provided for the race to which they belong. Right of Carrier to Make Reasonable Rules. - In the absence of statute, or some manner of state governmental regulation, the right of a common carrier to make and enforce rules providing for the separation, classification, and accommodation of its passengers, depends simply on the reasonableness of such rules, without reference to the question of discrimination against one race and in favor of another as affected by the Fourteenth Amendment.2 Proprietors of Places of Public Amusement, conducted by license of public authority, have, it would seem, the same right to make and enforce reasonable regulations ' with reference to the accommodations of their patrons as have common carriers as to their passengers, and are subject, it seems, to the same restrictions.3 But where a negro was, on account of his race, excluded from a skating rink owned, operated, and conducted by private individuals as a private business enterprise, not under license or privilege of public authority, it was held that he had no right of recovery in damages.1 bb. Right of State to ESTABLISH AND MAINTAIN SEPARATE SCHOOLS. An exclusion of negro children from the public schools would be, it has been declared, a denial to them of the equal protection of the laws, and within the prohibition of the Fourteenth Amendment.5 1. Plessy v. Ferguson, 163 U. S. 537; Ex p. Plessy, 45 La. Ann. 8o. Mere Recognition of Natural Differences No Discrimination. In connection with the right of a state to maintain separate but equally advantageous schools for white and colored children, Ruger, C. J., delivering the opinion of the court in People v. Gallagher, 93 N. Y. 438, 45 Am. Rep. 232, said: "A natural distinction exists between these races, which was not created, neither can it be abrogated, by law, and legislation which recognizes this distinction and provides for the peculiar wants or conditions of the particular race can in no just sense be called a discrimination against such race or an abridgment of its civil rights." 2. Reasonable Regulations. — Black, J., in Younger v. Judah, 111 Mo. 303, 33 Am. St. Rep. 527; West Chester, etc., R. Co. v. Miles, 55 Pa. St. 209, 93 Am. Dec. 744. And see Hall v. De Cuir, 95 U. S. 485. No Right to Discriminate Capriciously at Common Law. At common law a railroad company, as a common carrier of passengers, could not capriciously discriminate between passengers on account of their nativity, color, race, social position, or their political or religious beliefs. Chicago, etc., R. Co. v. Williams, 55 Ill. 185, 8 Am. Rep. 641; West Chester, etc., R. Co. v. Miles, 55 Pa. St. 209, 93 Am. Dec. 744- And see also opinion of Andrews, J., in People v. King, 110 N. Y. 418, 6 Am. St. Rep. 389, where it is said that, independent of constitutional or statutory provisions, innkeepers and common carriers are bound to furnish equal facilities to all without discrimination, because public policy requires them to do so. Separation of Races a Reasonable Regulation. -A rule providing for the separation of white and colored passengers in cars in all respects equal in comfort is reasonable. Chesapeake, etc., R. Co. v. Wells, 85 Tenn. 613; West Chester, etc., R. Co. v. Miles, 55 Pa. St. 209, 93 Am. Dec. 744; Chicago, etc., R. Co. v. Wiliams, 55 Ill. 185, 8 Am. Rep. 641. St. Rep. 527; Bowlin v. Lyon, 67 Iowa 536, 56 A State Law Excluding Negroes from places of public amusement would doubtless be void as unconstitutional. See opinion of Andrews, J., in People v. King, 110 N. Y. 418, 6 Am. St. Rep. 389. 4. Bowlin v. Lyon, 67 Iowa 536, 56 Am. Rep. 355. In this case it did not appear that the skating rink was operated under a license or privilege granted by the state, or by the city in which it was conducted, or that it was ever regulated or governed in any manner by the police regulations of the city. The court seemed to incline to the opinion that a different conclusion would have been reached had not such been the case, upon the theory that the same rules would be applicable to the proprietor of a place of amusement carried on under public authority, as to innkeepers and common carriers, who, it was observed, while they have the right to make reasonable and proper rules for the conduct of the business in which they are engaged, are not permitted to discriminate in favor of or against any class. 5. Claybrook v. Owensboro, 16 Fed. Rep. 297; Ward v. Flood, 48 Cal. 50, 17 Am. Rep. 405; People v. Board of Education, 18 Mich. 400; State v. Duggan, 15 R. I. 403. A State Statute Excluding Colored Children from the benefit of the public school system deniés them the equal protection of its laws. Claybrook v. Owensboro, 16 Fed. Rep. 297. Exclusion from Share of Proceeds of "Common School Fund.” - - In Dawson v. Lee, 83 Ky. 49, it was held that an Act of the legislature to create a uniform system of schools for the education of the colored children of the state, the fund for that purpose to be provided for by taxation upon the property and persons of the negro race exclusively, was unconstitutional, as, said the court, It was obviously the intention of the legislature, and such is