dissenting.
I would hold, under the facts in this case, that Everett Raney, a Negro, was, because of his color, discriminated against in “the quality or convenience of the accommodations ’ ’ afforded him. I would, however, uphold the validity of Virginia Code, 1950, sections' 56-326 to 56-330, inclusive, Acts 1930, chapter 128, page 343.
The question of discrimination, it seems to me, is the principal and controlling issue. Raney does not contend that the statute is invalid. He says that, as construed and enforced by the motor vehicle carrier, it contravenes the provisions of the Federal Constitution. If he was denied the privileges and immunities of a citizen, the validity of the Virginia statute is immaterial. Regardless of the provisions of the statute, his rights are guaranteed under the Fourteenth Amendment to the Constitution of the United States.
In ordinary and common acceptation, the word ‘ ‘ discrimination” has the meaning ascribed to it in Webster’s International Dictionary, Second Edition: “A difference in treatment made between persons, localities or classes of traffic in respect of substantially the same service. ’ ’
In Davis v. Commonwealth, 182 Va. 760, at page 765, 30 S. E. (2d) 700, 703, Mr. Justice Eggleston, speaking for this Court, said:
“It is necessary to the validity of segregation statutes that there be no discrimination either in their terms or in their enforcement. There must be ‘ substantial equality of treatment ’ as well as substantial equality of facilities furnished. McCabe v. Atchison, etc., R. Co., 235 U. S. 151, 161, 162, 35 S. Ct. 69, 71, 59 L. ed. 169. A statute which permits inequality of treatment to *756the members of the two races would be plainly invalid. (Emphasis added.)
“It is patent that the draftsman of the present Act appreciated this fundamental principle. Section 2 of the Act (Michie’s Code of 1942, section 4097aa) (now Code 1950,' sec. 56-327), expressly provides that carriers ‘shall make no difference or discrimination in the quality or convenience of the accommodations provided for the two races.’ ”
In New v. Atlantic Greyhound Lines, 186 Va. 726, 43 S. E. (2d) 872, a colored passenger was not denied a seat on a motor bus. She refused to move to a seat equal in accommodation to the one she occupied. We held that, under the facts, there was no discrimination in the quality of the accommodations provided for her by the carrier, and upheld the validity of the statute.
Recent decisions of the Supreme Court and of the lower Federal courts point out the approach to a solution of our problem. It is true they were decided on the issue whether certain segregation statutes and carrier regulations unlawfully burdened interstate commerce. The issue was a convenient and expedient ground for disposition of the problem presented. The basis of the burden was the discrimination practiced or required to be practiced by the carrier. Yet the standard of conduct in the treatment of passengers was under consideration, and the courts expressed their views on the subject in no uncertain language.
In Mitchell v. United States, 313 U. S. 80, 61 S. Ct. 873, 85 L. ed. 1201, a Negro passenger, in interstate traffic, holding a first-class ticket, was denied a Pullman seat, although such a seat was unoccupied and would have been available to him if he had been white. Mr. Chief Justice Hughes, in delivering the opinion of the court said, ‘ ‘ That there was but a single incident was not a justification of the treatment of the appellant.”
He further said that the constitutional right of equality of treatment cannot be made to “depend on the number of persons who may be discriminated against, because the essence of the right is a personal one.’’ (Emphasis added). Said he: “It is the individual 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.”
