Eggleston, J.,
delivered the opinion of the court.
This writ of error brings under review a judgment convicting Sarah B. Davis, a member of the colored race and a school teacher, of a violation of the statute which provides for the separation of white and colored passengers in motor busses. Acts 1930, ch. 128, p. 343; Michie’s Code of 1942, sections 4097Z, 409733, 40976b, 4097CC, 4097dd. The pertinent portion of the Act is in the margin.*
[762] The warrant under which the plaintiff in error was arrested charged her with a violation of section 5 of the Act (Michie’s Code of 1942, section 4097dd), in that she “failed to move to the rear” of a bus of the Virginia Electric and Power Company, on which she was a passenger in the city of Norfolk.
The first contention of the plaintiff in error is that the alleged offense is not covered by the Act. She argues that under the first section (Michie’s Code of 1942, section 4097Z), the Act applies only to “passenger motor vehicle carriers, operating under the provisions of chapter one hundred and sixty-one-a of the Code of Virginia,” and contends that the motor vehicle carriers covered in this chapter are limited to those which operate on the State highway system, exclusive of the streets and alleys in towns and cities. In support of this contention she cites section 1 (c) of the Acts of 1936, ch. 129, p. 230, as amended by Acts 1938, ch. 286, p. 418 (Michie’s Code of 1936, section 4097y (1) (c)), included in this chapter of the Code, which defines a “highway” as “excluding the streets and alleys in towns and cities.”
[763] Chapter 161A of Michie’s Code of 1942, which deals with the regulation of motor vehicle carriers, is made up of several independent Acts of the General Assembly, passed at different sessions. While the 1936 Act, as amended, cited by the plaintiff in error, applies to motor vehicle carriers which operate their vehicles on the State highways, “excluding the streets and alleys in towns and cities,” section 1 (f) of the Acts of 1932, ch. 360, p. 707 (Michie’s Code of 1942, section 4097yi4, (f) ), likewise found in chapter 161A, makes the latter statute applicable to motor vehicle carriers which operate on such highways, “including the streets and alleys in towns and cities.” The 1936 Act, as amended, is supplementary to the 1932 Act, and both are in effect. Hence, both types of carriers, dealt with in the two statutes, operate under the regulatory provisions of chapter 161A, and are, therefore, subject to the .segregation statute under which the present prosecution was brought.
On the merits the main facts are not' in dispute. When the plaintiff in error boarded the bus, it was filled with passengers, both white and colored, some of whom were standing in the aisle. There was but one vacant seat which was between two white men who were seated on a bench running lengthwise, near the front of the bus, and designed to accommodate three passengers. The plaintiff in error, who was carrying a number of bundles, took her seat between these two white men.
• According to the bus driver, when he observed that she was seated in that portion of the vehicle which was set aside for white passengers, he said to her, “You can’t sit there,” to which she replied, “Well, I am going to sit here.” “I refuse to move.” He then undertook to explain to her the segregation law, but she replied that she knew its terms and her rights and that she would not move from her seat. Thereupon he drove the bus to the police station and procured a warrant for her arrest.
According to the testimony of the plaintiff in error, when the bus driver said to her, “You can’t sit there,” she inquired, “Where will I sit? ” to which he replied, “I don’t care where [764] you sit, as long as you get up and get on in the back of the bus.”
The evidence is undisputed that although there were a number of white passengers seated near the rear of the bus, the bus driver made no request of any one of them to move to the front and exchange seats with the plaintiff in error. While he testified that it was his intention to have arranged such an exchange, had she not declined to move, he made no claim that he in any way indicated to her his intent or willingness to' make this arrangement.
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, but that until he did so she thought that she was within her rights in refusing to vacate the seat which she occupied.
Section 5 of the Act (Michie’s Code of 1942, section 4097dd), under which the prosecution is had, provides for the punishment of two offenses by a passenger, stated in the alternative: (1) the failure “to take and occupy the seat or seats or other space assigned” to him by the “driver” or “operator” of the vehicle; “or,” (2) the failure “to obey the directions of any such driver” to “change” his seat “from time to time as occasions require, pursuant to any lawful rule, regulation or custom in force by such lines as to assigning separate seats or other space to white and colored persons, respectively, having been first advised of the fact of such regulation and requested to conform thereto.”
We need not stop to consider whether the curt remark of the bus driver to the plaintiff in error, “I don’t care where you sit, as long as you get up and get on in the back of the bus,” was a sufficient assignment of “space” to be occupied by her, or whether the colloquy which he details was a sufficient advice by him to her of “the fact of such regulation” of his company with respect to the separation of the races, and a sufficient request that she “conform thereto,” so as to render her amenable to conviction for failure to comply with his directions or command.' We are of opinion that the refusal of the plaintiff in error to vacate [765] her seat, under the stated circumstances, was not a violation of the statute.
