(dissenting). The fourteenth amendment to the Constitution of the United States provides that:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, * * * nor deny to any person within its jurisdiction the equal protection of the laws.”
If each of two citizens of unobjectionable mental, moral, and physical character, one a white man and the other a colored man, tenders and pays to one of the defendant railroad companies in Oklahoma that is operating upon its trains chair cars, sleeping cars, and dining cars the same lawful rate for his transportation between the same places in a chair car, or in a sleeping car, and for the customary use of a dining car on his journey, and the white man is furnished by the company with his ride in a chair car, or in a sleeping car, and with his dinner in the dining car, and the railroad company by authority of the separate coach law of Oklahoma, solely by reason of his color, prevents the colored citizen from riding in or using all of those cars and all other cars of a similar character, ejects him from any such car into which he enters, and refuses to carry him at all unless he rides in an ordinary coach, is the colored citizen accorded “the equal protection of the laws” enjoyed by the white man and the unabridged privileges and immunities of citizenship which he enjoyed before this coach law was enacted? To me this question seems to bear its own answer, and after repeated readings of the opinion of the majority my mind still refuses to assent to any other than the negative answer to this question. The majority answer it in the affirmative. They argue that the railroad companies cannot afford to haul separate chair cars, sleeping cars, or dining cars for colored citizens, and meet their complaint with the felicitous words:
“The principle of equality of service between the two races in Oklahoma contemplates substantial similarity of service, and this only when conditions and circumstances under which it is required are substantially the same.”
*978But no separate chair cars or sleeping cars or dining cars for the members of the two races are required of the companies to enable them to give to colored citizens all the comforts and conveniences of travel which they furnish to the white citizens. They may furnish them in separate compartments in the same chair cars, sleeping cars, and dining cars that are occupied by the whites, and, if this separate coach law of Oklahoma is unconstitutional, they may provide the colored citizens with equal service in the same cars occupied by white persons without separate compartments.
Nor are the rights of citizens to unabridged privileges and immunities and to the equal protection of the laws measured by the expense or inconvenience to railroad companies that the existence and enforcement of those rights may entail. While the expense and inconvenience to the railroad companies of maintaining separate coaches and compartments for the two races is a matter worthy of serious' consideration by a state when it is determining the question whether or not such a requirement is a reasonable exercise of its police power, the constitutional rights of citizens to their privileges and immunities and to the equal protection of the laws are not dependent upon such considerations, nor upon the varying conditions and circumstances which may surround them.
As I understand the fourteenth amendment to the Constitution, the purpose of its enactment, its express terms, and its legal effect are to prohibit the conditioning of the privileges and immunities of citizens and the equal protection of the laws by' the respective conditions and circumstances in which citizens may find themselves, and to secure to those suffering under adverse conditions and unfavorable circumstances the same civil rights and the same protection of the laws that the more fortunate and prosperous enjoy. Citizenship, and citizenship alone, under this amendment to the Constitution, entitles every man, white or black, to all his civil rights and privileges unabridged by the action or legislation of any state and to the equal protection of all the laws. Before the law, by the express terms of the fourteenth amendment, all citizens are equal' in their civil rights, and the humblest is the peer of the most powerful. It regards a citizen as a citizen, and takes no account of. his surroundings or of his color when his civil rights, as guaranteed by this the supreme law of the land, are involved.
Distances in the state of Oklahoma are magnificent, so great that the time necessarily occupied in many journeys within that state far exceeds 12 hours. Would one traveling through the day who was forbidden to purchase and take his dinner in a dining car upon his train which the railroad company furnished to his companion travelers be of the opinion that the service provided for him was equal in convenience or comfort to that furnished to his companions ? Would one riding all night upon a train- that carried a sleeping car who was legally expelled from or forbidden by law to enter or occupy it believe that he was provided with equality of service, or equal comforts and conveniences with his companions who were permitted to purchase berths and beds therein? Is one who is ex-*979eluded from a chair car with the use of which his traveling companions are furnished provided with the same or equal service, convenience, and comfort with his companions? The complaint in this case is not that the state or the defendant railroad companies required white and colored citizens to occupy separate cars or separate compartments. It is that the state of Oklahoma by means of its separate coach law authorizes the defendants to'deny to colored citizens facilities, comforts, and conveniences substantially equal to those which they give to white citizens.
