Truman M. Hobbs: The petitioner was an independent contractor engaged in the business of unloading tank cars of gasoline for delivery to local consignees of that gas in Montgomery. The petitioner, Mr. Shields, went upon the tank car that, from which he suffered his injury, called the purpose of unloading this gasoline. It is necessary on the type of the tank car that he was working upon for him to climb to the dome of the tank which is some 10 feet in the air to release the -- open the dome and to turn the valve. There is a board there at the top of a short ladder, right there at the dome, which is put there for the primary purpose of having people stand there while they do the operation that petitioner was about to do. This board was admittedly so rotten that it crumbles in your hand. When petitioner stepped upon this board, it fell to the ground and he fell with it, suffering severe injuries to his back, and was permanently injured. The case went to the jury, the District Court lay on Montgomery on two counts of a complaint, one sounding in common law of negligence, the other relying on the Safety Appliance Act. The jury rendered a general verdict in the amount of $7500 and the District Court affirmed it. The case then was appealed to the Court of Appeals in New Orleans. That Court found that it could not determine whether the jury had decided then on the ground of common law of negligence or on the ground of Safety Appliance Act and sets in the view of the Court of Appeals. The Safety Appliance Act was not properly invoked. It remanded the case to the District Court for trial on common law negligence grounds alone. It was the theory of the Court of Appeals that the failure of the I.C.C. to issue any regulations standardizing this appliance, which we call a running board, was conclusive proof of an administrative determination that this board was not a safety appliance. It was from that judgment of the Court of Appeals that this petition of certiorari was filed and that the case is now here. Now the -- our case is very simply stated, the theory on which we rely for recovery is this, the Section 11 of the Safety Appliance Act states that all cars requiring secure ladders and running boards shall be equipped with such ladders and running boards. This was a running board, it was insecure and rotten. Petitioner stepped on it and fell to the painful injuries which there's no dispute about. Now, to this simple statement of our theory of recovery, the defendant has -- our respondent here has raised three defenses which we'd like to discuss with the Court. The first defense raised by respondent is that this is not a running board because it was not standardized by the I.C.C. And respondent, in his brief, condemns petitioner for what he calls petitioner's persistent assumption that this was a running board. And an answer to that is simply this, that the Railroad was just as persistent in calling this a running board until the railroad was confronted with a violation of those -- with the Safety Appliance Act provisions about having a running board secured. The railroads repair order, which was put in evidence in this case, showed that the railroad called it a dome running board. The superintendent of the railroad in answering interrogatories propounded to the railroad by the petitioner, Shields, answered no less than seven times calling this a running board. Even on the trial, the counsel saw the railroad and witnesses called by the railroad referred to it on more than one occasion as a running board. This idea that it's not a running board is something fair at length that has been thought of by the railroad and the railroad is upset because petitioner won't join the railroad in its inconsistency. But the sole basis on which the railroad relies in its contention that this is not a running board is the absence of any regulations on the subject by the I.C.C. And as we shall demonstrate the failure of the I.C.C. to standardize this appliance has absolutely no significance in determining whether this is in fact the running board. The I.C.C. has filed a brief in this case in which it acknowledges that the ladder which goes to this running board is also not standardized. Now, the I.C.C. doesn't contend that that ladder is in a lesser ladder because of its failure to standardize it. And we can't see why this running board should be designated as any lesser running board because of its failure to standardize. The I.C.C. contends that it has failed to standardize this appliance because it is not an appliance which is primarily used in the movement of a train. And we want to discuss in a few minutes the -- what we think is the erroneous ground for not so regarding it as a safety appliance, that is the ground offered by the I.C.C. We think that when Congress used the term "running board", it must have used it with reference to railroad pallets. Now, the term was designated in railroad pallets and this record as has already been shown is full of evidence, almost without dispute, that this appliance is known in railroad pallets as the running board. There is some evidence in the record that some employees call it a dome step board, and in that connection, Webster's New International Dictionary defines a running board as a clip board. So, we think that the term is certainly synonymous but the evidence also is clear in the record that the car inspector with 25 years of experience on the railroad says that it's always -- it's known by him as a dome running board or a top running board. So there was adequate evidence for the trial court to have found as it did find that this was the running board and submit the question of whether that running board was secure to the jury. Now, I think the principal argument of the I.C.C. -- of the railroad here, however, is that even if this be a running board, the omission of the I.C.C. to standardize it means that it is not a safety appliance. Now, this contention is based on the railroad's conception that when Congress gave in Section 12, the authority to the I.C.C. to standardized these appliances that it was also giving to the I.C.C. the right to say which appliances shall be secured. We point out, however, that Section 11 of the Act just simply says all cars requiring secure ladders and secure running boards shall be equipped with such ladders and running boards. And then, Section 12 gives the I.C.C. the right to standardize those appliances. We submit that the railroad is omitting to note the interplay of these two sections.
Stanley Reed: Where -- where is this Section 12?
Truman M. Hobbs: Section 12, you mean set out in briefs?
Stanley Reed: Yes. Page 18 -- but they -- page 18 of the 53.
Truman M. Hobbs: We think --
Stanley Reed: Which -- which section is it that says the I.C.C. shall issue the regulations?
Truman M. Hobbs: Section 12. That -- that says the number, dimensions, location and manner of application of the appliances provided for by Section 4 and 11, this title is designated by the Interstate Commerce Commission shall remain as the standards of equipment to be used on all cars subject to the provisions of Section 11 and 16 of this title. And then down further, it says that failure to comply with any requirement of the Interstate Commerce Commission shall be subject to a light penalty as failure to comply with any requirement of Sections 11 and 16 of this title. So, we submit that Congress clearly had its eye on two -- two enables. One was the failure of railroads in many cases to keep these appliances secure and that's what Section 11 was designed to prevent. Section 12 was designed to prevent the evil of not having these appliances standardized so that on a dark night of railroad employee might reach for a handhold that he might think should be there or a running board that is ordinarily there and might not be. So those were the two enables but we submit that by giving as -- the I.C.C. the authority to standardize these appliances, there was no intent on Congress, whatsoever, to take it away from its clear command in Section 11 that running boards and ladders be maintained in a secure condition.
Stanley Reed: What -- what kind of a tank or what -- car or just tank car?
Truman M. Hobbs: Yes, sir.
Stanley Reed: Which -- what kind of that, as -- what -- what I'm looking at is the -- the regulations of the Interstate Commerce Commission.
Truman M. Hobbs: They --
Stanley Reed: The car with outside sales and tank cars with short side sales
Truman M. Hobbs: This -- a picture of this tank car is attached here as an exhibit. This is a tank car with -- with a dome on top and a short ladder leading up to this --
Stanley Reed: Well, do you know when it comes under Section 131 (8) or 131 (9) of the --
Truman M. Hobbs: No, sir, I do not.
Earl Warren: Is there anything in the record to shows what are most of the dome cars of this kind do have such running boards?
Truman M. Hobbs: There's -- I think the only thing in the record on that point is that some cars do not have this running board near the dome. Some cars, as I understand it, are designed so that it's not even necessary to go to the top of the car to release the contents of the car.
Earl Warren: But I meant this particular kind of a car.
Truman M. Hobbs: Well, I think -- I think all cars that are like this --
Earl Warren: Yes.
Truman M. Hobbs: -- do have a running board or a platform board up there so that use of whoever is --
Earl Warren: That's what I wasn't I quite --
Truman M. Hobbs: Yes, sir. Now, we think that the --
Stanley Reed: Well, in this -- this regulation which says the running board outnumbered, one continues running board around sides and ends, or two running the full length of tank and one on each side.Does that -- is that we have here?
Truman M. Hobbs: No, sir. We -- we didn't have that running board here. But we also have a running board which is not described any way in the regulations.
Stanley Reed: Well -- and that's the running board that broke?
Truman M. Hobbs: Yes, sir.
Stanley Reed: The one that's not prescribed in the regulation.
