                              ORNEY            GENERAP~

                             OFTEXAS




Honorable Faul T. Rolt
County Attorney
Travis County
Austin,Texss

Attention:   Wm. Pelderman

Dear Sir:                              opinion No. o-5642
                                       Re: Construction of Chapter 370,
                                             page 651, Ads of 1943, now
                                             Article 1661, 1, Vernon's Revised
                                             Civil Statutes.

This will acknowledge receipt of your letter of recent date r&iuesting
the opinion of this department as to tha proper construction to be
placed upon the above designated chapter enacted by the 48th Legis-
labre.    We quote in part from your letter as follows:

      "Conditions existing    in this County, psrticularly In the
      C3ty of Austin, make it necessary to construe the Act of
      1943, 48th Legislature,    p. 651, Chapter 370, now Art. 1661.1,
      Pocket Parts, Vernon-3 Revised Statutes,    1943.

      "The Act seems to me to be indefinite and uncertain      in
      several respects, among others, aYe these:

     "16 The Act provides that the owners, etc.,     of motor buses
      'shall provide and require that all white persons boarding
     their buses for transportation   or passage shall take seats
     in the forward or front end of the bus, filling     the buses
     from the front end, and that all negro passengers boeidin@;'the
     bus for transportation  or passage still   take seats in the
     back or rear end of the bus, filling    the bus from the back
     or rear end.'

      "Does the words 'fill%gthe  bus' mean filling the seats on.ly
      or fiUing  the seats and standing room in the aisles as wcU.

     "2. Assume that all seats in the bus are filled  by one race
     before any of the other ram cntars the bus, has the operator
     of the bus the legal authority to require any of the race so
     seated to vacate their scats to make room for members of tIm
     other race entering the bus after all the seats wsre occupied.
Honorable Paul T. Halt, page 2     o-5642




     “3.  Assume that all seats in the bus are occupied as
     stated in '2' above by uegroes, andfhere is nothing but
     standing room left, and white passengers enter, can they
     lawfully take their places in the rear of the bus or are
     they required to begin standing in the front end of the
     aisle?

     "4. Assume the bus was filled with white passengers beginning
     at the front and negro passengers beginning at the rear of
     the bus, and negro passengers leave the bus while white pas-
     sengers are standing, can the operator lawfully require nego
     passengers imediate~J behind the whites to take the
     vacated seats and make room for the standing white passengers,
     and in case white passengers leave the car and leave colored
     passengers standing, could the operator lawfully require white
     passengers immediately in fron: of the negro Tassengers to
     get up and occupy the vacated seats and make room for the
     standing negro passengers?

     “5.  Assume the bus were filling up with white or negro pas-
     sengers at a point where passengers of the other race always
     boarded the bus or were standing off waiting to enter, could
     the operator lawfully re¶uire the race filling the bus to
     leave seats for the other race in its proper end of the bus?
     In other words, would the operator have the legal right to
     require the race entering the car to reserve seats for the
     race expected or waiting to enter.

     “6. Has the operator of a bus the legal right to require
     either race to reserve or leave seats for the others in its
     proper end of the car?

     "7. In instances where sufficient numbers of one or the
     other race hasboarded the buses and occupied all seating
     space, and then persons of the opposite race began boarding
     the bus, has the operator of the bus the legal authority to
     require seated passengers of either race to relinquish
     seats, and move backward or forward, filling standing and
     seating room in their end of the bus in order that the
     races might be kept separated, or should the seated
     passengers be permitted to retain their seats, and boarding
     passengers forced to stand in the aisles between seated
     persons of the opposite race?

     "8. Under the provisions of the Act, has a transportation
     company the legal authority to make provision for the
     reservation, when needed, of one or more seats for negroes,
     at the rear of the bus, and, when needed, one-~~opr
                                                  '& more seats
     at the front of the bus for white persons? '3,
.       .




    Honorable Paul T. Halt,                       page 3   O-3642



            “9.  Where capacity of seat is greater than neceassry  to reserve
            for either race, can apace on seat be sepsrskd   by bar or snrlca,
            to provide for seating of both races   on 6sma seat?

            u10. Where more than one seat of two or more cspscity   Is
            occupied by a member of the same race, oan they ba required
            to seat themselves together in order to provlde~ more seats
            for the opposite race?