Under the common law and under the Constitution of the United States before the enactment of this Oklahoma statute, railroad companies in that state were legally bound to furnish equality of service, comforts, and conveniences of travel to white and colored citizens without discrimination against either. The colored citizen had the legal right to these facilities, comforts, and conveniences, and that right was as effectively protected by the law as was that of the white man. He had the same right as the white citizen to. the use of chair cars, dining cars, and sleeping cars furnished by the carrier, and any infringement of that right was as actionable and remediable as was the iniringement of any white man’s right to such a use.
The fourteenth amendment to the Constitution provides that:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
And that:
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
This Oklahoma statute provides that the railroad companies in that state shall furnish separate coaches or compartments equal in points of comfort and convenience for the members of the white and the colored races (section 1); that each coach or compartment shall bear letters indicating the race for which it is set apart (section 2); that the railroad companies may haul sleeping cars, dining cars, and chair cars set apart exclusively for white passengers or exclusively for colored passengers (section 7); that any passenger who rides in any coach or compartment not designated for his race, after having been forbidden so to do by the conductor in charge of the train or car, shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than $5 nor more than $25 (section 6); that any conductor in charge of a train shall have authority to refuse any passenger admittance into any coach in which he is not entitled to ride under the act, and that it shall be his duty to remove from the train or coach any passenger not entitled to ride therein, and that, if he knowingly refuses to do so, he shall be guilty of a misdemeanor and subject to a fine of not less than $50 nor more than $500, and neither the company nor the conductor shall be liable for damages on account of any such removal (section 10). Does not this law abridge *980the privileges and immunities held by colored citizens before its passage ? They had the same right and privilege as white men to ride in chair cars, in sleeping cars, and in dining cars before this law was passed, and the railroad companies were liable-in damages for any infringement of that right. This law deprives them of that right and privilege, and subjects them to a .fine of from $5 to $25 for attempting to exercise it; for the railroad companies comply with this law when they set apart and mark for white passengers all their chair cars, all their dining cars, and all their sleeping cars and only furnish separate compartments equal to each other in points of comfort and convenience in coaches, however inferior all these compartments and coaches may be in comfort and convenience to the chair cars, the sleeping cars, and the dining cars. These separate compartments or coaches may be under this law so inconvenient and comfortless that no white passengers will use them, that all the white passengers will ride in the chair cars, or in the sleeping cars so that none but colored citizens can be found in the separate coaches or compartments. Nor may one readily wink so hard as not to perceive that this may be the natural effect of this law; for, if earners may set apart all their chair cars for white passengers exclusively, their separate compartments for white persons in coaches may be very restricted, and the comforts and conveniences of 'these coaches véry inferior.
Does this act deprive colored citizens of the equal protection of the laws? Before its passage colored citizens had the privilege and right to ride in the chair cars, the sleeping cars, and. the dining cars operated by the railroad companies, and that right was protected by the law which gave them damages for its infringements. By the express terms of this statute that protection is withdrawn, they can recover no damages for any infringement of this civil right, and they are subjected to fines of from $5 to $25 for every attempt to exercise it. These considerations leave my mind no avenue of escape from the conclusion that this Oklahoma statute abridges the privileges and immunities of the colored citizens of that state and deprives them of the equal protection of the laws.
