Plessy, More or Less, Nine Years Earlier (1887)

In last week’s American Legal History class, I asked my students to reverse-engineer the environments that produced two (more or less randomly selected) newspaper front pages, using the stories and advertisements that appear on each.  For example, from an advertisement for canned foods in the March 4, 1870 Janesville (WI) Gazette, one might appreciate the appearance of national markets, the growing divide between the sources and consumers of food, and the possible implications of these changes on domestic roles.

The other paper was the Logansport (IN) Journal, from July 24, 1887.  Along with advertisements for Ivory soap and Carter’s Little Liver Pills, a notice that certain telegraph bigwigs were getting together in New York to shore up prices (hey, the Sherman Act was still three years in the future), and reports on railroad accidents, contract suits, and graft in the award of municipal contracts, there also appeared the following story:


Brought Up Before the Inter-State Commerce Commission

WASHINGTON CITY, July 23–The color line question on railway passenger cars came up conspicuously before the Inter-state commerce commission Saturday in a hearing in the case of the complaint of W.H. Council, the colored preacher of Huntsville, Ala., against the Western & Atlantic Railroad Company, forcibly ejecting him from a passenger coach, called the ladies’ car, and compelling him to ride in a car set apart for colored people.  Council, who is a very intelligent and well-spoken young colored man about 37 years old, was present with two lawyers, John D. Branden and Oscar R. Hundley, to conduct his case, and the railroad company was represented by Julius L. Brown.

The case opened with the reading of Council’s complaint and the railroad company’s answer, after which considerable evidence was put in, and Council, the only witness present, was examined. The comission at the outset ruled out as irrelvant some testimony that the railroad company had taken at Huntsville, Ala., relating to a difficulty which Council is said to have had with the Memphis & Charleston Railroad company.

Council, in his complaint, swears that while seated in a passenger coach, en route from Chattanooga to Atlanta over the Western & Atlantic road, he was approached by a railroad employe, and told to go into a smoking-car set apart for colored people. He refused to comply with this request, unless directed to do so by the conductor; but soon afterward was assaulted by two railroad employes, one of whom struck him several times with a lantern. He was afterward dragged to the smoking-car. All of this, he claims, is in violation of section 3 of the inter-state commerce law, and he therefore claims $25,000 damages for the unreasonable and unjust discrimination against a passenger who held a first-class ticket.

The railroad company in its answer denies that Connell was subjected to this assault by railroad employes; that in entering the car set apart for ladies he was violating the rules of the company, and that in entering that car he intended to disturb the public peace.  The truth is, it is stated in the answer, some gentlemen in the ladies’ car, took the case in their own hands, assaulted Council, and ejected him from the car.  The affidavit of A.L. Moore, a white man, who a passenger in the ladies’ car in company with his mother, at the time of the assault, was read.  Mr. Moore, in his testimony, supports the statement of the colored preacher that he was assaulted with a lantern in the hands of a man dressed in blue, whom he thought was a railroad man.


Though I had not heard about this complaint, apparently the Council matter (in its opinion, the ICC spells the reverend’s last name “Councill”; I’ll use that spelling from here on out) is pretty well-known among the handful of academics who have researched the back-story to Plessy v. Ferguson.  The ICC case is mentioned in a 2008 article in Law and History Review, and Barbara Welke discusses it in her book Recasting American Liberty.  Long story short, the ICC ultimately determined that (1) it lacked jurisdiction to hear Councill’s claim, to the extent it sounded in battery or trespass; (2) the doctrine of separate but equal applied to rail cars; but (3) the facts adduced at the hearing established that the car to which Councill was ordered was not, in fact, equal to the accommodations that were provided to Caucasian rail customers.  So Councill kinda won, and kinda lost.

I’ll close this blog with a few key paragraphs from the ICC order, issued in December 1887 (thanks to David Holt from our library for digging the opinion up for me), which some of you may find of interest.  Before I do, however, I’ll note that I find the media attention toward the matter, as it progressed, to be more intriguing than the Commission’s decision itself. Think about it: How many other ICC hearings received play-by-play coverage in the national news media?

Clearly, the complainant and his two attorneys had a relatively sophisticated litigation strategy at work. The media had to have been tipped off to the matter, to have dedicated such timely coverage to it.  (The piece that ran in the Logansport newspaper was a wire story that ran in many other papers, as well; I’ve seen a version of the same piece in a contemporaneous issue of the Boston Globe.  Also, a follow-up story ran a couple of days later.)   I doubt it was purely by chance that the complainant was a minister.  Some thought obviously was given to the decision to file a complaint with the ICC, just a few months after the agency opened its doors (and thus still defining its own jurisdiction); it also probably didn’t hurt that the ICC was located a thousand miles away from Alabama, and its proceedings didn’t involve a jury (which turned out to be the death knell for Councill’s tort claims–thanks a lot, Seventh Amendment).

