Opinion
No. 34374.
May 26, 1941. Suggestion of Error Overruled June 14, 1941.
1. RAILROADS.
The term "accommodation" in statute providing that every railroad carrying passengers shall provide equal but separate accommodations for the white and colored races was used in the same sense as is understood by its analogous use in connection with accommodations at hotels or inns (Code 1930, sec. 6132).
2. RAILROADS.
The statute providing that every railroad carrying passengers shall provide equal but separate accommodations for the white and colored races is for the protection of those who are to receive the accommodations and when an employee is himself receiving accommodations, he is as much within the statute and its purposes as if he were during that time a passenger (Code 1930, sec. 6132).
3. RAILROADS.
Under statute providing that every railroad carrying passengers shall provide equal but separate "accommodations" for the white and colored races, carrier permitting colored porter to occupy as his sleeping quarters upper berth of section the lower berth of which had been reserved and fully paid for by a white woman, violated the statute. (Code 1930, sec. 6132).
ANDERSON, J., and SMITH, C.J., dissenting.
ON SUGGESTION OF ERROR. [2 So.2d 830.]1. RAILROADS.
The statute requiring every railroad carrying passengers to provide equal but separate accommodations for the white and colored races applies to any railroad carrying passengers, and the accommodations furnished must be equal but separate for the white and colored races without regard to whether those receiving the accommodations while riding on the train are passengers or employees of different races (Code 1930, sec. 6132).
2. APPEAL AND ERROR.
Where plaintiff's declaration, in action charging several defendants with violation of statute requiring every railroad carrying passengers to provide equal but separate accommodations for the white and colored races, alleged joint control of train and was sufficient to charge joint liability, and plaintiff appealed from rulings on demurrers, plaintiff was entitled, on remand, to develop facts in support of that allegation, and her proof, if made, could be met by individual defendant under proper plea and proof concerning whether he had such control over train to enable him to see to it that statute was complied with (Code 1930, sec. 6132).
SMITH, C.J., and ANDERSON, J., dissenting.
APPEAL from the circuit court of Hinds county, HON. J.P. ALEXANDER, Judge.
Lee M. Russell, of Jackson, for appellant.
The declaration as amended, together with bill of particulars, is based upon Section 6132, Code 1930, and is identical even to the punctuation of Code 1892, Section 3562, which brought forward the Act of March 2, 1888 — the first enactment of the law requiring all railroads carrying passengers "to provide equal but separate accommodations for the white and colored races."
This statute has a criminal statute brought down through the years accompanying said section — Section 1115, Code 1930, providing a penalty "if any person or corporation operating a railroad shall fail to provide two or more passenger cars for each passenger train, or to divide the passenger cars by a partition, to secure separate accommodations for the white and colored races, as provided by law," etc., shall be fined, etc., as therein provided.
Section 6132 does not read the separation of passengers — meaning those who pay fares, have passes, or the like but it plainly says that the railroads "shall provide equal but separate accommodations for the white and colored races." Not one word, no exception, favoring a servant or employee of any such corporation.
L., N.O. T.R. Co. v. State, 66 Miss. 662, 6 So. 203, 5 L.R.A. 132, 14 Am. St. Rep. 599, aff. 133 U.S. 587, 10 S.Ct. 348, 33 L.Ed. 784; Pullman Co. v. Lawrence, 74 Miss. 782, 22 So. 53; N.O.J. G.N. Ry. Co. v. Wallace, 50 Miss. 244; A. V. Ry. v. Morris, 103 Miss. 511, 60 So. 11, Ann. Cas. 1915B, 613; Redmond v. I.C. Ry. Co., 119 Miss. 765, 81 So. 115; I.C. Ry. v. Cox, 132 Miss. 471, 96 So. 685; Ib., 136 Miss. 130, 100 So. 520; Shelton v. C., R.I. P. Ry. Co., 139 Tenn. 378, 201 S.W. 521, L.R.A., 1918B, 707; Payne v. Stevens, 125 Miss. 582, 88 So. 165, cert. dism., 257 U.S. 642, 42 S.Ct. 52, 66 L.Ed. 412, error dism., 260 U.S. 705, 43 S.Ct. 165, 67 L.Ed. 473.
Defendant Murphree is a joint tort-feasor along with his corporate defendants — the declaration places him as co-manager, agent, etc., with powers and responsibilities for the care of the passengers on the trains as much so as the corporate defendants.