In Henderson v. United States, 339 U. S. 816, 70 S. Ct. 843, decided June 5, 1950, the plaintiff, a colored passenger, was ex-*757eluded from certain tables reserved for white passengers in a dining car, and forced to wait until seats at other tables reserved for Negroes were available before he was served. Said the Court:
“The right to be free from unreasonable discrimination belongs, under section 3 (1) (Interstate Commerce Act, 49 U. S. C. A.) to each particular person. Where a dining car is available to passengers holding tickets entitling them to use it, each such passenger is equally entitled to its facilities in accordance with reasonable regulations. The denial of dining service to any such passenger by the rules before us subjects him to a prohibited disadvantage. Under the rules, only four Negro passengers may be served at one time and then only at the table reserved for Negroes. Other Negroes who present themselves are compelled to await a vacancy at that table, although there may be many vacancies elsewhere in the diner. The railroad, thus, refuses to extend to those passengers the use of its existing and unoccupied facilities. The rules impose a like deprivation upon white passengers whenever more than 40 of them seek to be served at the same time and the table reserved for Negroes is vacant. * * *
“It is argued that the limited demand for dining-car facilities by Negro passengers justifies the regulations. But it is no answer to the particular passenger who is denied service at an unoccupied place in the dining-car that, on the average, persons like him are served. * *
“That the regulations may impose on white passengers, in proportion to their numbers, disadvantages similar to those imposed on Negro passengers is not an answer to the requirements of section 3 (1). Discriminations that operate to the disadvantage of the two groups are not the less to be condemned because their impact is broader than if only one were affected. Cf. Shelley v. Kraemer, 334 U. S. 1, 22, 68 S. Ct. 836, 846, 92 L. ed. 1161, 3 A. L. E. (2d) 441.” (Emphasis added.)
In Chance v. Lambeth, 4th Cir., 186 F. (2d) 879, it was held that the regulation of a railroad company which permitted white and colored passengers to ride in the same railroad car in part of their interstate journey, through Virginia, and required separation of white and colored races, and change of cars, if necessary, when a specified city in Virginia was reached, unlawfully burdened interstate commerce. In discussing the effect of State segregation statutes and carrier regulations, and referring to Mitchell v. United States, supra, and Henderson v. United States, supra, the court said:
*758“In the last mentioned cases the court did not reach certain constitutional questions suggested by the complainant, but in all the cases, whether the decision was based upon a violation of a provision of the constitution or of a statute of the United States, the problem under consideration was the standard of conduct to be observed by interstate carriers in dealing with members of the traveling public. Moreover, the ill effect'upon the passengers and thS disturbance of interstate traffic were much the same tvhether the carrier’s conduct was treated technically as a denial of equal privileges to the races or as a burden upon the interstate commerce.” (Emphasis added)
In the recent case of Briggs v. Elliott, 98 F. Supp. 529, it was held that the question of segregation of the races in public schools is a matter of legislative policy for the several states, so long as the two races are given equal facilities and opportunities. The principle of non-discrimination in statutes and regulations re: lating to segregation was re-affirmed.
The facts in the cases of Mitchell v. United States, supra, and Henderson v. United States, supra, fit in fairly closely with those here. What was said appears to answer the majority in this case. In the first, a Negro was denied an unoccupied Pullman seat because of his race and color. The single incident was held not a justification for his treatment. In the second, a Negro was denied an unoccupied dining car seat by reason of his color. That discrimination was condemned, although it operated to the disadvantage of a white person as well.
I am unable to see any difference in discrimination between the refusal on account of color to allow a passenger to occupy a vacant seat on a bench of a motor vehicle, partly occupied by a person of a different race, and the refusal to allow him to use a vacant seat at a table on a dining car at, which persons of a different race are seated, .or an unoccupied seat in a Pullman car reserved for persons of a different color. The failure to give “substantial equality of treatment” or to provide “substantial equality of facilities” in interstate commerce can hardly be different, in any degree, from like discrimination in intrastate travel. The ill effect upon a passenger is much the same in either case. Discrimination is forbidden in interstate commerce because it imposes an unlawful burden on that commerce. Inequality of treatment is also prohibited by statute in Virginia, regardless of the type of travel.
*759The carrier refused to extend to Raney, a Negro, the use of an existing and nnoccnpied seat on a bench partly occupied by a white person. He was required to stand in the aisle, all other seats being filled. If he had been a white man, he would have been permitted to take the unoccupied seat. If his mother had accompanied him on the bus, holding a ticket for transportation to North Carolina, a few miles from Norfolk, she could have occupied the seat. The “quality and convenience of accommodation” provided by the carrier bear no relation to the color or race of its passengers. Passengers on the same vehicle paying the same rate of fare are entitled to receive ‘ ‘ substantial equality of facilities.”