One other thing.  I know very little about Councill’s lawyers, but one of them, Hundley, seems to have been a very interesting fellow.  According to his Wikipedia entry (this is a blog; I can cite to Wikipedia and not be the least bit defensive about it. Really. Not one bit defensive. At all. H/T Berke Breathed), Hundley graduated from Vanderbilt’s law school in 1877, and was a member of the Alabama House of Representatives when he represented Councill. Hundley also claimed the Nashville, Chattanooga and St. Louis Railway among his clients; one wonders how he balanced his work for the railway with his representation of Councill. Much later, Hundley was appointed (as a recess appointment) to a federal district judgeship by President Theodore Roosevelt, but was never confirmed.  According to a biography of Booker T. Washington, Hundley’s nomination was withdrawn by President Taft after he (Hundley) “courageously refused to reduce the sentences of men convicted of holding blacks in peonage in the Florida turpentine camps.”  Hundley’s wife apparently matched his talents; there’s a news story online from 1915 that previews her trip around the state of Alabama, campaigning for female suffrage.  I suppose one can see the Hundleys as the Steven Reinhardt and Ramona Ripston of their day, only with Southern accents.

In closing, some of you might be interested in the Commission’s reasoning, in permitting “separate but equal” rail cars nine years prior to Plessy.  Here is an excerpt:

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.  . . . 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, whenever 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 preferences 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 & 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.

Yick Wo v. Hopkins: Some Background

One of my favorite geek activities involves poring through the old California newspapers that have been posted online at the California Digital Newspaper Collection.  Recently, I searched this collection to learn a little more about the circumstances surrounding the Yick Wo v. Hopkins case.

As background, according to Wikipedia–which strikes me as being as good a source as any for this sort of information–”Yick Wo was the first case where the United States Supreme Court ruled that a law that is race-neutral on its face, but is administered in a prejudicial manner, is an infringement of the Equal Protection Clause in the Fourteenth Amendment to the U.S. Constitution.” The “law” at issue in Yick Wo was, in fact, an 1880 San Francisco ordinance that pertained to laundries. Under the ordinance, persons who wanted to operate these establishments within City limits had to seek permission from the Board of Supervisors, unless their operation was housed within a brick or stone building.  Failure to do so was punishable as a misdemeanor. As this permitting regime played out, Caucasian applicants virtually always received permission to operate laundries, while Chinese applicants invariably had their applications denied by the Board of Supervisors.

The newspapers I read fleshed out the story, at least a little:

  • One thing I learned was that Chinese laundry operators vigorously contested enforcement of the laundry ordinance (and others like it) even prior to the Yick Wo case–and through more than just simple challenges to its constitutionality.  Take, for example, this report from the October 11, 1884 Daily Alta California: “The long pending cases against the Chinese laundrymen have been settled by stipulation, the prosecution agreeing to let the defendants off with fines of $5 each if the Chinamen would consent to stop asking for continuances, jury trials, etc., and taking appeals. The latter consented, and yesterday thirty-one of them walked into Judge Lawler’s court and paid a half-eagle each. About one hundred more will also pay before the close of next week.”
  • I also had not known that, back in 1881, a local judge had condemned the laundry ordinance as unconstitutional – without ever discussing race, or its discriminatory application.  (There were, in fact, many laundry ordinances; the state judge quoted below was attacking the same ordinance as that later found invalid by the United States Supreme Court.)   Judge Freelon of the San Francisco Superior Court held  that “The ordinance . . . is discriminating, oppressive, unreasonable and arbitrary, and gives special privileges to such, and only such as the Board of Supervisors may desire capriciously or in its unrestrained discretion to favor. It is in restraint of trade and it tends directly and necessarily to the creation of monopolies. It does not operate equally and uniformly upon all those coming within the same class or category, and is for that reason unconstitutional. It confers special privileges upon those who have the capital to build, or who have brick or stone buildings. The ordinance also interferes with vested rights. It deprives a class, that is the poor, from following a useful and necessary sanitary pursuit and gives it exclusively to individual and corporate capital. For these and many similar reasons I hold that the ordinance in question is unconstitutional and void.” (Daily Alta California, May 8, 1881)
  • Either Yick Wo, or whoever else paid for his defense, hired a top-flight attorney in Hall McAllister.  McAllister, a prominent San Francisco lawyer, died just a few years after the Yick Wo decision.  In remarking on his passing, one article observed that he was “a great proficient in the art of making things pleasant for others.”  Another noted that McAllister “probably earned more money during his career than any other lawyer in America.”  A very lengthy obituary for McAllister in the December 2, 1888 Daily Alta California concluded as follows: “Throughout his career Hall McAllister was always courteous to those with whom he came into contact. He was generous and kind, and the distressed were never sent away empty-handed. He was a genial and charming companion and the host of friends he made, both in professional and private life, bear witness to the great popularity he won for himself by the combined attributes of his sterling character. One by one the pioneers of California pass away. In the death of Hall McAllister the State loses a foremost citizen, the legal profession a brilliant star; yet the words and deed of him who has passed away will in years to come burn brightly at the shrine of Justice, so that remembrance will be as one requiem song, more enduring than the marble shaft and a fitting crown to a useful life.”