., equal by Virginia Stage Lines, parts Bus owned in was Inc., Company. and Carolina Coach But none of those documents put brought Supreme was in evidence nor to the attention the Appeals Virginia, Court of it appears, as contended Vir ginia, judicial that the court not take could notice those Virginia; documents. See 8-264 and of the Code of Common 8-266 §§ Costner, 81, 894; wealth 138 Va. 121 S. E. Sisk v. Town Shen andoah, 277, 169; Hagmann, 626, 200 Va. 105 S. E. 2d Bell v. 200 Va. proffered light 107 E. 2d In of these S. 426. the facts the documents cannot be considered here. Lawn v. United U. S. 354; Carolina, v. North S. 177. But even if those U. docu Wolfe they here, petitioner, ments could be considered would not aid they any any purport do not show that had interest in or carrier control over the over restaurant involved or or Bus Terminal Richmond, company operated Restaurant of that owned restaurant. restaurant manager of the hand, the assistant
the other contradiction, suggestion testified, “[t]he without not affiliated operates the restaurant company and that any way company,” the bus “[t]he with of the restau- company operation has no over control contrary. simply no evidence rant.” There “[Respondent correctly to agree The Court seems . does not . . the evidence this record points out [that] actively or operates owns or company show that the bus restaurant in it.” controls the bus terminal or the directly as I car hold, opinion, But read its that motor it seems though regular rier’s “use” of a it be “neither restaurant, operate nor the motor own[ed], control [d]” [led] facility “operated makes the or carrier, within controlled carrier or carriers” [the motor] Commerce meaning (a) (19) of the Interstate §203 respectfully disagree. me, Act. I To seems must (a) 203 ” said plain Congress, (19), rather that when “ Part II 'transportation’ that the 'services’ to which Act shall include “all . . . applies together vehicles property operated with all or controlled facilities transportation carriers, and used property foreign commerce *13 performance of service connection there the hardly with,” private a restaurant, meant include owned, operated “neither nor aby controlled” carrier. Surely “use” of private a motor car rier from stopping as results its buses in opening front of near a restaurant does make the restaurant a facility “operated by” the within controlled the carrier, of 203 or in meaning (a) (19) any true sense. This sim recognized I think and cor ple, obvious, principle rectly applied by recently the Commission as as November Louis, 1955 A. P. F. in N. A. C. St. S. R. 297 I. C. C. 335. There, building the railroad terminal or station Richmond, Virginia, was owned Richmond Terminal a carrier Railway Company6 §3(1) under of —itself Part I of space the Act—which had leased in that build ing Company Union News for a term of 10 years, but subject to termination at the of option party either days’ notice, for use as a restaurant.7 In rejecting the contention that the Company’s operation Union News of racially the restaurant on a segregated basis violated (1) § 3 I of Act, Part the Commission said: operation “Unless the can be lunchrooms found to be that a common subject part I of act, regulated it cannot be (1), under section 3 and we are unable find on so to the facts before us.” Id., (Emphasis added.) at and the Commission concluded: operation
“We further find that a lessee (noncarrier) separate lunchroom facilities for white and colored persons railway station at Richmond, constitutes a function or which service jurisdiction not within the of this Commission.” Id., (Emphasis added.) at 348. Railway The Company Richmond Terminal jointly was controlled Richmond, two Fredericksburg railroads —the Railway & Potomac
Co. and the Atlantic Coast Line. evidently The lease involved in that case was similar to the one Speaking lease, here. of that the Commission said: “The segregation. lease is silent as to racial The terminal has powers supervision certain purpose may for a be described as policing. obligated The ‘comply requirements lessee is with the Department Health, City Richmond, Public and with all governmental regulations.’ other lawful rules context, The how- ever, requirement indicates that purpose keeping is for the premises clean, neat, orderly condition, and does not render the lessee liable for violations of the Interstate Commerce Act.” C., 297 I. C. at 343. *14 “if the bus carrier
I with the Court agree would facilities and make . . . restaurant volunteered [had] regular a passengers its interstate services available to . . . restaurant and the transportation, of their part the restaurant undertaking,” ... this acquiesced [had] inter- to serve the carrier’s would then have been bound in that For, passengers without discrimination. state facility a of the been made the restaurant would have case, (d) and 216 meaning (a) (19), § within the carrier, §-203 from the restaurant both the carrier and would inhibit discriminating against the carrier’s any account, on other color, on of their account Henderson provided. use restaurant facilities thus is not this case. As supra. United But that in this that the we have there is no evidence record shown, may whatever traveling, on to make . . . res- have been its had “volunteered name, available its interstate taurant facilities and services regular part at this “as passengers” restaurant a their proprietor or that transportation,” any is “acquiesced” “undertaking.” ever There no any agreement, express implied, between evidence any of this restaurant bus carrier. proprietor evidence the restaurant Instead, undisputed in any way by any was not affiliated with or controlled I am unable to evidence, carrier. On this find support (cid:127)basis to conclusion that this restaurant was way facility carrier, subject some made of the bus II of Part the Interstate Commerce Act. I reasons, agree
For these cannot on this record petitioner’s of trespass conviction under 18-225 of the Code was had violation of the Interstate opinion explore Commerce Act. Since the Court’s does not grounds on I petitioner, constitutional relied refrain subjects. from intimating any views those