Truman M. Hobbs: Yes, sir. And it's the contention of this Court of -- it was the view of the Court of Appeals this contention of the railroad that that omission to standardize that appliance that on the -- on the top of the -- of the tank car makes it not a safety appliance. But we contend that Section 11 which says, "All cars requiring secure running board shall be equipped with such running boards isn't clear to men regardless of what the I.C.C. does about the standardization of this appliance." Now, I point out in connection with this interplay of these two sections --
Felix Frankfurter: Does that mean that -- it is the compulsory under the statute to provide the board in controversy?
Truman M. Hobbs: No, sir. It -- it is their view that it is not compulsory and we think that there are practical reasons why the I.C.C. may not wish to standardize this particular board because the --
Felix Frankfurter: You mean the standardizing applies to -- you'd have to have the same kind.
Truman M. Hobbs: Yes sir.
Felix Frankfurter: That doesn't exclude that you have to have some kind. What I want to know is, is it necessary to have this kind of a law.
Truman M. Hobbs: No, sir. We would think it would not be necessary to have any board particularly if you don't take the oil out or gasoline out without going to the top. Now, we think --
Stanley Reed: As a matter of fact, many of the tank cars have ladders, don't they?
Truman M. Hobbs: Yes. This car has a ladder.
Stanley Reed: You mean a ladder that takes you up to the door?
Truman M. Hobbs: Yes, sir. And the I.C.C. has not standardized that ladder but they don't contend it's any less of the ladder because they haven't standardized it.
Speaker: Where does it take --
Stanley Reed: Well, is that the safety of --
Truman M. Hobbs: I asked the -- I think it's the marshal who probably handled this.
Speaker: (Inaudible)
Truman M. Hobbs: No, sir. It's come up with the record but there's only one picture. Now, we think the Williams case had some light on this problem. This was a case which -- this Court decided when the -- a man was injured when a ladder broke and he -- at the time of his injury, there had been no I.C.C. orders promulgated at all. And it was the contention of the railroad in that case that in the absence of any I.C.C. regulations, there couldn't be any liability. But this Court committing upon the difference between the section of -- what we now called Section 11 and Section 12 says that as to Section 11, there is an imperative statute -- an absolute and imperative statutory -- statutory duty of making them secure. And then it goes on to discuss the other responsibility under the next section of standardizing. But even in the absence of any I.C.C. regulations, this Court in the Williams case held that those appliances had to be maintained secure.
Felix Frankfurter: Well, I understand that although the statute doesn't require it and they need not have had it, never let the State do have it and something happens there with absent liability, is that it?
Truman M. Hobbs: That -- now, when you say that the statute doesn't require this, I don't -- don't quite go --
Felix Frankfurter: But I -- I -- that's why I ask you the question --
Truman M. Hobbs: Well, the statute says -- the statute says all cars requiring secure running board shall be equipped with such. Now, it's our contention, and in the Williams case, this Court uses the language requiring for their proper use. And the Court goes on to say that the ladder in the Williams case, the type of box car was it did require for its proper use, the ladder. And therefore, it had to be saved.
Felix Frankfurter: Well, let's see if I understand you. I understood your answer even my question wasn't clear. My question was whether this type of running board, not -- not the standardized one of the fact --
Truman M. Hobbs: Yes.
Felix Frankfurter: -- this kind of things is required by Safety Appliance Act. Your answer is no, as I understood it.
Truman M. Hobbs: Well, I -- I should say --I should -- should answer it this way that Safety Appliance Act says that in -- in -- and then I view it that -- in reading it with the Williams case that if the running board is required for the -- for the efficient use of the car, then it must be secured.
Felix Frankfurter: Well, that -- that's another question although -- but they need not have had this or any other kind of a running board of this kind.
Truman M. Hobbs: If -- if they will go release the gasoline form the bottom of the -- of the car it --
Felix Frankfurter: On this very car, just as it was --
Truman M. Hobbs: Well --
Felix Frankfurter: -- suppose they had had enough, could you be sued under the Safety Appliance Act for disobedience of that Act without not having this particular safety appliance?
Truman M. Hobbs: No, sir, we could not. But I --I question whether you could have had this car operating in the way that it did where you had to climb to the top, if you didn't have something in the nature of a running board there for the man to stand upon.
Stanley Reed: Well, how -- how are we to know what are safety appliances as --
Truman M. Hobbs: Well, it -- the Section 11 of the Act spells out in detail what safety appliances are. The first term as sill steps, all cars shall be equipped with secure sill step. The cars requiring secure running board shall be equipped with such. And it goes on in details in that Act which the Williams case said was a clear statutory command. It --
Stanley Reed: Are -- are those the only safety appliances?
Truman M. Hobbs: No, sir. They are -- they are others, handbrakes --
Stanley Reed: No -- no. I mean, are they all included in 11?
Truman M. Hobbs: No, sir. I think there are other sections which refer to safety appliance to this Section 9, I think, referring to -- to brakes and so forth, references, other safety appliances.
Felix Frankfurter: If I'm right -- if I look at the brief filed by the I.C.C, do I incur correctly from that that it is their view that this running board was not a required safety appliance by the Safety Appliance Act, is that what they suggested?
Truman M. Hobbs: Yes, sir.
Felix Frankfurter: Now, what ways of mind could have catch with this submission by the I.C.C. do that construction of Safety Appliance Act?
Truman M. Hobbs: Well, I think in deciding how much weight should be given to it, we -- we should examine the reason advanced by the I.C.C. for regarding it is outside the Safety Appliance Act and the I.C.C. --
Felix Frankfurter: Didn't you -- you say -- you don't say it was in it. You said, that -- we have to look for the particular circumstance and the particular car to decide whether this particular kind of cause of requirement --
Truman M. Hobbs: No, sir.
Felix Frankfurter: -- is that your position?
Truman M. Hobbs: I -- I -- my position is that -- that this particular car requires a running board for its proper use.
Felix Frankfurter: But then your answer -- then I suggest you should say -- then I ask you whether this is a required -- first required by the Act, your answer is yes and then no.
Truman M. Hobbs: Well, I -- on this -- on all tank cars, no. But on this car, it is required in --
Felix Frankfurter: We are not here to -- you said --
Truman M. Hobbs: Yes.
Felix Frankfurter: -- you have all the access of having it happen or had happened.
Truman M. Hobbs: Yes. In this -- in this case, I say it is required for the proper use of this kind.
Felix Frankfurter: And -- and the Commission permitted this?
Truman M. Hobbs: That's right. Now, the reason the Commission says it is not is that -- that the Commission says that Section 11 was referring only to appliances that were used in the movement of a car. Now factually, we think the I.C.C. is incorrect in saying that this board is not used in the movement of the car.
Hugo L. Black: Where has the Commission said that?
Truman M. Hobbs: They'd said that in their brief.
Hugo L. Black: Well, has the Commission said it?
Truman M. Hobbs: No, sir, just --
Hugo L. Black: Is there any rule of the Commission or have they ruled on it in anyway?
Truman M. Hobbs: It haven't been called our attention that the --
Felix Frankfurter: Well, instead of -- isn't the brief on behalf of the Commission -- the Commission say --
Truman M. Hobbs: Well --
Felix Frankfurter: -- they -- I'm not -- I found out the question what we can carry. But the Commission speaks fully to have authorized general counsel, does he?
Truman M. Hobbs: Yes. I was only attempted to answer the question --
Hugo L. Black: But I --
Truman M. Hobbs: -- as to where there'd been any --
Hugo L. Black: I do not assume myself it's because the counsel makes the legal argument and that represents the view of the Commission or in any actual functioning of the Commission in deciding a point.
Truman M. Hobbs: Well, there hadn't been any case --
Hugo L. Black: (Voice Overlap) someone else lied, I do not. And I was asking if the Commission itself has held that any time passed on this question.
Truman M. Hobbs: It -- it hasn't been called our attention in brief or elsewhere.
Felix Frankfurter: I don't think this brief, an expression of the factors in the view of the Commission charged with the duty of enforcing this Act. This isn't an individual view from a lawyer who filed a brief. This was asked by Commission to express its views on this case.
