95 U.S. 485 (____)

HALL
v.
DECUIR.

Supreme Court of United States.

*487 Mr. R.H. Marr for the plaintiff in error.

Mr. E.K. Washington, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

For the purposes of this case, we must treat the act of Louisiana of Feb. 23, 1869, as requiring those engaged in inter-state commerce to give all persons travelling in that State, upon the public conveyances employed in such business, equal rights and privileges in all parts of the conveyance, without distinction or discrimination on account of race or color. Such was the construction given to that act in the courts below, and it is conclusive upon us as the construction of a State law by the State courts. It is with this provision of the statute alone that we have to deal. We have nothing whatever to do with it as a regulation of internal commerce, or as affecting any thing else than commerce among the States.

There can be no doubt but that exclusive power has been conferred upon Congress in respect to the regulation of commerce among the several States. The difficulty has never been as to the existence of this power, but as to what is to be deemed an encroachment upon it; for, as has been often said, "legislation may in a great variety of ways affect commerce and persons engaged in it without constituting a regulation of it within the meaning of the Constitution." Sherlock v. Alling, 93 U.S. 103; State Tax on Railway Gross Receipts, 15 Wall. 284. Thus, in Munn v. Illinois, 94 U.S. 113, it was decided that a State might regulate the charges of public warehouses, *488 and in Chicago, Burlington, & Quincy Railroad Co. v. Iowa, id. 155, of railroads situate entirely within the State, even though those engaged in commerce among the States might sometimes use the warehouses or the railroads in the prosecution of their business. So, too, it has been held that States may authorize the construction of dams and bridges across navigable streams situate entirely within their respective jurisdictions. Willson v. Blackbird Creek Marsh Co., 2 Pet. 245; Pound v. Turck, supra, p. 459; Gilman v. Philadelphia, 3 Wall. 713. The same is true of turnpikes and ferries. By such statutes the States regulate, as a matter of domestic concern, the instruments of commerce situated wholly within their own jurisdictions, and over which they have exclusive governmental control, except when employed in foreign or inter-state commerce. As they can only be used in the State, their regulation for all purposes may properly be assumed by the State, until Congress acts in reference to their foreign or inter-state relations. When Congress does act, the State laws are superseded only to the extent that they affect commerce outside the State as it comes within the State. It has also been held that health and inspection laws may be passed by the States, Gibbons v. Ogden, 9 Wheat. 1; and that Congress may permit the States to regulate pilots and pilotage until it shall itself legislate upon the subject, Cooley v. Board of Wardens, &c., 12 How. 299. The line which separates the powers of the States from this exclusive power of Congress is not always distinctly marked, and oftentimes it is not easy to determine on which side a particular case belongs. Judges not unfrequently differ in their reasons for a decision in which they concur. Under such circumstances it would be a useless task to undertake to fix an arbitrary rule by which the line must in all cases be located. It is far better to leave a matter of such delicacy to be settled in each case upon a view of the particular rights involved.

But we think it may safely be said that State legislation which seeks to impose a direct burden upon inter-state commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Congress. The statute now under consideration, in our opinion, occupies that position. It does not act upon the business through the local instruments to be employed *489 after coming within the State, but directly upon the business as it comes into the State from without or goes out from within. While it purports only to control the carrier when engaged within the State, it must necessarily influence his conduct to some extent in the management of his business throughout his entire voyage. His disposition of passengers taken up and put down within the State, or taken up within to be carried without, cannot but affect in a greater or less degree those taken up without and brought within, and sometimes those taken up and put down without. A passenger in the cabin set apart for the use of whites without the State must, when the boat comes within, share the accommodations of that cabin with such colored persons as may come on board afterwards, if the law is enforced.