Nor is any authority cited by the majority in conflict with this conclusion. None of the laws considered in those cases, neither the statute of Louisiana (Laws of Louisiana, 1890, No. 111, p. 152; Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256), nor the statute of Mississippi of March 2, 1888 (Acts 1888, c. 27), which is considered in Louisville, etc., Railway Company v. Mississippi, 133 U. S. 587, 588, 10 Sup. Ct. 348, 33 L. Ed. 784, nor the act of Kentucky of May 24, 1892 (Laws of Kentucky 1891-1892-1893, c. 40, p. 63), treated in Chesapeake & Ohio Ry. Co. v. Kentucky, 179 U. S. 388, 21 Sup. Ct. 101, 45 L. Ed. 244, either authorized or permitted the railroad companies to deny to colored citizens accommodations equal in convenience and comfort to those provided for white citizens. None of these statutes either empowered or permitted railroad companies to exclude from their chair cars or sleeping cars or dining cars all colored citizens, or to deprive colored pas-*981mongers of the same right that the white passengers had to equal accommodations or to legal protection for that right. On the other hand, each of these statutes expressly required the accommodations to the citizens of the two races to be equal, and the Kentucky statute prohibited any “difference or discrimination in the quality, convenience or accommodations in the cars or coaches set apart for white and colored passengers.” Section 2.
In Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256, the Supreme Court held only that the Louisiana statute which expressly required the accommodations furnished by the carriers to colored citizens to be equal to those provided for white citizens was not unconstitutional because it required railroad companies to carry the members of the two races in separate coaches or compartments.
The cases of Louisville, etc., Ry. Co. v. Mississippi, 133 U. S. 587, 10 Sup. Ct. 348, 33 L. Ed. 784, and Chesapeake & Ohio Ry. Co. v. Kentucky, 179 U. S. 388, 21 Sup. Ct. 101, 45 L. Ed. 244, were prosecutions of railroad companies for failures to provide separate coaches under the Mississippi and Kentucky statutes cited above, and neither of them presented any question of the rights of colored passengers under the fourteenth amendment or under the statutes themselves, as is clearly stated by the Supreme Court in 133 U. S. 589, 10 Sup. Ct. 348, 33 L. Ed. 784, in these words:
“It will also bo observed that this is not a civil action brought by an individual to recover damages for being compelled to occupy one particular compartment, or prevented from riding on the train, and hence there is no question of personal insult or alleged violation of personal right.”
In Chiles v. Chesapeake & Ohio Ry. Co., 218 U. S. 71, 30 Sup. Ct. 667, 54 L. Ed. 936, the only question presented was whether or not a railroad company in the absence of statutory authority might lawfully separate white from colored passengers on condition that it furnished them equal accommodations, and its right so to do was upheld. The fourteenth amendment is leveled only at the action of a state, and, as no state action was in question in this case, the rights and privileges of colored citizens under that amendment were neither considered nor adjudged.
The Oklahoma statute expressly authorizes every railroad company doing business in that state, by its mere arbitrary will, to mark all its chair cars, all its sleeping cars, and all its dining cars hauled in that state for white persons exclusively and to provide none for colored persons, or to mark them all for colored persons exclusively and to haul none for white persons. It thereby authorizes any such-railroad company to deprive all passengers for whom it does not mark these classes of cars of the privilege and right to use them which, they had before this act was enacted of the equal protection of that right by the laws, which they had before that act was passed, and subjects them to a fine for attempting to exercise this right. Suppose the railroad companies doing business in Oklahoma should mark all their chair cars, all their sleeping cars, and all their dining cars for colored passengers exclusively, should exclude all *982white passengers therefrom, and should provide no cars of these classes for white passengers in the same way that they now designate all such cars for' white passengers exclusively, exclude colored passengers, and haul'no cars of these classes for colored passengers; would any one conceive that white passeng-ers were furnished with equality of service with’ colored passengers, or 'that their privileges and immunities were not abridged by this law, or that they were not deprived of the equal protection of the laws thereby, when in this way they would be deprived of all protection of their previous right and privilege to the equal use of such cars and made liable to fine for attempting to exercise that right, while the same right and privilege of colored persons to that use would remain undisturbed and securely protected by the law ?