Truman M. Hobbs: But I -- I take it that Justice Black's question goes to whether there had been a determination in a -- in a hearing by the I.C.C. to that, so far as I know, there has not been. They have filed --
Felix Frankfurter: That has been its practice. It doesn't rest merely in the form of like hearing, this question of a -- of a party that is charged within enforcement and presumably, they had the material before them and to justify them in making this statement or roughly and certainly don't know can be legal to the Court.
Hugo L. Black: Of course, it doesn't read on legal argument by law.
Truman M. Hobbs: Well, let me go just a minute into the reason advanced by the I.C.C. for this thing. As I say, in fact, I think they're incorrect in saying that this board is not using the movement of cars. The evidence in the record from a car inspector with 25 years experience was it -- it frequently mean when I found this board to pass hand signals that if it -- if the dome top on this car became loose in the movement of the train and if the railroad employee might have to go up there to -- and he'd seen employees have to go up there to tap that thing down with gasoline on the inside and its dome tank. Not racking up and down, I think the Court can readily see the necessity for getting up there in such a circumstance. But the main thing that the I.C.C. says is not supported by anything in the language of the statute. If Congress said they intended only those running boards used in the movement of a car to be standardized, Congress clearly could have so stated. It is true, as the I.C.C. says in its brief, I supposed, that Congress had its attention primarily focused on the toll of accidents that occurred to employees on moving trains. But Congress didn't seem fit to say that only running boards used in the movement of trains were covered by the Act. The I.C.C. has simply -- with -- by sharing interest inserted those words in there. I think Congress was aware that a fall from the top of a -- top running board was just as serious as a fall from a bottom running board and would never have made the -- inserted the words of the I.C.C. has cited -- isn't cited in there. Now, I'd like to mention for just a minute, the argument of the railroad and the I.C.C. that the words in Section 11 where it says that all cars requiring secure running boards means all cars required by the I.C.C. to have secure running boards. There again, they have simply inserted into the act language that Congress didn't seem fit to insert for itself. We think, if you read these -- these sections -- Section 11 as a whole, it's readily apparent what Congress had in mind by the use of the word requiring. It said all cars must be equipped with secure sill steps and efficient handbrakes. All cars requiring secure ladders and secure running boards shall be equipped with such because all cars do not require ladders and running boards. A gondola car, for example, has no running board on it, and Congress was not attempting to require the railroad to go to useless expense and put running boards where it -- where they weren't needed. And again, in the Williams case, the Court gave the language requiring, we submit its proper interpretation which was cars requiring for their proper use. These running boards shall be equipped with such. And the last comment I'd like to make on that construction is that the tense of the word "requiring" would be all wrong. If Congress in Section 11 were referencing regulations of the I.C.C. because at the time Congress wrote Section 11, there were no regulations by the I.C.C. So, if they'd any I.C.C. regulations in mind, they certainly would have said because -- which shall be required to have secure running boards. So we submit that the omission of the I.C.C. to standardize this appliance cannot take away the protection that Congress was plainly trying to give employees in Section 11 that railroads must maintain running boards in a secure manner.
Stanley Reed: Mr. Hobbs, I'm -- I'm looking at the Safety Appliance Act. It says that within six months from the passage of this Act, Interstate Commerce Commission so designate the number in both, dimensions location and manner of application of the appliances provided for by Section 2 of this Act. And Section 2 is the sill steps and handbrakes, running board and so forth.
Truman M. Hobbs: Yes, sir.
Stanley Reed: Now, what -- what about that -- that authority to the I.C.C. to designate?
Truman M. Hobbs: Well, we don't think --
Stanley Reed: (Voice Overlap) -- you convert the mentioned location and manner of application of the appliances provided by this Act.
Truman M. Hobbs: Well, we think that goes to the desire of Congress to have cited these appliances made uniform. And the I.C.C. has -- we submit, has authority right now to -- to make a uniformity order with respect to this running board if it was to require on all cars, it can do so. But we see no practical reason why they should free as the design of tank cars, some cars have it, some don't. But if a car is designed that requires for its proper use of this type of running board, then it has to be secure whether the I.C.C. sees fit to standardize that appliance or not. And the reason the I.C.C. gives for its failure to standardize is the reason that it inserts into Section 11 by share inference. There is not a word in Section 11 to indicate that Congress didn't intend running boards on the top of cars to be maintained securely just as they intended that running boards on the bottom of a car be made.
Stanley Reed: But it says they it shall designate the number. As I understand it, they've -- they've designated the numbering.
Truman M. Hobbs: And when they designate the number, it -- the Act goes on to say, this shall remain as the standards of equipment to be used on all cars subject to the provisions of Section 11, which is your Section 2, subject to provision of Section 11. And then, a little later on, in the same sentence, it says that failure to comply with regulations of the Interstate Commerce Commission shall be subject to a light penalty as failure to comply with any requirement of Section 11. So, there were two evils. One was the uniformity was to be implemented by the I.C.C.'s regulations that -- but the -- as this Court said the absolute, imperative statutory command of Section 11 could not be avoided by I.C.C. regulations.
Felix Frankfurter: I suppose (Voice Overlap), in this case, a special verdict had been asked from the jury, this case wouldn't be here, would it?
Truman M. Hobbs: I hope that's -- I think it's probably correct that would -- that would give me a feeling of comfort if we had to go back and try this thing over to feel if that would be --
Felix Frankfurter: Our special verdict allows into the -- the District Court in Alabama?
Truman M. Hobbs: I think they're allowed, Your Honor, as a matter of practice there. It's very, very rarely availed of. I think it would be allowed, perhaps in the District Court and state court. I've -- I've never seen --
Felix Frankfurter: I'm talking about Federal District Court.
Truman M. Hobbs: Yes, sir.
Felix Frankfurter: If you go on two counts, one based on negligence, the other enacted by (Inaudible), to use the shorthand. I should think the (Inaudible) if you ask the jury to answer each one of the claims. That doesn't make this case.
Truman M. Hobbs: No.[Laughs]
Norman C. Shepard: May it please the Court. I think --
Earl Warren: Mr. Shepard.
Norman C. Shepard: Thank you, sir. The District Judge on the contrary told the jury that they need to make no finding as to that answer of the term in general verdict and need not to say which count is a basic point. Now, may it please the Court. This plaintiff of the course still has, under the Circuit Court decision, the right to go back and get a trial on the count of common law negligence. As to the Safety Appliance Act, we say, in our brief two things. We say it first that the Act does not require this board and we also say that the Safety Appliance Act is not available to this petitioner. It appears in the brief and I have to call attention to it, the reply brief especially the statement is in there, inadvertently, I'm sure. On page 12, that it is undisputed that its effective car was then used on respondent's line at the time of the injury. We respectfully dispute that. The entire record shows this car had been delivered on a private chauffeur to an industry and totally disconnected from the line of the railroad and was sitting there in their control and in their possession. This man was an independent contractor. He testified that he worked at filling stations on such things as gasoline pumps and he was available to these people. Incidentally, the record will also show on page 122, the witness, Watkins, who was the helper of the plaintiff, testified that the petitioner first went upon the running board and made some adjustments and connections. Then he came down to make the holes or fixed the holes at the bottom and return to the running board having to send his helper up because he was only showing his helper how this thing was done. And it was not until both of them at their weight upon this dome step board that it broke. It doesn't necessarily affect the legal problem confronting the Court but the petitioner passed over this board twice that are levered. And of course, so does his helper and there was no apparent defect. It is true that it broke. Now, I might say to further to please --
Earl Warren: Is it true that the board was so rotten that it would crumble this (Voice Overlap) --
Norman C. Shepard: Fragments of it, sir. There was a knot hole or a knot in it. And around that knot, there -- there were crumble fragments. Yes, that it supported the weight of the petitioner on his first trip and --
Earl Warren: What caused it to break?
Norman C. Shepard: The defective condition of the board.
Earl Warren: Oh, I see.
