for an unjust discrimination, still, he would have the right, under the law, to make proper and reasonable rules for the conduct of his business, and governing the conduct of his patrons; and whether this was a reasonable rule, I will submit to you for determination. Thus the defendant has the right to reserve certain portions of his business for ladies, and other portions for gentlemen, while he may also reserve other portions for his regular patrons or boarders. He might also, under the law, reserve certain tables for white men, and others where colored men would be served, providing there be no unjust discrimination. And this brings me to an explanation of the term which I have used, viz., 'full and equal accommodations.' By this term, 'full and equal,' is not meant identical accommodations, but by it is meant substantially the same accommodation. A guest at a restaurant has no more right to insist upon sitting at a particular table than a guest at a hotel has the right to demand a particular room, as long as the accommodations offered are substantially the same. This is all the law demands and requires, and if you find from the evidence in this case that the defendant offered to serve the plaintiff in one part of the restaurant proper, in the same manner as guests were served in other parts, and that he offered the plaintiff full and equal, although not identical, accommodations, and if you find that the rule made by the defendant did not make an unjust discrimination, but was reasonable, then your verdict must be for the defendant."

Under this charge, the jury found for the defendant. The fault of this instruction is, that it permits a discrimination on account of color alone, which cannot be made, under the law, with any justice. As far as it relates to the right of a restaurantkeeper to make rules and regulations based upon other considerations, the charge is of no concern in this case, and we shall not express any opinion as to its correctness. But in Michigan there must be, and is, an absolute, unconditional equality of white and colored men before the law. The white man can have no rights or privileges under the law that are denied to the black man. Socially, people may do as they please within the law, and whites may associate together, as may blacks, and exclude whom they please from their dwellings and private grounds; but there can be no separation in public places between people, on account of their color alone, which the law will sanction.

We have been cited to a large number of cases upholding

the doctrine enunciated by the trial judge. It has been held that separate schools may be provided for colored children, if they are reasonably accessible, and afford substantially equal educational advantages with those provided for white children: State v. McCann, 21 Ohio St. 198; Bertonneau v. Directors, 3 Woods, 177; Ward v. Flood, 48 Cal. 36, 45; 17 Am. Rep. 405; Cory v. Carter, 48 Ind. 327; 17 Am. Rep. 738; Roberts v. Boston, 5 Cush. 198; People v. Easton, 13 Abb. Pr., N. S., 159; Dallas v. Fosdick, 40 How. Pr. 249; United States v. Buntin, 10 Fed. Rep. 730; People v. Gallagher, 93 N. Y. 438; 45 Am. Rep. 232. It has also been held that common carriers may provide different cars or separate seats for white and colored persons, if such cars or seats are equal in comfort and safety one with the other: West Chester etc. R. R. Co. v. Miles, 55 Pa. St. 209; 93 Am. Dec. 744; The Sue, 22 Fed. Rep. 843; Logwood v. Memphis etc. R. R. Co., 23 Fed. Rep. 318; Chesapeake etc. R. R. Co. v. Wells, 85 Tenn. 613; Murphy v. Western etc. R. R. Co., 23 Fed. Rep. 637, 640; Chicago etc. R'y Co. v. Williams, 55 Ill. 185; 8 Am. Rep. 641. In Day.v. Owen, 5 Mich. 520, 72 Am. Dec. 62, this same principle was recognized; but it must be remembered that the decision, as in the case of Roberts v. Boston, 5 Cush. 198, was made in the ante bellum days, before the colored man was a citizen, and when, in nearly one half of the Union, he was but a chattel. It cannot now serve as a precedent. It is but a reminder of the injustice and prejudice of the time in which it was deliv ered. The negro is now, by the constitution of the United States, given full citizenhip with the white man, and all the rights and privileges of citizenship attend him wherever he goes. Whatever right a white man has in a public place the black man has also, because of such citizenship.

But this is not all. In 1885, the legislature of this state, by act No. 130, enacted,—

"Sec. 1. 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, eating-houses, barber-shops, public conveyances on land and water, theaters, 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. "Sec. 2. That any person who shall violate any of the provisions of the foregoing section, by denying to any citizen, xcept for reasons applicable alike to all citizens of every

race and color, and regardless of color or race, the full accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not to exceed one hundred dollars, or shall be imprisoned not more than thirty days, or both."

Section 3 provides that there shall be no discrimination. on account of race or color in the selection of grand and petit jurors.

This statute exemplifies the changed feeling of our people towards the African race, and places the colored man upon a perfect equality with all others before the law in this state. Under it, no line can be drawn in the streets, public parks, or public buildings, upon one side of which the black man must stop and stay, while the white man may enjoy the other side, or both sides, at his will and pleasure; nor can such a line of separation be drawn in any of the public places or conveyances mentioned in this act.

