Exploring the New South
Racial Segregation on the Railroads in Texas: From the Civil War to 1900

Read: “The Railway Journey: The Spatial Transformation” from Barbara Young Welke,
Recasting American Liberty [ link ] buy book [ link ]

I. The Immediate Aftermath of the Civil War: The 13th Amendment and Southern Black Codes, 1865-66

A. The years immediately following the Civil War were marked by a tug-of-war between the states and the federal government.

B. For re-admission to the Union, the national government required the Southern states to recognize the 13th Amendment to the Constitution.

C. Southern states quickly responded, however, by passing black codes, which forced most blacks to remain as plantation laborers, who had few if any basic civil rights.

D. In three states – Mississippi , Florida , and Texas – the black codes mandated black exclusion from first-class (white) accommodations on railroads. [General Laws of Texas, 1866, p97 (Ch. 52)]. Welke, 337.

E. 1866: Railroads in Texas [Statute]
"All railroad companies shall attach one passenger car for the special accommodation of freedmen."

II. The Radical Republicans Respond: The 14th Amendment and Civil Rights Acts, 1866-1875

A. Congress responded by imposing state governments on the South, which abrogated the Black Codes and passed equal accommodation laws.

B. In addition, Congress passed the Fourteenth Amendment and federal civil rights legislation (the Civil Rights Act of 1866 and 1875), guaranteeing African Americans' basic civil liberties and access to public accommodations.

C. The Civil Rights Act of 1875 and state equal accommodation laws (passed between 1868 and 1873) were specifically directed at private acts of discrimination, barring racial discrimination in inns, public conveyances, and places of amusement. Welke, 337.

14th Amendment [ full text ] | Civil Rights Act of 1866 [ full text ] | Civil Rights Act 1875 [ full text ]

III. State action in Texas During Reconstruction, 1871

A. In 1871, Texas barred segregation on public carriers [Statute]
Public carriers prohibited from making any distinctions in the carrying of passengers. Penalty: Misdemeanor punishable by a fine from $100 to $500, or imprisonment from 30 to 90 days, or both.

B. Additional information on Texas during Reconstruction . . . http://www.tsha.utexas.edu/handbook/online/articles/RR/mzr1.html

IV. Common Carriers challenge State Regulations

A. The interstate character of railroad (and steamboat) travel rendered state equal-accommodation laws vulnerable to constitutional challenges. Hall v. Decuir [ full text doc ]

B. Hall v. Decuir (1877) – Supreme Court used commerce clause to strike down state regulation of common carriers

B1. In its first constitutional decision relating to the rights of blacks on common carriers (in this case steamboats) – Hall v. Decuir (1877) – the U.S. Supreme Court held that the Louisiana antidiscrimination law [which was much like the one in Texas] was unconstitutional on the ground that it was a regulation of interstate commerce in violation of the commerce clause.

B2. Chief Justice Morris R. Waite wrote that – although Louisiana 's law “purports only to control the carrier when engaged within the State,” in actuality it affected carriers that were engaged in interstate commerce up and down the Mississippi River . This was a realm of commercial regulation specifically granted to Congress.

B3. “No carrier of passengers can conduct his business with satisfaction to himself , or comfort to those employing him, if on one side of a State line his passengers, both white and colored, must be permitted to occupy the same cabin, and on the other be kept separate. Uniformity in the regulations by which he is to be governed from one end to the other of his route is a necessity in his business.”

B4. Congress's power to regulate interstate commerce, Waite wrote, “may be exercised without legislation as well as with it.” In the absence of legislation, Congress adopts as its own the regulations which prevail under the common law.”

B5. “Applying that principle to the circumstances of this case,” Waite wrote, “congressional inaction left Benson at liberty to adopt such reasonable rules and regulations for the disposition of passengers upon his boat, while pursuing her voyage within Louisiana or without, as seemed to him most for the interest of all concerned.”

B6. Final conclusion: states can't regulate common carriers who participate in interstate commerce.

V. Common Carriers challenge The Civil Rights Act of 1875

A Civil Rights Act of 1875 proved vulnerable too. Although the CRA of 1875 bared private discrimination, railroad lawyers challenged the enforcement of the law. When railroads were sued for segregating passengers, corporate lawyers argued the following:

A1. The constitutional basis for the CRA was the Fourteenth Amendment, which required states to provide the equal protection of the law for all persons.

A2 Railroads – as private businesses – were not states.

A3 The CRA was unconstitutional insofar as it used the Fourteenth Amendment to prohibit private discrimination.

B Cases arising in Texas under the Civil Rights Act of 1875

B1. United States v. Dodge (1877)
District Court, W.D. Texas, Case No. 14,976, 25 F. Case. 882, October 3, 1877 – Welke, 331.
United States v. Dodge (1877) [ full text doc ]

Even in suits brought under the Civil Rights Act of 1875, federal courts adopted the common-law standard (that black women paying first-class fare enjoy the same privileges that white women paying first-class fare enjoyed).

In this case, Judge Duval, a federal judge in Texas, instructed the jury that “every citizen of the Untied States, male or female, native born or naturalized, white or black, who pays to the carrier the fare demanded for the best accommodations, is entitled to the best provided for the different sexes.” If the train had only one car appropriate for the accommodation of ladies, then Milly Anderson (a black women) was entitled to a seat there. Only if the evidence showed that both cars on the train were equally used by gentlemen and ladies, without distinction of race, would the conductor not have been guilty for directing Anderson to one car rather than the other. But, the judge insisted, the jury must be convinced that the car to which the conductor had directed Anderson “was in fact, in all respects, equal to the other, and was as fist and appropriate at that time for white female citizens as fro colored female citizens.” In fact, they should consider the evidence as though Milly Anderson had been a “white female citizen, instead of a colored one.”