Norman C. Shepard: Yes sir. It -- it had a rotten place on it. No -- no dispute about that under the (Voice Overlap) --
Earl Warren: It wasn't overloading by two people that caused it to --
Norman C. Shepard: Well, if -- if it hadn't have the rotten place, I take it that the two of them might have been able to stand upon it. Now, may it please the Court, this board or whatever name we call it isn't a running board because it doesn't run anywhere, it's a short board about six feet. No one can run on it, nor does it run from any place to another. Many of the old cars do not have a dome step board at all. Some industry provide a scaffolding with a -- a flat form themselves into which these cars are -- are by -- are by the side of the truck where these cars are placed and their employees or their independent contractor use their own facilities. There's no requirement whatever by the I.C.C. or the Act of Congress to make any convenience or device for those who unload the cars. Loading and unloading devices are not covered anywhere in the Act. Now, as to whether there has been a decision or not, this Act has been affected, I think, since 1910.
Earl Warren: Well, is it true that the railroad company itself has, on many cases, many instances in connection with this case referred to this in the ordinary course of businesses or running boards?
Norman C. Shepard: Yes, sir. It is in the record that some of the witnesses so testified, but I might call the Court's attention to the fact that acted easily have been by inadvertence, and then interrogatories, for instance, the profound -- the question might distinguish adversary use the expressions on 15 or 16 times and thereby getting the witness to use it for some seven times, I believe he said. But in his reply brief, he --
Earl Warren: Do you know the superintendents of the railroad?
Norman C. Shepard: Yes. I believe it was, yes, sir. It was referred to as a dome step running board. But in his reply brief, he admits our contention about that and on page 2 he says, the witness is for the respondent and I have respondent's counsel. Well, that's into referring to it as a running board which, of course, I'm very liable to do myself. Now, if the Court pleases --
Earl Warren: Why, because it is a running board?
Norman C. Shepard: Sir? [Laughter] Inadvertently, sir. And I confess it's my first "I'm somewhat nervous." I --
Earl Warren: No --
Norman C. Shepard: -- might thought of that.
Earl Warren: I said, would you -- would you collapse because it is a running board?
Norman C. Shepard: No, sir. I don't see how it could conceivably be because it runs so well and no one can run upon it. But I think it's just a -- a manner of speed or expression but as the Circuit Court said, there is nothing in the I.C.C. regulation by whatever name called that requires this board at the dome.
Earl Warren: Would you describe the board please? Could you walk on it?
Norman C. Shepard: In a very limited distance, sir. It is six feet in length.
Earl Warren: Yes.
Norman C. Shepard: It has no connection at either end.
Earl Warren: Yes.
Norman C. Shepard: There is a short ladder up to the handrail so that the industry can use. That is not for railroad employees or ladders for railroad employees toward the ends of the car which they use to get up to the top of the adjoining car or to fix the brakes. And this --
Earl Warren: Well, I understood the yardmaster of 25 years experience that testified that it was used in the operation of the car that occasionally -- occasionally they went up there, stood on -- on that to fix the dome cap or other similar things.
Norman C. Shepard: He said that, sir, but there -- but he says it this way, “I have seen you.” Some say it was accustomed or that it was a habit or that they did it. But what we -- what he is talking about there, of course, is a -- a car in train movement and some employee thinking it's more convenient to go that way, he might have done so.
Earl Warren: How would they go beyond on that?
Norman C. Shepard: Toward the end sir. The ladder was on the end that are required. This -- this thing is --
Earl Warren: (Voice Overlap) would he -- how would he get up to the dome?
Norman C. Shepard: Well, we -- we don't understand he hasn't any duty in connection with the dome, sir. Not any.
Earl Warren: -- I'm talking about this testimony of your yardmaster. You said that, he had -- he had seen workmen go up there during the movement of a train to -- to make secure this dome cap. How would he be gotten up there if it hadn't been for this -- this ladder and this thing was commonly called a running board?
Norman C. Shepard: Well, sir, if the car was standing still, he could have done so by going up to the end walking across, but it was in movement, there was no other way for him to do it.
Earl Warren: There's no other way for him to do it.
Norman C. Shepard: No, sir. If it was in -- in facts and --
Earl Warren: Then, is this a safety device?
Norman C. Shepard: No, sir. It's a loading device, an unloading device.
Earl Warren: Suppose during the movement of the train, the dome cap did become loose and started to -- started to come off and you're losing some of your oil. What would you expect the employee -- train employees to do?
Norman C. Shepard: (Voice Overlap) --
Earl Warren: Would you expect them to fix -- make that fast?
Norman C. Shepard: If Your Honor please, it could not lose the oil because they -- they don't merely fix it over to the valve under the dome that has to be turned and that is why this man was up there. The dome coming off would not lose any oil.
Earl Warren: Then let's take something else it might happen up there to cause the same condition but how would he get up there?
Norman C. Shepard: If the train was in motion, sir, it would be very dangerous for him to go any other way.
Earl Warren: Then that --
Norman C. Shepard: But assuming however --
Earl Warren: Would you call that a safety device then?
Norman C. Shepard: No, sir, because the same thing could have happened on the many cars that roll on the railroads that have no dome step board --
Earl Warren: Well --
Norman C. Shepard: We don't have any at all. And many of them do not and none of them are required.
Earl Warren: Isn't the fact that the railroad company put that there, some evidence that there was a safety factor involved?
Norman C. Shepard: Well, sir, I don't know, sir, but the railroad company didn't put that there. These tank cars are built by -- by shippers.
Earl Warren: For whom?
Norman C. Shepard: For the use of the people in the petroleum industry and they are leased and are rented. And we haul them for a charge. We could not decline to take this car because it complied with the I.C.C. regulations. We could not introduce it and in 45 years, we haven't been able to refuse one that had it or didn't have it. There are several different types of these platforms.
Hugo L. Black: Suppose you had look at it and discovered that this was rotten, do you mean that you would have to take that car?
Norman C. Shepard: Yes, sir. I think we would have or we could have -- have that board repaired --
Hugo L. Black: Because --
Norman C. Shepard: -- but that goes to the common law account --
Hugo L. Black: Did the -- did the I.C.C. required railroads to take cars with rotten things like that on it?
Norman C. Shepard: No, sir.
Hugo L. Black: I think (Voice Overlap) --
Norman C. Shepard: I believe they could have made an exception to it.
Hugo L. Black: -- therefore --
Norman C. Shepard: I think we could have made an exception to it, but not because it was a safety appliance. If -- if a door had been swinging, a door to a box car we could have taken the exception to it --
Hugo L. Black: Assuming --
Norman C. Shepard: -- but not because it was a safety appliance.
Hugo L. Black: Assuming that it is, I understand your argument that it's not, assuming that it is a running board --
Norman C. Shepard: Yes, sir.
Hugo L. Black: -- that's what it is. Is it your belief that Congress -- that the board about describing some boards -- running boards at other place and deprive people of the benefits of Section 11 which requires running board, it was required to be secured. Is it your idea that the I.C.C. and by resolution or brief or anything here relieve the railroads from certain duty?
Norman C. Shepard: I would call Your Honors attention to the very language, I think it is significant that the language of Section 11 says, all cars must be equipped or secures to the old (Inaudible) and efficient handbrakes. And then next it says, cars requiring secure ladders --
Hugo L. Black: What does requiring means?
Norman C. Shepard: It means that the I.C.C. shall require.
Hugo L. Black: Why does it mean the I.C.C.? Does it say --
Norman C. Shepard: Because it's turned the administration (Voice Overlap) --
Hugo L. Black: -- the I.C.C. requires to have running board, suppose the company requires running boards, could the I.C.C., by its ipse dixit, relieve the company from liability for running boards which it dismissed required to be put there?
Norman C. Shepard: The business of operating the railroad, may it please the Court, or had in the car did not require it to be put there. This was built, as I say, by a shipper.
Hugo L. Black: That's a question, I know whether it's a running board. I can understand that argument.