Nelson v. I.C. Ry. Co., 98 Miss. 295, 53 So. 619; Pullman Co. v. Kelly, 86 Miss. 87, 38 So. 317; Bailey v. Delta Elec. Light Power Co., 86 Miss. 634, 38 So. 354; Saw Mill Const. Co. v. Bright, 116 Miss. 491, 77 So. 316; Waterman-Fouke Lbr. Co. v. Miles, 135 Miss. 146, 99 So. 759; Oliver v. Miles, 144 Miss. 852, 110 So. 666; Miller v. Phipps, 161 Miss. 564, 137 So. 479; Thomas v. Rounds, 161 Miss. 713, 137 So. 894; Westerfield v. Shell Petroleum Corp., 161 Miss. 833, 138 So. 561; Moore v. Foster, 182 Miss. 15, 180 So. 73; White's Lumber Supply Co. et al. v. Collins, 186 Miss. 659, 191 So. 105, 192 So. 312.
The court in construing statutes will seek to ascertain the legislative intent and give effect thereto. The legislative intent must govern.
Kennington v. Hemingway, 101 Miss. 259, 57 So. 809, 39 L.R.A. (N.S.), 541, Ann. Cas. 1914B, 392; City of Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Prather v. Googe, 108 Miss. 670, 67 So. 156; Darnell v. Johnston, 68 So. 780, 109 Miss. 507; Roseberry v. Norsworthy, 135 Miss. 845, 100 So. 514; Maris v. Lindsey, 124 Miss. 742, 87 So. 12; Money v. Wood, 152 Miss. 17, 118 So. 357; Sartin v. Prentiss County, 156 Miss. 46, 125 So. 563; White v. Miller, 162 Miss. 296, 139 So. 611; Gift v. Love, 164 Miss. 442, 144 So. 562, 86 A.L.R. 63; Rawlings v. Ladner, 174 Miss. 611, 165 So. 427; Alexander v. Graves, 178 Miss. 583, 173 So. 417; Easterling v. Howie, 179 Miss. 680, 176 So. 585; C.J. "Statutes," sec. 563 et seq.
The courts must look to the statute itself for the legislative intent and cannot make law by judicial construction.
Abbott v. State, 106 Miss. 340, 63 So. 667; Kotch v. Bridges, 45 Miss. 247; Virden et al. v. State Tax Commission, 180 Miss. 467, 177 So. 784.
R.H. and J.H. Thompson, of Jackson, for appellee, The Pullman Company.
The segregation statutes contemplate nothing more nor less than the segregation of passengers of the white and colored races and make no reference to servants and employees. Each of them contains the provision that conductors of passenger trains should have not only the power, but they were required, to assign each passenger to the car used for the race to which such passenger belonged. There was, and now is, no requirement of separate quarters for servants of different races or for a segregation of servants.
Laws of 1888, chap. 26, sec. 2, and chap. 27, secs. 1 and 2; Sec. 3562, Code 1892; Sec. 6132, Code 1930; Secs. 1276 and 4312, Code 1892; Chap. 169, Laws 1940.
The statutes were not enacted because it was feared railway and sleeping car employees would misbehave. What actuated the legislators, and they were no doubt justified by past occurrences, was apprehension that, with white and negro passengers accommodated in the same cars or compartments, each having equal legal rights, the presence of negroes would be resented by white passengers and the presence of white persons in turn resented by negro passengers, with resultant breaches of the peace.
May Byrd, of Jackson, Clinton H. McKay and Lucius E. Burch, Jr., of Memphis, Tenn., for appellee, Illinois Central Railroad Company.
The statute of the State of Mississippi, providing for separate accommodations of the races, have been in force for at least since the enactment of the statute in March, 1888, more than fifty years, and during all of that time, so far as we are able to determine, no suit has ever been filed and no claim has ever been made by any passenger on account of the alleged violation of the Jim Crow law by carriers in the state permitting colored employees to ride in or occupy space in cars also occupied by and set apart for white passengers. This is at least an indication that no one prior to the filing of the instant case ever thought that the Jim Crow law applied to persons other than passengers.
Our present statute, Section 6132 of the Code of 1930, by its language clearly indicates that the Legislature had in mind the separation of passengers of the two races and did not have in mind the separation of passengers on the one hand and employees on the others.
This court knows as a matter of common observation that every railroad in the State of Mississippi operates passenger trains on which there are colored employees and that these colored employees work in dining cars, pullman cars, passenger cars, kitchens, club cars, and other places occupied by the white race. These colored employees serve the white race in various capacities, but if the contentions of the appellant are correct, no white train employee could occupy or be present in the part of the train set apart for colored passengers and no colored employee could be stationed in or be present in the cars set apart for white passengers. We submit that the statute will not bear out such interpretation.