It was to meet just such a case that the commercial clause in the Constitution was adopted. The river Mississippi passes through or along the borders of ten different States, and its tributaries reach many more. The commerce upon these waters is immense, and its regulation clearly a matter of national concern. If each State was at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not but be productive of great inconvenience and unnecessary hardship. Each State could provide for its own passengers and regulate the transportation of its own freight, regardless of the interests of others. Nay more, it could prescribe rules by which the carrier must be governed within the State in respect to passengers and property brought from without. On one side of the river or its tributaries he might be required to observe one set of rules, and on the other an other. Commerce cannot flourish in the midst of such embarrassments. 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, and to secure it Congress, which is untrammelled by State lines, has been invested with the exclusive legislative power of determining what such regulations *490 shall be. If this statute can be enforced against those engaged in inter-state commerce, it may be as well against those engaged in foreign; and the master of a ship clearing from New Orleans for Liverpool, having passengers on board, would be compelled to carry all, white and colored, in the same cabin during his passage down the river, or be subject to an action for damages, "exemplary as well as actual," by any one who felt himself aggrieved because he had been excluded on account of his color.

This power of regulation may be exercised without legislation as well as with it. By refraining from action, Congress, in effect, adopts as its own regulations those which the common law or the civil law, where that prevails, has provided for the government of such business, and those which the States, in the regulation of their domestic concerns, have established affecting commerce, but not regulating it within the meaning of the Constitution. In fact, congressional legislation is only necessary to cure defects in existing laws, as they are discovered, and to adapt such laws to new developments of trade. As was said by Mr. Justice Field, speaking for the court in Welton v. The State of Missouri, 91 U.S. 282, "inaction [by Congress] ... is equivalent to a declaration that inter-state commerce shall remain free and untrammelled." Applying that principle to the circumstances of this case, 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. The statute under which this suit is brought, as construed by the State court, seeks to take away from him that power so long as he is within Louisiana; and while recognizing to the fullest extent the principle which sustains a statute, unless its unconstitutionality is clearly established, we think this statute, to the extent that it requires those engaged in the transportation of passengers among the States to carry colored passengers in Louisiana in the same cabin with whites, is unconstitutional and void. If the public good requires such legislation, it must come from Congress and not from the States.

We confine our decision to the statute in its effect upon *491 foreign and inter-state commerce, expressing no opinion as to its validity in any other respect.

Judgment will be reversed and the cause remanded, with instructions to reverse the judgment of the District Court, and direct such further proceedings in conformity with this opinion as may appear to be necessary; and it is

So ordered.

MR. JUSTICE CLIFFORD concurred in the judgment, and delivered the following opinion: —

Power to regulate commerce is, by the Constitution, vested in Congress; and it is well-settled law that the word "commerce" as used in the Constitution comprehends navigation, which extends to every species of commercial intercourse between the United States and foreign nations, and to all commerce in the several States, except such as is completely internal, and which does not extend to or affect the other States. Tonnage Cases, 12 Wall. 204.

Beyond all doubt, the power as conferred includes navigation as well as traffic, and it is equally well settled that it extends to ships and vessels exclusively employed in conveying passengers as well as to those engaged in transporting goods and merchandise. Gibbons v. Ogden, 9 Wheat. 1.

Equality of right and privilege is guaranteed by the thirteenth article of the State Constitution to every person in the State transported in the vehicles or water-craft of a common carrier of passengers, in the words following, to wit: "All persons shall enjoy equal rights and privileges upon any conveyance of a public character." Rules and regulations to enforce that provision have been enacted by the State legislature, as fully set forth in the transcript. Sess. Laws La. (1869), 37.

Common carriers of the kind, it is conceded, may adopt rules and regulations for the management of their business, not inconsistent with the State Constitution and the enactment of the State legislature. By the terms of that enactment they may refuse to admit persons to such conveyance when the vehicle or water-craft does not contain room or suitable accommodations for the purpose, and they may refuse to admit an applicant, or expel him or her after admission, if the applicant *492 refuses to pay fare, or is of infamous character, or is guilty, in the conveyance, of gross, vulgar, or disorderly conduct, or shall commit any act in violation of the known rules and regulations of such carrier tending to injure his business, provided such rules and regulations make no discrimination on account of race or color. Such rules and regulations as are there authorized must be duly made known to the public in order to be operative, and they must not deny to the applicant any right or privilege on account of race, color, or previous condition of servitude.