The validity of . this statute under the fourteenth amendment is not conditioned by the character of the parties empowered to determine what citizens may use the chair cars, the sleeping cars, and the dining cars. It is not conditioned by the answer to the question whether such parties are public officials or private citizens. Nor is it conditioned by the manner of the exercise of this power or by the answer to the question whether it is exercised fairly and justly or “with an evil eye and an unequal hand”; for the proposition is self-evident that whenever a privilege and right of person or of property, whenever any civil rig'ht of any persons or of any class of persons, 'Or its legal protection is made dependent by law upon the arbitrary will of third persons that right is not only abridged, but it is destroyed, it is no longer a right, and the equal protection of the law is entirely withdrawn from it.
While the Supreme Court in Yick Wo v. Hopkins, 118 U. S. 356, held at page 373, 6 Sup. Ct. 1064, at page 1073 ( 30 L. Ed. 220), that, “though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution,” yet it had also held in the earlier part of the opinion in that case that an. ordinance of the .city of San Francisco violated the fourteenth amendment of the Constitution, and was void because it made the right and privilege of citizens to conduct • laundries in that state dependent upon the arbitrary will of the board of supervisors. It supported that conclusion by extended argument and numerous authorities, and said:
“When we consider the nature and theory of our institutions of government, the principles iipon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power; * * * for the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.” 118 U. S. 369, 370, 6 Sup. Ct. 1064, 1071 (30 L. Ed. 220).
This statute which authorizes railroad companies at their arbitrary will to deprive citizens of their civil rights, which takes away all *983remedy for such a deprivation and subjects those so deprived to fines for endeavoring to enforce those rights, is as obnoxious to the Constitution as a law which directly destroys them.
The true interpretation of the fourteenth amendment is to be found in the decisions of the Supreme Court when it was composed of those great jurists who had been active in public affairs when it was proposed and enacted and who could not fail to know its purpose and its meaning. In Strauder v. West Virginia, 100 U. S. 303, 306, 25 L. Ed. 664, that court said:
“This is one of a series of constitutional provisions having a common purpose, namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoyed. * * * They especially needed protection against unfriendly action in the states where they were resident. It was in view of these considerations the fourteenth amendment was framed and adopted. It was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should he denied by the states. It not only gave citizenship and the privilege of citizenship to persons of color, but it denied to any state the power to withhold from them the equal protection of the laws and authorized Congress to enforce its provisions by appropriate legislation. * * * rt ordains that no state shall deprive any person of lite, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that a law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states; and, in regard to the colored race for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race — the right to exemption from unfriendly legislation against them distinctly as colored — exemption from legal discrimination implying inferiority in civil society,. lessening the secu rity of their enjoyment of the rights which others enjoy and discriminations which are stops towards reducing them to the condition of a subject raw,.”
This separate coach law of the state of Oklahoma, with its specious requirement that the separate coaches or compartments it requires shall be “equal in all points of comfort and convenience,” with its actual provision that colored citizens may be excluded without remedy by carriers from all the more comfortable and convenient cars they haul upon their trains in Oklahoma, from the chair cars, from the sleeping cars and from the dining cars, with its deprivation of colored passengers of their privilege and right which they had before this law was enacted, to ride in and use such cars and their comforts and conveniences equally with white passengers, with its deprivation of the protection of that right by the laws which white passengers still enjoy, and with its imposition of fines for attempting to enforce their equal right, in my opinion defies the spirit, defeats the purpose, violates the express prohibition of the fourteenth amendment, is unconstitutional and void. And as the complainants allege in tlieir bill and the demurrers admit that the defendants under the authority of this law are continually depriving, and will continue to deprive, these complainants of these rights secured to them by this amendment, unless they are enjoined *984by the courts, I am unable to escape the conclusion that they are entitled to an injunction to prevent what seem to me to be acts whose only, but futile, excuse is this law of the state which violates the Constitution.