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 the members of the two races would be plainly invalid.
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) expressly provides that carriers “shall make no difference or discrimination in the quality or convenience of the accommodations provided for the two races”.
.Section 3 of the Act (Michie’s Code of 1942, section 4097bb) provides that the driver or operator of the bus “shall have the right, and he is hereby directed and required at any time when it may be necessary or proper for the comfort and convenience of passengers so to do, to change the designation so as to increase or decrease the amount of space or seats set apart for either race; * * * .”
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Eggleston, J.,
delivered the opinion of the court.
This writ of error brings under review a judgment convicting Sarah B. Davis, a member of the colored race and a school teacher, of a violation of the statute which provides for the separation of white and colored passengers in motor busses. Acts 1930, ch. 128, p. 343; Michie’s Code of 1942, sections 4097Z, 409733, 40976b, 4097CC, 4097dd. The pertinent portion of the Act is in the margin.*
[762] The warrant under which the plaintiff in error was arrested charged her with a violation of section 5 of the Act (Michie’s Code of 1942, section 4097dd), in that she “failed to move to the rear” of a bus of the Virginia Electric and Power Company, on which she was a passenger in the city of Norfolk.
The first contention of the plaintiff in error is that the alleged offense is not covered by the Act. She argues that under the first section (Michie’s Code of 1942, section 4097Z), the Act applies only to “passenger motor vehicle carriers, operating under the provisions of chapter one hundred and sixty-one-a of the Code of Virginia,” and contends that the motor vehicle carriers covered in this chapter are limited to those which operate on the State highway system, exclusive of the streets and alleys in towns and cities. In support of this contention she cites section 1 (c) of the Acts of 1936, ch. 129, p. 230, as amended by Acts 1938, ch. 286, p. 418 (Michie’s Code of 1936, section 4097y (1) (c)), included in this chapter of the Code, which defines a “highway” as “excluding the streets and alleys in towns and cities.”
[763] Chapter 161A of Michie’s Code of 1942, which deals with the regulation of motor vehicle carriers, is made up of several independent Acts of the General Assembly, passed at different sessions. While the 1936 Act, as amended, cited by the plaintiff in error, applies to motor vehicle carriers which operate their vehicles on the State highways, “excluding the streets and alleys in towns and cities,” section 1 (f) of the Acts of 1932, ch. 360, p. 707 (Michie’s Code of 1942, section 4097yi4, (f) ), likewise found in chapter 161A, makes the latter statute applicable to motor vehicle carriers which operate on such highways, “including the streets and alleys in towns and cities.” The 1936 Act, as amended, is supplementary to the 1932 Act, and both are in effect. Hence, both types of carriers, dealt with in the two statutes, operate under the regulatory provisions of chapter 161A, and are, therefore, subject to the .segregation statute under which the present prosecution was brought.
On the merits the main facts are not' in dispute. When the plaintiff in error boarded the bus, it was filled with passengers, both white and colored, some of whom were standing in the aisle. There was but one vacant seat which was between two white men who were seated on a bench running lengthwise, near the front of the bus, and designed to accommodate three passengers. The plaintiff in error, who was carrying a number of bundles, took her seat between these two white men.
• According to the bus driver, when he observed that she was seated in that portion of the vehicle which was set aside for white passengers, he said to her, “You can’t sit there,” to which she replied, “Well, I am going to sit here.” “I refuse to move.” He then undertook to explain to her the segregation law, but she replied that she knew its terms and her rights and that she would not move from her seat. Thereupon he drove the bus to the police station and procured a warrant for her arrest.
According to the testimony of the plaintiff in error, when the bus driver said to her, “You can’t sit there,” she inquired, “Where will I sit? ” to which he replied, “I don’t care where [764] you sit, as long as you get up and get on in the back of the bus.”
The evidence is undisputed that although there were a number of white passengers seated near the rear of the bus, the bus driver made no request of any one of them to move to the front and exchange seats with the plaintiff in error. While he testified that it was his intention to have arranged such an exchange, had she not declined to move, he made no claim that he in any way indicated to her his intent or willingness to' make this arrangement.
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, but that until he did so she thought that she was within her rights in refusing to vacate the seat which she occupied.
Section 5 of the Act (Michie’s Code of 1942, section 4097dd), under which the prosecution is had, provides for the punishment of two offenses by a passenger, stated in the alternative: (1) the failure “to take and occupy the seat or seats or other space assigned” to him by the “driver” or “operator” of the vehicle; “or,” (2) the failure “to obey the directions of any such driver” to “change” his seat “from time to time as occasions require, pursuant to any lawful rule, regulation or custom in force by such lines as to assigning separate seats or other space to white and colored persons, respectively, having been first advised of the fact of such regulation and requested to conform thereto.”
