dissenting.
The power of the State to segregate white and colored passengers in intra-state transportation has received wide judicial approval. Virginia Ry., etc., Co. v. Deaton, 147 Va. 576, 137 S. E. 500; Plessy v. Ferguson, 163 U. S. 537, 540, 16 S. Ct. 1138, 41 L. Ed. 256; R. C. L. 4-1079 and 5-590,721; 13 C. J. S. 1210; 10 Am. Jur. 907.
In support of these text writers are cited a host of cases. They embody what is the settled public policy of this Commonwealth, reflect public opinion and lessen racial friction.
We are dealing with a two-way road: Most white people are not anxious to sit with colored people, and few colored people care to sit with those white people who want to sit with them.
Segregation is settled law in Virginia. Those who oppose it, whatever be their reasons—social, political or economic-have not even appealed to the Legislature for relief. If the courts cannot whittle it away, they must disquiet themselves in vain.
With these general observations, we come to the case at bar.
The court has examined in detail our segregation statutes, has pronounced them good, and has thereupon proceeded without more ado to eviscerate them.
First, it appeals to our sympathy. Defendant is pictured as a woman laden down with bundles, sinking exhausted into the first available seat. “The plaintiff in error, who was carrying a number of bundles, took her seat between two white men.” As a matter of fact, she tells us that she had two bundles.
She was accompanied by a negro man and friend of hers who carried for her this heavy load. The driver tells us:
*768“A. Well, it was some fellow with her, had a lot' of bundles, and she got on the bus behind this fellow and sat down on the right front seat, which was occupied by two white people; she sat down between the two of them.”
He moved on to the rear of the bus and to the section assigned to colored people, and then four times begged his lady friend to come on back where he was and not to create a disturbance.
Some indignation is suggested; complaint is made of the “curt command of the bus driver.” Not all bus drivers are Knights of the Round Table. What the bus driver said was: “You can’t sit there.” It was a normal observation and such as might have been expected.
This suggestion was afterwards modified, and it is now said that “we need not stop to consider whether the curt remark” etc. I do not know where the suggestion that it was a “curt remark” comes from unless it be from thin air. An innocent observation may, within the larger meaning of a voice, be both provocative and insulting. In this case we have but an unemotional, typewritten statement from which neither conclusion can be drawn. Assuming, but not conceding, that the driver’s observation was irritating, she countered with a Roland for his Oliver. She said that she knew the law and was not going to move.
As the trial court had occasion to observe, she showed no disposition to collaborate with the driver in smoothing out a situation for which she was responsible. She stood upon what she conceived to be her rights and craved the law. Those who take the sword sometimes perish by it.
Trouble really came from the intransigent attitude of the defendant. She tells us that she is a school teacher; that her husband is a sergeant; that she knew the law and was not going to move. In the court’s opinion it is said:
“The plaintiff in error testified that she was quite willing to have exchanged seats with a white passenger in the rear of the bus, had the bus driver made this suggestion to her, *769but that until he did so she thought that she was within her rights in refusing to vacate the seat which she occupied.”
I do not know what was in the back of her mind—I only know what she said, which is that she was “not going to move.” If I were to guess, I would say that this was in the back of her mind: “I am as good as anybody else”— a proposition which I shall not undertake to dispute.
It is said that equality of races must be observed; that each is.entitled to like accommodations. Since this is everywhere conceded, argument or authorities in its support are works of supererogation.
Lest it be thought that I draw improper deductions from the evidence, I set out that heard ore terms which supports the judgment:
“A. I says, ‘You can’t sit there.’ She says, ‘Well, I am going to sit here.’ I said, ‘Well, you can’t.’ She says, ‘Well, I refuse to move.’ * * * ”
He undertook to explain to her what the law was, to which she answered: “I know what I am doing; I can read.”
Again:
“Q. Did you request her to leave the bus if she would not move?
“A. No. She flatly refused to move—she would not move at all—by me requesting her wouldn’t do any good, because she wouldn’t.get up.
“Q. She would not get up?
“A. She would not get up, no.
“Q. And would not listen to you?
“A. Would not listen to me at all.”
Again, on cross-examination, Sarah B. Davis testified:
“Q. But, you say, you did know the rules that the colored people were supposed to start in the back and work *770forward, and the white people were supposed to start in the front and work backward?
“A. Yes.
“Q. And both were not to sit on the same seat together? ■
“A. Unless there were no vacant seats.. That is written up in the bus. That is where I felt I was right.
“Q. Your construction was that if there was just one vacant seat, you could sit there regardless?
“A. Yes.
“Q. That is still your contention?
“A. That is still my intention?
“Q. Contention?
“A. My contention? Yes.”
Questioned by the court, she was asked if she was standing upon her legal rights and answered:
“A. Yes, sir.
“Q. You thought that you had the right—
“A. To sit there—yes, I did, Judge.
“Q. And you were not going to move?
“A. No, sir.”
Four times she was asked by her friend who came aboard this bus with her and who had moved to the rear, “Why don’t you come back here in the back of the bus and not cause any trouble.”
At the risk of repetition, we restate some of the evidence.
The bus driver said:
“A. I says, ‘You can’t sit there.’ She says, ‘Well, I am -going to sit here.’ I said, ‘Well,-you can’t.’ She says, ‘Well, I refuse to move.’ ”
This is his final statement on cross-examination:
“Q. ' Then is when you tried to explain what you call the ‘Jim Crow Law’?
*771“A. I tried to explain the law and told her what I would do and how I would re-arrange.it, and everything, and she wouldn’t listen to me.”
It is true that Code, section 4097dd, makes provision for the assignment of seats to the several races. That means no more than that the bus driver shall see that the several races sit in the spaces set apart for them. To hold that the bus driver must assign and conduct ex mero motu all passengers to their seats is something new. “Statutes on this subject, read together, show that it is the duty of bus drivers to see that members of the different races occupy the spaces assigned to them, and that is all that he has to do.
By statute, space assignable to the different races varies with traffic demands.
There had been no trouble until the plaintiff came aboard, and there is nothing to indicate that any white person occupied a seat which had been set aside for the colored. In order to readjust assignments, it became necessary to give to a colored person a seat heretofore taken and presumably properly taken by a white person. In a proper readjustment, this white person should have surrendered his seat and come forward, while the colored person should have surrendered her seat and moved back. This the bus driver attempted to explain to the defendant, but, as he expresses’ it, “Every time I opened my mouth she wanted to shove her foot in it. What I mean to say is that she wouldn’t listen to what I had to say.” What the defendant said was that she was “not going to move.”
With this flat and final statement of her “intention”, there was nothing else for the bus driver to do, and there was no occasion to bring a white passenger in the rear forward. Had he come forward, there would have been no place for him to sit, for the woman had said that she was not going to move. Moreover, in any aspect of the case, the bus driver could not make the woman and the man get up at the same moment. Some one had to move first, and if the *772woman had gone to the rear, she would have been given the seat that would have been vacated on her approach.
This is no effort of an impecunious defendant to escape from the crushing burden of a $5.00 fine. Her husband, the sergeant, might have paid it, and she might have paid it from her salary as a school teacher. It is really an assault upon the segregation statutes themselves and, in substance, a request that they be emasculated; or, as the dictionary puts it, that they may be whittled away by “interpretation.” In other words, she would put these statutes to the test, and to that extent I am in cordial accord.
What would be the final conclusions of the Supreme Court on appeal we cannot know.