This view of the case renders unnecessary any discussion of the question whether this statute is void because it constitutes a breach of the contract between the people of the state of Oklahoma and the people of the nation made by the latter’s acceptance of the condition of their admission as a state prescribed by section 3 of the enabling act (Statutes of Oklahoma 1909, p. 50) that:
“The Constitution shall be republican in form and shall make no distinction in civil or political rights on account of race or color, and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.”
But I do not desire to be deemed to assent to any proposition -that any terms of the contract between the state and the nation made at the time of its admission may be violated by the former with impunity after the, acceptance of its Constitution and its admission into the Union. That question was much debated 60 years ago, without as within the courts. Leaving it aside here, the fact that the enabling act required, and the people of Oklahoma assented, to the agreement that there should be no distinction between civil and political rights on account of race or color in that state, is very persuasive that they and the Congress of the United States understood this to be the substantial meaning of the Constitution- of the United States, and in my opinion no such distinction should now be permitted to be perpetuated.
There is another reason why the bill iiv this case should be sustained. The majority concede that this separate coach law violates the commercial clause of the Constitution if it embraces or relates to interstate commerce at all. Hall v. De Cuir, 95 U. S. 485, 24 L. Ed. 547; County of Mobile v. Kimball, 102 U. S. 691-697, 26 L. Ed. 238; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091, 29 L. Ed. 257; Wabash, etc., Ry. Co. v. Illinois, 118 U. S. 557, 566-577, 7 Sup. Ct. 4, 30 L. Ed. 244; Bowman v. Chicago, etc., Ry. Co., 125 U. S. 465, 488-499, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700.
By its express terms, which are free from all ambiguity, it applies to all commerce in the transportation by railroad of passengers in the state of Oklahoma, to interstate to the same extent as to intrastate commerce, to passengers who are brought into, to those who are carried out of, and to those who are carried through the state to the same extent as to those who are transported only within its borders. And it is a. penal statute which subjects the former as well as the latter to fines for its violation. It first provides that every railroad company doing, business in that state shall furnish separate coaches and waiting rooms for the white and negro races, and then contains the following enactments which must be amended by judicial construction by the insertion of the words contained in the parentheses below or by words of similar import in-order to exclude interstate commerce from its terms and effect:
*985“It shall be unlawful for any person (except passengers who are brought into, or carried through, or out of the state of Oklahoma), to .use, occupy or remain in any waiting room, toilet room, or at any water tank in any passenger depot in that state set apart to a race to which he does belong.” Section 2.
••The term negro as used herein includes every person of African descent as defined by the Constitution” (except passengers who are brought into, or carried through, or out of the state of Oklahoma). Section 3.
“If any passenger (except passengers brought into, or carried through, or out of the state of Oklahoma), upon a railway train, * * * shall ride in any coach, or compartment not designated Cor his race, after having been forbidden to do so by the conductor of the train or car, or shall remain in any waiting room not set apart for the race to which he belongs, he shall be guilty of a misdemeanor and upon conviction shall be fined not less than five nor more than twenty-five dollars. Should any passenger (except passengers brought into, or carried through, or out of the state of Oklahoma), refuse to occupy the coach or compartment or room to which he or she is assigned by the officer of such railway company, said officer shall have the power to refuse to carry such passenger on his train, and should any passenger (except pasengers brought into, carried through, or out of the state of Oklahoma), or any other person not a passenger, for the purpose of occupying or waiting in such sitting or waiting room not assigned to Ms or her race, enter said room, said agent shall have power, and it is made his duty, to eject such person from such room, and for such neither they nor the railroad company which they represent, shall be liable for damages in any courts of ibis state.” Section ti.
“ * * * Provided nothing herein contained shall be construed to prevent any railway companies in this state from hauling sleeping cars, dining or chair cars attached to their trains io be used exclusively by either white or negro passengers, separately but not jointly.” (Except that all such cars shall be equally open to the joint use of those white and negro passengers who are brought into, carried through, or out of the state of Oklahoma.) Section 7.