The statute applies to every railroad carrying passengers. It requires separate accommodations for the white and colored races by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by partition to secure separate accommodations, clearly evincing the intent of the Legislature to limit the application of the statute to passengers of the two races. To hold otherwise would necessitate railroads having two sets of employees on each train; one set of the white race and one set of the colored race, each employee being confined to the car of the race of which he is a member. The construction contended for by appellant would result in the railroad company having to furnish white waiters in dining cars, white porters in pullman cars, white porters in passenger cars, all for the use of the white passengers, and colored waiters and colored porters and colored conductors for the colored race. Unless the statute is plain and positive and susceptible of no other construction, we submit that the court should not and will not place such an unreasonable burden on the railroad companies, and especially in view of the fact that in everyday life in all of our dealings we come in contact with the colored population, as cooks in our homes, waiters in our restaurants, chauffeurs in our automobiles, maids in our homes, and innumerable instances where the relation between the races is no different than between the colored employees of the railroad company on passenger trains and passengers on these trains.
Creekmore Creekmore, of Jackson, for appellee, Dennis Murphree.
Section 6132, Code of 1930, requiring equal but separate accommodation for the races can have no application to nor impose any liability on this appellee, an individual, and not alleged to be the conductor of the passenger train. The statute applies only to railroads and its conductors, and an individual such as this appellee is within neither the spirit nor the letter of the law.
It is elementary law that before there can be any joint liability there must be a duty owing severally by each of those sought to be held liable, whose concerted action, or whose separate and independent acts in combination violate such duty and cause the injury. In every case, the duty must be owing by each of those sought to be held liable and if there be no such duty as to one, there can be no liability as to him.
Nelson v. I.C.R.R. Co., 98 Miss. 298, 53 So. 619, and Miller v. Phipps, 161 Miss. 564, 137 So. 479, and is well stated in 62 C.J. 1130.
In the present case, there was no duty on the part of defendant, Dennis Murphree, either to provide separate accommodations, or to see that separate accommodations were provided by the Railroad Company or by the Pullman Company; and since there was no such duty on his part, he cannot be held liable for an alleged violation thereof, either severally or jointly with the railroad and the Pullman Company.
Argued orally by Lee M. Russell, for appellant, and by Harvey Thompson and H.H. Creekmore, for appellees.
By her declaration, amendment thereto and bill of particulars in aid thereof, appellant, a white woman, averred that on or about August 4, 1933, she took passage, at Jackson, Mississippi, on an all-Pullman train known as the "Know Mississippi Better Train," which train was under the joint management and control of the defendants, Murphree, the Pullman Company, and the Illinois Central Railroad Company. That she had reserved and fully paid for lower berth No. 2 in one of the sleeping cars which formed a part of said train, and that on that night, while within the State of Mississippi, she found that a negro porter employed by the Pullman Company had been allowed to occupy as his sleeping quarters the upper berth of the same section, but upon the protest of plaintiff, made to the defendants, the porter was ousted for the time being. That, nevertheless, on the same night, while within the State of Tennessee, the negro porter again occupied the said upper berth, from which, upon plaintiff's protest, he was ousted the second time; but for the remainder of the journey and particularly from the time of arrival at St. Louis, thence on to Chicago, including three nights in Chicago, and on the return from Chicago, through Illinois, Kentucky, and Tennessee, the said porter was allowed to occupy said upper berth in spite of the repeated protests of appellant, made to all three of the defendants.
The defendants filed separate demurrers which were sustained by the trial court, and the action was dismissed; hence this appeal.
The argument made by the defendants is that the statute, Section 6132, Code 1930, under which the action is brought, does not apply to or include employees, but has reference only to passengers. In this respect, the Mississippi statute and that of Tennessee are substantially identical; and if there was a violation of them while the train was within either of those two states the demurrers should have been overruled. We leave aside the other states.
Our Mississippi statute has been under review on several occasions, and among the cases are Louisville, N.O. T. Co. v. State, 66 Miss. 662, 6 So. 203, 5 L.R.A. 132, 14 Am. St. Rep. 599, affirmed, 133 U.S. 587, 10 S.Ct. 348, 33 L.Ed. 784; Alabama V.R. Co. v. Morris, 103 Miss. 511, 60 So. 11, Ann. Cas. 1915B, 613; Illinois Cent. R. Co. v. Redmond, 119 Miss. 765, 81 So. 115; Illinois Cent. R. Co. v. Cox, 132 Miss. 471, 96 So. 685; Payne v. Stevens, 125 Miss. 582, 88 So. 165. The purpose of the enactment is sufficiently discussed in Alabama V.R. Co. v. Morris, supra. But the particular question here presented has not heretofore appeared in any of our cases.