the proper construction of the Act, to exclude the negro children of the state from any share of the proceeds of the 'common school fund set apart by the Constitution, as well as from Separate Schools Allowed. But there is nothing in this constitutional provision preventing the establishment of separate but equally advantageous schools for the education of the children of the two races, 1 and where such separate schools are maintained for the education of colored children, affording equal advantages and conducted under the same rules as those provided for the education of white children, the exclusion of the former from the schools provided for the latter is not in conflict with the Fourteenth. Amendment.2 That School for Other Race Nearer Child's Home Immaterial. And the fact that, on account of the maintenance of separate schools, colored children are, in some cases, required to go further to reach their place of instruction than white children living in the same school district, affords no substantial ground for complaint.3 2. State Constitutions and Laws — a. STATE CONSTITUTIONAL PROVISIONS. — The constitutions of several of the states contain provisions for the enjoyment of civil rights and the right to vote, and against discrimination in the matter of rights, privileges, or immunities, or exemptions from burdens or duties on account of race, color, or previous condition.4 the annual tax levied under general laws on the property of white persons for school purposes, and to give them the benefit of only the fund provided for in the special Act. In this respect, as well as regards the partial and discriminating taxation provided for, the act is, in our opinion, in violation of the Fourteenth Amendment to the Constitution of the United States, as interpreted by the Supreme Court.' Apportionment of School Fund According to Proportions Paid by the Whites and Blacks Respectively. A state law which requires that such proportion of the school fund as is raised by taxes paid upon the property of white citizens shall be devoted to schools exclusively for white children, and that only such portion as is raised by taxation upon the property of negroes shall be applied to schools for the children of the latter race, is unconstitutional. Markham v. Manning, 96 N. Car. 132; Davenport . Cloverport, 72 Fed. Rep. 689. 1. Separate but Equal School United States. U. S. v. Buntin, 10 Fed. Rep. 730; Bertonneau v. City Schools, 3 Woods (U. S.) 177. Arkansas. Union County v. Robinson, 27 Ark. 116. Michigan. People v. Board of Education, 18 Mich. 400. Mississippi. — Chrisman v. Brookhaven, 70 Missouri. - Lehew 7. Brummell, 103 Mo. State v. Duffy, 7 Nev. 342, 8 Am. New York. People v. Gallagher, 11 Abb. N. Cas. (Brooklyn City Ct.) 187; People v. Easton, 13 Abb. Pr. N. S. (N. Y. Supreme Ct.) 159; Dallas v. Fosdick, 40 How. Pr. (N. Y. Supreme Ct.) 249. Ohio. State v. Cincinnati, 19 Ohio 178; Van Camp v. Board of Education, 9 Ohio St. 407; State v. McCann, 21 Ohio St. 198. Establishment of Exclusive White School in Ad dition to Regular Public Schools. It is no violation of the Fourteenth Amendment for the legislature to authorize the issuing of bonds by a town for the building of a school, in addition to the regular public schools, the school so to be established, however, to be exclusively for whites. Chrisman v. Brookhaven, 70 Miss. 477. 2. Exclusion of Colored Children from White Schools. Ward v. Flood, 48 Cal. 51, 17 Am. Rep. 405. In this case it is freely conceded that a state law denying to the negro youth of a state equal educational privileges would be a denial of "equal protection" within the intent and meaning of the Federal Constitution; for, said Wallace, C. J., "the education of youth is emphatically their protection; ignorance, the lack of mental and moral culture in earlier life, is the recognized parent of vice and crime in after years.' But the mere separation of the races was, it was held, obnoxious to no considerations of a constitutional character. See also the cases cited in foregoing note. - Classification of Pupils Properly Within Power of State. The classification of scholars on the basis of race or color, and their education in separate schools, involve questions of domestic policy which are within the legislative discretion and control of the state; and such classification, where schools of equal educational advantages are provided, is not a discrimination against either class. Cory v. Carter, 48 Ind. 327. 17 Am. Rep. 738. 3. Colored Children Required to Go Further than if to White School. Ward v. Flcod, 48 Cal. 52, 17 Am. Rep. 405; Lchew v. Brummell, 103 Mo. 546, 23 Am. St. Rep. 895; People v. Gallagher, 93 N. Y. 451, 45 Am. Rep. 232. And see Roberts v. Boston, 5 Cush. (Mass.) 198. 