Sufficient appears to show that the plaintiff is a person of color, and that the defendant is the master and owner of the steamer, which is a packet vessel duly enrolled and licensed for the coasting trade, and that the vessel was engaged in carrying passengers and cargo between the port of New Orleans in the State of Louisiana and the port of Vicksburg in the State of Mississippi; that the steamer has two cabins for the accommodation of passengers, conveniently arranged one above the other; that the upper is assigned to white persons and that the lower is assigned to persons of color, both being constructed with state-rooms, cabin, and a hall used as a dining-room where meals are furnished; that the plaintiff, being at the time in New Orleans and desiring to visit her plantation in another parish of the same State, went on board the steamer to secure her passage to the proper landing near her plantation; that the clerk of the steamer, to whom she applied for a passage in the upper cabin, having previously informed her agent that he could not give her a passage in that cabin, refused her request, telling her at the same time that he would give her a passage in the lower cabin; that the plaintiff declined to accept a berth in the lower cabin, and that she passed the night during which she remained on board sitting in a chair in what is known as the recess back of the upper cabin.

Both parties concede that the steamer was engaged in one of her regular trips from New Orleans to Vicksburg, and it appears that the plaintiff took passage for the landing called the Hermitage, and that on arriving there she paid five dollars fare, which is the regular fare to that landing for persons whose passage is in the lower cabin, and that it was two *493 dollars less than the regular fare for persons whose passage is in the upper cabin.

Proof of a decisive character is exhibited that the plaintiff applied for a berth in the upper cabin, which was refused, and that she declined to accept one in the lower cabin, which by the rules and regulations of the steamer is assigned for persons of color. Based upon these undisputed facts, the charge of the declaration is that the plaintiff was denied the equal rights and privileges guaranteed and secured to all persons by the State Constitution and the aforesaid act of the State legislature. Superadded to that is also the charge that such equal rights and privileges were denied to her on account of her race and color, for which she claims actual and exemplary damages in the sum of $75,000.

Service was made, and the defendant appeared and set up, among others, the defences following: 1. That the steamer, being enrolled and licensed according to the act of Congress to pursue the coasting trade, is governed by the laws of the United States, and may make all reasonable rules and regulations for the prosecution of her business. 2. That the State Constitution and law set up are in violation of the provision of the Federal Constitution which authorizes Congress to regulate commerce among the several States. 3. That the steamer at the time alleged was engaged in prosecuting commerce between the port of New Orleans in the State of Louisiana, and the port of Vicksburg in the State of Mississippi, and consequently was not subject to the State regulations set up in the declaration.

Under the State practice these defences were pleaded as an exception to the alleged cause of action. Hearing was had, and the exception was overruled, the court giving leave to the defendant to plead the same in his answer.

Pursuant to that leave, the defendant set up the same defences in the answer, adding thereto the following: 1. That he as owner had by law the right to prescribe rules and regulations for the accommodation of passengers in his steamer. 2. That all such steamers engaged in commerce and navigation in those waters have a well-known regulation that persons of color are not placed in the same cabin with white persons. 3. That the *494 regulation is reasonable, usual, and customary, and was made for the protection of their business, and had been well known to the plaintiff for many years.

Evidence was subsequently taken, the cause submitted to the court without a jury, the parties heard, and judgment entered for the plaintiff in the sum of $1,000 with interest and cost; and the defendant appealed to the Supreme Court of the State, where the parties were again heard, and the judgment of the District Court was affirmed.

Provision is made by the fourth section of the State statute in question, that the plaintiff in such a case may recover exemplary as well as actual damages for a violation of the equal rights and privileges guaranteed to all persons in the State by the State Constitution. Suppose this is so, still the defendant insists that errors were committed by the court in the trial of the case, for which the judgment should be reversed; and the transcript shows that he sued out a writ of error, and removed the case into this court.

