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reasons applicable alike to all citizens defendant, the keeper of an eating of every race and color, it was held house, refused to serve him upon the that the plaintiff was not required to express ground that he was a colored prove his case beyond a reasonable man, and it was claimed that there doubt. (It is not reported in what was no proof of any personal refusal kind of place the discrimination oc- by the defendant, the court said, inter curred except by the general reference alia: "But there is no dispute that to the words quoted from the statute, the defendant was the proprietor of -“inns, restaurants, eating houses.") the place, that the refusal was made

In Young v. Pratt (1919) 11 Ohio by the defendant's servant, who was App. 346, where the proprietor of a a waiter in his employ, about the derestaurant refused to serve the plain- fendant's business at the time, and tiff, a colored man, a meal, because who came forward to the plaintiff. of his color, it was held that it was . If the waiter was acting conerror to instruct the jury that the trary to the defendant's orders, withplaintiff could not recover a penalty out his knowledge or consent, not if he went there solely for the pur- merely in a colorable way, then the pose of attempting to obtain a refusal, defendant would be entitled to show solely and only for the purpose of such disobedience as relevant upon stirring up litigation, nor unless he the authority of the servant to refuse was a bona fide guest or a bona fide the entertainment." patron.

But in Hart v. Hartford Lunch Co. In Hubert v. Jose (N. Y.) infra, (1913) 81 Misc. 237, 142 N. Y. Supp. where it was claimed that there was 515, an action brought to recover a no proof that the plaintiff was penalty prescribed by the Civil Rights “citizen,” the court, while holding Law for refusal to serve a meal to that the question was not properly the plaintiff, a colored man, because raised, took the view that the statute of his color, the actual refusal being was available to any person "within by a waiter employed by defendant, the jurisdiction of this state.”

the court reversed a judgment for the Some of the cases raise the question plaintiff on the ground of the refusal of the liability of the proprietor for by the trial judge to charge two rethe act of the waiter.

quests of the defendant, to the effect It was held in Bryan v. Adler that (1) if the waiter was instructed (1897) 97 Wis. 124, 41 L.R.A. 658, to serve colored persons, and not to 65 Am. St. Rep. 99, 72 N. W. 368, that discriminate between white and colthe refusal of a waiter in an eating ored persons, then a mistake or even house to wait upon a colored patron a violation of the instructions would because of his color rendered the eat- create no liability on the defendant's ing-house keeper liable, although he part; and (2) the defendant was and did not aid or abet the waiter in such is not required to do more than inaction, to at least the minimum penal- struct the waiter in good faith to ty provided by a law entitling all afford all persons alike free and persons “to the full and equal enjoy- equal accommodations and full enment of the accommodation, advan- joyment of all the facilities and privitages, facilities and privileges of inns, leges afforded by it to white persons restaurants, saloons, ... eating as well as negroes; and if it did this houses, . and all other places in good faith, and the jury finds it of public accommodation or amuse- did so, the verdict must be for the ment, subject only to the conditions defendant. and limitations established by law, See also Beckett v. Pfaeffle (1916) and applicable alike to all persons of 157 N. Y. Supp. 247, infra. every race and color."

In Noble v. Higgins (1916) 95 In Hubert v. Jose (1912) 148 App. Misc. 328, 158 N. Y. Supp. 867, where Div. 718, 132 N. Y. Supp. 811, where there was a refusal to serve the plain-. the plaintiff recovered a penalty un- tiff at the defendant's restaurant, der the Civil Rights Law, in that the and it did not appear that the refusal

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was on account of race, creed, or that there was a refusal to serve the color, it was held that the plaintiff plaintiffs, or that any discrimination could not recover under the Civil was practised against them by reaRights Law.

son of their color. The uncontraIt was held in Cohn v. Goldgraben dicted testimony was that the defend(1918) 103 Misc. 500, 170 N. Y. Supp. ant, who was not present, instructed 407, where the plaintiff, a Hebrew, the waitress not to discriminate went to defendant's restaurant with against any person. a colored man, for the purpose of Miscellaneous. getting a meal, and service was re