Norman C. Shepard: Yes. These -- these cars are built by shippers and they have various designs. Some of them have a circle to walk way around the dome. Some have boards on each side of the dome. Some have supporting rails. Some have nothing at all. And -- and not only do we say that they haven't been standardized, we say it hasn't been required and that there's been a determination by the administrative agency charge with this responsibility for a period of 45 years that not all are required. A continuous running board around the car is required --
Hugo L. Black: Well, assuming --
Norman C. Shepard: -- not this dome step board.
Hugo L. Black: Assuming that the business requires it and it's a running board is secured here that because the I.C.C. chooses not to standardize it at that place, that it can thereby leave Section 11 which requires running boards, it requires to be secured that the I.C.C. can by its failure to standardize this particular one or relieve the burden which the laws puts on.
Norman C. Shepard: Yes, sir. I've taken that the I.C.C. has control of the administration of this Act --
Hugo L. Black: Suppose --
Norman C. Shepard: -- and that Congress said --
Hugo L. Black: -- suppose I decided it didn't need any. That's possible.
Norman C. Shepard: Yes, sir. They -- they have so decided. They don't need this --
Hugo L. Black: (Voice Overlap) anywhere --
Norman C. Shepard: -- this dome step board.
Hugo L. Black: Suppose -- suppose they decided it didn't need anywhere. That's also possible.
Norman C. Shepard: Of course it's possible, sir. But of course they have --
Hugo L. Black: Well, suppose they did --
Norman C. Shepard: -- made many decisions through the years as to what they do require.
Hugo L. Black: Suppose they did, would that relieve them -- the railroad from the Safety Appliance Act?
Norman C. Shepard: No, sir. Because it says it must have some running boards.
Hugo L. Black: Well, they must have a --
Norman C. Shepard: But where they shall be and the kind they shall be and what kind and -- and location shall be required is up to the Commission and upon that subject they have spoke. They have said --
Hugo L. Black: The word -- the word --
Norman C. Shepard: -- they shall be one continuously.
Hugo L. Black: -- require, that would seem to me in the reply brief in the Section 11 doesn't seem to me to apply what's in the Section 12, I would suppose that a -- many things maybe required for the operations of the railroad that the I.C.C. doesn't standardized require it though.
Norman C. Shepard: That -- that is correct, sir.
Hugo L. Black: And if this is a running board, it's a running board.
Norman C. Shepard: Well, of course that is for the --
Hugo L. Black: Then it is not. That's -- I understand that --
Norman C. Shepard: That's part of the -- part of the ground that we're on and we say, if it is a running board sir, it still is not a safety appliance because the I.C.C. has never said to put one there. They said put it around here.
Hugo L. Black: Your idea is that only running board, which all running -- actual running board --
Norman C. Shepard: Yes, sir.
Hugo L. Black: -- have to be secured --
Norman C. Shepard: Yes, sir.
Hugo L. Black: -- that the I.C.C. says it have to be secure.
Norman C. Shepard: That is correct, sir. Except, of course, we still have our common law negligence --
Hugo L. Black: Yes.
Norman C. Shepard: -- which remains to be tried. Now, upon that face of the matter --
Felix Frankfurter: Can we move on? Is that with the shipper, there's one statement that left me a little doubt when you emphasized the fact that power station (Inaudible) --
Norman C. Shepard: Yes, sir.
Felix Frankfurter: -- for loading and unloading?
Norman C. Shepard: Yes, sir.
Felix Frankfurter: If this world are required for safety appliance for which, in connection with which there's absolute liability, lots of this controversy is the problem --
Norman C. Shepard: Yes, sir.
Felix Frankfurter: -- but not whether the railroad have some responsibility --
Norman C. Shepard: That's right, sir.
Felix Frankfurter: -- that whether these responsibilities followed them for negligence --
Norman C. Shepard: Yes, sir.
Felix Frankfurter: -- but assuming it is safety appliance, it wouldn't make any difference from the car station, wouldn't it?
Norman C. Shepard: No, sir.
Felix Frankfurter: So, I don't understand why you have decided that point.
Norman C. Shepard: Because sir, he insist that its in train line service. I emphasize it because we contend that this plaintiff, or cannot bring to his aid, the Safety Appliance Act even if it's required, even if it's a running board. Because he wasn't engaged in any type of interstate commerce, did not work for any railroad company and an employee or contract before the industry who had this car upon their private (Inaudible) We owed him no duty as to safety appliances. As I understand the law, the law -- the Safety Appliance Act is regarded as supplemental to the Federal Employees Liability Act and thereby makes absolute duty to railroad employees which they can demand in case of injury.
Felix Frankfurter: Did the Safety Appliance Act -- did the Safety Appliance Act qualify the limited or restricted to the basis of recovery by people in the same relation to the railroad as to the liability of the railroad under Federal Employers Liability Act?
Norman C. Shepard: I so understand it, sir.
Felix Frankfurter: Well, then the must come in that the requirement of being an employee engaged in the interstate commerce.
Norman C. Shepard: No sir. He -- he is just a local man that works on the pump.
Felix Frankfurter: Yes. But -- but the plaintiff can sue for the Safety Appliance Act. Is it your view -- must be in the same relation to the railroad that an employee under Federal Employers Liability Act?
Norman C. Shepard: Yes. I mean --
Felix Frankfurter: In other words, the passengers can't do under Safety Appliance Act?
Norman C. Shepard: Well, when we -- then we are getting yet another subject, of course. This Court has held that the -- a failure to maintain proper average that's required by the I.C.C. or is such a danger to the public generally that a non-railroad employee can -- non-railroad plaintiff can't recover under that Act. But it --
Felix Frankfurter: By virtue of the -- by reason of negligence or as such without any (Voice Overlap) --
Norman C. Shepard: As such --
Felix Frankfurter: -- that is -- that is negligence (Voice Overlap) --
Norman C. Shepard: Yes, sir. As such it is a failure to maintain a safety appliance in which the public generally has a vital interest, but we don't have a situation here. This man isn't public generally, he's just a specialist. They'd call into this.
Stanley Reed: (Voice Overlap) -- has -- has no designations of the people who maybe injured by the Safety Appliance at all.
Norman C. Shepard: No, sir. But under the Federal Employers Liability Act, of course, an allegation or a proof of a violation of Safety Appliance Act that makes the liability absolute.
Stanley Reed: But since this Act doesn't designate, and it is only by -- by virtue of -- of the decision of this Court, was it not, that the Safety Appliance Act came to be a tort act too?
Norman C. Shepard: Under the F.E.L.A., this Court has said the Safety Appliance Act did not create a cause of action.
Stanley Reed: And the cause of action was --
Norman C. Shepard: It's created by the F.E.L.A.
Hugo L. Black: And we avail that the two cases, have we not, that the Safety Appliance Act was the benefit of the employees, and the public and either one can be sued.
Norman C. Shepard: You held that in the merit of the case, sir, with respect to the pubic. I don't recall the others.
Hugo L. Black: Well, in United States against California, Coray against Southern Pacific Company?
Norman C. Shepard: I think that we're on references to that effect in those cases but there has been no case where an employee of an industry upon that all that it is completely offline, and in its possession has a cause of action under the Safety Appliance Act.
Stanley Reed: I understand your position to be that the I.C.C., under the Section 12, must designate to be an equipment against -- to be considered required on your thoughts.
Norman C. Shepard: Yes, sir. I think the word reply in Section 11 permits or requires the Interstate Commerce Commission to say what the running board shall be on the (Voice Overlap) --
Stanley Reed: You said it's closer as designated --
Norman C. Shepard: Yes, sir.
Stanley Reed: -- to the Interstate Commerce Commission.
Norman C. Shepard: Yes, sir. I think the two sections of course, are part of each other.


Warren E. Burger: Mr. Wallace?
