        I
    ,




                               E                EY     GENE-I.



                                      AUSTIN   11. TEXAS
            GROVER SELLERS




              Hbnorable Olin Culbepson, Chairman
              RtillroadCoinmissionof Texas
              Auztin, Texas
              Dear   Sir;                Qpfnion No. O-6&24
                                         Re: ColoPed passenggrs to be peMitted
                                              to eat thtilr'Mealsitithe dining
                                              c&r separate and apart from white
                                              passengers.
                      You request thi%ideptirtmerit's
                                                    opfnlon on the legality
              of the practice of certain Parlroad companies operatfnijin'
              Texas in periuittingcolored passengers to eat thelp meals in
              the dining car with white passengers.
                      Our state, exePclslng its legislatfve wisdom to giierd
              the public peace and safety and under its"police power, has
              Passed statutes with reference to the separation of its white
              and colored citizens.
                       Revised Statutes, APtfcle 6417 and Penal Code Articles'
               1659-60 ape ertfnent to your inquulfrg,The relevant provisions
               of Article 6It
                            17 follows:
                      "1 . Every railwag company, street ca,rconi:-'
                  pany, a,ndintemrban railway company, lessee mana-
                  ge?, OP rbceiver thereof, doing business in this-
                  Sti3teas a common~~ciwrier'
                                            of passengerk'for hire.;
                  shall provide separate coaches'or comptiptments,as
                  herein&fter provided, for the accommodation of
                  white and negro passengers, tihichseparate coach
                  or compaPtments shall be equal in all points of
                  comfort and convenience. (Underscorfng ours)
                         "2 . *****
                        ,,,
                         ,,
                          3* 'Sipapate coach' defined. - Eatih"comBartment
                     6P'a pailroad coach divfded by gobd sub%tantial"woodefi^"
                     pai?titionswith a d'dorthepeln $.hall,b'6
                                                             deetieda separate
                     co~bK'with1~ the tieanlngof this law, and'each- -.~
                     L&par&te~'~oakhshall be&P 1n"some consplduous place
                     appropriate Voids ii3plain letters indicating the
                     race for which it is set apart; 0 . . .


c
Honorable Olin Culberson - page 2         O-6424



         "4 .       ***i*


         “5 .Excections. - This article shall n& l + ~,
    **ppr;lilroad                              ; dining
    orcafe cars or chair cars attached to their
    traTn@ to be used exclusively br eitheG&pbs
    separately but not^".iolntf&or to prev
    from"'travellnn-1n'~'ans
                          coach or compartmenl
                                             : Vith
    their employer, or employes upon the trainsor
    cars in the dkoharge of their duty. (Under-
    scoring ours)
         "6 .   l     ****
                                                   .,.

         "7.'"Duty of'conductor. - Conductors of pass-
    e?igertrains, str'eetcars';or'interurban lines-'




    Interurban car shall'have authorRg,~ana it shaLl*
    be his-duty",to'rembve from a coach or 'street car,
    'orInterurban car, any passenger not entitl‘edto
    ride therein under the provisions of this law."
    (Underscoring ours)
         Penal Code, Article 1659, provlaes in part as follows:
       "1 . Every railway comp@ng; street.caP'%ompany
   and'lnterurban railway company, lessee, manager,
   or receiver thereof doing business in this State
   as a commoncarrier"of passenger'sfor hire shall
   provide separate coaches or compartments fos
   accommodation of white and negro passengers. (Un-
   derscoring ours)
         "2. *****
         "3. 'Separate coach' defined. - Each'.compart-
    ment of a railroad coach divldeaby good and sub-
    stantial wooden partltibns with a door therein
    shall be~deemed a~separate~cq%?h.Qithin~themeaning
   of'this law, and each separate coach shall bearin
    some conspicu-busplace appropriate words in plain
    letters indicating the race for which It Is set a-
    part; *it*
     -', "4. Violatfng separate coach law. - If any ".
    passenger upon a train or street car or Interurban
..   .^_




