(dissenting).
Insofar as the opinion of the court sustains the Railroad Company’s dining car regulations on the ground that they made adequate provision for the number of Negro passengers likely to apply for service, *40I am constrained to dissent. The Railroad Company has found that less than 4 per cent, of its dining car patrons are Negroes, and it reserves 8 per cent, of the available space for their exclusive use. This arrangement on its face seems fair to the Negro race, but'it is based on the erroneous assumption that the rights which the Fourteenth Amendment is designed to protect aré racial rather than personal in their nature. The regulations set aside one table' in the dining car exclusively for Negroes and ten1 tables exclusively for whites, and the result is that occasionally a member of one race is denied service which is then • available to a member of the other. Whenever this occurs, the Railroad Company discriminates against’ one passenger in favor of another because of his race, and deprives him of equality of treatment, and it is no answer to say that the Railroad Company has taken reasonable precautions to prevent the occurrence. It is true that segregation of the races is lawful provided “Substantial equality of treatment of per-’ sons traveling under like conditions” is ac-1 corded; but the right belongs to the individual and not to the race, and segregation must be abandoned, or at least tempo-' rarily suspended, whenever its enforcement deprives the individual of treatment equal to that accorded to any other pefson at the same time. ''
Segregation in ‘railroad traffic may be maintained if there are sufficient accommodations for all; but a vacant seat may not be denied to a. passenger simply because of. his race. The decisions of the Supreme" Court support this view. In McCabe v. Atchison, T. & S. F. R. Co., 1914, 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169, the court upheld an Oklahoma statute, 13 O.S. 1941 § 181 et seq., which required the Railroad Company to provide separate but equal accommodations for the two races in intrastate railroad travel, but struck down a section of the Act which permitted the carrier to provide sleeping cars, dining cars or chair cars to be used exclusively by either white or Negro passengers, separately but not jointly. It is not questioned that the meaning of this provision was that the carrier might provide these cars for, white persons but need not provide similar accommodations for Negroes, because there were not enough Negroes seeking these accommodations to warrant the expense of providing them. Justice Hughes, in holding this section unconstitutional, said (235 U.S. at pages 161, 162, 35 S.Ct. at page 71): “This argument with respect,to volume of traffic seems ..to us to be without merit. It makes the constitutional right depend upon the number of persons who may be discriminated against, whereas the essence of the constitutional right is that it is a personal one. Whether or not particular facilities shall be provided may doubtless be conditioned upon there being a reasonable-demand therefor; but, if facilities are pro-’ vided, substantial equality of treatment of persons traveling under like conditions cannot be refused. It is the individual who is entitled to the equal protection of the laws, and if he is denied by a "common carrier, acting in the matter under the authority ofs a state law, a 'facility or convenience in the course of his journey which, under substantially the same circumstances, is furnished to another traveler, he may prop-, erly complain that his constitutional privilege has been invaded.”.
It may be suggested that the' McCabe case is distinguishable because in that case’ the Railroad Company made no provision' for colored passengers desiring first class service, whereas the regulations under ex-; amination in the present case are -designed ■ to care for all colored passengers that,may be reasonably expected to apply. The distinction, however, is one of degree and not o-f principle, for in both cases the arrangement is designed to take care of the de-, mands of the race father than those of the individual citizen. Moreover, in 1940, the Supreme Court in Mitchell v. United States, 313 U.S. 80, 61 S.Ct. 873, 85 L.Ed. 1201, reiterated the ruling that constitutional rights are personal and not racial, in a , case where the carrier contemplated the probability that Pullman service would be demanded by Negroes, but made insufficient provision to meet the demand. Whenever that occurred, the court said, the Railroad Company was required to abandon the policy of segregation and seat the colored passenger in the car ordinarily reserved for whites. It had been the practice of the *41Railroad Company to accommodate the occasional Negro applicant for a chair in a Pullman car by giving him a seat in--a drawing room at the same rate as was charged for a seat in-the body of the car^ but to compel the passenger to take a place in an ordinary coach when no drawing room was available. Adopting the view of the Government which, opposed the regulation, Chief Justice .Hughes, speaking for the court, said (313 U.S. at pages 96, 97, 61 S.Ct. at page 878) :
■ “The Government puts tbe ihatter ■ succinctly : ‘When a drawing room is Available, the carrier practice of allowing- colored passengers to use one at Pullman seat rates avoids inequality as between the accommodations specifically assigned to the passenger. But when none is available, as on tbe trip which occasioned this litigation, the discrimination and inequality of accommodation become self-evident.. It is no answer to say that the colored passengers, if sufficiently diligent and forehanded, can make their reservations so far in advance as to be assured of first-class accommodations.- -So -long as white passengers .can secure first-class reservations. on the day of travel and .the colored passengers ■ cannot, the latter are subjected to, inequality and discrimination because of their race’. And the Commis:sion has recognized that inequality persists with respect to certain, other facilities such as dining-car and observation-parlor car accommodations.
“We take it that the chief reason for the Commission’s action was the -‘comparatively little colored traffic’. But the comparative volume of -traffic cannot justify the denial of a fundamental- right of equality of treatment, a right'-specifically safeguarded by the provisions of the Interstate Commerce Act. -We- thought a similar argument with respect to volume of traffic to be untenable in the application of the Fourteenth Amendment. We said that it made the constitutional right depend upon the number of persons who may be discriminated against, whereas the essence of that right is that it is a personal one. McCabe v. Atchison Topeka & Santa Fe R. Co., supra. While the supply of particular facilities may be conditioned upon there being a reasonable demand therefor, if facilities are provided, substantial equality of treatment of persons traveling under like condi tions cannot be refused. It is the individual, we said, who is entitled to the equal protection of the laws, — not merely a group of individuals, or a body of persons according to their numbers. Id. See, also, [State of] Missouri ex rel. Gaines v. Canada, 305 U.S. [337, at] pages 350,. 351, 59 S.Ct. [232], 236, 237, 83 L.Ed. 208. And the Interstate Commerce Act expressly extends its prohibitions to the subjecting of ‘any particular person’ to unreasonable discriminations.”
The same principle was again approved by the Supreme Co.urt in the recent case of Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, which dealt with the validity, of strictive covenants in deeds designed to exclude Negroes from the ownership or occupancy of real property. The court held that covenants of this nature are unenforceable and, pointing out that the constitutional rule of equality is personal, declared that the denial of such a right to a Negro is not validated by the denial of the right under like circumstances to a white person. Chief Justice Vinson said 68 S.Ct. at page 846: “Respondents urge, however, that since the-state courts-stand-.ready to enforce restrictive covenants excluding white persons .from the ownership or occupancy of property covered by such agreements, enforcement of covenants excluding1 colored' persons may not be deemed a denial of equal protection of the laws to the colored persons who aré thereby affected. This contention does not bear scrutiny. " The parties have directed our attention1 to no case in which a court, state or •federal, has been called upon to enforce a covenánt excluding members of the white majority from ownership or occupancy of real property on grounds of race or color. But there are more -fundamental considerations. The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed, to the individua]. The fights established are personal rights. It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of *42race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.”
The carrier in the pending case has undoubtedly made an earnest effort to meet the criticisms directed at its earlier regulation in the former opinion of this court, and consequently instances of discrimination on account of race are less likely to occur under the regulation now prevailing. Nevertheless that regulation must also be condemned because it occasionally permits discrimination against members of both races in the allotment of dining-room privileges; and the. court should therefore hold that the practice of the carrier in segregating the races in its dining-cars must be suspended whenever its enforcement results in the denial to any individual of his constitutional- right of equality of treatment