It may be noted that in Coger v. fused them, as it was “against the

North West Union Packet Co. (1873) rules of the house to serve a mixed

37 Iowa, 145, the right of a colored party," it was held that the refusal

passenger on a steamer to equal to serve mixed parties at the same dining accommodations with other table when there was a willingness

passengers was held secured under to serve the same people at separate

the Constitution and laws, and a rule tables was not a violation of the

of the carrier requiring colored passtatute prohibiting the denial to any

sengers to take their meals in the person of accommodations, etc., "on

pantry or on the guards of the boat account of race, creed, or color.”

was held unreasonable, and a recovIn Beckett v. Pfaeffle (1916) 157


allowed where a colored N. Y. Supp. 247, where the actions

passenger was denied service at the were to recover for a violation of the

tables in the cabin, and was forcibly Civil Rights Law, it appears that the

removed therefrom. plaintiffs went into defendant's res

It may be further noted that in taurant, ordered tea and cake, agreed

Shelton v. Chicago, R. I. & P. R. Co. to pay the price therefor, and, after waiting some twenty minutes without

(1918) 139 Tenn. 378, L.R.A.1918D, being served, left the restaurant. No

707, 201 S. W. 521, it was held that reason was advanced by them why

a statute requiring separate or parthey were not served except their own

titioned coaches for the white and inference, drawn from the fact that negro races does not prevent the adopthey were colored persons, and the al- tion by the carrier of a rule for the leged unreasonable lapse of time. The serving of meals to the respective waitress explained the delay by the races at different times in one dining fact that it took some time to make car. the tea and attend to other matters. For what is a "restaurant," "café," The appellate court reversed judg- or “victualing house,” within the ments for the plaintiffs on the ground Sunday law, see the annotation in 9 that the evidence was not convincing A.L.R. 428.

B. B. B.




Missouri Supreme Court (Division No. 1)

December 31, 1923.

(- Mo.

257 S. W. 441.)

Eminent domain liability of school district for expenses upon discon

tinuance. The mere fact that a statute authorizing condemnation of land for school purposes refers to the general appropriation act for the course of procedure does not impose upon such districts in case of discontinuance of the proceedings liability for expenses of defending against the proceedings which is imposed upon quasi public corporations by law. [See note on this question beginning on page 352.]

(Graves, J., dissents.)

APPEAL by plaintiff from a judgment of the Circuit Court for Jackson County (Landon, J.) in favor of defendant in an action brought to recover expenses alleged to have been incurred by plaintiff in its defense in an eminent domain proceeding. Affirmed.

The facts are stated in the Commissioner's opinion,

Messrs. Scarritt, Jones, Seddon, & 37, 67 S. W. 563; Lester Real Estate North, for appellant:

Co. v. St. Louis, 170 Mo. 31, 70 S. W. The legislature, in expressly provid- 151; Nauman v. Big Tarkio Drainage ing that school districts may condemn Dist. 113 Mo. App. 575, 87 S. W. 1195; land for school purposes “in the same Cochran v. Wilson, 287 Mo. 210, 229 S. manner as provided for condemnation W. 1050; Moxley v. Pike County, 276 of rights of way," made the Federal Mo. 449, 208 S. W. 236; State ex rel. condemnation law a part of the School

Carrolton School Dist. v. Gordon, 231 District Act.

Mo. 547, 133 S. W. 34; Reed v. Howell State v. Peyton, 234 Mo. 517, 137 S. County, 125 Mo. 58, 46 Am. St. Rep. W. 979, Ann. Cas. 1912D, 154; Gaston 466, 28 S. W. 177. v. Lamkin, 115 Mo. 30, 21 S. W. 1100; It was clearly the intent of the legisCrohn v. Kansas City Home Teleph.

lature, when it conferred power to Co. 131 Mo. App. 313, 109 S. W. 1068; condemn lands upon defendant, and Gray v. St. Louis & S. F. R. Co. 81 only to condemn lands, "in the same Mo. 126.

manner as provided for the condemA condemning corporation, by insti. nation of right of way,” to give it all tuting and then discontinuing a con- the rights and privileges conferred demnation proceeding before the ac- upon railroad companies by that law, complishment of its purpose, is liable and to impose the same obligations to pay the defendant the cash outlay upon it that a railroad company would incurred by him in connection with incur if it should commence a conthe abandoned proceeding.