            “11.  If the Act under consideration  is inoperative and wd$d,
            for any reason, has the City Council of the City of Austin~the
            legal authority to pass an Ordinance providing for reprate
            space in buses for the white and colored races?

            “I.2 . Has the City Council the authority to pace an ~dlnanas
            authorizing  the operator of a bus to reserve seats for tha
            colored people in the rear and seats for tha whitc~peopla In
            the front of the bus?

            “13.  Is the Act under consideration’valld                          and constitutional
            or is it void for uncertainty?
            ”                    9,
                .   .   .    .



    Article         1661.1,            Vernon’s   Revised Civil     Statutes,    in part,   providas:,

            %ection                   1. Separation   of Races’ in Motor Buses,.

            “‘That every transportation      company, lessee, manager, receiver
            and owner thereof,     operating motor buses in this State es e
            carrier of passengers for hire shall provide and require that
            all White passengers boarding their buses for transporatation
            or‘passage    shell take seats in the forward ore front at&of
            the bus, filling     the bus from the front and end, thsh::s)l                               ,;
            Begro psbsengers boarcling their buaae. for      trsMports$iOa
            or passage ~&all tska ‘-seats in the’ ‘beck      or Pear ~a*d.of .’
            m,    filring   ‘the bum from the bsck ...or rear and&’ :,’ !- .::


            I, . . . .
                                                                                            .’       I
            “Sec.           3.        Authority    of Bus Operator.

            “‘The operators of all passenger motor buses in this State
            shall have authority to refuse any passenger or person the
            right to sit or stand in any motor bus unless such psssenger
            or person shall comply with the provisions  of this Act, and
            such operator shall have the right and it shall be his duty
            to call any peace officer  of the State of Texas for the purpose
Honorable Paul T. Halt, paga 4   O-5642



     of removing from any bus any passenger who does not comply
     with the provisions of this Act, and any such peace officer
     shall have the right and it shall be his duty to remove from
     said bus, and to arrest any such passenger so violating this
     Act, the same as if such person were committing a breach of
     the peace in the presence of such officer.'

     "Sec. 4.     Penalty.

     "'If any passenger upon any bus in this State shall ride or
     attempt to ride on said bus in a place prohibited under the
     provisions of this Act, he shall be guilty of a misdemeanor
     and upon conviction thereof shall be flnad not less than
     Five Dollars ($5) nor more than Twenty-five Dollars ($25).'
     " . . . .n

We will render our opinion upon your submitted queries by a general
discussion in lieu of specific examination of each particular
question and thus prevent undue repitition of our views and the
reasons in support thereof.

Article 1661.1, supra, was presumably passed by the recent Legislature
in the spirit in which previous legislation with reference to segregation
of races by carriers has been enacted. The subject matter of the Act
under discussion is nothing new in legislation; in Texas there has been
such a statute, commonly called'&paxate Coach Law,# in effect since
1891 dealing with carriers which operate upon rails. See Article 6417,
Vernon's Revised Civil Statutes and Article 1659, Penal Code. The
purpose for such legislation, as revealed by the emergency clause of
the bill under consideration, is very aptly stated by the court in the
case of Westchester & Philadelphia R. Co. v. Miles, 55 Pa. 209, 93
Am. Dec. 744;

      . . ~ It is not an unreasonable regulation to seat passengers
     so ss to preserve order and decorum and to prevent contacts
     anu collision arising from natural or well-known customary
     repugnances, which are likely to breed di&.rbances by prom!scuous
     sitting. It is much easier to prevent difficulty among pas-
     sengers by regulation for their proper separation than it is
     to quell them. Tha danger to the peace engendered by a feeling
     of aversion between individuals of the different races cannot
     be denied. :Ithis3.he;factwith.whicLthe company m~t~~deal~.
     If a ,negro takes*a~.aeat.beaidea whit&man, ,orhis ,wife,or~I
     daughter, the,law,ca$anOtnepress,~the,angeror conquer,Lhe ~,,
     a,version~wbich,sqme:wi?lfeel.~,~~Howeverunwise'it maybe to
     indaLge the PQelXng,,human.infIrm~ty..isnoLalw?ys proof' .~
     against.%t..:I~4a much xiaer~to avert the:.conaequesccs_of
     this reg~si,oa~:Qfuracalb~,separation thas,ta punish Gterwar~ds
     the bxgach Of the,$aace .i%,msybave,,cau+ed,.?'
IionoreblePaul T. Halt, page 5    O-5642