Three of the errors assigned are still the subject of complaint: 1. That the court erred in holding that the State Constitution and statute in question are valid. 2. That the court erred in deciding that those two provisions are not regulations of commerce. 3. That the court erred in deciding that those provisions are not in conflict with the Federal Constitution.

Congress, it is conceded, possesses the exclusive power to regulate commerce; and it is everywhere admitted that both traffic and navigation are included in its ordinary signification, and that it embraces ships and vessels as the instruments of intercourse and trade as well as the officers and seamen employed in their navigation. People v. Brooks, 4 Den. (N.Y.) 469.

Steamboats as well as sailing ships and vessels are required to be enrolled and licensed; and the record shows that the steamer in question had conformed in all respects to the regulations of Congress in that regard, and that she was duly enrolled and licensed for the coasting trade, and that she was then and there engaged in the transportation of passengers and freight between the port of New Orleans and the port of Vicksburg.

*495 None, it is supposed, will deny the power of Congress to enroll and license ships and vessels to sail from a port of one State to the ports of another; and it is equally clear that such ships and vessels are deemed ships and vessels of the United States, and that they are entitled as such to all the privileges of ships and vessels employed in the coasting trade. 1 Stat. 287, 305; 3 Kent, Com. (12th ed.) 145.

Ships and vessels enrolled and licensed as required by that act are fully authorized to carry on that trade, the act of Congress in direct terms providing that such ships and vessels and no others shall be deemed ships and vessels of the United States, entitled to the privileges of ships and vessels employed in the coasting trade or fisheries. Gibbons v. Ogden, supra; 1 Stat. 288; White's Bank v. Smith, 7 Wall. 646.

Language more explicit could not well be chosen to express the intention of Congress, and in my judgment it fully warrants the conclusion reached by Marshall, C.J., in that case, that the section contains a positive enactment that the ships and vessels it describes shall be entitled to the privileges of ships and vessels employed in the coasting trade.

Undisputed proof is exhibited in the record that the steamer was duly enrolled and licensed, and that she was engaged in one of her regular trips between the port of New Orleans and the port of Vicksburg, transporting passengers and freight. Grant that, and it follows that she must be deemed to have been a ship or vessel of the United States entitled to all the privileges of ships and vessels engaged in the coasting trade, pursuant to the act of Congress providing for the enrolment and license of such ships and vessels and the regulation of such trade.

Attempt was made in the leading case to maintain that the license gave no right to trade, that its sole purpose was to confer the American character on the ship or vessel; but the court promptly rejected the proposition, and held that, where the legislature attaches certain privileges and exemptions to the exercise of a right over which its control is absolute, the law must imply a power to exercise the right; and the court remarked, that it would be contrary to all reason and to the course of human affairs to say that a State is unable to strip a vessel of the particular privileges attendant on the exercise of *496 a right, and yet may annul the right itself. Instead of that, it is the enrolment that proves the national character of the ship or vessel; and the court decided in that case that the license could only be granted to vessels of twenty or more tons burden which had already been enrolled, and that the license to do a particular thing is a permission or authority to do that thing, and, if granted by a person having authority to grant it, transfers to the grantee whatever it purports to authorize.

Packets which ply along the coast, say the court, as well as those making foreign voyages, consider the transportation of passengers as an important part of their business; and the court adjudged directly that a coasting vessel employed in that business is as much a portion of the national marine as one employed in the transportation of cargo, and that no reason exists for holding that such a vessel is withdrawn from the regulating power of the national government.

Without more, these references to the opinion in that great case are sufficient to show that the court there decided that the enrolment act is of itself a sufficient regulation of the navigation of all the public navigable rivers of the United States to secure to ships and vessels of the United States sailing under a coasting license the free navigation of all such public highways.