4. See Constitution of Alabama, art. 1, § 38; Constitution of Arkansas, art. 2, § 3; Constitution of Florida, art. 14, § 1, and art. 16, 28; Constitution of Louisiana, art. 13, § 188; Constitution of South Carolina, art. 1, § 39; Constitution of Virginia, art. 12. § 2. Statutes. b. EQUAL RIGHTS STATUTES. In many of the states, also, there are statutory provisions against discrimination on account of race, color, or previous condition, in the enjoyment of the accommodations and privileges of common carriers, inns, hotels and restaurants, theatres and other places of public amusement, and in the right of attendance upon the public schools. Such statutes, though prohibited to Congress, are valid as state legislation, as an exercise of the police power of the state.3 * * * enjoy equal rights and privileges upon any conveyance of a public character; and all places of business or of public resort shall be open to the accommodation and patronage of all persons, without distinction or discrimination on account of race or color." Under this provision it was held, in the case of Joseph v. Bidwell, 28 La. Ann. 382, 26 Am. Rep. 102, that a negro man, excluded from a theatre on account of his color, might maintain an action of damages therefor. See also Baylies v. Curry, 128 Ill. 287, which was an action for damages for refusal to admit a negro to a theatre, under the Illinois Civil Rights Act. - Statutes of 1894 (S. & H.), Florida. - Digest of 1881, c. 19, § 2. Illinois. Laws of 1885, p. 64. Indiana. $12914. -Laws of 1885, p. 76; Stat. 1896, Massachusetts. - Laws of 1885, p. 316. New Jersey. - Laws of 1884. p. 339. New York. - Laws of 1895, c. 1042, § I. -Laws of 1884, pp. 15, 90; Rev. Stat., Ohio. § 7876. Rhode Island. Laws of 1885, c. 508, § 1. Example of Equal Rights Statutes. Section I of c. 1042 of the Laws of New York of 1895, provides that all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities, and privileges of inns, restaurants, hotels, eating houses, bath houses, barber shops, theatres, music halls, public convey. ances on land and water, and all other places of public accommodation and amusement, subject only to the conditions and limitations established by law and applicable alike to all citizens." Right to Serve on Juries. In New Jersey (P. L. 1884, p. 339) it is provided "that no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of this state on account of race, color, or previous condition of servitude.' See also Indiana Statutes of 1896 (Horner's Anno. ed.), § 1291; Revised Statutes of Ohio, $7878. Rule that Substantially Similar Accommodations Is Not Compliance with Statute. Under a state statute which declares that all persons shall be entitled to the full and equal accommodations, advantages, facilities, and privileges of restaurants, eating houses, barber shops, public conveyances, and places of amusement, it has been held that no discrimination on account of color can be made by a restaurant keeper in serving customers; offering negroes substantially the same accommodations as those provided for white patrons not being a sufficient compliance with the statute. Ferguson v. Gies, 82 Mich. 358, 21 Am. St. Rep. 576. Under a statute, one of the provisions of which was that all persons should be entitled to the full and equal privileges and accommodations of inns and hotels, it was held that an innkeeper was, nevertheless, liable to the penalties prescribed, though he offered to permit the person applying for entertainment to eat in the "ordinary," separate and apart from the other guests. And this is true though the demand for accommodations was not made by the would-be guest personally, but only by his agent. Fruchey v. Eagleson, 15 Ind. App. 88. Equal Rights in Barber Shops. Under the Nevada Civil Rights Act passed in 1885, it was held that a barber shop was a place of public resort within the statute, and as such its proprietors could not discriminate against a negro on account of race, in denying him any rights therein to which a white person would be entitled if requiring the services of a barber. Messenger v. State, 25 Neb. 674. Drug Store Not Place of Public Accommodation, - Under the Illinois Civil Rights Act of June 10, 1885, it was held that a drug store in which soda water is sold is not a "place of public accommodation and amusement," within the Act, but was to be classed with other mercantile shops, and a proprietor thereof might refuse, with impunity, to sell soda water to a colored person. Cecil v. Green, 161 Ill. 265. Civil Liability to Person Discriminated Against. Where, by law, it is made a misdemeanor for a restaurant keeper to discriminate against colored persons in serving customers, one who violates the law becomes liable to an action for civil damages at the suit of the person discriminated against. The right of a person so injured is not confined to a criminal prosecution. Ferguson v. Gies, 82 Mich. 358, 21 Am. St. Rep. 576. And see Joseph v. Bidwell, 28 La. Ann. 382, 26 Am. Rep. 102; Coger v. North West Union Packet Co., 37 Iowa 145; Baylies v. Curry, 128 Ill. 287. Necessity for Actual Damage. Under the Texas Separate Coach Act, a negro, though a railroad company may have failed to furnish him accommodations in "a coach equal in all points of comfort and convenience to the one provided for white passengers on the same train,' cannot recover in a civil action for damages against the railroad company, unless he can show actual damage resulting from such failure. Norwood 7. Galveston, etc., R. Co., (Tex. Civ. App. 1896) 34 S. W. Rep. 180. 