When the Supreme Court of a state has construed or has clearly indicated by its decisions that it will interpret a statute of a state that by general ferms embraces subjects within and without the constitutional power of the state to be limited in its meaning and effect to the former, that construction necessarily prevails in all the courts of the state, and practically amends the statute and restricts its practical operation and effect to subjects within the constitutional power of the state. As no rights of citizens of the United States under its Constitution are or can be injuriously affected by a statute thus limited, the Supreme Court of the United States and this court have held that a state law thus amended by judicial legislation and limited by the highest court of the state that enacted it may be permitted to stand, although it would have been unconstitutional and void if the Supreme Court of the state that enacted it had interpreted it to embrace subjects without as well as within the constitutional power of the state, or if in the absence of construction by the highest court of the state it embraced such subjects by its terms under the established canons of interpretation. This, and this only, as I understand them, is the meaning and the legal effect of the decisions relative to this question in Louisville, etc., Ry. Co. v. Mississippi, 133 U. S. 587, 591, 10 Sup. Ct. 348, 33 L. Ed. 784, Chesapeake & Ohio Ry. Co. v. Kentucky, 179 U. S. 388, 395, 21 Sup. Ct. 101, 45 L. Ed. 244, and Butler Bros. Shoe Co. v. United States Rubber Company, 84 C. C. A. 167, 185, 156 Fed. 1, 19, cited by the majority. In each of *986these cases the Supreme Court of the state had either expressly interpreted (133 U. S. 591, 10 Sup. Ct. 348, 33 L. Ed. 784), or had indicated that it would interpret (179 U. S. 395, 21 Sup. Ct. 101, 45 L. Ed. 244; 156 Fed. 19, 84 C. C. A. 185), the statute in question to be’limited in its meaning and effect to the subjects within the constitutional power of the state. These decisions, however, fail to consider or to determine, as it seems to me, the question which the statute in hand presents. The Supreme Court of Oklahoma has not construed, restricted, or limited this law, nor has it given any intimation that it will ever do so. If, when this statute comes before that court for construction, it holds that this law means what it clearly and repeatedly declares, that every passenger whether interstate or intrastaté is subject to its provisions and its fines, the statute is unquestionably violative of the commercial clause of the Constitution and void. And, in the absence of any construction by that court, this statute must be equally violative of the Constitution if its true interpretation and effect is to subject interstate passengers to its provisions and penalties. We are therefore remitted in the consideration and decision of this case to the law and to the established rules for the construction of statutes for- an answer to the question whether or not the national courts may by judicial construction amend a statute which in plain terms applies without discrimination to subjects without and subjects within the constitutional power of the state so as to exclude the former and include the latter in order to take the law out from under the ban of the Constitution. This question, under circumstances similar to those under which this statute comes before this court, has been repeatedly answered by the Supreme Court and by this court.
In United States v. Reese, 92 U. S. 214, 218, 221, 23 L. Ed. 563, Congress had enacted a law which prescribed punishment for the unlawful refusal to accept votes from all voters while its constitutional power was limited to prescribing the penalty for refusing to receive votes “on account of the race, color, or previous condition of servitude of the voter.” The contention of the government was that the act was constitutional as to all refusals to receive votes on account of the race, color, etc., of the voter, and that it could be sustained to this extent and permitted to fail in other ‘cases, because the two classes of cases and the two portions of the act applicable to them .were readily separable. But the argument failed. The Supreme Court said:
“We are therefore directly called upon to decide whether a penal statute, which is in general lánguage broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish. For this purpose, we must take these sections of the statute as they are. We are not able to reject a part which is unconstitutional, and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of the sections must stand as a whole or fall together. The language is plain. There is no room for construction, unless it be as to the effect of the Consti*987tution. The question, then, to be determined, is whether we can introduce words of limitation into a penal statute so as to make it specific, whim, as expressed, it. is general only.”