Confirmation of that proposition, even more decisive than the opinion of the court, is found in the decree rendered in the case, where the court adjudge that the licenses set up by the appellant gave full authority to those vessels to navigate the waters of the United States for the purpose of carrying on the coasting trade, any law of the State to the contrary notwithstanding, and that so much of the law of the State as prohibited vessels so licensed from navigating the waters of the State by means of fire or steam is repugnant to the Constitution of the United States, and void.

Cases have arisen in which it is held that the States may rightfully adopt certain regulations touching the subject, which are local in their operation, where none have been ordained by Congress; but it will not be necessary to enter that field of inquiry, or to attempt to reconcile those decisions with the conclusion in this case, as it is clear from the remarks already *497 made that Congress has prescribed the conditions which entitle ships and vessels belonging to the national marine to pursue the coasting trade without being subjected to burdensome and inconsistent State regulations. Welton v. The State of Missouri, 91 U.S. 275.

Repeated decisions of this court have determined that the power to regulate commerce embraces all the instruments by which such commerce may be conducted; and it is settled law that where the subject to which the power applies is national in its character, or of such a nature as to admit of uniformity of regulation, the power is exclusive of all State authority. Whatever subjects of this power, says Mr. Justice Curtis, are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. Cooley v. Board of Wardens, 12 How. 299.

Difficulty may attend the effort to prescribe any definition which will guide to a correct result in every case; but it is clear that a regulation which imposes burdensome or impossible conditions on those engaged in commerce, whether with foreign nations or among the several States, must of necessity be national in its character. Henderson et al. v. Mayor of New York, 92 U.S. 259.

Apply that rule to the case, and it is clear, even if there be a class of State regulations which may be valid until the same ground is occupied by an act of Congress or by a treaty, that the State regulation in question is not one of that class.

Such a subject is in its nature national, and admits of only one uniform system or plan of regulation. Unless the system or plan of regulation is uniform, it is impossible of fulfilment. Mississippi may require the steamer carrying passengers to provide two cabins and tables for passengers, and may make it a penal offence for white and colored persons to be mixed in the same cabin or at the same table. If Louisiana may pass a law forbidding such steamer from having two cabins and two tables, — one for white and the other for colored persons, — it must be admitted that Mississippi may pass a law requiring all passenger steamers entering her ports to have separate cabins *498 and tables, and make it penal for white and colored persons to be accommodated in the same cabin or to be furnished with meals at the same table. Should State legislation in that regard conflict, then the steamer must cease to navigate between ports of the States having such conflicting legislation, or must be exposed to penalties at every trip.

Those who framed the Constitution never intended that navigation, whether foreign or among the States, should be exposed to such conflicting legislation; and it was to save those who follow that pursuit from such exposure and embarrassment that the power to regulate such commerce was vested exclusively in Congress.

Few or none will deny that the power to regulate commerce among the several States is vested exclusively in Congress; and it is equally well settled that Congress has, in many instances and to a wide extent, legislated upon the subject. Sherlock v. Alling, 93 U.S. 99; Rev. Stat., sect. 4311.

Support to that proposition, of the most persuasive and convincing character, is found in the act of Congress entitled "An Act to provide for the better security of life on board of vessels propelled in whole or in part by steam, and for other purposes," the forty-first section of which provides that all steamers navigating the lakes, bays, inlets, sounds, rivers, harbors, or other navigable waters of the United States, when such waters are common highways of commerce or open to general or competitive navigation, shall be subject to the provisions of that act. 16 Stat. 453; Rev. Stat., sect. 4400.

Vessels have always been employed to a greater or less extent in the transportation of passengers, and have never been supposed to be on that account withdrawn from the control or protection of Congress. Gibbons v. Ogden, supra.

Differences of opinion may exist as to the extent and operation of the national law regulating commerce among the several States, but none, it is presumed, will venture to deny that it is regulated very largely by congressional legislation. Admit that, and it follows that the legislation of Congress, if constitutional, must supersede all State legislation upon the same, and, by necessary implication, prohibit it, except in cases where the legislation of Congress manifests an intention to leave *499 some particular matter to be regulated by the several States. Cooley v. Board of Wardens, supra.