2. Civil Rights Cases, 109 U. S. 3. 3. Barbier v. Connolly, 113 U. S. 27; Baylies v. Curry, 128 Ill. 287; Donnell v. State, 48 Miss. 661, 12 Am. Rep. 375; Messenger v. State, 25 Neb. 674; People v. King, 110 N. Y. 418, 6 Am. St. Rep. 389. And see Louisville, (1) Rule in the Case of Common Carriers. A state statute requiring common carriers within the state to furnish separate but equal accommodations for the white and colored races is not in conflict with the Fourteenth Amendment.1 But Such a Statute Cannot Apply to Interstate Passengers, as if so applied it would constitute a regulation of interstate commerce a matter exclusively within the power of Congress.* (2) Establishment of Separate Schools Separate School System Prohibited by State Statutes. Although, as has been seen, the establishment and maintenance of separate schools for white and colored children, and the exclusion of the children of one race from the schools established for the children of the other, is not in conflict with the Federal Constitution,3 yet the separate school system may be prohibited by state law, and this has been done in some of the states.4 In Illinois, for instance, where a statute exists prohibiting the exclusion directly or indirectly of any child from a public school on account of race or color, it was held that a city board of education had no right or authority to establish separate schools for colored children, and exclude such persons from the schools provided for the whites.5 etc., R. Co. v. Mississippi, 133 U. S. 587; Exp. Plessy, 45 La. Ann. 80; State v. Judge, 44 La. Ann. 770. A State Statute Making It an Offense to Exclude any citizen from any public place of amusement on account of his race, color, or previous condition of servitude, is not in conflict with that provision of the Federal Constitution preserving property from deprivation without due process of law. People v. King, 110 N. Y. 418, 6 Am. St. Rep. 389. 1. Ex p. Plessy, 45 La. Ann. 80. And see Louisville, etc., R. Co. v. Mississippi, 133 U. S. 587; State v. Judge, 44 La. Ann. 770. 2. State Statutes as Affecting Interstate Commerce. -State v. Judge, 44 La. Ann. 770. In Hall v. De Cuir, 95 U. S. 485, a state statute providing that common carriers should make no discrimination on account of color was held invalid so far as it applied to interstate commerce. In this case, the defendant was the master and owner of a steamboat enrolled and licensed under the laws of the United States. The plaintiff, a negro woman, being refused accommodations on account of her race, in the cabin specially set apart for white persons, brought suit for damages. She based her cause of action upon a statute of Louisiana, which provided that the rules prescribed by common carriers should make no discrimination on account of color. The state court construed the law as applying to those engaged in interstate commerce; but the Supreme Court of the United States held the Act unconstitutional so far as it applied to foreign and interstate commerce. Said the court: gers in Louisiana in the same cabin with whites, is unconstitutional and void. If the public good requires such legislation, it must come from Congress, and not from the states. See also The Sue, 22 Fed. Rep. 843. 3. See supra, this title, Right of State to Establish and Maintain Separate Schools. 4. In Michigan there is a statute providing that "all residents of any district shall have an equal right to attend any school therein," the effect of which was held in People v. Board of Education, 18 Mich. 400, to prevent the exclusion of a negro child, on account of race, from a school designed by the board of education for white pupils only. It ap 5. The Legislature of Illinois, in 1874, passed an act entitled " An Act to protect colored children in their rights to attend public schools," which provided, that all directors of schools, boards of education, or other school officers, whose duty it now is, or may be hereafter, to provide, in their respective jurisdictions, schools for the education of all children between the ages of six and twenty-one years, are prohibited from excluding, directly or indirectly, any such child from such school on account of the color of such child." peared, however, in the case of People v. Board of Education, 101 Ill. 308, 40 Am. Rep. 196, that the board of education of the city of Quincy had established separate schools for the education of white and colored children, and excluded the latter from the schools designed for the former, compelling in some cases negro children to travel out of the school district in which they resided, in order to reach a school set apart for them. Such a separation and exclusion was, the court held, unauthorized and illegal under the statute. See also People v. Board of Education, 127 Ill. 613. School Directors May Not Discriminate on Account of Color or Race. While the school directors have, properly, large discretionary powers in regard to the management and control of schools, they have no power to make class distinctions, nor can they discriminate between pupils on account of color or race. Chase v. Stephenson, 