dissenting.
If the statute of the State of Kentucky, here involved, as enforced by the decision under review imposes an unreasonable burden upon interstate commerce, the conviction should be reversed. To determine this question it is necessary to have in mind precisely what the charge was, and the nature of the traffic to which it was applied. The South Coyington & Cincinnati Street Railway Company was charged with the offense of unlawfully running and operating a coach or car by electricity on a railroad track within the State of Kentucky, without causing or having a separate coach for the transportation of white and colored passengers on its said line of railroad to bear in some conspicuous place appropriate words in plain letters indicating the race for which it was set apart, and without having its coach or car divided by a good and substantial *405wooden partition, or other partition, dividing the same into compartments'with a door therein, , and each separate compartment bearing in some conspicuous place appropriate words in plain letters indicating the race for which it was set apart.
There is no conflict of testimony, and the record shows that the Company was engaged in the operation of a street railway system whose principal business was interstate commerce, carrying passengers between Cincinnati and Kentucky cities across the Ohio River; that the car in question, described in the indictment, was an ordinary single truck street car seating thirty-two passengers, about twenty-one feet in length, inside measurement, solely engaged in interstate trips from Cincinnati, Ohio, through Covington, Kentucky, and well-populated territory adjacent thereto, to a point near Fort Mitchell, a suburb, about five miles distant. Eighty per cent, of the passengers carried were interstate. Not to exceed 6 per cent, of the passengers carried at any time were colored and on a large proportion of the trips no colored passengers were carried.
The question for determination is: Whether under such circumstances the requirement of the statute of the State of Kentucky that railroad companies doing business in that State shall be required to furnish separate coaches and cars for the travel or transportation of white and colored persons or cars with compartments, as described in the indictment, is constitutional? The nature of the traffic of the South Covington & Cincinnati Street Railway Company was considered by this court in South Covington & Cincinnati Street Ry. Co. v. Covington, 235 U. S. 537, and we held that the traffic between Kentucky and Ohio on the same cars, under the same management, and for a single fare constituted interstate commerce. (See 235 U. S. 545, and cases cited.) In that case we held that an ordinance of the City of Covington, which under*406took to determine the number of cars and passengers to be carried in interstate transportation was invalid as a burden upon interstate commerce; and that, as to certain regulations affecting the safety and welfare of passengers, the ordinance was valid -until Congress saw fit to regulate the interstate transportation involved.
It is true that a portion of the transportation involved in the present case is over the track of a railroad company organized under the laws of Kentucky. But that road had no cars, conducted no railroad operations, and its stock was owned and it was operated by the South Covington & Cincinnati Street Railway Company. The car, for which the indictment was returned, and the conviction had, was operated only in interstate traffic, and, whether over one road or the other, such operation was interstate commerce, and plainly within the authority of Congress. In the absence of congressional regulation the State had power to make reasonable rules, not burdening interstate commerce, which should be enforced until Congress otherwise enacted. .
The question in this case then is: Was the application of this statute a reasonable regulation? The traffic consists in running a single car, of the character already described, from Fountain Square, Cincinnati, a distance of about six miles, to' Fort Mitchell, a suburb of South Covington, Kentucky. How could this separate car or compartment statute, be complied with? Tt is first suggested a separate car. could be put on for the accommodation of colored passengers for the distance of the intrastate run on the Kentucky side of the river. In view of . the nature of the transportation and the meagré patronage compared with the expense of such an undertaking,This method would be impracticable without'interrupting travel and entailing a great loss upon the Company. Secondly, it is suggested, and this seems to be the weight of the argument, that cars could be constructed with a separate compartment for the few colored *407persons who ride in the car after it reaches or before it leaves Kentucky. It is admitted that this regulation would not apply to interstate passengers, and colored passengers going from Kentucky to Cincinnati, or going from Cincinnati to Kentucky on a through trip, would not be subject to the regulation. The few colored passengers traveling exclusively in the State of Kentucky in this car would thus be discriminated against by reason of the different privilege accorded to other colored passengers on the same car, a condition not likely to promote the peace or public welfare.
As this transportation is also subject to regulation in the State of Ohio (see § 12940, Ohio Gen. Code) and as by the laws of that State no such separation of passengers is permitted, it follows that upon the same trip the traffic would be the subject of conflicting regulations, calculated to be destructive of the public policy which it is supposed to be the design of this statute to promote; a condition which we said in South Covington Street Railway Case, supra, would breed confusion greatly to the detriment of interstate traffic.
This case is quite different from Chesapeake & Ohio Ry. Co. v. Kentucky, 179 U. S. 388, in which the statute now under consideration was before the court, and wherein it was held that the law was valid when applied to a carrier operating an interstate road. The act was held to be separable, and capable of being complied with within the State by attaching a car for passengers traveling only within the State. That case presented quite a different situation from the operation of the single street car here involved.
The present indictment is for running an ordinary street car upon an interstate journey of only about six miles, with 80 per cent, of its travel interstate, and not over'6 per cent, of the passengers colored, and ’on many trips no colored passengers at all. As wediave indicated-, the attachment of the additional car upon the Kentucky side on so. short a *408journey would burden interstate commerce as to cost and in the practical operation of the traffic.' The provision for a separate compartment for the use of only intrastate colored passengers would lead, to confusion and discrimination. The same interstate transportation would be subject to conflicting regulation.in the two States in which it is conducted.
It seems to me that the statute in question as applied to the traffic here involved is an unreasonable regulation and burdensome to interstate commerce, and, therefore, beyond the power of the State. I think the judgment should be reversed.
Mr. Justice Tan Devanter and Mr. Justice Pitney concur in this dissent.