We need not stop to consider whether the curt remark of the bus driver to the plaintiff in error, “I don’t care where you sit, as long as you get up and get on in the back of the bus,” was a sufficient assignment of “space” to be occupied by her, or whether the colloquy which he details was a sufficient advice by him to her of “the fact of such regulation” of his company with respect to the separation of the races, and a sufficient request that she “conform thereto,” so as to render her amenable to conviction for failure to comply with his directions or command.' We are of opinion that the refusal of the plaintiff in error to vacate [765] her seat, under the stated circumstances, was not a violation of the statute.
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 the members of the two races would be plainly invalid.
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) expressly provides that carriers “shall make no difference or discrimination in the quality or convenience of the accommodations provided for the two races”.
.Section 3 of the Act (Michie’s Code of 1942, section 4097bb) provides that the driver or operator of the bus “shall have the right, and he is hereby directed and required at any time when it may be necessary or proper for the comfort and convenience of passengers so to do, to change the designation so as to increase or decrease the amount of space or seats set apart for either race; * * * .”
The summary direction of the bus driver to the plaintiff in error to vacate her seat in the front of the bus and move to the rear, under the stated circumstances, was, in our opinion, an attempt on his part to enforce the statute in a discriminatory manner, .and in a way not authorized by its terms. He made no request of any white passenger to move forward in the bus and exchange places with .the plaintiff in error in order that she might occupy that portion of the vehicle required of her under the law, nor did he suggest such arrangement to her.. In effect, he undertook to enforce the statute against the plaintiff in error, a colored person, without at the same time enforcing it against a white person. And this he had no right to do.
Under the statute the first duty was upon him, and not upon her, for section 3 of the Act (Michie’s Code of 1942, [766] section 4097bb) gives him the right and places upon him the duty “to change the designation” of seating space so as to accommodate the “comfort and convenience” of the passengers, and to “require any passenger to change his or her seat as it may be necessary or proper,” in enforcing the segregation of the members of the two races.
Moreover, Rule 48 of the carrier company, offered in evidence by the Commonwealth, provides: “When a passenger fails to take a seat in the proper part of the car or bus, and it becomes necessary for such passenger to move, in order to prevent the races from sitting side by side or occupying adjoining seats, the operator will politely request such passenger to. change his seat or location on the car or bus, advising such passenger, if necessary, that such seating arrangement is required by law.”
The operator o'f the bus, by virtue of his employment and the duties imposed upon him by the statute, occupies a position where, in dealing with the public, a high degree of discretion and fairness is required of him. In a sense he is in a position superior to that of the passengers by reason of his right and duty to direct their seating. He should follow both the letter and the spirit of the law in taking the lead in explaining the situation and in directing its peaceful adjustment. Not only is the duty upon him to provide a seat or space for each passenger, but he is the only one authorized to take such action and to direct its course. Until he had performed the duty placed upon him by the statute, and the plaintiff in error had refused to acquiesce therein, she was guilty of no offense.
It is argued that to require the bus driver to arrange an exchange of seats between white and colored passengers, in such a manner, would seriously impair the maintenance of his schedule. It is a sufficient answer to point out that section 3 of the Act (Michie’s Code of 1942, Section 4097bb) places this duty upon him and makes his failure to comply therewith a misdemeanor punishable by a fine.
It follows from what we have said that the evidence is insufficient to sustain the conviction of the plaintiff in error. [767] Accordingly, the judgment is reversed and the warrant is dismissed.
Reversed and dismissed.
2. “The said companies, corporations or persons so operating motor vehicle carriers 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.
3. “The driver, operator or other person in charge of any motor vehicle above mentioned, shall have the right, and he is hereby directed and required at any time when it may be necessary or proper for the comfort and convenience of passengers so to do, to 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 said driver, operator or other person in charge of the vehicle, may require any passenger to change his or her seat as it may be necessary or proper; the driver, operator or other [762] person in charge of said vehicle who shall fail or refuse to carry out the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than five dollars nor more than twenty-five dollars for each offense.
4. “Each driver, operator or person in charge of any vehicle, in the employment of any company operating the same, while actively engaged in the operation of said vehicle, shall be a special policeman and have all of the powers of conservators of the peace in the enforcement of the provisions of this act. * * * '
5. “All persons who fail while on any motor vehicle carrier, to take and occupy the seat or seats or other space assigned to them by the driver, operator or other person in charge of such vehicle, or by the person whose duty it is to take up tickets or collect fares from passengers therein, or who fail to obey the directions of any such driver, operator or other person in charge, as aforesaid, to change their seats from time to time as occasions require, pursuant fo any lawful rule, regulation or custom in force by such lines as to assigning separate seats or other space to white and colored persons, respectively, having been first advised of the fact of such regulation and requested to conform thereto, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than five dollars nor more than twenty-five dollars for each offense. * * * ”