finally reached the position of following the decision of Ex Parte Plessy which justified the discrimination in railway cars on the grounds that it is not a badge of slavery contrary to the Thirteenth Amendment. This decision, in short, is: So long, at least, as the facilities or accommodations provided are substantially equal, statutes providing separate cars for the races do not abridge any privilege or immunity of citizens or otherwise contravene the Fourteenth Amendment of the United States Constitution. In such matters equality and not identity or community of accommodations is the extreme test of conformity to the requirements of the amendment. The regulation of domestic commerce is as exclusively a State function as the regulation of interstate commerce is a Federal function. The separate car law is an exercise of police power in the interest of public order, peace and comfort. It is a matter of legislative power and discretion with which Federal courts cannot interfere.

In Hennington v. Georgia,[34] it was later emphasized that it had been held that legislative enactments of the States, passed under the admitted police powers, and having a real relation to the domestic peace, order, health, and safety of their people, but which by their necessary operation, affect, to some extent, or for a limited time, the conduct of commerce among the States, are yet not invalid by force alone of the grant of power of Congress to regulate such commerce; and, if not obnoxious to some other constitutional provision or destructive of some right secured by the fundamental law, are to be respected in the courts of the Union until they are superseded and displaced by some act of Congress passed in execution of power granted to it by the Constitution. Of course, there was no other provision to which such laws could be contrary after the Supreme Court had whittled away the war amendments.

In the case of Plessy v. Ferguson[35] the most inexcusable inconsistency of the court was shown when the persons of color aggrieved attacked the separate car law of Louisiana on the ground that it conflicted with the Fourteenth Amendment. Giving the opinion of the court, Justice Brown said: "So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned or the corresponding acts of State legislatures."

Justice Harlan dissented, saying that he was of the opinion that the Statute of Louisiana is inconsistent with personal liberty of white and black in that State and hostile to both in the letter and spirit of the Constitution of the United States. Justice Harlan rightly contended that laws can have no regard to race according to the Constitution. If they do, they conflict with the rights of State and national citizenship and with personal liberty. The Thirteenth and Fourteenth Amendments removed race from our governmental system. But what has the court to do with the policy or expediency of legislation? "A statute may be valid, and yet upon grounds of public policy, may well be characterized as unreasonable." Accordingly Mr. Sedgwick, a distinguished authority, says: "The Courts have no other duty to perform than to execute the legislative will, without regard to their views as to the wisdom or justice of the particular enactment." "Statutes," said Justice Harlan, "must always have a reasonable construction. Sometimes they are to be construed strictly; sometimes, liberally, in order to carry out the legislative will. But, however construed, the intent of the legislature is to be respected."

The decisions in the cases of M. K. and T. Railway v. Haber[36] and Crutcher v. Kentucky,[37] are of some importance. In these cases the court reiterated the doctrine that the regulation of the enjoyment of the relative rights and the performance of the duties, of all persons within the jurisdiction of a State belong primarily to such a State under its reserved power to provide for the safety of all persons and property within its limits; and that even if the subject of such regulations be one that may be taken under the exclusive control of Congress, and be reached by national legislation, any action taken by the State upon that subject that does not directly interfere with rights secured by the Constitution of the United States or by some valid act of Congress, must be respected until Congress intervenes.[38] The court by this time, however, had all but held that the Constitution secured to the Negro no civil or political rights except that of exemption from involuntary servitude, and that law for the Negro is the will of the white man.

Further development of the doctrine as to the right of the State to deprive a Negro of citizenship is brought out in the Lauder Case.[39] The case was this: Lauder's wife purchased a first class ticket from Hopkinsville to Mayfield, both places within the State of Kentucky. She took her place in what was called the "ladies' coach" and was ejected therefrom by the conductor and assigned a seat in a smoking car, which was alleged to be small, badly ventilated, unclean and fitted with greatly inferior accommodations. This road ran from Evansville, Indiana, to Hopkinsville, Kentucky. It was held in the Court of Appeals that the decision of the United States Supreme Court in Louisville, New Orleans and Railway v. Mississippi[40] and Plessy v. Ferguson[41] was conclusive of the constitutionality of the act so far as the plaintiffs were concerned; and that the mere fact that the railroad extended to Evansville, in