           Honorable Olin Culberson - page 3         O-6424


               car provided wf%h separate coaches or compartments
               atiabove pPOVid8d S"nal1Pid8 fn an,ycoach OPcom-
               partment not designated for hfs race af%er bavfng
               been forbidden to do so by %he conductor fn~"charge
               of the trafn, he shall be fined no% less than ffve
               nor more thin twenty-ffve dollars.
                   "5": rn%y of conductor. - Conductors of-passen-
               ger trafk3, streiztears,"or interurban lines provided
               wit& 'Separatecoaches shall have the authority-to re-
               fuse any passenger admi%%ance %o any coach or compart-
               ment fn whfcb they are not'entitled to rfde under
               thb provisions of %Ris law, and"the conductor"fn
               chaPg8 of the &rain orstree% car or interurban car
               Shall have au%horfty, and 1% shall be his duty.;tom '
               PemOV@ from a coach or Street car, or int8rLWban car,
               any pasuenger no% entitled to ride %berein'under the
               p~ovfsfons of thfs"law, am3 upon his refusal to do
               so kn0wFngl.yhe shall be finednot less than ffve
               nor more %han twenty-five dollarse'                      -1,
                   The proviSionS,of Penal Code,~Ar%icle 1660, are similar
           with those of geotfon 5 of Revised Sta%u%es, Article 6417.
                   As to %b.epurpose and valfdity of such legislation we
           quote from our opfnfon No, 0-5642, approved October 20, 19-63,
           wherein we said:
                   "The puppose of'such legfslation, as revealed
               by the emergency clause of %he b111 under consfder-
               atfon, is very aptly std.&  tap the court in the ease
               of WestcRes'%er& Phfiadelphfa W. Co, v. Miles, 55
               Penn. 209, 93 Am. Dee, 744:
                   9,
                    ,....I% fs no% an unreasonable regulation to
                    .
               seat passengers so as %o preserve order'and decorum
               and to prevent con%ac%s and collisfons'arfsing from
               natural or well-known cuS%omary repugnances, which
               are likely to breed dis%urbances by promfscuous"sit-
               ting. It 1s much easier %o prevent difficulty among
               passengers by regulation for their proper separation
               than it Is to quell them. The dangep to the peace
               engendered by a feeling of ave~tisionbetaaeenindivf-
               duals of the different races cannot be denied, It
               is the fact wi%h whfch the company must deai., If
               a negro takes a sea% beside a wbi%e man;or his wife
               or daughter, %he law canno.%repress the anger or con-
               quer the aversion which some will feel, Kowevep un-
                wise ft may"be %o fndulge %Re feelfng, human lnfir-
               mfty is not always proof against f't. 1% fs much
Honorable Olin Culberson, page 4         O-6424


    wiser to avert the consequences of this repulsion of
    race by separation than to punish"afterwards the
    breach of the peace it may haV8 caused.'
        "The principle followed by the Federal and
   State courts as to whether OP not segregation of
   races contravene any constitutional provisibn is
   not thenidentity of the accommodation butrather
   the equality of the acbommodation. (Citing author-
   sties) By this, we mean the test is not whether
   a race or a portion of a race fs separated from
   other Paces OP groups thereof, but Whether the
   aci:omm&iationsoffered each race or portion are
   reasonably equal in every respect and no undue
   discrimination is present. * *'* The law was en-
   acted for the protection of passengers, white and
   negro alike; the separation wl.ll"prev8i5fcondi-
   tions most likely to provbke unlawful acts and thus
   ward off for both races pains of the nature of
   physical suffering and pains of the nature of""fines.
   The accommodations Offered both races are equal in
   every respect; the comforts and convenlencespro-
   vided are the same notwithstanding Pace or color.'
        In South Covln ton & C. Street R. Co. vs. Kentucky.(lglg),
252 U.S. 399, PO 404, 2 4 L. Rd. 399; the Kentucky statute re-
quiring separate but equal accommodations to be furnlshed,for '
bolored and white passengers traveling between Cincinnati, Ohio';
aiidKentucky cities across the Ohio river was upheld. The court
said: "The regulation of the act affects interstate business'
incidentally, and does not subject it to unreasonable demands."
        Where one was denied admission to a state school "upon
the sole ground"of his race" the Court inMissouri   Xx Rel
Gaines v. Canada, 305 U.S. 337, p- 344, said:
        "In answering petitioner's contention that this
    discPiminationconstituted a denial of his constl-
    tutional right, the state court has fully Pecognized
    the~~obllgatlonof the State to provide negroes with
    advantages'for higher education substantially equal
    to'the advantages afforded to white students. The
    State has sought to fulf?.llthat obligation by furn-
    ishing equal facilities In separate schools, a method
    the validity of which has been sustained by our
    decisions,"
        Mr. Chief Justice-Hughes in Mftchell v. U.S.-313, U.S.,
80, p. 94, 85 L. Ed. 1201, 61 Supreme COW% Reporter, 873 P. E?76,
said:
.   .   .