Seats are provided because of the desirability for comfort, convenience and safety. A standing position in the aisle of a bus, subject to its starting, moving and stopping movements can hardly be said to be substantially equal in convenience and accommodation to the occupancy of a seat. To require a passenger to stand in the aisle while there is an unoccupied seat is akin to pinning a badge of undesirability on him. '
We do not have here' a' question of transportation. Raney was not denied the right to ride on the bus. The question is whether the refusal to extend to him the use of an existing and unoccupied facility denied to him convenience and accommodation substantially equal to that furnished other passengers. That he received a difference in treatment between passengers in such respect I have already pointed out. I can find no reason for the distinction, save that based on the color of his skin, aided by a misconstruction of the segregation statute involved.
The question of the meaning of the 1930 Act presents some difficulty. The majority of the justices solve the problem by relying upon the simple proviso: “but no contiguous seats on the same bench shall be occupied by white and colored passengers at the same time. ’ They give no consideration to another provision of the Act which expressly prohibits discrimination. In support of their conclusion, they say that the language of the proviso is so clear and unambiguous as to need no interpretation. They ignore the conflicting provision expressly prohibiting discrimination, which constitutes the entire second section of the Act, now Code, 1950, section 56-327.
Non-discrimination in segregation statutes is essential to their validity. The quoted proviso, considered alone, is clear *760and unequivocal; but, it seems to me, that when read in connection with other sections of the same Act, as it should be, it is in conflict with the express prohibition against discrimination contained in the second section, an essential requirement for the validity of the statute. Because of that conflict, an interpretation of the Act is required, with the view of effecting its presumptive validity, under established principles.
In the interpretation of the statute, we should consider all of the provisions of the Act, the object and purpose to be accomplished, and construe it with reference to its spirit and reason, and that consideration should include its historical background, the circumstances of its enactment and all other statutes in pari materia.
The prohibition against discrimination in segregation statutes is not a recent concept. Non-discrimination goes to the heart of the legislation and affects its very vitality. It has long been settled that a State may prescribe reasonable regulations for the segregation of white and colored passengers in intrastate traffic, if equal convenience and accommodations are furnished to the several races. Segregation, under these conditions, is the public policy of the State to promote the comfort of the passengers and preserve public peace and good order. That this is true is evident from a consideration of the enactment of segregation acts in Virginia.
■ In “An Act concerning public service corporations,” Acts 1902-3-4, page 968, there are provisions relating to the segregation of white and colored passengers by railroad companies, chapter 4, section 28, et seq., page 987; electric railway companies, chapter 4, section 41, et seq., page 990; and steamship companies, chapter 6, section 1, et seq., page 996. See Virginia Code, 1950, sections 56-396, et seq., 56-390, et seq., and 56-452, et seq., respectively. In each instance it is specifically provided' that the carrier shall “make no difference or discrimination in the quality and convenience of the accommodations provided for the two races.” Acts 1902-3-4, chapter 4, sections 29 and 42, and chapter 6, section 1. See Virginia Code, 1950, sections 56-397, 56-391 and 56-452.
In 1906, section 43 of chapter 4 of the Act of 1902-3-4, relating to the separation of white and colored passengers on cars operated by electricity, was amended. Acts of 1906, chapter 91, page 93. There was added to section 43 this provision:
*761“ * * * provided, however, no contiguous seats on the same bench shall be occupied by white and colored passengers at the same time (unless or until all of the other seats in said car shall be occupied)-, * ' * V’ ■ (Emphasis added).
The above italicized provision is now contained in section... 56-392 of Code of 1950, relating to electric railway companies.