Lawrence G. Wallace: Thank you Mr. Chief Justice. If it please the Court, I would like to take a somewhat indirect approach now to the statutory issue that I began to discuss yesterday. And while this may seem a bit roundabout, I believe it will serve to help to clarify our position in this case. And I'd like to start by reminding the Court of the terms of the statutory provision of the 1866 Act that was before it two terms ago, in Jones against Mayer & Company, it's now Section 1982 of Title 42 which reads "all citizens of the United States shall have the same right in every state and territory as is enjoyed by white citizens thereof to inherit, purchase, lease, sell hold and convey real and personal property" and a similar provision of the 1866 Act with respect entering into contracts and to suing and beast in being sued is now in Section 1981. There is in the complaint to the present case, an allegation that's rather similar in its terms, at least in what we deem to be a crucial term and that is on page 6 of the appendix in paragraph 12, where there's an allegation that by this conspiracy, the defendants have willfully and maliciously intimidated and prevented the plaintiffs from enjoying and exercising, going down to the bottom of this paragraph, their rights to travel the public highways without restrained in the same terms as white citizens in Kemper County, Mississippi. And I believe this similarity has some relevance because of the threat of continuity that runs through the adoption of all three of these amendments to the Constitution and through the whole serious of legislations through the 1866, 1870, and 1871 Acts and even the 1875 Act which is not involved here. The overriding purpose behind all of these provisions and it colors the way they should be read and interpreted as this Court has said many times, was to achieve a meaningful emancipation for the former slaves in various aspects of community life. This was certainly a purpose to be achieved in 1870 legislation and when Congress was made aware that the activities of the Ku Klux Klan and other private conspirators were interfering with the achievements of this objective, Congress went on in 1871 to enact the legislation that’s now before us and that this Court is to asked to interpret in this case. The first section of that legislation is now Section 1983 of Title 42 and that is quoted on page 10 of our brief, our grey covered brief in this case. That provided that every person who under color of any statute or ordinance, regulation, customer usage of any state or territory, under color of law, subjects or causes to be subjected, any citizens of the United States or other person within the jurisdiction thereof to deprivation of any rights, privileges or immunities secured by the Constitution and laws is liable to a suit for damages. Now that covered liability by public officials who acting under color of law have deprived complainants of rights including -- of rights under fourth -- under the Constitution including Fourteenth Amendment rights. This Court has several times held that the statues applies to Fourteenth Amendment rights, as well to other rights in Screws against United States, Monroe against Pape, and so forth. That was not, as this Court noted last term in its opinion in Hedequist against Crest Co, that was not the most controversial provision of 1871 legislation. It was Section 2 in which Congress went on to reach at least in terms, actions that are not taken under color of law that provoked the controversy. And before proceeding to Section 2, I want to say one other thing about the Section 1983. Not only did it reach actions by public officials and make them subject to suit for damages, it also extended, it has been held a number of times to actions by private persons taken in concert with public officials. Those two are actions taken under color of law as this Court held with respect to the comparable criminal provision in the United States against Price, and a number of Court Of Appeals cases have held the same thing with respect to 1983 and a footnote in the Price opinion indicates that this is an accurate analysis. So, with this in mind as what was accomplished in Section 1 of the legislation, I think we can turn to an analysis of what did Section 2 of the same law add. Now, Section 2 is insofar as we're concern with it, the civil part of Section 2 is now the provision before us, Section 1985 (3) of Title 42, it's set forth in full on page 2 of our brief, but I think for purposes of our discussion, it will be more convenient to refer to the page 7 of our brief in which we have quoted from the Collins opinion. This Court's adumbration of the various provisions with numbering added to it that are covered in 1985 (3) and here is where the Congress gave attention to activities of private conspirators and attempted to provide redress in order to, as I said the outset, achieve the meaningful emancipation that was the overriding objective. One of the things that the Congress provided redress for where conspiracies by two or more persons in the part number 2 here on page 7 to prevent or hinder the constituted authorities from giving or securing to all persons, the equal protection of the laws. Interference with public officials, even though it not be conspiratorial, not be taken on concert, that is conspiratorial with the public officials, even though it not be taken in concert with the public officials, interference with there providing of equal protection is covered by that part of 1985 (3). Interference in concert is already covered in Section 1 of the Act as I said and then the part numbered 3 and 4 provides specific protections against conspiracies, to interfere with voting in federal elections and campaigning in federal elections. Now, the question remaining and the key question in this case is what does the first part add to these provisions? What further meaning is there in the first part of 1985 (3) are approach to any statue as that each part must mean something and not be merely redundant of what is enacted right along with it? How can two or more private persons conspire without in someway acting under the color of law or in concert with public officials so as to deprive any person or class persons of equal protection of the laws or of equal privileges and immunities under the laws? They don't have the authority to do that. That is the conceptual difficulty with trying to attribute a meaning to this part of the statute that goes beyond what Congress had already done. In some ways, it's very similar to the difficulty that three justices of the court in Screws against the United States and Mr. Justice Frankfurter in Monroe against Pape had with the question of how can a state officials, acting contrary to state law, be depriving an individual of rights that the states guarantees him? It's a rather similar conceptual difficulty, and indeed, the answer which this Court gave in the Collins opinion is very similar to the answer to that other question which was given in the dissenting opinion in Screws against United States and in the dissenting opinion Monroe against Pape. The answer, the key language of the answer can be found on page 8 of our brief, the very next page. In the middle of the page in the paragraph set forth on the middle page, the second sentence of that paragraph points out that the negative answer of the Collins opinion said that unless the law or it's agencies were to give sanction or sanctuary to private conduct, the victims rights, this is quoting from Collins, the victims rights under the laws and to protection of the laws remain untouched and equal to the rights of every other person within the state. And that is why the Collins opinion in effect reads this part of 1985 (3) as merely redundant of 1983, is really accomplishing the same thing. But if we look back at the language of the statute again, the statute doesn't say that the wrong as to deprive someone as Collins said of the rights to equal protection under the laws, that's not what the statute says. The statutes says “Conspiracy to deprive them of equal protection of the reality; not the right.” As Mr. Justice Brennan pointed out in his opinion in Hedequist , the only way to deprive someone of the right to equal protection of the laws will be to repeal the Fourteenth Amendment. That couldn't be what Congress had in my mind. No private persons could accomplish that. So the question in our mind becomes what it that private persons conspiring together can do that would deprive someone of the meaningful enjoyment of these guarantees that the Constitution had added as against the states, besides interfering with the conduct of public officials which covered in the second part here. What is it besides that that private persons can do that would interfere with the enjoyment of these rights? Well, one fairly obvious thing to refer to a problem that is again before this Court is term would be, if there were a school desegregation order and private persons conspire together to prevent children because of their race from attending a particular school, intercepted them and prevented them from getting there. That would not be action taken under color of law, it would not be action taken in concert with public officials, and it seems to us that it would be a deprivation of enjoyment of the right to equal protection of the laws.
Warren E. Burger: There are many ways of getting it back, aren’t there? Any other ways than relying on a statute of this kind to reach the hypothetical you just suggested?
Lawrence G. Wallace: There undoubtedly are, but Congress was concerned in enacting this very statute that other ways that might be available, other legal remedies such as remedies in the states might not prove effective to protect the rights that they were trying to confer.
Warren E. Burger: Well, I'm speaking federal. Aren't there many other federal remedies for the hypothetical?
Lawrence G. Wallace: Well, there would be remedies connected with the court order if the desegregation were being accomplished under a court order.
Warren E. Burger: [Voice Overlap] federal statue about obstructing justice?
Lawrence G. Wallace: There would be the possibility of a federal statue. I am not sure however that if all that were involved were a plan voluntary adopted by the school board to comply with the law of the land, school board not under court order, that any federal statute about obstructing justice would be applicable.
Warren E. Burger: When your hypothetical is altered a little bit now?