            Honorable Olin Culberson, page 5        O-6424


                    "The undisputed facts showed conclusively
                that, having paid a first-class fare forthe en-
                tire journey from Chicago to Hot Springs, and
                having offered to"pay the proper charge for a
                seat which was available in the Pullman cai+ for
                the trip from Memphis to Ho% Springs, he was com-
                pelled, In accordance with custom, to leave that
                car and to rfde ln a second-classycar and was thus
                denied the standard conveniences and privileges"'
                afforded~to first-class passengers. This was man-
                ifestly a discrimination against him in the course
                of his interstate journey and admfttedly that
                discrimination was based solely Upon the fact
                that he was a negroi The question Whether thrs
                was a discriminatiotiforbidden by the Interstate
                Commerce Act is not a auestlon of seareuatlon
                but one of equality of treatment.' The denial to
                appellant of equality oftaccommodations b8CaUS8 of
                his race would be an invasion of a fundamental in-
                dividual right which is guaranteed against &ate
                action by the FoUr%eenth Amendment (citing author-
                ities) and in view of the nature of the right aiid
                of'our constitutional policy it cannot be maintained
                that the dlscriminatl~n+a~,,itwas alleged was not
                essentially unjust,          (Underscoring ours)
                    Shelton v, Chicago R, I. & P, R. Co,, 139 Term. 378,
            201 S.W. 521, L. R. A, 1918 D. 707, pa 708 presented a like
            question* The court said:
                     "The tionstructionof the statute contended
               for by plaintiff might be so onerous on railway
               companies as to lead to'conSeqU8nC8s no% desirable
               for either race, the abandonment of'dining cars in
               certain   trains, and on those railroads whicR would
               not be justified in going to the expense of main-
               taining separate diners, and find it impracticable
               to partition one of them. In %his case a full-length
               dining car was nbt operated - only one half of a ear
               was found necessary for and devoted to buffet serviCe -
               and it would be quite out of the bounds of reason to
               subdivfde this space into two compartments, as a
               practical proposition,
                      "A statute, when possible, should not be given
                a tionsbuction   that woUld make it not sensible, or
                that would lead to manifest Inconvenience, so sePious
                as to work injustice. * + * *'
                                                                      .   .




    Honorable Olin Culberson, page 6         o-6424



            "When, therefore, dining cars were Introduced
        they were the subjects of regulation.by the rall-
        road companies as to the use to be made of them
        by passengers of the white and negro races, under
        common ,law power to that end,
           "It appears, however, that the defendant rall-
       way company had established a rule for the purpose
       of providing equal but separate and sufficient ac-
       commoaation in Itsdining cars for the two races.
.
       The partition it made of the car for use-'wasbv hours
       during which members of the resnective ractismlnht
       resort to the dining car for food. It-seems tb us
       that.this rule was not only reasonable, but that~it
       was a wise and fair one,,and perhaps the best that
       in the circumstances'could be adopted to serve the
       same ends the legislature had~lh mind when theg en-
       acted laws in relation to separation of the races
       iiipassenger coaches. The rule of~the highway com-
       pany In operation was that white passengers were
       served first; three separate meal calls were made in'
       the day coaches and sleepers for the white passengers.
       If there were any negro passengers desiring the meal,
       they were not served~until the lapse of"a reasonable
       time following the making of the last call, when there
       was no probability of other white passengers coming
       into the car for service. In OUP opinion we should
       not read into the'statute anything that would prevent
       such a just regulation by the CSIPPI~P, unless compelled
       to do so. The ruleradmits of railway trains malntain-
       ing schedules that are not slowed down by stops for
       roadside meals, and It does not lead to denial of
       meals to members of either race, OP to reasonable in-
       convenience." (Underscoring ours)
            We therefore answer your question as follows: .Itis;
    under Revised Statutes, 1925, Art. 6417 and Penal Code, 1925,
    Arts, 1659-60 (known as our Jim CPOW Law)'unlawful for rail-
    roads to serve whites'and blacks in the same dining car at the
    sametime. However, as held by the Tennessee Supreme Court,
    we can see no-'objectionto the railroad companies using the
    same dining car to serve both whlte~people and colored ~so.long
    as they are.'servedat different hours so that the dining or
    cafe car shall be-used exclusively by either race separately,
    but not jointly; and the accommodations shall be equal in all
    points of comfort and convenience.
-   . .




          Honorable Olin Culberson, page 7         O-6424


                                        Yours very truly
                                      ATTORNEYGENERAL OF TEXAS

                                        By s/David Wuntch
                                             David Wuntch
                                             Assistant

          DW:zd:wc

          APPRom   MAR 6, 1945
          s/Grover Sellers
          ATTORNEY GENERAL OF TEXAS
          Approved Opinion Committee By s/%f.BChairman