demnation proceeding and then abanNorth Missouri R. Co. v. Lackland, don it before its purpose was effect25 Mo. 515; North Missouri R. Co. v. uated. Reynal, 25 Mo. 534; Leisse v. St. Louis State ex rel. Summerson v. Good& I. M. R. Co. 2 Mo. App. 105, 5 Mo. rich, 257 Mo. 40, 165 S. W. 707; Lohse App. 585; St. Joseph v. Hamilton, 43 v. Missouri P. R. Co. 44 Mo. App. Mo. 282; Owen v. Springfield, 83 Mo. 654. App. 557; Sterrett v. Delmare Ave. & Messrs. McCune, Caldwell, & DownC. R. Co. 108 Mo. App. 650, 84 S. W.150; ing for respondent. Kirn v. Cape Girardeau & C. R. Co. 124

Lindsay, C., filed the following Mo. App. 271, 101 S. W. 673; St. Louis

opinion: R. Co. v. Southern R. Co. 138 Mo. 591,

The essential issue in this case is 39 S. W. 471; Gibbons v. Missouri P. R. Co. 40 Mo. App. 146; Lohse v. Mis

sharply definable. The question is souri P. R. Co. 44 Mo. App. 645; St.

whether the school district of KanLouis & G. R. Co. v. Cape Girardeau sas City, which instituted a proceed& T. B. Terminal R. Co. 126 Mo. App. ing to condemn land of the appel272, 102 S. W. 1042.

lant for school purposes, and, after Cases relied upon by defendants prosecuting that proceeding for sevdeal with condemnation laws differing eral months, dismissed it, is liable materially from the general condem

for the attorneys' fees and other atnation act now in decision, and there

tendant expenses incurred by apfore are not precedents to it, and should not control the case at bar.

pellant in its defense in that proSt. Louis V. Meintz, 107 Mo, 611,

ceeding. 18 S. W. 30; Simpson v. Kansas City,

The appellant sued for the sum of 111 Mo. 237, 20 S. W. 38; St. Louis $9,107.66, the amount which it had Brewing Asso. v. St. Louis, 168 Mo. paid out, or had become legally li(- Mo. —, 857 S. W. 441.) able to pay by reason of the institu- lot owners on the one side, and the tion of the proceeding to condemn, school district and the circuit court and set forth a schedule of the items on the other, as to whether the thereof. The school district filed a rights or easements arising out of general demurrer to the petition, the aforesaid covenants should be which was sustained by the trial considered in assessing damages. court. Appellant stood upon its pe

That phase of the controversy was tition, and, from the resultant judg- settled in the original proceedings ment, the case is here on appeal. instituted in this court by appellant The petition is long, but need not be and others, in Peters v. Buckner, set forth; nor is extensive reference supra. Thereafter the condemnato the facts therein stated necessary, tion proceedings were resumed in and only so much will be attempted the circuit court. It is alleged in as suffices to make plain the nature the petition that the commissioners, of the question to be decided, and instructed as to the law in accordthe circumstances under which it ance with the ruling of this court arose.

in the Peters Case, had agreed The appellant is an incorporated among themselves as to the amount company and the original owner of a of damages to be allowed to each large number of lots constituting a property owner, amounting in the platted addition to Kansas City, aggregate to a much larger sum known as Meadow park addition, than was anticipated by the board of comprising a tract of about 80 acres. directors of the school district; The addition was established with that, pending preparation of the rethe purpose, the petition states, of port thereof, certain members of making it "a comfortable, agreeable, said board of directors interfered, and first-class residential district," and procured other persons to do so, and in conveyances made by the by protests, so that said commissioncompany to purchasers of lots cer- ers were embarrassed, and made no tain restrictive covenants and agree- report, and were discharged by the ments were imposed upon the gran- court; and thereafter, on December tees and their assigns as to the char- 21, 1921, said school district, acter of building and occupancy through its counsel, without notice permitted. These covenants may be to appellant, dismissed said condemfound fully set forth in the opinion nation proceeding. The petition al of this court in Peters v. Buckner, leges that appellant has estimated 288 Mo. 618, 17 A.L.R. 543, 232 s. and claimed the sum of $160,000 as W. 1024.

the value of the property rights On the 11th day of December, which were sought to be appropriat1920, the school district instituted ed, and states, upon information and its suit in the circuit court to con- belief, that said commissioners, if demn blocks 3 and 4 of this addition, not interfered with, would have reowned by appellant, as a site for a ported and allowed to plaintiff the public schoolhouse. The suit was sum of $100,000 as damages. The against appellant and against all total amount demanded by appellant other owners of lots in said addition, in this action is made up of the sum and the object sought was to con- of $8,000, for services of its attordemn the site, and also to condemn neys in the condemnation proceedthe rights or easements of appellant ing and in prosecuting the mandaand of all other owners of lots aris- mus suit in this court; $127.66, for ing out of the aforesaid restrictive traveling and other expenses incovenants. The condemnation pro- curred in the mandamus suit; $900, ceeding advanced to the appoint for the time and services of the exment by the circuit court of com- ecutive officers of appellant compamissioners to assess the damages. ny; and $35, for plats and blueThen and therein arose a contro- prints used in the condemnation proversy between appellant and other ceeding.