In Trade-Mark Cases (United States v. Steffens) 100 U. S. 82, 25 L. Ed. 550, Congress possessed the constitutional authority to protect trade-marks in interstate and foreign commerce,- and it enacted a statute which by its terms protected trade-marks in all. commerce. The court was urged to restrict this law by construction to trademarks in interstate and foreign commerce and to sustain it. But it cited and quoted from the opinion in the Reese Case, and held the act unconstitutional.
In Virginia Coupon Cases (Poindexter v. Greenhow) 114 U. S. 270, 5 Sup. Ct 903, 962, 29 L. Ed. 185, the same argument was again met and overthrown with this declaration, which was subsequently quoted and affirmed in Income Tax Cases (Pollock v. Farmers’ Loan & Trust Co.) 158 U. S. at page 636, 15 Sup. Ct. at page 920 (39 L. Ed. 1108):
“It is undoubtedly true that there may be cases where one part of a statute may be enforced as constitutional, and another be declared inoperative and void, because unconstitutional: but these are cases where the parts are so distinctly separable that each can stand alone, and where the court is aide to see and to declare that the intention of the Legislature was that the part pronounced valid should be enforceable, even though the other part should fail. To hold otherwise would he to substitute for the law intended by the Legislature one they may never have been willing by itself to enact.”
In Spraigue v. Thompson, 118 U. S. 90, 94, 6 Sup. Ct. 988, 30 L. Ed. 115, the Legislature of Georgia had enacted a statute which would have been valid if it had not contained certain unconstitutional exceptions. The Supreme Court of that state sustained it upon the ground that the body of the act was readily separable from the exceptions The Supreme Court reversed that decision, and said:
“It was held, however, by the Supreme Court of Georgia, in the case now before us, that so much of the section as makes these illegal exceptions may bo disregarded, so that the rest of the section as thus read may stand, upon the principle that a separable part of a statute, which is unconstitutional, may be rejected, and the remainder preserved and enforced. But the insuperable difficulty with the application of that, principle of construction to the present instance is that by rejecting the exceptions intended by the Legislature of Georgia the statute is made to enact; what confesedly the Legislature never meant. Tt confers upon the statute a positive operation beyond the legislative intent, and beyond what any one can say It would have enacted in view of the it legality of the exceptions.”
In Chicago, Milwaukee & St. Paul Ry. Co. v. Westby, 102 C. C. A. 65, 78, 178 Fed. 619, 632, the same question came before this court under circumstances similar to those presented in the case at liar, and after a review of the foregoing authorities, and many others, it held that:
“A statute of a state which includes by general language in a single class those within and those without the constitutional class may not be limited by judicial construction to the latter class and then sustained.”
While it is true that, where a statute is constitutional in part and unconstitutional in part, the former part in proper cases may be sus - tained, while the latter part fails, yet indispensable conditions of such *988a result are: (1) That the constitutional part and the unconstitutional part are capable of separation so that each may be read and may stand by itself (Baldwin v. Franks, 120 U. S. 679, 685, 686, 7 Sup. Ct. 656, 30 L. Ed. 766); and the constitutional and unconstitutional parts of this statute are so consolidated in its terms which are made applicable to.“every passenger” and “every railroad company” without distinction between interstate and intrastate passengers, that such a separation is impossible; (2) that the insertion of words or terms is not necessary to separate the constitutional part from the unconstitutional part and to give effect to the former only (Allen v. Louisiana, 103 U. S. 80, 84, 26 L. Ed. 318; United States v. Reese, 92 U. S. 214, 218, 221, 23 L. Ed. 563; The Trade-Mark Cases, 100 U. S. 82, 99, 25 L. Ed. 550; United States v. Harris, 106 U. S. 629, 641, 642, 1 Sup. Ct. 601, 27 L. Ed. 290; Virginia Coupon Cases [Poindexter v. Greenhow] 114 U. S. 270, 305, 5 Sup. Ct. 903, 962, 29 L. Ed. 185; Spraigue v. Thompson, 118 U. S. 90, 94, 6 Sup. Ct. 988, 30 L. Ed. 115; Income Tax Cases [Pollock v. Farmers’ Loan & Trust Co.] 158 U. S. 601, 636, 15 Sup. Ct. 912, 39 L. Ed. 1108; Cella Commission Co. v. Bohlinger, 78 C. C. A. 467, 471, 147 Fed. 419, 423, 8 L. R. A. [N. S.] 537; Ballard v. Mississippi Cotton Oil Co., 81 Miss. 507, 34 South. 