But it is claimed by the defendant's counsel that this statute gives no right of action for civil damages; that it is a penal statute; and that the right of the plaintiff under it is confined to a criminal prosecution. The general rule, however, is, that where a statute imposes upon any person a specific duty for the protection or benefit of others, if he neglects or refuses to perform such duty, he is liable for any injury or detriment caused by such neglect or refusal, if such injury or hurt is of the kind which the statute was intended to prevent; nor is it necessary in such a case as this to declare upon or refer to the statute. The common law as it existed in this state before the passage of this statute, and before the colored man became a citizen under our constitution and laws, gave to the white man a remedy against any unjust discrimination to the citizen in all public places. It must be considered that when this suit was planted, the colored man, under the common law of this state, was entitled to the same rights and privileges in public places as the white man, and he must be treated the same there; and that his right of action for any injury arising from an unjust discrimination against him is just as perfect and sacred in the courts as that of any other citizen. This statute is only declaratory of the common law as I understand it now to exist in this state.

Any discrimination founded upon the race or color of the

citizen is unjust and cruel, and can have no sanction in the law of this state. The cases which permit in other states the separation of the African and white races in public places can only be justified on the principle that God made a difference between them, which difference renders the African inferior to the white, and naturally engenders a prejudice against the African, which makes it necessary, for the peace and safety of the public, that the two races be separated in public places and conveyances. This doctrine, which runs through and taints justice in all these cases, is perhaps as clearly and ably stated in West Chester etc. R. R. Co. v. Miles, 55 Pa. St. 212, 93 Am. Dec. 744, as anywhere. In that case, Judge Agnew says: "If a negro take his seat beside a white man or his wife or daughter, the law cannot repress the anger or conquer the aversion which some will feel. However unwise it may be to indulge the feeling, human infirmity is not always proof against it. . . . . To assert separateness is not to declare inferiority in either. It is not to declare one a slave and the other a freeman. That would be to draw the illogical sequence of inferiority from difference only. It is simply to say that following the order of Divine Providence, human authority ought not to compel these widely separate races to intermix. The right of each to be free from social contact is as clear as to be free from intermarriage. The former may be less repulsive as a condition, but not less entitled to protection as a right. When, therefore, we declare a right to maintain separate relations, as far as is reasonably practicable, but in a spirit of kindness and charity, and with due regard to equality of rights, it is not prejudice, nor caste, nor injustice of any kind, but simply to suffer men to follow the law of races established by the Creator himself, and not to compel them to intermix contrary to their instincts."

....

This reasoning does not commend itself either to the heart or judgment. The negro is here, and brought here by the white man. He must be treated as a freeman or a slave; as a man or a brute. The humane and enlightened judgment of our people has decided although it cost blood and treasure 80 to determine that the negro is a man; a freeman; a citizen; and entitled to equal rights before the law with the white This decision was a just one. Because it was divinely ordered that the skin of one man should not be as white as that of another furnishes no more reason that he should have less rights and privileges under the law than if he had been

man.

born white, but cross-eyed, or otherwise deformed. The law, as I understand it, will never permit a color or misfortune that God has fastened upon a man from his birth, to be punished by the law, unless the misfortune leads to some contagion or criminal act; nor while he is sane and honest can he have less privileges than his more fortunate brothers. The law is tender, rather than harsh, towards all infirmity; and if to be born black is a misfortune, then the law should lessen, rather than increase, the burden of the black man's life.

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The prejudice against association in public places with the negro, which does exist, to some extent, in all communities,less now than formerly,-is unworthy of our race; and it is not for the courts to cater to or temporize with a prejudice which is not only not humane, but unreasonable. Nor shall I ever be willing to deny to any man any rights and privileges that belong in law to any other man simply because the Creator colored him differently from others, or made him less handsome than his fellows, for something that he could not help in the first instance, or ever afterwards remove by the best of life and human conduct. And I should have but little respect or love for Deity if I could for one moment admit that the color was designed by him to be forever a badge of inferiority, which would authorize the human law to drive the colored man from public places, or give him less rights therein than the white man enjoys. Such is not the true theory of either the divine or human law to be put in practice in a republican form of government, where the proud boast is, that "all men are equal before the law." The man who goes either by himself or with his family to a public place must expect to meet and mingle with all classes of people. He cannot ask, to suit his caprice, or prejudice, or social views, that this or that man shall be excluded because he does not wish to associate with them. He may draw his social line as closely as he chooses at home, or in other private places, but he cannot, in a public place, carry the privacy of his home with him, or ask that people not as good or great as he is shall step aside when he appears. All citizens who conform to the law have the same rights in such places, without regard to race, color, or condition of birth or wealth. The enforcement of the principles of the Michigan civil rights act of 1885 interferes with the social rights of no man, but it clearly emphasizes the legal rights of all men in public places.

This idea of the equality of the races before the law was also