71 Ill. 383. In Indiana, however, where there was a constitutional provision for a "general and uniform system of common schools, equally open to all," it was held, nevertheless, that a state statute providing for the establishment of separate schools for the whites and blacks was not invalid.1 Right of School Boards to Establish Separate Schools in the Absence of Express Legislative Authority. In some of the states the doctrine has been declared that unless the authority to establish separate schools has been clearly conferred by the legislature, the school boards have no right to do so and exclude pupils of one race from the schools designed for others. On the other hand, the correct rule has been said to be that in the absence of specific legislation a school board is vested with discretion as to the classification and distribution of the pupils, and that the establishment of separate but equally advantageous schools for the children of the two races, and the excluding of the children of each race from the schools designed for the other, is a proper exercise of such discretion.3 1. An Act of the Indiana Legislature in 1869 provided that a school tax should be levied without regard to the race or color of the owner of the property taxed; that all children, without regard to race or color, should be included in the enumeration for school purposes, the colored children to be enumerated in separate lists from those in which the other children were enumerated, and to be organized into separate schools, having all the rights and privileges of other schools; or, if there should be not a sufficient number of colored children within attending distance to form a separate school for each district, it was provided that the trustees might consolidate several districts into one; or, if there should be not a sufficient number of colored children to thus consolidate, the trustees were directed to provide such other means of education for colored children as might be proper. This statute was held to be not in conflict with section of article 8 of the state constitution, making it the duty of the general assembly "to provide by law for a general and uniform system of common schools, wherein tuition shall be without charge, and equally open to all." Cory v. Carter, 48 Ind. 327, 17 Am. Rep. 738. 2. Right of School Board to Establish Separate Schools. - See Smith v. Independent School Dist., 40 Iowa 518; Dove v. Independent School Dist., 41 Iowa 689; Board of Education v. Tinnon, 26 Kan. 1. In Clark v. Board of Directors, 24 Iowa 266, the court said: "All the youths are equal before the law, and there is no discretion vested in the board of directors or elsewhere, to interfere with or disturb that equality. The board of directors may exercise a uniform discretion, equally operative upon all, as to the residence, or qualifications, or freedom from contagious disease, or the like, of children, to entitle them to admission to each particular school; but the board cannot, in their discretion or otherwise, deny a youth admission to any particular school because of his or her nationality, religion, color, clothing, or the like." 3. See Roberts v. Boston, 5 Cush. (Mass.) 198. This was an action on the case brought by a negro child against the city to recover damages claimed by reason of her exclu 87 sion from a public school as a pupil. It appeared that primary schools to the number of about one hundred and sixty were maintained for the instruction of children of both sexes, between five and seven years of age, and that of these schools two were appropriated to the exclusive use of colored children, and the residue to the exclusive instruction of white children. It also appeared that the plaintiff had been excluded from the primary school nearest her father's residence, which was a school devoted exclusively to the instruction of white children, and that the school appropriated to the education of colored children nearest her father's residence, and where she might have attended, was about a fifth of a mile further than was the school from which she had been excluded. The court held that it was the rightful authority of the school committee to separate the colored children from the white in the public schools in the city of Boston. In the course of the opinion it was observed: "The great principle advanced by the learned and eloquent advocate of the plaintiff is that by the constitution and laws of Massachusetts all persons, without distinction of age or sex, birth or color, origin or condition, are equal before the law. This, as a broad general principle, such as ought to appear in a declaration of rights, is perfectly sound; it is not only expressed in terms, but pervades and animates the whole spirit of our constitution of free government. But when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security. What those rights are, to which individuals in the infinite variety of circumstances by which they are surrounded in society are entitled, must depend on laws adapted to their respective relations and conditions." And see Cory v. Carter, 48 Ind. 327, 17 Am. St. Rep. 738. Volume VI. |