Decisive authority for that proposition is found in the unquestioned decisions of this court. Such were the views of Judge Story more than thirty-five years ago, when he said, if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner and in a certain form, it cannot be that the State legislatures have a right to interfere, and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations and what they may deem auxiliary provisions for the same purpose. The Chusan, 2 Story, 466; Sinnot v. Davenport, 22 How. 227.

In such a case, the legislation of Congress in what it does prescribe manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject-matter. Its silence as to what it does not do is as expressive of what its intention is as the direct provisions made by it. Prigg v. Pennsylvania, 16 Pet. 539; Gibbons v. Ogden, supra; White's Bank v. Smith, supra.

Whenever the terms in which a power is granted to Congress, or the nature of the power, requires that it should be exercised exclusively by Congress, the subject is as completely taken from the State legislatures as if they had been expressly forbidden to exercise the power. Sturges v. Crowninshield, 4 Wheat. 122; Brown v. Maryland, 12 id. 419.

Irrespective of the decisions of the State court, it might well be doubted whether the State statute in question does prohibit a steamer carrying passengers from having and maintaining separate cabins and eating-saloons for white and colored passengers, and whether the denial to a colored female of a passage in the cabin assigned to white female passengers is a denial of equal rights and privileges, within the meaning of the State Constitution or the first section of the State statute in question, provided the applicant was offered a passage in the lower cabin, with equally convenient accommodation. Much discussion of that topic, however, is unnecessary, as two decisions of the State court conclusively determine the point that the State statute does contain such a prohibition, and that the *500 facts of the case do bring the conduct of the defendant within that prohibition. DeCuir v. Benson, 27 La. Ann. 1; Hart v. Hoss & Elder, 22 id. 517; Sauvinet v. Walker, 27 id. 14.

Even suppose the meaning of the statute is doubtful, still the rule of construction adopted by the highest court of a State, in construing their own Constitution and one of their own statutes, in a case not involving any question re-examinable in this court under the twenty-fifth section of the Judiciary Act, must be regarded as conclusive in this court. Provident Institution v. Massachusetts, 6 Wall. 611; Randall v. Brigham, 7 id. 523: Gut v. The State, 9 id. 35.

Where a State court gives such a construction to a State statute as to make it conflict with the Constitution or laws of the United States, and sustains its validity after giving it such construction, and thereby deprives a party of his rights under the said Constitution or law, it is settled law that a Federal question does arise in such a case, and that this court can review the decision of the State court as to the validity of such a statute. Insurance Company v. Treasurer, 11 id. 204. Were it not so, it is clear that the constitutional provision could always be evaded by the State courts giving such a construction to the contract or the statute as to render the appellate power of this court of no avail in such cases to uphold the contract against unfriendly State legislation. Delmas v. Insurance Company, 14 id. 661.

State courts certainly have a right to expound the statutes of the State; and, having done so, those statutes, with the interpretation given to them by the highest court of the State, become the rule of decision in the Federal courts. Richmond v. Smith, 15 id. 429; Jones & Co. v. The City of Richmond, 18 Gratt. (Va.) 517; Leffingwell v. Warren, 2 Black, 599.

Argument to show that the question whether or not the State court erred in the construction of their own Constitution and statute is not re-examinable in this court under the twenty-fifth section of the Judiciary Act is unnecessary, as the negative of the proposition is self-evident.

Governed by the laws of Congress, it is clear that a steamer carrying passengers may have separate cabins and dining saloons for white persons and persons of color, for the plain *501 reason that the laws of Congress contain nothing to prohibit such an arrangement. Steamers carrying passengers for hire are bound, if they have suitable accommodation, to take all who apply, unless there is objection to the character or conduct of the applicant. Applicants to whom there is no such valid objection have a right to a passage, but it is not an unlimited right. On the contrary, it is subject to such reasonable regulations as the proprietors may prescribe for the due accommodation of passengers and the due arrangement of the business of the carrier.