T::eprinciple followed by the Federal and State courts as to whether
3r not segregation of mces contravene any constitutional provision
is mt the Ldentity of the accomodatiou but rather the equality of
the accomodation. Hall Y. De Cuir, 95 U. S. 505, 24 L. Ed. 547;
Plessy v. Ferguson, 163 U. S. 537, 16 SW. ct. 1138, 41 L. ~a. 256;
      & P. Ry. Co. V. Baker, 215 S. W. 556 (Corn.App.); Chiles v.
T~cx;as
           & 0. Ry. Co., 101s. W. 386 (Ky). By this, we mean,
C!-,esapeake
the test is not whether a race or 8 portion of a race is separated
f?on other races or moups thereof, but whether Yne accomodations
offered each race or portion me reasonably equal in every respect
and no undue discrimination is present. We are of the opinion
A7tic:e lLXl.1, supra, causes no undue discrimination between the
races. The law was enacted for the protection of passengers,
white and r,ego alike; the seTmotion will prevent conditions most
likely to provoke unlawful acts and thus xacd off for both races
pains of l&e nature of physical sufferi~:~dud pains of the nature
of fines. The accomodotions offered both reces aYe equal in every
Fespect; the ccmforts and conveniences provided me the same not
withstanding -ace 0~ color.

It ;s quite evident from reading Section 1 of Article 1651.1, supra,
Yhei the white and negrc passengers should be separated; the former
bzing placed at the front end of the bus and the latter placed at the
resi, and keeping with- in the spirit of the law, the races should
‘se jqiaj"*t?dWC
               'iethers?ttinfior standing.

yric& ;;.::
          li:
            $u*e ?~r,
                    enacting this bill saw fit to provide a~penalty only
  ol.:';i<e;,;cc
             of tiicpas;eni;erswho violate the provisions of the Act.
y &~ c a;i;ro ~irovisionsfor e definite space allotment to the different
1'6cesor penalties 2rescri'oed.If the cerri~eror operator fail to abide
by the ,wovisions of the .actas is provided in the Separate Coach Law.
Possibly the Legislature deemed it unwise and Impracticable to allot.
s.pcific s:zce to each race considering the elasticity of the number
of each race riding at different periods of tifie. We believe these
facts are relevant and important however in construing this Act. It
appears the Legislature is allowing the operator to u6e his discretion
in placing the parties on the bus wit'n the General instructions as to
the proper se;regaCion. In other words, the manner and method of
ceparatin~~the races ore with3 the discretloa of tineoperator of the
bus; the schting and standin,u of each person will naturally depend
upon each circuutance and as long as t:?eoperator does not abuse
t;ilsdiscretion acd follows the spirit of the law, he possesses the
actl;or3: 'GOkstruct any person where to stead or sit on the bus.
I:;"ilil,cssenger does not abide by these reasonable instructions,
tiz remeiii?;of the operator zre set out in Section 3 of the Act.
                                                              -.   .




Honorable Paul T. Holt, pege 6       o-5642




In the absence of specific provisions as to the allotment of space,
we are of the opinion the foregoing is the only reasonable construction
that cm be placed u2on the Act as to the placing of the passengers; that
is, it is with-in the discretion of the operator and as long .ashe
carries forth the spirit of the law, he has the privilege to reserve
places and seat the passengers 8s he deems best for the occasion.

                                 Very truly yours

                          ATTORNEY GENERAL OF ,TEXAS

                           s/    Robert 0. Koch



                          BY
                                 Robert 0. Koch
                                      Assistant

ROK:DB/ldw

APPROVED OCT. 20, 1943
s/ Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL

APPROVZD
OPINION
COMMITTEE
BY B. W. B.
CHAIRMAN