The language of the statute, so far as pertinent to the stated contention, is that "Every railroad carrying passengers in this state shall provide equal but separate accommodations for the white and colored races," etc. The decision here must turn upon what is meant by the term "accommodations." We think the term was used in the statute in the same sense as is understood by its analogous use in connection with accommodations at hotels or inns, that is to say, it is analogous to the furnishing of lodgings and food. If all hotels in this State accepted colored as well as white guests and there were a statute that hotels or inns shall provide equal but separate accommodations for the white and colored races, there would be but little ground for doubt that white and colored persons could not be lodged for the night in the same bedroom, or served with meals at the same time in the same dining room, and this without regard to whether one or the other of those so lodged or served be an employee or not; while, on the other hand, there would be no sound basis for the contention that the statute meant that, while in the performance of their respective duties, employees could not be temporarily and from time to time in the same room with a guest.
The statute is for the protection of those who are to receive the accommodations; and when an employee is himself receiving accommodations he is as much within the statute and its purposes as if he were during that time a passenger. When the negro porter was actively employed about his duties as porter in the sleeping car and was thereby engaged as a part of the business of furnishing the accommodations, his color would have nothing to do with the situation; but when lodged for the night in the same section with a white passenger, then he was being accommodated within the meaning of the statute — and that must be in a separate compartment, not in the same section as was the case here.
Reversed and remanded.
Alexander, J., took no part.
ON SUGGESTION OF ERROR.
We must adhere to our former opinion in this case as to the proper construction of Section 6132, Code of 1930, requiring every railroad carrying passengers in this state to provide equal but separate accommodations for the white and colored races; that the statute applies to any railroad carrying passengers, but that the accommodations furnished are to be equal but separate for the white and colored races without regard to whether those receiving the accommodations while riding on the train are passengers or employees where they belong to a different race, as to being white or colored.
The former opinion was devoted entirely to the question as to what was meant by "accommodations," and to the applicability of the statute, whether those traveling on a train carrying passengers, belonging to these two races, are all passengers or some of them are passengers and some employees. The suggestions of error now under consideration are on behalf of the Pullman Company and the individual defendant Dennis Murphree, respectively. The points now argued by the Pullman Company were fully considered and decided in the former opinion, but the point now argued by the appellee, Dennis Murphree, on suggestion of error, wherein it is insisted that the statute in question does not apply to an individual, was not dealt with in the former opinion for the reason that the said appellee merely filed a brief containing a single paragraph in which he raised, but did not argue, the question now presented, and joined in the other briefs as to whether or not the statute had any application as between white passengers and colored employees.
And, since the case is here on demurrer and the declaration of the appellant alleges that the "Know Mississippi Better Train" in question was under the joint management and control of all of the defendants, and was sufficient in substance to charge a joint liability for the alleged violation of the statute, the appellant is entitled to develop the facts on her behalf in support of such allegation, and which, proof, if made on remand of the case, may be met by such individual defendant under a proper plea and proof as to whether or not he had such supervision and control over this particular train to enable him to exercise the power of seeing to it that the statute was complied with. We pretermit a decision as to whether the statute involved has any application to the said appellee as an individual until such time as the facts and circumstances in connection with his alleged joint management and control of the train shall have been developed upon a trial on the merits.
Suggestions of error overruled.
Anderson, J., and Smith, C.J., dissented.
Alexander, J., took no part.
DISSENTING OPINION.
Failure on the part of the railroad company to comply with Section 6132 of the Code of 1930 is made a criminal offense by Section 1115 of the Code. The statute therefore is to be construed most strongly in favor of the railroad company and against the person seeking recovery for an alleged violation of the statute. Under that principle, it is manifest that the statute has no application to employees of the railroad company but applies alone to "passengers" — using the language of the statute. The Pullman porter was not a passenger in the sense of the statute. He was the servant of the passengers. His passage on the train was a mere incident and a necessary one to his duties. He was there to serve the passengers and for that purpose subject to their call night and day, and that is true whether he was standing up, sitting down, or lying down. The statute requires separate accommodations for white and negro passengers.
Smith, C.J., joins in this dissent.