Lawrence G. Wallace: Well, in response to your question, but it seems to me, it would still be within the coverage of this provision. The concern of Congress was with the possibility that the rights would not be enjoyed because private persons would prevent their enjoyment. As matter of fact, there is very specific referenced to this in a legislative history of the amendment adding the word equal which Mr. Pollak spoke about yesterday. I'd like to refer the Court to that history. These are the remarks by Representative Garfield, later, the President of the United States in support of this amendment and in support of the provision that then was enacted as a consequence of this amendment. And this appears -- this is not quoted in a briefs unfortunately, it appears on page 153 of the congressional globe for the 42nd Congress, first session. These remarks incidentally were cited, although this particular one’s were not quoted in Mr. Justice Brennan's opinion in Hedequist. Mr. Garfield, Representative Garfield said there in support of the amendment and I quote now, "to state the case is the most moderate terms, it appears that some of the southern states, there exists a wide spread secret organization whose members are bound together by solemn oath to prevent certain classes of citizens, certain classes of citizens of the United States from enjoying their new rights. These new rights conferred upon them by the Constitution and laws and they are putting into execution their design of preventing such citizens from enjoying the free right of the ballot box and other privileges and immunities of citizens and from enjoying the equal protection of the laws."
Speaker: Is that immunity statutory? Do you take -- what do you conceive to be the additional source of power to stand on that statute?
Lawrence G. Wallace: Well, we argue in our brief that as applied here, the Thirteenth Amendment is applicable to this application, and that the Fourteenth Amendment, the enforcement provision of both of those amendments, it would be the relevant provisions. If I may Mr. Justice, I'd like get to that in just moment after I finish this statutory analysis and it's applicability to this case as we see it. Given that much meaning of the statue, we say that even that applies here because the allegation is of a terroristic, coercive interference with the use of public highways, that is exactly what happened here. In fact, it's not terribly different from some of the activities of the Klan during the period in which Congress was enacting this legislation. We think really that the right should probably be formulated in more basic terms than that. We don't think it would really make a difference in this case if the interception had occurred on a private driveway rather than on the public road. As this Court noted Jones against Mayer Co., one of the rights that Congress was concerned to accomplished through the adoption of the Thirteenth Amendment in 1866 legislation and we say there is threat of continuity running through here was to see to it that the newly emancipated Negroes would have, in Senator Trumble's words that were – and they are quoted, "freedom to go and come at pleasure." And certainly, the kind of freedom to go and come for this class of persons that would be upheld for white persons, for the ordinary persons in the community is of the essence of a accomplishing a meaningful emancipation, changing people's status from a subjugated status to a free status. And this why it seems to us that what Congress was trying to do was to protect persons from private conspiracies directed against them because of their membership in a class, because of their race or other comparable membership in a class directed toward keeping them in an inferior status, preventing them from enjoying these rights in the public sectors, as we say in our brief, that others in the community have the right under the Thirteenth and Fourteenth Amendments against the state to enjoy. Now, it seems to us that the Court’s opinion in Jones, practically points the way to the application of the Thirteenth Amendment to sustain the statute to get back to Mr. Justice Harlan’s question.
Potter Stewart: As a source of congressional power?
Lawrence G. Wallace: As a source of congressional power.
Potter Stewart: Of course, the difference is that in Jones, there was a explicit language about buying and selling property real in person?
Lawrence G. Wallace: Now, that's why I thought our problem -- real problem here was --
Potter Stewart: Was with the statute?
Lawrence G. Wallace: Was with the statute and I think this is what statute must have meant, and then, this kind of application seems to us is sustained there by the constitutional analysis in Jones. And we see no problems with upholding this application without reaching the question of other possible applications. After all, this is not criminal statute where we need worry as much about notice from a restricted reading of it and it seems to me that the principles of the United States against Raines applies sort of a fortiori with civil statute of this kind.
Potter Stewart: My only difficulty because I have many in this case, with the statutory language. It's certain difficult for me at first blush at least to see how it covers this case where the facts were that two brothers who were in the wild race crashed their car into another car and beat up the five occupants of the other car. Now, without mistaken -- mistaken belief that one of the five was the civil --
Lawrence G. Wallace: But with purposes alleged here, with purposes alleged, it's not an allegation of a mere assault. It's allegation of the assault was to prevent these persons because of their race from enjoying the same right to use public highways, to go and come as they please as white citizens of this county. That was the reason for the assault, that coercion has being applied to them, to keep them in [Voice Overlap] subjugated status. That, it seems to us --
Potter Stewart: Whenever two white men beat up a Negro man a suit under the statute could be brought, if they beat them up because were Negroes, is that right?
Lawrence G. Wallace: Well, we do say in our brief that this purpose to keep in an inferior status probably can be inferred in most such instances where that's the intent, but here where there is no more intent than that shown, but here there is more intent than that shown.
Potter Stewart: Alleged, alleged?
Lawrence G. Wallace: Alleged, yes. Well that's the allegation after the acceptance.
Potter Stewart: And now, what is the more, what's the more?
Lawrence G. Wallace: The more is they were not to have the rights that white person have to --
Potter Stewart: Well, this is true --
Lawrence G. Wallace: To go and come.
Potter Stewart: Well, this is true when two or more white men beat up one or more Negro men because they are Negroes?
Lawrence G. Wallace: If there's no -- if there's no personal reason --
Potter Stewart: -- and obviously, they're not going to be able to walk down the street?
Lawrence G. Wallace: If there's no personal reason for what is done, if it's done only --
Potter Stewart: Because they are Negroes --
Lawrence G. Wallace: -- because they are fair game, because they are inferior human beings, well, then it seems to me that that is what Congress was trying to --
Potter Stewart: Do you think that's covered by language of the statute, do you? You obviously do or you --
Lawrence G. Wallace: We do. It's difficult for us to see what else this language means in the context as I built it.
Potter Stewart: You gave us one good example of what it might mean and that is keeping Negro children away from desegregated public school.
Lawrence G. Wallace: Well, that would be a possibility, but there is a use of the state facilities here. They have the right the equal use of the states highways; it's not on these facts a really different case in our view.
Potter Stewart: Well, that's this vis-a-vis the state under the Fourteenth Amendment. The Fourteenth Amendment --
Lawrence G. Wallace: So ended in the school.
Potter Stewart: -- only upon the state, you would agree with that, wouldn't you?
Lawrence G. Wallace: That's the right to attend the public schools.
Potter Stewart: Well, that's against the state?
Lawrence G. Wallace: That's right. To us, it's -- it really is the same case.
Potter Stewart: Well, except that when you have a court order which you hypothesized?
Lawrence G. Wallace: Well -- but I would hypothesize the case where there is no court order. The school board has voluntary adopted a desegregation plan, and conspirators keep the Negro children from attending --
Potter Stewart: Well, I should agree that might be covered by the statute, but we're talking what's your case?
Lawrence G. Wallace: Well, I don't see the distinction. The rights are against the state in both cases. In both cases, the use of the state facilities are being interfered with by conspiracy and it is because of the class discrimination. It is because of a desire to keep a former slave race in a subjugated state.
Warren E. Burger: Let me suggest a hypothetical that takes us away from immediate context for a minute and see if sheds any light for me on problem. Suppose in some community, a new church was started, a church that was found offensive to great many of people living there and they -- in one way or another by picketing, by threats, intimidation banded together, more than three of them to prevent the worshipers of that group, I mean, nothing to do with Negro and White problems, to prevent the worshipers of that new unpopular sect from exercising their right to free exercise of religion. Would you think that would be covered by the statute?
Lawrence G. Wallace: That hypothetical Mr. Chief Justice is to me indistinguishable from the facts of Collins against Hardyman, which also involved a First Amendment right assembly in order to oppose the marshal plan, a political group and there, I think the statutory language as we read it would be applicable, but we would no longer be able to draw upon the Thirteenth Amendment as the source of the congressional authority and we have to rely exclusively on the Fourteenth Amendment. Now, I think the Fourteenth Amendment does provide assistance in this case and is a basis for authority. Six justices in the Guest case said that the Fourteenth Amendment will support federal legislation, punishing all conspiracies with or without state action that interfere with Fourteenth Amendment rights, that interfere with Fourteenth Amendment right. And I don’t think that that principle means that Congress thereby is empowered to reach every possible tort or crime under state law. The formulation itself indicates a limitation on its applicability. It's inference with the rights that the Fourteenth Amendment protects against the states. We're not dealing here in an area where a state has, pursuant to some neutral principle, relegated decision making to private persons which is the kind of thing that court was concerned with in the civil rights cases. This is not that kind of area. It's not freedom to come and go in somebody else's place. It's freedom to come and go on the public thorough fares, and we are dealing with class discriminations with the new right that was established in the Fourteenth Amendment, the right to equality that the sponsors of the amendment and the sponsors of the legislation thought because of its newness would need special federal nurture and federal protection.
