The defendants assign as error the refusal of the Court below1 to grant their motion to cjuash the "warrants on the ground that the State has indicted them under inapplicable sections of the General Statutes.
The defendants contend that it was the intent of the Legislature to vest in the Utilities Commission, under Sections 62-109 and 62-118 of the General Statutes, the power to prescribe the rules and regulations with respect to the seating of passengers on public conveyances except in busses engaged in local transportation, wdthin cities and towns in the State. Consequently it is contended that Sections 60-135 and 60-136 of the General Statutes do not apply to motor vehicles transporting passengers for hire except on busses used in transporting passengers within a city or town.
The contention is without merit. The provisions of Sections 3536 to 3539 of the N. C. Code, 1939 (now Sections 60-135 to 60-138, G.S. of N.C.), were extended by Chapter 489 of the Public Laws of 1933, G.S. 60-139, to include “motor busses operated in the urban, interurban or suburban transportation of passengers for hire, and to the operator or operators thereof, and the agents, servants, and employees of such operators.”
*705Moreover, Section 62-109 of the General Statutes of North Carolina deals with the mandatory duty of the Utilities Commission to “require any motor vehicle carrier operating on a franchise granted by the Utilities Commission ... if engaged in the transportation of both white and colored passengers for hire, to provide separate but equal accommodations for the white and colored races at passenger stations or waiting rooms where the carrier receives passengers of both races and/or on all busses or motor vehicles operating on a route or routes over which such carrier transports passengers of both races.” While Section 62-118 prescribes the penalty which may be imposed upon those who willfully violate or fail to comply with “any order, decision, rule or regulation, direction or requirement of the Commission, made under the provisions of this article.” (Being Art. 6, Chap. 62, G.S. 62-103 to 62-121 inclusive.) These statutes do not purport to deal with the enforcement of segregation, but to make it mandatory on the part of the Utilities Commission to require transportation companies to provide “equal accommodations for the white and colored races,” in order that the settled policy of this State, which calls for the segregation of the white and colored races, in the public institutions of the State, and on our intrastate transportation systems, may be enforced. Corporation Commission v. Interracial Com., 198 N. C. 317, 151 S. E. 648; S. v. Harris, 213 N. C. 758, 197 S. E. 594.
This assignment of error will not be upheld.
G.S. 60-135 requires railroads and other carriers in this State engaged in the transportation of passengers for hire, to provide separate accommodations for white and colored passengers. Section 60-136 provides the manner in which the provisions of G.S. 60-135 shall be carried out, and the pertinent parts thereof read as follows: “Any white person entering a street car or other passenger vehicle or motor bus for the purpose of becoming a passenger therein shall . . . occupy the first vacant seat or unoccupied space nearest the front thereof, and any colored person entering a street car or other passenger vehicle or motor bus for a like purpose shall occupy the first vacant seat or unoccupied space nearest the rear end thereof, provided, however, that no contiguous seat on the same bench shall be occupied by white and colored passengers at the same time, unless and until all the other seats in the car have been occupied. Upon request of the person in charge of the street car or other passenger vehicle or motor bus, and when necessary in order to carry out the purpose of providing separate seats for white and colored passengers, it shall be the duty of any white person to move to any unoccupied seat toward or in the front of the car, vehicle or bus, and the duty of any colored person to move to any unoccupied seat toward or in the rear thereof, and the failure of any such person to so move shall constitute prima facie evidence of an intent to violate this section. Any person violating the provisions of this *706section shall be guilty of a misdemeanor, and, upon conviction, shall be fined not more than fifty dollars or imprisoned not exceeding thirty days. Any such person may also be ejected from the car, vehicle or bus by the person charged with the operation thereof.”
The evidence adduced in the trial below was sufficient to withstand the defendants’ motion for judgment as of nonsuit.
The white and colored defendants having occupied the same seat on the bus, in violation of the statute, and having refused to move to the unoccupied seats, in the front and rear of the bus, as required by the statute and the rules of the carrier, this made out a prima facie case of intent to violate the statute, and the burden of going forward with proof, not the burden of proof, shifted to the defendants. S. v. Brown, 225 N. C. 22, 33 S. E. (2) 121.
In S. v. Davis, 214 N. C. 787, 1 S. E. (2) 104, the defendant contended among other things that it was the duty of the State to negative by proof the possibility that the truck load of whiskey which had been seized in this State, was in process of movement in interstate commerce. Barnhill, J., in speaking for this Court, said : “It is sufficient answer to these contentions to point out that it has long been settled in this State that although the burden of establishing the corpus delicti is upon the State, when defendant relies upon some independent, distinct, substantive matter of exemption, immunity or defense, beyond the essentials of the legal definition of the offense itself, the onus of proof as to such matter is upon the defendant. S. v. Arnold, 35 N. C. 184; S. v. McNair, 93 N. C. 628; S. v. Buchanan, 130 N. C. 660; S. v. Smith, 157 N. C. 578. In discussing this phase of the law in S. v. Connor, 142 N. C. 700, Hoke, J., says: ‘It is well established that when a statute creates a substantive criminal offense, the description of the same being complete and definite, and by a subsequent clause, either in the same or some other section, or by another statute, a certain case or class of cases is withdrawn or excepted from its provisions, these excepted cases need not be negatived in the indictment, nor is proof required to be made in the first instance on the part of the prosecution. ... In such circumstances, a defendant charged with the crime rvho seeks protection by reason of the exception, has the burden of proving that he comes within the same. S. v. Heaton, 81 N. C. 543; S. v. Goulden, 134 N. C. 743. To the same effect are S. v. Norman, 13 N. C. 222; S. v. Burton, 138 N. C. 576; and S. v. Johnson, 188 N. C. 591; S. v. Dowell, 195 N. C. 523; S. v. Hege, 194 N. C. 526; S. v. Foster, 185 N. C. 674.’”
Even so, it appears on this record, that the court instructed the jury that if upon the evidence in this case the State “has failed to satisfy you beyond a reasonable doubt that the defendants were intrastate passengers, then you will return a verdict of not guilty, because if the State has *707failed to satisfy you beyond a reasonable doubt that the defendants were intrastate passengers, then of necessity they would be interstate passengers and as the Court understands the law to be, if they were interstate passengers they would not be guilty of any violation of the law.” This placed a greater burden upon the State than it was required to carry.
The case of Morgan v. Virginia, 328 U. S. 373, 90 L. Ed. 1317, relied upon by the defendants, is not applicable to intrastate passengers. Cf. Pridgen v. Coach Co., ante, 46, 47 S. E. (2) 609.
We have carefully considered all the exceptions and assignments of error brought forward by the defendants, and they present no prejudicial error. The verdicts and judgments entered below will be upheld.
No error.