With the snccessfnl advent of motor transportation, motor carriers superseded electric railway companies. Consequently, in 1930 the General Assembly enacted the statute under review. Acts 1930, chapter 128, page 343. The first section of this Act provided for the separation of white and colored passengers in passenger motor vehicle carriers within the State. Code of Virginia, 1950, section 56-326.
The second section, now Code, section 56-327, is identical in purpose and effect with the section forbidding discrimination by electric railway companies, (Code, section 56-397), and reads as follows:
“The motor carriers subject to the preceding section shall make no difference or discrimination in the quality or convenience of the accommodations provided for the two races under the provisions of the preceding section.”
The third’section, now Code, section 56-328, reads as follows:
“The driver, operator or other person in charge of any motor vehicle of a motor carrier of passengers shall, at any time when it may be necessary or proper for the comfort and convenience of passengers so to do, change the designation so as to increase or decrease the amount of space or seats set apart for either.race; but no contiguous seats on the same bench shall be occupied by white and colored passengers at the same time; and such driver, operator or other person in charge of the vehicle may require any passenger to change his or her seat as may be necessary or proper. * * * ”
It will be noted that, save as to classification of carrier and the omission of the qualification clause, “(but unless or until all of the other seats in said car shall be occupied),” the language of the third section of the Act of 1930 is the same as that of section 43 of Act of 1906, (Code of 1950, section 56-392), relating to electric street railway companies.
The principal differences in the character of transportation of passengers by motor carriers and that provided by electric railway companies is in the motive power employed and the *762territory served. In some communities, both classes of carriers operate side by side. They supplement each other in the same business. Formerly, in Richmond an electric railway operated in the middle of the street and a motor carrier on one side of the same street. There is little or no difference in the capacity of the vehicles or their seating arrangements for passengers. The same conditions and reasons which necessitated the segregation of white and colored passengers exist in the case of each carrier. The same identical provision for non-discrimination is found in the statutes relating to each carrier.
There is the presumption that the legislature in adopting segregation statutes did not intend to violate the Constitution of this State or the United States. This is manifested by the language of the statutes expressly prohibiting discrimination. That the legislature was keenly aware of the necessity for inhibition of discrimination is emphasized by the 1906 amendment of section 43 of chapter 4 of the 1902-3-4 Act, relating to electric railway carriers.
Indubitably, the several cited Acts relate to the same subject matter and are in pari materia. They should be read and construed together as if they formed part of the same statute and were enacted at the same time. If there be a discrepancy or disagreement between Acts or between the provisions of an Act, so that an Act is susceptible of two constructions, one of which would make it invalid as in violation of the Constitution, and the other give validity to it, the latter interpretation should be adopted, upon the theory of legislative intent not to violate any constitutional provisions.
The non-discrimination section of the 1930 Act (Code, section 56-327) is in positive language. It can not well be ignored. Its positive inhibition should outweigh the effect to be given to a single isolated clause in contradiction thereof. Otherwise, the requirement for discrimination would be violative of the Federal Constitution.
Therefore, in view of the history of the legislation and the requirements for its validity, it seems to me that the intention of the legislature was to require that motor carriers separate white and colored passengers in their vehicles, as far as possible, without “difference or discrimination in the quality or convenience of the accommodations provided for the two races. ’ ’ It can hardly be thought that the legislature intended to prescribe *763a different course of treatment of passengers upon' two classes of transportation so closely related to each, other.
It is true that the settled public policy of this State, as expressed by its statutes, is to provide for the segregation of white and colored passengers on common carriers; but inherent in all of the.legislation is the proviso that there “shall be no difference or discrimination in the quality or convenience of the accommodations provided for the two races.”
It is no answer to a particular passenger who is denied an unoccupied seat on a bench in a bus to say that the inconvenience suffered by him is rarely imposed on a person like him, Mitchell v. United States, supra, nor that the right or privilege denied him was due to circumstances applied alike to all. Henderson v. United States, supra. I, therefore, hold to the view that Raney, as an individual, is entitled to the full and equal protection of the law of the land.