Warren E. Burger: Would you agree Mr. Wallace that had this case, this case gone to trial or one might, that there is a certain obligation on the plaintiff to prove the existence of a conspiracy than just conduct --
Lawrence G. Wallace: That's right, that's alleged.
Warren E. Burger: Now presumably, if the legislation took the course of most conspiracy based cases, it would have to call on the defendants for testimony. Suppose these defendants just decline to testify on Fifth Amendment grounds and no other testimony about a conspiracy was forthcoming except such as the plaintiffs might offer by way of their own conclusions? That would probably would you agree that that will lead to a directed verdict very likely?
Lawrence G. Wallace: Well, I think with conspiracy can be proved by proof of certain conduct and the inferences that should be drawn from the conduct and I don't think --
Warren E. Burger: Would you think when two men attack two other men or one other that your conduct alone would establish a case --
Lawrence G. Wallace: Well, this wasn't a mere attack Mr. Chief Justice. This was interception of the car. They cut off this car on the public highway and proceeded at gun point to remove these people from the car and attack them.
Warren E. Burger: But that means it would be equally direct towards establishing some other, some criminal conduct, wouldn't it, a state criminal conduct?
Lawrence G. Wallace: Well, there maybe more reason to read conspiracy laws more narrowly when criminal sanctions are involved. Here, we have a effort by Congress to provide civil redress for interference with the enjoyment of rights that Congress was trying to confer upon these people and it's apparently that damage was done through concerted action which at least the trier of fact could infer involved some conspiratorial design between the actors. I don't see why a civil statute should be read more strictly than that. The object was to provide redress for damages and damages were done here.
Warren E. Burger: When I was getting out in part at least was that you probably could have the cases where enormous damages could be shown, but the case might fail because of want of evidence of the conspiracy.
Lawrence G. Wallace: Well perhaps so Mr. Chief Justice, that isn't this case.
Warren E. Burger: That might either by the action of the triers or it might be by action of the court? I just want to separate the proof of the conspiracy from the proof of the damages.
Lawrence G. Wallace: That's proper Your Honor. Thank you.
Warren E. Burger: Thank you Mr. Wallace. Mr. Moore?
W. D. Moore: Mr. Chief Justice and may it please the Court. It is alleged that on July 2, 1966 which happened to be a Sunday afternoon, the claimants in this cause were traveling down a public road and they were intercepted by the respondents in this cause and the confrontations occurred, whereby this alleged that an assault was made and some physical damages down to the petitioners. And as a result from that, the petitioners filed their suit in the state court of Kemper County, Mississippi. That case is still pending. It hasn't been tried, but anyways on the dockets still pending. They also filed a complaint in the Eastern Division of the Southern Districts of Mississippi federal jurisdiction, and the cause came on to be heard upon the motion of the respondents to dismiss the case because the declaration had wholly failed to state a cause of action in that did not allege an action under color of law. The decision of the district judge was appealed to the Fifth Circuit of the fifth district and the circuit court affirmed the ruling of the district judge, holding that there had been no action to alleged damages committed under the color of law, and then the case was appealed to this body and we here today for that.
Speaker: Will you keep your voice up a little please here?
W. D. Moore: Thank you, Mr. Justice. The only issue as I see it to be determined by this Court is further the lower court was correct in affirming and dismissing the cause of action because it failed to state that the alleged acts were committed under the color of law. Now, this Court has settled the matter in my opinion in Collins versus Hardyman and some of the members of this Court was here from the case was recited. What we have allegedly is that these people were grievously treated if the allegations of the complaint are correct and that their rights would be violated, but it is the opinion of the court in the Collins versus Hardyman --
Warren E. Burger: When you say their rights would be violated, you mean the rights under the statute?
W. D. Moore: Their individual rights; not the rights under the law.
Potter Stewart: But in order to have rights it seems to me, it has to be under the law. That's what rights and obligations are all about --
W. D. Moore: I think Mr. Justice that I'm speaking of the equality of the right under the law.
Potter Stewart: I thought you're talking about right under Tort law in Mississippi?
W. D. Moore: No sir -- I didn't express myself correctly. I was reading -- trying to read from Collins versus Hardyman.
Warren E. Burger: Well Mr. Moore, assuming for the moment that the allegations of this complaint wherein a complaint in an action in the state court with all other jurisdictions unquestioned, would there be any doubt if they had asserted a tort action against the defendants if the allegations are correct and they can support --
W. D. Moore: Under the state? I believe Mr. Chief justice that it would state a tort action --
Warren E. Burger: There couldn't be much question about that, could there?
W. D. Moore: No sir. Well, as matter of fact as I said before, they have done that. There is a case arising out of the alleged facts in this -- in the state court.
Warren E. Burger: But that hasn't been tried yet?
W. D. Moore: No sir. It was filed shortly after the alleged incident occurred and for this reason, I don't know why it hadn't been tried, but it had the still on the docket. Now, in their case in the state court, I think they state a cause of action. But what this Court is concerned with and what my own understanding is that if the acts were taken to be true, their rights were certainly invaded, disregarded and the law violated. But neither then rise, nor the equality arise under the law had been or were intended to be denied or unpaid. Now, that's position of the respondents in this matter. Now, reference has been made to Guest case and the Prize case and they were criminal cases and indictment was obtained. And among the other things in the indictment, it was charged that they committed these acts on the color of law and I don't think that that would be applicable to our case here.
Potter Stewart: In the Guest case there, it was two branches, I'm talking now about the opinion of the court, not concurring opinions. One branch of it was that there was a officially a state action.
W. D. Moore: Yes sir.
Potter Stewart: But quite a separate and distinct second branch of the case was that there was private action interfering with a right that Congress had the constitutional power to protect; that was the right of interstate travel. Do you remember, have you read the Guest case --
W. D. Moore: Yes, yes sir. That would be correct.
Potter Stewart: And as to that second branch, it was explicitly, perhaps not clearly held, but explicitly held that there need not be state involvement when the federal right interfered with is the right of interstate travel because that is a right that does not derive necessarily from the Fourteenth Amendment. That's the right that Congress can protect against interference by private action.
W. D. Moore: Yes sir.
Potter Stewart: So to that extend, the opinion of the court in Guest doesn't require color of law or state involvement in any way when the federal right interfered with is the right of interstate travel, I'm I correct?
W. D. Moore: That’s my understanding sir, yes sir.
Potter Stewart: There's an allegation here about traveling freely down the Interstate Highway isn’t there?
W. D. Moore: I don’t know where they used the word interstate, did not. It said on the local --
Thurgood Marshall: So, page 6 paragraphs 12, right to travel public highways -- it's on page 6 of the appendix.
W. D. Moore: Yes, I don't have that before me right now.
Potter Stewart: And of course the Guest case which perhaps for the first time made it explicit that the right of interstate travel was a right that Congress had the power to protect not only against state interference, but also against private interference. That holding that it was in the Guest case which came after Collins against Hardyman didn't it?
W. D. Moore: Yes sir.
Potter Stewart: I wonder if you think that has any significance or that -- since that was the right that which had not been crystallized or made clear to time of the decision on Collins against Hardyman?
W. D. Moore: Well, I just don't be frankly to Mr. Justice Brennan -- I mean Mr. Justice Stewart -- I don't know that we have place the defense in the case of Collins, and we believe that it's a landmark case that the issue has been tried in settled by this Court. Unless there's some further questions Mr. Chief Justice, we rest our case on Collins versus Hardyman. Thank you.
Warren E. Burger: Thank you Mr. Moore. Thank you Mr. Wallace, Mr. Pollak. The case is submitted.