HENDERSON v. UNITED STATES et al.

The question here is whether the rules and practices of the Southern Railway Company, which divide each dining car so as to allot ten tables exclusively to white passengers and one table exclusively to Negro passengers, and which call for a curtain or partition between that table and the others, violate § 3(1) of the Interstate Commerce Act. That section makes it unlawful for a railroad in interstate commerce 'to subject any particular person, * * * to any undue or unreasonable prejudice or disadvantage in any respect whatsoever: * * *.' 54 Stat. 902, 49 U.S.C. § 3(1), 49 U.S.C.A. § 3(1). We hold that those rules and practices do violate the Act.

This issue grows out of an incident which occurred May 17, 1942. On that date the appellant, Elmer W. Henderson, a Negro passenger, was traveling on a first-class ticket on the Sourthern Railway from Washington, D.C., to Atlanta, Georgia, en route to Birmingham, Alabama, in the course of his duties as an employee of the United States. The train left Washington at 2 p.m. At about 5:30 p.m., while the train was in Virginia,1 the first call to dinner was announced and he went promptly to the dining car. In accordance with the practice then in effect, the two end tables nearest the kitchen were conditionally reserved for Negroes. At each meal those tables were to be reserved initially for Negroes and, when occupied by Negroes, curtains were to be drawn between them and the rest of the car. If the other tables were occupied before any Negro passengers presented themselves at the diner then those two tables also were to be available for white passengers, and Negroes were not to be seated at them while in use by white passengers.2 When the appellant reached the diner, the end tables in question were partly occupied by white passengers but at least one seat at them was unoccupied. The dining-car steward declined to seat the appellant in the dining car but offered to serve him, without additional charge, at his Pullman seat. The appellant declined that offer and the steward agreed to send him word when space was available. No word was sent and the appellant was not served although he twice returned to the diner before it was detached at 9 p.m.

In October, 1942, the appellant filed a complaint with the Interstate Commerce Commission alleging especially that the foregoing conduct violated § 3(1) of the Interstate Commerce Act.3 Division 2 of the Commission found that he had been subjected to undue and unreasonable prejudice and disadvantage, but that the occurrence was a casual incident brought about by the bad judgment of an employee. The Commission declined to enter an order as to future practices. 258 I.C.C. 413. A three-judge United States District Court for the District of Maryland, however, held that the railroad's general practice, as evidenced by its instructions of August 6, 1942, was in violation of § 3(1). Accordingly, on February 18, 1946, it remanded the case for further proceedings. 63 F.Supp. 906. Effective March 1, 1946, the company announced its modified rules which are now in effect. They provide for the reservation of ten tables, of four seats each, exclusively and unconditionally for white passengers and one table, of four seats, exclusively and unconditionally the Negro passengers. Between this table and the others a curtain is drawn during each meal.4

On remand, the full Commission, with two members dissenting and one not participating, found that the modified rules do not violate the Interstate Commerce Act and that no order for the future is necessary.5 269 I.C.C. 73. The appellant promptly instituted the present proceeding before the District Court, constituted of the same three members as before, seeking to have the Commission's order set aside and a cease and desist order issued. 28 U.S.C. §§ 41(28), 43—48; 49 U.S.C. § 17(9), 49 U.S.C.A. § 17(9); see also, 28 U.S.C. (Supp. III) §§ 1336, 1398, 2284, 2321, 2325, 28 U.S.C.A. §§ 1336, 1398, 2284, 2321, 2325. With one member dissenting, the court sustained the modified rules on the ground that the accommodations are adequate to serve the average number of Negro passengers and are 'proportionately fair.' 80 F.Supp. 32, 39. The case is here on direct appeal. 28 U.S.C. (Supp. III) §§ 1253, 2101(b), 28 U.S.C.A. §§ 1253, 2101(b). In this Court, the United States filed a brief and argued orally in support of the appellant.

It is clear that appellant has standing to bring these proceedings. He is an aggrieved party, free to travel again on the Southern Railway. Having been subjected to practices of the railroad which the Commission and the court below found to violate the Interstate Commerce Act, he may challenge the railroad's current regulations on the ground that they permit the recurrence of comparable violations. Mitchell v. United States, 313 U.S. 80, 92—93, 61 S.Ct. 873, 875—876, 85 L.Ed. 1201.