Such proprietors have not only that right, but the farther right to consult and provide for their own interests in the management of the vessel as a common incident to their right of property. They are not bound to admit passengers on board who refuse to obey the reasonable regulations of the vessel, or who are guilty of gross and vulgar habits of conduct, or who make disturbances on board, or whose characters are doubtful, dissolute, suspicious, or unequivocally bad. Nor are they bound to admit passengers on board whose object it is to interfere with the interests of the patronage of the proprietors, so as to make their business less lucrative or their management less acceptable to the public. Jencks v. Coleman, 2 Sumn. 221.

Corresponding views are expressed by the Supreme Court of Michigan in an analogous case, in which the distinction between the right of an applicant to be admitted on board, and his claim to dictate what part of the vessel he shall occupy, is clearly pointed out. Referring to that subject, the court say the right to be carried is one thing, and the privilege of a passenger on board as to what part of the vessel may be occupied by him is another and a very different thing; and they add, that it is the latter and not the former which is subject to reasonable rules and regulations, and is, where such rules and regulations exist, to be determined by the proprietors. Damages were claimed in that case for refusing the plaintiff the privilege of the cabin; but the court held that the refusal was nothing more or less than denying him certain accommodations from which he was excluded by the rules and regulations of the steamer. Day v. Owen, 5 Mich. 520.

*502 Proprietors of the kind may make rules and regulations, but they must be reasonable; and the court held in that case that to be so they should have for their object the accommodation of the passengers, including every thing to render the transportation most comfortable and least annoying, not to one or two or any given number carried at any particular time, but to the great majority ordinarily transported; and they also held that such rules and regulations should be of a permanent nature, and not be made for a particular occasion or emergency.

Special and important duties indubitably are imposed upon carriers of passengers for the benefit of the travelling public, but it must not be forgotten that the vehicles and vessels which such carriers use do not belong to the public. They are private property, the use and enjoyment of which belong to the proprietors. Angell, Carriers (5th ed.), sect. 525.

Concede what is undoubtedly true, that the use and employment of such vehicles and vessels, during the time they are allowed the privileges of common carriers, may be subjected to such conditions and obligations as the nature of their employment requires for the comfort, security, and safety of passengers, still the settled rules of constitutional law forbid that a State legislature may invade the dominion of private right by arbitrary restrictions, requirements, or limitations, by which the property of the owners or possessors would be virtually stripped of all utility or value if bound to comply with the regulations. Jencks v. Coleman, supra.

Both steamboats and railways are modern modes of conveyance; but Shaw, C.J., decided that the rules of the common law were applicable to them, as they take the place of other modes of carrying passengers, and he held that they have authority to make reasonable and suitable regulations as regards passengers intending to pass and repass in their vehicles or vessels. Commonwealth v. Power, 7 Metc. (Mass.) 601; Hibbard v. New York & Erie Railroad Co., 15 N.Y. 455; Illinois Central Railroad Co. v. Whittemore, 43 Ill. 420. They are, said the Chief Justice in that case, in a condition somewhat similar to that of an inn-keeper, whose premises are open to all guests. Yet he is not only empowered to make such proper arrangements as will promote *503 his own interests, but he is bound to regulate his house so as to preserve order, and, if practicable, prevent breaches of the peace. Vinton v. Middlesex Railroad Co., 11 Allen (Mass.), 304.

Cases of like import are quite numerous, and the Supreme Court of Pennsylvania decided directly that a public carrier may separate passengers in his conveyance; and they deduce his power to do so from his right of private property in the means of conveyance, and the necessity which arises for such a regulation to promote the public interest. Speaking to that point, they say that the private means the carrier uses belong wholly to himself; and they held the right of control in that regard as necessary to enable the carrier to protect his own interests, and to perform his duty to the travelling public. His authority in that regard, as that court holds, arises from his ownership of the property, and his public duty to promote the comfort and enjoyment of those travelling in his conveyance. Guided by those views, the court held that it is not an unreasonable regulation to seat passengers so as to preserve order and decorum, and to prevent contacts and collisions arising from natural or well-known customary repugnancies which are likely to breed disturbances, where white and colored persons are huddled together without their consent. The West Chester & Philadelphia Railroad Co. v. Miles, 55 Pa. St. 209.

