lady and children can enter and occupy until these are seated. If there are vacant seats after the persons entitled to occupy the car are seated white male persons can occupy them until required for ladies who may come on the car. Another car is provided for colored people which white persons are not permitted to occupy without consent of the colored passengers. It is part of this rule that colored persons going into the ladies' car shall be notified by the conductor or brakeman to go into the car provided for them.

Defendant denies that complainant had a right to occupy a seat in the ladies' car and avers that he was aware of defendant's rule, and that he had taken and was occupying a seat in violation thereof; that he was notified that a car on the train had been set apart for colored persons, which he was requested to occupy and which he refused to occupy, insisting that, having paid full fare, he was entitled to ride where he was seated. Defendant further avers that it was the duty of its conductor to have removed complainant to the car provided for colored persons, using as little violence. as possible, but that the passengers, offended by his presence in the ladies' car and by his refusal on request to leave it, took the matter in hand, used violence, and ejected complainant from the car, and that no conductor, brakeman, or other of its officers or employees, or any one having any control over the train took any part in the chastisement that was administered to the complainant; "that, on the contrary, they were not aware of any intention to inflict the punishment and did not in any manner countenance or justify the violence to which complainant was subjected."

Defendant, further answering, says that the car provided. for the accommodation of colored persons on said train was first class, and denies that it subjected complainant or permitted him to be subjected, as far as it was able to prevent it, to any undue or unreasonable prejudice or disadvantage because of his being a colored person or for any reason whatsover, and defendant insists that whatever injury, prejudice, or disadvantage complainant suffered it was the result of his own conduct and not the fault of defendant.

On investigation the following facts are found from the

depositions and oral testimony of witnesses, which are, in addition to the facts found in the statements of the complaint not denied in the answer:

1. Regulations setting apart cars for separate use of white and colored persons had been established for said railroad company substantially as stated in its answer. Similar regu

lations are customary on the railroads of Georgia, Tennessee, and neighboring States. On defendant's road these regulations are not well defined and are seldom enforced, except as to colored persons.

2. The passenger cars in the train were the colored people's car, first after the baggage car; next, the ladies' car, from which the complainant was ejected, and last the sleeping car. The ladies' and colored people's cars were of the same pattern and of like substantial build. The one designated the colored people's car was divided by a partition into two nearly equal apartments, with a door between them opening either way by slight pressure and without a fastening when closed. The rear half end or apartment was the smokingcar for white and colored men by the rules, but for white .men in practice. The front half end or apartment, in which smoking was frequent, was the colored car for both sexes. It was badly lighted by a single burner, and contained, for the use of the passengers of both divisions, the one necessity of railroad travel which adds to the convenience without contributing to the cleanliness of the car.

3. If the officers, agents, and employees of the railroad company in control of the train did not plan and participate in the assault on complainant and in his removal from the car, they omitted to discourage or discountenance it. At least two of them--the brakeman and baggage-master-were present in the car, and made no effort to protect complainant from the violence done him.

The complainant alleges that he has been subjected to unreasonable prejudice and unjust discrimination, and claims large money damages for injuries done him and for reasonable fees of attorneys he has been compelled to employ. Under the seventh amendment to the Constitution of the United States the defendant, in any case at common law, is

entitled to a trial by jury. This claim is, in its nature, an action of trespass, and therefore presents such a case; and when, on the hearing, the complainant offered evidence of pecuniary damages as a basis for an award, the Commission, because it could not give such a trial, declined to go into that question. The complainant is, therefore, left to his appropriate remedy in the courts for the alleged trespass and assault upon him. In such a proceeding the defendant may be held liable for counsel or attorneys' fees, "to be fixed by the court," as provided in section 8 of the Act to regulate commerce, and which this Commission is not authorized to award. The claim for damages and attorneys' fees being thus disposed of, it remains to be considered whether railroad companies may lawfully separate their white and colored passengers by providing cars for each, and if the car for colored people on the defendant's road was as safe and comfortable as that provided for white people.