The material language in § 3(1) of the Interstate Commerce Act has been in that statute since its adoption in 1887. 24 Stat. 380. From the beginning, the Interstate Commerce Commission has recognized the application of that language to discriminations between white and Negro passengers. Councill v. Western & Atlantic R. Co., 1 I.C.C. 339;6 Heard v. Georgia R. Co., 1 I.C.C. 428; Heard v. Georgia R. Co., 3 I.C.C. 111; Edwards v. Nashville, C. & St. L.R. Co., 12 I.C.C. 247; Cozart v. Southern R. Co., 16 I.C.C. 226; Gaines v. Seaboard Air Line R. Co., 16 I.C.C. 471; Crosby v. St. Louis-San Francisco R. Co., 112 I.C.C. 239. That section recently was so applied in Mitchell v. United States, supra.

The decision of this case is largely controlled by that in the Mitchell case. There a Negro passenger holding a first-class ticket was denied a Pullman seat, although such a seat was unoccupied and would have been available to him if he had been white. The railroad rules had allotted a limited amount of Pullman space, consisting of compartments and drawing rooms, to Negro passengers and, because that space was occupied, the complainant was excluded from the Pullman car and required to ride in a second-class coach. This Court held that the passenger thereby had been subjected to an unreasonable disadvantage in violation of § 3(1).7

The similarity between that case and this is inescapable. The appellant here was denied a seat in the dining car although at least one seat was vacant and would have been available to him, under the existing rules, if he had been white.8 The issue before us, as in the Mitchell case, is whether the railroad's current rules and practices cause passengers to be subjected to undue or unreasonable prejudice or disadvantage in violation of § 3(1). We find that they do.

The right to be free from unreasonable discriminations belongs, under § 3(1), to each particular person. Where a dining car is available to passengers holding tickets entitling them to use it, each such passenger is equally entitled to its facilities in accordance with reasonable regulations. The denial of dining service to any such passenger by the rules before us subjects him to a prohibited disadvantage. Under the rules, only four Negro passengers may be served at one time and then only at the table reserved for Negroes. Other Negroes who present themselves are compelled to await a vacancy at that table, although there may be many vacancies elsewhere in the diner. The railroad thus refuses to extent to those passengers the use of its existing and unoccupied facilities. The rules impose a like deprivation upon white passengers whenever more than 40 of them seek to be served at the same time and the table reserved for Negroes is vacant.

We need not multiply instances in which these rules sanction unreasonable discriminations. The curtains, partitions and signs emphasize the artificiality of a difference in treatment which serves only to call attention to a racial classification of passengers holding identical tickets and using the same public dining facility. Cf. McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851. They violate § 3(1).

Our attention has been directed to nothing which removes these racial allocations from the statutory condemnation of 'undue or unreasonable prejudice or disadvantage * * *.' It is argued that the limited demand for dining-car facilities by Negro passengers justifies the regulations. But it is no answer to the particular passenger who is denied service at an unoccupied place in the dining car that, on the average, persons like him are served. As was pointed out in Mitchell v. United States, 313 U.S. 80, 97, 61 S.Ct. 873, 878, 85 L.Ed. 1201, 'the comparative volume of traffic cannot justify the denial of a fundamental right of equality of treatment, a right specifically safeguarded by the provisions of the Interstate Commerce Act.' Cf. McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169; State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208.

That the regulations may impose on white passengers, in proportion to their numbers, disadvantages similar to those imposed on Negro passengers is not an answer to the requirements of § 3(1). Discriminations that operate to the disadvantage of two groups are not the less to be condemned because their impact is broader than if only one were affected. Cf. Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161, 3 A.L.R.2d 441.

Since § 3(1) of the Interstate Commerce Act invalidates the rules and practices before us, we do not reach the constitutional or other issues suggested.

The judgment of the District Court is reversed and the cause is remanded to that court with directions to set aside the order of the Interstate Commerce Commission which dismissed the original complaint and to remand the case to that Commission for further proceedings in conformity with this opinion. It is so ordered. Reversed and remanded with directions.

Mr. Justice DOUGLAS concurs in the result.

Mr. Justice CLARK took no part in the consideration or decision of this case.