[252 U.S. 399, 400] Mr. Alfred C. Cassatt, of Cincinnati, Ohio, for plaintiff in error.
Messrs. Stephens L. Blakely, of Covington, Ky., and Charles Harwood Morris, of Frankfort, Ky., for the Commonwealth of Kentucky.
Mr. Justice McKENNA delivered the opinion of the Court.
The Railway Company was indicted for a violation of a statute of Kentucky which required companies or persons running or operating railroads in the state, to furnish separate coacher or cars for white and colored passengers.
The statute (Ky. St. 795), as far as we are concerned with it, is as follows:
All corporations, companies or persons 'engaged in running or operating railroads, of this state, either in part or whole, either in their own name or that of others, are hereby required to furnish separate coaches or cars for the travel or transportation of the white and colored passengers on their respective lines of railroad. Each compartment of a coach divided by a good and substantial wooden partition, with a door therein, shall be deemed a separate coach within the meaning of this act, and each separate coach or compartment shall bear in some conspicuous place appropriate words in plain letters indicating the race for which it is set apart.' [252 U.S. 399, 401] It is also provided that there shall be no difference or discrimination in the quality of the coaches or cars. A violation of the act is made a misdemeanor.
Interurban electric railroads are subject to the above provisions. We may say in passing that the railway company denies that it is interurban, but admits that the fact has been decided against it and accepts the ruling. It will be considered, therefore, as interurban and being so it was within the law and the charge of the indictment. The charge is that it ( the company) at the time designated--
And having such authority and control of the line of railroad, the company violated the law of the state by not observing its requirement as to separate coaches.
The defense to the action was, and the contention here is, not that the facts charged are not true, but that the statute so far as it is attempted to be made applicable to the company is an interference with interstate commerce, and that the defense was made in the trial court in a motion to dismiss and for a new trial and also in the Court of Appeals.
In support of the contention it is stated that the company's principal business was interstate commerce, the [252 U.S. 399, 402] carriage of passengers between Cincinnati and the Kentucky cities across the Ohio river; that the car in question was an ordinary single truck street car solely engaged in interstate trips from Cincinnati, Ohio, through Covington, Ky., and a suburb about five miles distant; and that 80 per cent. of the passengers carried were interstate.
The reply made by the state, and expressed by the Court of Appeals, to the contention is that the railway company is a Kentucky corporation and by its charter was given authority 'to construct, operate and manage street railways in the City of Covington and vicinity,' 'and along such streets and public highways in the city as the council shall grant the right of way to,' 'and along such roads or streets out of the city as the companies or corporations owning the same may cede the right to the use of.' And further:
The Court of Appeals further declared that the railway company became in some way the owner of all of the stocks of the Cincinnati, Covington & Erlanger Railway Company, and that the corporations are operated under the same general management, and--
Separate coaches were not provided as required by the law.
These being the facts, the Court of Appeals decided that there was no interference with or regulation of interstate commerce. 'Each of the termini,' the court said, 'as well as all the stations of the Cincinnati, Covington & Erlanger Railway Company's road, is within the state of Kentucky.' And it was concluded that 'the offense charged and for which the' railway was 'convicted was the operation of the railroad, in an unlawful manner, within the state, and in violation of one of the measures enacted under the police powers of the state.'
In answer to, and in resistance to, the conclusion of the court, the railway company contends that it operates a railway between designated termini, one being in Kentucky and the other in Ohio; that the price of a fare may be the single one of five cents for the complete trip in the same coach taken at or terminating at, the respective termini; and that therefore the car and passenger are necessarily interstate. Thus viewed they undoubtedly are, but there are other considerations. There was a distinct operation in Kentucky, an operation authorized and required by the charters of the companies, and it is that operation the act in question regulates, and does no more, and therefore is not a regulation of interstate commerce. This is the effect of the ruling in South Covington Railway v. Covington, 235 U.S. 537 , 35 Sup. Ct. 158, L. R. A. 1915F, 792. The [252 U.S. 399, 404] regulation of the act affects interstate business incidentally and does not subject it to unreasonable demands.
The cited case points out the equal necessity, under our system of government, to preserve the power of the states within their sovereignties as to prevent the power from intrusive exercise within the national sovereignty, and an interurban railroad company deriving its powers from the state, and subject to obligations under the laws of the state, should not be permitted to exercise the powers given by the state, and escape its obligations to the state under the circumstances presented by this record, by running its coaches beyond the state lines. But we need not extend the discussion. The cited case expresses the principle of decision and marks the limitation upon the power of a state and when its legislation is or is not an interference with interstate commerce. And regarding its principle, we think, as we have said, the act in controversy does not transcend that limitation.
Mr. Justice DAY (dissenting).
If the statute of the state of Kentucky, here involved, as enforced by the decision under review imposes an unreasonable burden upon interstate commerce, the conviction should be reversed. To determine this question it is necessary to have in mind precisely what the charge was, and the nature of the traffic to which it was applied. The South Covington & Cincinnati Street Railway Company was charged with the offense of unlawfully running and operating a coach or car by electricity on a railroad track within the state of Kentucky, without causing or having a separate coach for the transportation of white and colored passengers on its said line of railroad to bear in some conspicuous place appropriate words in plain letters indicating the race for which it was set apart, and without having its coach or car divided by a good and substantial [252 U.S. 399, 405] wooden partition, or other partition, dividing the same into compartments with a door therein, and each separate compartment bearing in some conspicuous place appropriate words in plain letters indicating the race for which it was set apart.