It is both the right and the duty of railroad companies to make such reasonable regulations as will secure order and promote the comfort of their passengers. In the exercise of this right and the performance of this duty, carriers have established rules providing separate cars for ladies, and for gentlemen accompanied by ladies, and their right to make such rules as to sexes is nowhere questioned. A man, white or colored, excluded from the ladies' car by such a rule could hardly claim successfully under the Act to regulate commerce that he had been subjected to unjust discrimination and unreasonable prejudice or disadvantage. It is a custom of the railroad companies in the States where the defendant's road is located, and in all the States where the colored population is considerable, to provide separate cars for the exclusive use of colored and of white people.

In Pennsylvania, where, by regulation, separate seats were provided, a colored woman refused to occupy the seat assigned to her; she was put off the train, and the Supreme Court of the State in that case declared the separation of white and colored passengers in a public conveyance to be a subject of sound regulation to secure order, promote comfort, preserve peace, and maintain the rights of both car

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riers and passengers." In a later case in Illinois the Supreme Court held that public carriers have no right to discriminate between passengers on account of color "until they do furnish separate seats equal in comfort and safety to those furnished to other travelers," the obvious meaning of which is that to furnish separate seats equal in comfort and safety is not unjust discrimination.

These interpretations of the law are in conformity with the decision of Justice Woods, late of the United States Supreme Court, denying to the children of colored parents in Louisiana, under the laws of that State, the right to "attend the same public schools as those in which white children are educated." In this case Justice Woods said "equality of rights does not necessarily imply identity of rights."

The people of the United States by the votes of their representatives in Congress support the public schools of the country's capital city, and here white and colored children are educated in separate schools. Congress votes public moneys to separate charities; men, black and white, pitch their tents at the base of Washington's Monument to compete in the arts of war in separate organizations. Trades unions, assemblies, and industrial associations maintain and march in separate organizations of white and colored persons.

Public sentiment, wherever the colored population is large, sanctions and requires this separation of races, and this was recognized by counsel representing both complainant and defendant at the hearing. We cannot, therefore, say that there is any undue prejudice or unjust preference in recognizing and acting upon this general sentiment, provided it is done on fair and equal terms. This separation may be carried out on railroad trains without disadvantage to either race and with increased comfort to both.

But the right of the carrier to assign a white man to another car than the ladies' car, or a colored man to a car for his own race, takes nothing from the right of either to have accommodations substantially equal to those of other passengers paying the same fare. The complainant had paid the same fare with other "first-class" passengers. It was no more than

fair dealing and common honesty that he should have the security and conveniences of travel for which his money had been accepted. This was denied to him. He was told to go, and then forcibly removed to the car assigned to passengers of his race. This was a half car, half lighted, in which men and women were huddled together, and where men, white and black, smoked at pleasure. The defendant's witness, who testified that he struck the complainant several blows and removed him, designated the car into which he forced complainant a "second-class " car; and such it was, being dismal, less clean, and less comfortable than the car in which he was first seated and not permitted to ride.

The manner of his removal need not be discussed here, since the alleged assault and trespass is not to be here considered.

There was in the train no car furnishing the accommodations for which the complainant had paid and was entitled to have, other than the one from which he was removed because he was a colored man. In denying to complainant equal accommodations furnished the other passengers paying the same fare the railroad company subjected him to undue prejudice and unreasonable disadvantage, in violation of the Act to regulate commerce, and these unlawful acts and all unjust discriminations must be discontinued.

The Western and Atlantic Railroad Company will be notified to cease and desist from subjecting colored persons to undue and unreasonable prejudice and disadvantage in violation of section 3 of the Act to regulate commerce, and from furnishing to colored persons purchasing first-class tickets on its road accommodations which are not equally safe and comfortable with those furnished other first-class passengers.

v.

THOMAS J. REYNOLDS . THE WESTERN NEW YORK & PENNSYLVANIA RAILWAY COMPANY.

A road being in the hands of a receiver, a complaint was instituted against the company owning it, and in the complaint the receivership was mentioned, but the company was stated as having come into possession of the road, and the receiver was erroneously called the president of the company. The petition was served on him, and an answer was filed by