Outcome of case??

B2. United States v. Washington (1883)
Circuit Court, W.D. Texas, 20 F. 630 – Welke, 341
United States v. Washington (1883) [ full text doc ]

In this case, Judge Turner of the Federal Circuit Court for the Western District of Texas held that Congress had no power under the Fourteenth Amendment to enact the Civil Rights Act of 1875. The court insisted that a railroad's discrimination against blacks was not a violation of the Fourteenth Amendment for which the person had a constitutional claim. “It is not pretended that there is any unfriendly legislation against the colored man in this state, and it cannot be said that the act complained of is in any way connected with the instrumentalities of used by the state in the administration of its government, either legislative, executive, or judicial.”

C. The Civil Rights Cases of 1883 overturned the Civil Rights Act of 1875
Civil Rights Cases of 1883 [ overview ] [ full text online ]

VI. The Interstate Commerce Act (1887) and a Proposed Civil Rights Amendment to the ICA

A. Following the Supreme Court's decision in the Civil Rights Cases, James E. O'Hara, a black Republican from North Carolina, offered an amendment to ban racial discrimination by railroads in interstate travel in the pending interstate commerce bill.

B. “Congress has legislated for the protection of property; it has provided by law how dumb brutes shall be cared for,” Congressman O'Hara explained; “it must certainly follow that it unqualifiedly has the same right to regulate the use of passenger cars.” – Welke, 344

C. Information on O'Hara [ online ]

D. The amendment immediately ran into resistance from white Southern Democrats. By the time they finished with O'Hara's amendment, the provision was a mass of contradictions with so many qualifying clauses that it as essentially meaningless. – Welke, 344

E. In the end, the Interstate Commerce Act passed in 1887. It did not explicitly address racial discrimination, but section 3 of the act forbade railroads in interstate commerce from giving “unreasonable preference or advantage to” or imposing “unreasonable prejudice or disadvantage on” any particular person. The act inaugurated a new era of federal regulation. – Welke, 344.

VII. Cases before the ICC in 1887

A. Heard and Council cases (1887) – see 344 in Welke – illustrate new federal oversight of railroads.

B. However, the Interstate Commerce Commission adopted the rule which had evolved under the common law: railroads could segregate passengers by race, but the accommodations provided for each race had to be substantially equal.

C. In Heard and Council, the ICC found for the plaintiffs against the railroads, but only because the separate facilities were not of acceptable quality.

VIII. The Black Middle Class challenges separation – race, gender, and class

A. Houck v. Southern Pacific Railway Company (1888)
Circuit Court, W.D. Texas, 38 F. 226, ( November 16, 1888 )
Houck v. Souther Pacific Railway [ full text doc ]
– Welke, 287-288, 335-336

B. Cases like Lola Houck's decided late in the 1880s made all too clear the rise of a black middle class, which rendered it increasingly difficult for carriers to assign respectable black travelers to what in fact were second-class accommodations and get away with it. Custom and private regulation had proven inadequate to maintain the separation of the races. State law would soon require the separation of the races. Welke, 336.

VIII. States respond to ICC and the Black Middle Class – Separate Car Laws

A. Separate Car Laws begin in Florida in 1887 – Welke, 345

B. In 1888, Mississippi mandated that “all railroads carrying passengers in the State . . . shall provide equal but separate accommodations for the white and colored races.”

C. Texas passed its own separate car law in 1889.

D. 1889: Railroads [Statute]
Railroad companies required to maintain separate coaches for white and colored passengers, equal in comfort. Penalty: Passengers refusing to sit where assigned were guilty of a misdemeanor, and could be fined between $5 and $20.

E. 1891: Railroads [Statute]
Separate coach laws strengthened. Separate coaches for white and Negro passengers to be equal in all points of comfort and convenience. Designed by signage posted in a conspicuous place in each compartment. Trains allowed to carry chair cars or sleeping cars for the exclusive use of either race. Law did not apply to streetcars. Penalty: Conductors who failed to enforce law faced misdemeanor charge punishable by a fine from $5 to $25. The railroad company could be fined from $100 to $1,000 for each trip. Passengers who refused to sit in designated areas faced fines from $5 to $25.

IX. Plessy v. Ferguson (1896) upheld Separate Car Laws

[ overview ] [ information ] [ decision ]

X. Continuing Legislation in Texas

A. 1907: Streetcars [Statute]
Required all streetcars to comply with the separate coach law passed in 1889. Penalty: Streetcar companies could be fined from $100 to $1,000 for failing to enact law. A passenger wrongfully riding in an improper coach was guilty of a misdemeanor, and faced fines from $5 to $25.

B. 1909: Railroads [Statute]
Depot buildings required to provide separate waiting areas for the use of white and Negro passengers.

C. 1914: Railroads [Statute]
Negro porters shall not sleep in sleeping car berths nor use bedding intended for white passengers.

Other Resources

“The Law of Racial Segregation” [ online 12 mb file ] to prepare a discussion on your group topic. You need not read this entire chapter, but use it if you need it.