There is no conflict of testimony, and the record shows that the company was engaged in the operation of a street railway system whose principal business was interstate commerce, carrying passengers between Cincinnati and Kentucky cities across the Ohio river; that the car in question, described in the indictment, was an ordinary single truck street car seating 32 passengers, about 21 feet in length, inside measurement, solely engaged in interstate trips from Cincinnati, Ohio, through Covington, Ky., and well-populated territory adjacent thereto, to a point near Ft. Mitchell, a suburb, about 5 miles distant. Eighty per cent. of the passengers carried were interstate. Not to exceed 6 per cent. of the passengers carried at any time were colored, and on a large proportion of the trips no colored passengers were carried.
The question for determination is: Whether under such circumstances the requirement of the statute of the state of Kentucky that railroad companies o ing business in that state shall be required to furnish separate coaches and cars for the travel or transportation of white and colored persons or cars with compartments, as described in the indictment, is constitutional? The nature of the traffic of the South Covington & Cincinnati Street Railway Company was considered by this court in South Covington & Cincinnati Street Railway Co. v. City of Covington, 235 U.S. 537 , 35 Sup. Ct. 158, L. R. A. 1915F, 792, and we held that the traffic between Kentucky and Ohio on the same cars, under the same management, and having a single fare constituted interstate commerce. See 235 U.S. 545 , 35 Sup. Ct. 158, L. R. A. 1915F, 792, and cases cited. In that case we held that an ordinance of the city of Covington, which undertook [252 U.S. 399, 406] to determine the number of cars and passengers to be carried in interstate transportation was invalid as a burden upon interstate commerce, and that as to certain regulations affecting the safety and welfare of passengers, the ordinance was valid until Congress saw fit to regulate the interstate transportation involved.
It is true that a portion of the transportation involved in the present case is over the track of a railroad company organized under the laws of Kentucky. But that road had no cars, conducted no railroad operations, and its stock was owned and it was operated by the South Covington & Cincinnati Street Railway Company. The car, for which the indictment was returned, and the conviction had, was operated only in interstate traffic, and whether over one road or the other, such operation was interstate commerce, and plainly within the authority of Congress. In the absence of congressional regulation the state had power to make reasonable rules, not burdening interstate commerce, which should be enforced until Congress otherwise enacted.
The question in this case then is: Was the application of this statute a reasonable regulation? The traffic consists in running a single car, of the character already described, from Fountain Square, Cincinnati, a distance of about 6 miles, to Ft. Mitchell, a suburb of South Covington, Ky. How could this separate car or compartment statute be complied with? It is first suggested a separate car could be put on for the accommodation of colored passengers for the distance of the intrastate run on the Kentucky side of the river. In view of the nature of the transportation and the meager patronage compared with the expense of such an undertaking, this method would be impracticable without interrupting travel and entailing a great loss upon the company. Secondly, it is suggested, and this seems to be the weight of the argument, that cars could be constructed with a separate compartment for the few colored [252 U.S. 399, 407] persons who ride in the car after it reaches or before it leaves Kentucky. It is admitted that this regulation would not apply to interstate passengers, and colored passengers going from Kentucky to Cincinnati, or going from Cincinnati to Kentucky on a through trip, would not be subject to the regulation. The few colored passengers traveling exclusively in the state of Kentucky in this car would thus be discriminated against by reason of the different privilege accorded to other colored passengers on the same car, a condition not likely to promote the peace or public welfare.
As this transportation is also subject to regulation in the state of Ohio (see section 12940 Ohio Gen. Code), and as by the laws of that state no such separation of passengers is permitted, it follows that upon the same trip the traffic would be the subject of conflicting regulations, calculated to be destructive of the public policy which it is supposed to be the design of this statute to promote; a condition which we said in South Covington Street Railway Case, supra, would breed confusion, greatly to the detriment of interstate traffic.
This case is quite different from Chesapeake & Ohio Railway Co. v. Kentucky, 179 U.S. 388 , 21 Sup. Ct. 101, n which the statute now under consideration was before the court, and wherein it was held that the law was valid when applied to a carrier operating an interstate road. The act was held to be separable, and capable of being complied with within the state by attaching a car for passengers traveling only within the state. That case presented quite a different situation from the operation of the single street car here involved.
The present indictment is for running an ordinary street car upon an interstate journey of only about 6 miles, with 80 per cent. of its travel interstate, and not over 6 per cent. of the passengers colored, and on many trips no colored passengers at all. As we have indicated, the attachment of the additional car upon the Kentucky side on so short a [252 U.S. 399, 408] journey would burden interstate commerce as to cost and in the practical operation of the traffic. The provision for a separate compartment for the use of only intrastate colored passengers would lead to confusion and discrimination. The same interstate transportation would be subject to conflicting regulation in the two states in which it is conducted.
It seems to me that the statute in question as applied to the traffic here involved is an unreasonable regulation and burdensome to interstate commerce, and, therefore, beyond the power of the state. I think the judgment should be reversed.
Mr. Justice VAN DEVANTER and Mr. Justice PITNEY concur in this dissent.