The court continued its reactionary course. In Chiles v. Chesapeake and Ohio R. R. Company45 the court reiterated that "Congressional inaction is equivalent to a declaration that a carrier may, by its regulations, separate white and Negro interstate passengers. In McCabe v. Atchinson, Topeka and Santa Fe Railway Company,46 Justice Hughes giving the opinion of the court, followed the Plessy v. Ferguson decision. He did not believe, moreover, "that the contention that an act though fair on its face may be so unequally and oppressively administered by the public authorities as to amount to an unconstitutional discrimination by the State itself, is applicable where it is the administration of the provisions of a separate coach law by carriers, which is claimed to produce the discrimination. The separate coach provisions of Oklahoma47 apply to transportation wholly intrastate in absence of a different construction by State courts and do not contravene the commerce clause of the Federal court. The court held, however, that so much of the Oklahoma separate coach law as permits carriers to provide sleeping cars, dining cars, and chair cars for white persons, and to provide no similar accommodations for Negroes, denies the latter the equal protection of the laws guaranteed by the Constitution.
The most recent case, that of the South Covington and Cincinnati Street Railway, Plaintiff in error v. Commonwealth of Kentucky shows another step in the direction of complete surrender to caste. This company was a Kentucky corporation, each of the termini of the railroad of which was in Kentucky. The complainant hoped to prevent the segregation of passengers carried from Ohio into Kentucky. The decision was that a Kentucky street railway may be required by statute of that State to furnish either separate cars or separate compartments in the same car for white and Negro passengers although its principal business is the carriage of passengers in interstate commerce between Cincinnati, Ohio, and Kentucky across the Ohio River. Such a requirement affects interstate commerce only incidentally, and does not subject it to unreasonable demands. In other words, this inconvenience to the carrier is not very much and the humiliation and burden which it entails upon persons of color thus segregated should not concern the court, although they are supposed to be citizens of the United States.
Justice Day dissented and Justices Van DeVanter and Putney concurred on the ground that the attachment of a different car upon the Kentucky side on so short a journey would burden interstate commerce as to cost and in the practical operation of the traffic. The provision for a separate compartment for the use of only interstate Negro passengers would lead to confusion and discrimination. The same interstate transportation would be subject to conflicting regulation in the two States in which it is conducted. They believed that it imposed an unreasonable burden and according to the dissentients was, therefore, void.
Justice in the Courts
One of the most important constitutional rights denied the Negroes is that of justice in the courts. In as much as their former masters felt enraged against the freedmen because of their sudden release from bondage, they too often perpetrated upon the freedmen crimes for which the Negro had no redress in courts, for white persons constituted the accusers, the prosecutors, the judges, and the juries. Immediately following the Civil War, before the amendments of the Constitution enacted in the special behalf of the race were effected, Negroes were by the Black Codes deprived of all of the rights of citizens and nothing bore more grievously upon them than the deprivation of the right to serve on juries. Some States had special laws carrying out this prohibition. The first case of consequence requiring an interpretation of the State law to this effect was that of Strauder v. West Virginia,48 already mentioned above. In this case the court took high constitutional ground. It was held that "a law of West Virginia limiting to white persons, twenty-one years of age and citizens of the State, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step toward reducing them to a condition of servility." The right of a man of color that, in the selection of jurors to pass upon his life, liberty, and property, there shall be no exclusion of his race and no discrimination against them because of color, was asserted in a number of cases, to wit: Virginia v. Rives,49 Neal v. Delaware,50 Gibbons v. Kentucky.51
In the case of Bush v. The Commonwealth of Kentucky52 the Negro faced an additional difficulty in that the court held that wherein there was no specific law excluding persons from service upon juries because of their race or color, that the petitioner would have to show evidence to that effect. In the case of Smith v. The State of Mississippi53 it was held that the omission or refusal of officers to include Negro citizens in the list from which jurors might be drawn is not, as to a Negro subsequently brought to trial, a denial of equal protection of laws. In the case of Murray v. The State of Louisiana54 the decision was that the fact that a law confers on the jury commissioners judicial power in the selection of citizens for jury service, does not involve a conflict with the Fourteenth Amendment of the Constitution of the United States, although in the exercise of such power they might not select Negroes for jury service.
The case of Williams v. Mississippi was more interesting. The law of that State prescribed the qualifications of voters and of grand and petit juries and invested the administrative officers with a large discretion in determining what citizens have the necessary qualifications. As it appeared that in the use of their discretion they would exclude Negroes from such juries it was contended that the act of Mississippi was a violation of the Fourteenth Amendment. The court held, however, that the Mississippi law could not be held repugnant to the Fourteenth Amendment merely on a showing that the law might operate as a discrimination against the Negro race, in absence of proof of an actual discrimination in the case under consideration. This ground has often proved convenient for the Supreme Court of the United States in dodging the question whether or not the Negroes must be protected in the rights guaranteed them by the Constitution.
This case was decided in 1897 and two years later Mr. Justice Gray, giving the opinion of the court in the case of Carter v. Texas,55 said that the exclusion of all persons of African race from a grand jury which finds an indictment against a Negro in a State court, when they are excluded solely because of their race or color denies him the equal protection of the laws in violation of the Fourteenth Amendment of the Constitution of the United States, whether such exclusion is done through the action of the legislature, through the courts, or through the executive or administrative officers of the State. This was substantially the position taken in the case of Strauder v. West Virginia twenty years earlier.