Where the passenger embarks without making any special contract, and without knowledge as to what accommodations will be afforded, the law implies a contract which obliges the carrier to furnish suitable accommodations according to the room at his disposal; but the passenger in such a case is not entitled to any particular apartments or special accommodations. Substantial equality of right is the law of the State and of the United States; but equality does not mean identity, as in the nature of things identity in the accommodation afforded to passengers, whether colored or white, is impossible, unless our commercial marine shall undergo an entire change. Adult male passengers are never allowed a passage in the ladies' cabin, nor can all be accommodated, if the company is large, in the state-rooms. Passengers are entitled to proper diet and lodging; but the laws of the United States do not require the master of *504 a steamer to put persons in the same apartment who would be repulsive or disagreeable to each other.

Steamers carrying passengers as a material part of their employment are common carriers, and as such enjoy the rights and are subject to the duties and obligations of such carriers; but there was and is not any law of Congress which forbids such a carrier from providing separate apartments for his passengers. What the passenger has a right to require is such accommodation as he has contracted for, or, in the absence of any special contract, such suitable accommodations as the room and means at the disposal of the carrier enable him to supply; and in locating his passengers in apartments and at their meals it is not only the right of the master, but his duty, to exercise such reasonable discretion and control as will promote, as far as practicable, the comfort and convenience of his whole company.

Questions of a kindred character have arisen in several of the States, which support these views in a course of reasoning entirely satisfactory and conclusive. Boards of education were created by a law of the State of Ohio, and they were authorized to establish within their respective jurisdictions one or more separate schools for colored children when the whole number by enumeration exceeds twenty, and when such schools will afford them, as far as practicable, the advantages and privileges of a common-school education. Under that law, colored children were not admitted as a matter of right into the schools for white children, which gave rise to contest, in which the attempt was made to set aside the law as unconstitutional: but the Supreme Court of the State held that it worked no substantial inequality of school privileges between the children of the two classes in the locality of the parties; that equality of rights does not involve the necessity of educating white and colored persons in the same school any more than it does that of educating children of both sexes in the same school, or that different grades of scholars must be kept in the same school; and that any classification which preserves substantially equal school advantages is not prohibited by either the State or Federal Constitution, nor would it contravene the provisions of either. State v. McCann et al., 21 Ohio St. 198.

*505 Separate primary schools for colored and for white children were maintained in the city of Boston. Children in the State who are unlawfully excluded from public-school instruction may recover damages therefor against the city or town by which such public instruction is supported. It appears that the plaintiff was denied admission to the primary school for white children, and she by her next friend claimed damages for the exclusion; but the Supreme Court, Shaw, C.J., giving the opinion, held that the law vested the power in the committee to regulate the system of distribution and classification, and that when the power was reasonably exercised their decision must be deemed conclusive. Distinguished counsel insisted that the separation tended to deepen and perpetuate the odious distinction of caste; but the court responded, that they were not able to say that the decision was not founded on just grounds of reason and experience, and in the results of a discriminating and honest judgment. Roberts v. City of Boston, 5 Cush. (Mass.) 198.

Age and sex have always been marks of classification in public schools throughout the history of our country, and the Supreme Court of Nevada well held that the trustees of the public schools in that State might send colored children to one school and white children to another, or they might make any such classification as they should deem best, whether based on age, sex, race, or any other reasonable existent condition. State v. Duffy, 7 Nev. 342.

Directors of schools in Iowa have no discretion under the existing law of the State to deny a youth of proper age admission to any particular school on account of nationality, color, or religion. Former statutes of the State invested the directors with such discretion, and it is impliedly conceded that it would be competent for the legislature again to confer that authority. Clark v. The Board of