554, 555, 62 L. R. A. 407, 95 Am. St. Rep. 476), and the statute in hand cannot be so amended by the omission of words or terms or in any other way than by the insertion thereof (witness the sections quoted above and the words and terms set forth in the parentheses which are requisite to conform the statute to a constitutional enactment); (3) that the unconstitutional part is not so connected with the general scope of the law that the court cannot clearly see that the Legislature would have enacted and intended to give effect to the constitutional part, although the unconstitutional part was stricken out. To my mind this statute clearly discloses that the patent intention of the Legislature of Oklahoma was to exclude not only colored intrastate passengers, but every colored passenger from the coaches and c'ars occupied by white persons. The statute would have failed of its entire purpose if interstate colored passengers had not been excluded thereby, .for a part of the colored passengers in the coaches and cars occupied by the white persons were as obnoxious to the Legislature as all of them. The members of the Legislature never had any intention to pass any law that would have secured or permitted such a result and it is far from clear that they would have passed the statute with an exception of interstate passengers. This conclusion is sustained, not only by the reason of the case, but by the established rules for the interpretation of the statute itself. Its terms are unambiguous and its meaning evident. It subjects “every passenger” to its provisions and penalties. Where a statute is unambiguous and its meaning is evident, it must be held to mean what it clearly expresses and no room is left for construction. United States v. Ninety-Nine Diamonds, 139 Fed. 961, 964, 72 C. C. A. 9, 2 L. R. A. (N. S.) 185; Brun v. Mann, 151 Fed. 145, 157, 80 C. C. A. 513, 12 L. R. A. (N. S.) 154.
The fact that the Legislature subjected “every passenger” to the *989provisions of the law and made no exception of interstate passengers raises a conclusive legal presumption that they intended to make no such exception, and in my opinion it would be unjustifiable judicial legislation for the courts to do so. Cella Commission Co. v. Bohlinger, 78 C. C. A. 467, 473, 147 Fed. 419, 425, 8 L. R. A. (N. S.) 537; Omaha Water Co. v. City of Omaha, 77 C. C. A. 267, 147 Fed. 1, 12 L. R. A. (N. S.) 736; Madden v. Lancaster County, 12. C C. A. 566, 572, 65 Fed. 188, 194; Wrightman v. Boone County, 31 C. C. A. 570, 572, 88 Fed. 435, 437; Union Central Life Ins. Co. v. Champlin, 54 C. C. A. 208, 210, 116 Fed. 858, 860. It seems to me that this statute cannot be restricted lawfully by construction to intrastate passengers because the part applicable to that class is not separable from the part applicable to the unconstitutional class, the interstate passengers, so that each part may be read and may stand by itself, because it is not apparent that the Legislature would have passed the act if it had been limited to the constitutional class, but it is plain that they would not have done so, because the Legislature excepted neither class, and the legal presumption is that it intended to except none, because the statute cannot be restricted to the constitutional class by the elimination of words or clauses, that result can be attained only by the introduction into it of express terms or words, and because its terms are plain and its meaning is evident, and it ought not to be construed to mean that which it does not express. In view of these considerations, rules, and authorities, my opinion is that the separate coach law of Oklahoma applies to interstate passengers and interstate commerce to the same extent that it does to intrastate passengers and commerce, and that for that reason it is violative of the commercial clause of the Constitution and void. For the reasons which have now been stated, at perhaps too much length, I think that the decree below should be reversed, that the demurrers of the defendants should be overruled, and that they should be required to answer the bill.