In the state of the pleadings the was a question in issue. It was held question here is whether the school that the right existed and in the latdistrict is liable to appellant at all. er decisions the only question is as The school district of Kansas City is to whether terms may be imposed, organized and exists under the pro- or of liability beyond payment of visions of article 15 of chapter 102, costs.

costs. The right is recognized by Rev. Stat. 1919, governing districts the general condemnation statute. in cities of 75,000 and less than Rev. Stat. 1919, $$ 1793 and 1796. 100,000 inhabitants. Under § 11, Under $ 1793 it is provided that the 403 of that article the school district costs, up to and including the filing is a body corporate, and may sue and copying of the report of the and be sued. The condemnation commissioners, are to be paid by the proceeding was undertaken under applicant for condemnation, and authority of $ 11,428, wherein it is costs of subsequent litigation are to provided that if a desired site for be paid as the court in its discretion school purposes is not purchasable may deem just.

may deem just. This provision has through failure to agree on the reference to costs proper, those fixed price, or otherwise “the board may, by law, and has no reference to exin the name of the district, proceed penses incurred by the property to condemn the same in the same owner for fees paid out to counsel, manner as provided for condemna- or other like expenses incurred in tion of right of way in article 2 of making his defense. St. Louis V. chapter 13 of the Revised Statutes." Meintz, 107 Mo. 611, 18 S. W. 30.

Said article 2 contains the provi- In that case there was a provision sions governing condemnation pro- of the charter of the city concerning ceedings by railroad, telegraph, and costs, similar to the statute above other corporations therein men- mentioned. The case decides little tioned. There are numerous deci- more than that counsel fees are not sions of the appellate courts of this costs in a condemnation proceeding. state, beginning at an early time, There are cases wherein it was dealing with the right of corpora

held or said that a municipal corpotions, after instituting such a pro- ration, upon abandonment of a conceeding, to discontinue the same, demnation proceeding, became liable and with the question of their liabil- to the property owner for expenses ity to the property owner who has so incurred. St. Joseph v. Hamilincurred expense or loss by reason ton, 43 Mo. 282; Owen v. Springthereof. The liability of a railroad field, 83 Mo. App. 557. In St. Jocompany under these conditions has seph v. Hamilton, the question was been sustained in the following not involved. At page 288 of 43 cases: North Missouri R. Co. v. Mo., it was said: "I have no doubt Lackland, 25 Mo. 515; North Mis- that the city may dismiss its prosouri R. Co. v. Reynal, 25 Mo. 534; ceedings at any time before final Leisse v. St. Louis & I. M. R. Co. 2 judgment in the circuit court; and Mo. App. 105, 5 Mo. App. 585, 72 then the only liability that would be Mo. 561; Sterrett v. Delmar Ave. & incurred would be the expenses.” C. R. Co. 108 Mo. App. 650, 84 S. But this was clearly outside of the W. 150; Kirn v. Cape Girardeau & issues before the court. C. R. Co. 124 Mo. App. 271, 101 S. In Simpson v. Kansas City, 111 W. 673; St. Louis R. Co. v. Southern Mo. 237, 20 S. W. 38, the plaintiff R. Co. 138 Mo. 591, 39 S. W. 471; sued the city for damages sustained Gibbons v. Missouri P.R. Co. 40 Mo. and trouble and expense incurred in App. 146; St. Louis & G. R. Co. v. defending against a condemnation Cape Girardeau & T. B. Terminal R. proceeding which the city abanCo. 126 Mo. App. 272, 102 S. W. doned. The gravamen of plaintiff's 1042.

charge was that the proceeding was In the early cases mentioned, the wrongfully and vexatiously proright to discontinue the proceeding longed to the interference of plain

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