People v. King

• Decision Date: 02 October 1888
• Citation: 110 N.Y. 418,18 N.E. 245
• Parties: PEOPLE v. KING.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 418

18 N.E. 245

PEOPLE

v.KING.¹

Court of Appeals of New York.

October 2, 1888.

Appeal from supreme court, general term, Fourth department.

Indictment of Calvin L. King, who, having been convicted, appeals.

PECKHAM and GRAY, JJ., dissenting.

E. H. Prindle, for appellant.

G. P. Pudney, Dist. Atty., for respondent.

ANDREWS, J.

Section 383 of the Penal Code declares that ‘no citizen of this state can by reason of race, color, or previous condition of servitude be excluded from the equal enjoyment of any accommodation, facility, or privilege furnished by inn-keepers or common carriers, or by owners, managers, or lessees of theaters or other places of amusement, by teachers and officers of common schools and public institutions of learning, or by cemetery associations.’ The violation of this section is made a misdemeanor punishable by fine of not less than fifty nor more than five hundred dollars. The defendant and one Scott, in the year 1884, were the owners and proprietors of a skating-rink in the village of Norwich, in this state, erected in that year upon their own lands. Prior to June 13, 1884, they announced through the public press and otherwise that the rink would be opened on the evening of that day, and they arranged with the ‘Apollo’ club of Binghamton to attend the opening, to give an exhibition of roller skating; the profits of the entertainment to be divided between the club and the proprietors of the rink. Tickets of admission were sold on the evening in question by the agents of the proprietors at the office on the premises, but persons who had not procured tickets were admitted on payment of the charge for admission at the door. Several hundred persons attended the exhibition. During the evening three colored men made application to purchase tickets at the office where tickets were sold; but the agents of the proprietors having charge of the sale, acting in accordance with the instructions of the defendant, refused to sell them tickets, because they were persons of color, and they were so informed at the time. The defendant was indicted under the section of the Penal Code above quoted, the indictment alleging, in substance, that the defendant, being one of the owners of a skating-rink, a place of amusement, did on the day named exclude from said skating-rink, and from the equal enjoyment of any and all accommodation, facility, and privilege of said skating-rink, George F. Breed, William Wyckoff, Charles Robbins, and others, all being citizens of the state, by reason of race and color,' etc. The objection is now taken that the indictment is defective in substance, in not averring the means by which the exclusion of the persons mentioned was effected. The objection is untenable. The indictment follows the statute, and it was not necessary to aver, with any greater particularity than was used, the circumstances constituting the offense. People v. West, 106 N. Y. 293, 12 N. E. Rep. 610. Nor is there any force in the suggestion that proof of a refusal to sell to the colored men tickets of admission at the office did not support the allegation that they were excluded from the rink. The defendant provided tickets as evidence of the right of persons having them to admission. He refused to furnish this evidence to the persons named in the indictment, which was furnished to all others who applied; placing the refusal on a ground which justified the applicants in supposing, and the jury in finding, that the defendant thereby intended to exclude them from the rink.

The real question in the case arises upon the contention of the counsel for the appellant that the statute upon which the indictment is founded, so far as it undertakes to prescribe that the owner of a place of amusement shall not exclude therefrom any citizen by reason of race, color, or previous condition of servitude, is an unconstitutional interference with private rights in that it restricts the owner of property in respect to its lawful use, and as to an incident which is not a legitimate matter of regulation by law. The legislation in question is not without precedent. The act of congress of March 1, 1875, entitled ‘An act to protect all persons in their civil rights,’ (18 U. S. St. at Large, 335,) contains a section identical in import with section 383 of the Penal Code, except that it is still broader in its scope, and secures, not to citizens only, but to all persons within the jurisdiction of the United States, the equal enjoyment of the accommodation, advantages, facilities, and privileges of ‘inns, public conveyances on land and water, theaters and other places of public amusement, subject only to the limitations established by law, and applicable to citizens of every race and color, regardless of any previous condition of servitude.’ The ‘Civil Rights Act’ of Mississippi, passed February 7, 1873, contains a similar provision. In Louisiana, the matter is made the subject of a constitutional enactment, ordaining that ‘all persons shall enjoy equal rights and privileges, etc., in every place of public resort,’ and this was supplemented by acts of the legislature of Louisiana, passed in 1870 and 1871. It is not necessary at this day to enter into any argument to prove that the clause in the bill of rights, that no person shall ‘be deprived of life, liberty, or property without due process of law,’ (Const. art 1, § 6,) is to have a large and liberal interpretation, and that the fundamental principle of free government, expressed in these words, protects not only life, liberty, and property, in a strict and technical sense, against unlawful invasion by the government in the exertion of governmental power in any of its departments, but also protects every essential incident to the enjoyment of those rights. The interpretation of this time-honored clause has been considered in recent cases in this court with a fullness and completeness which leaves nothing to be said by way of support or illustration. Wynehamer v. People, 13 N. Y. 378;Bertholf v. O'Reilly, 74 N. Y. 509;In re Jacobs, 98 N. Y. 98;People v. Marx, 99 N. Y. 377, 2 N. E. Rep. 29. But, as the language of the constitutional prohibition implies, life, liberty, and property may be justly affected by law; and the statutes abound in examples of legislation limiting or regulating the use of private property, restraining freedom of personal action, or controlling individual conduct, which, by common consent, do not transcend the limitations of the constitution. This legislation is under what, for lack of a better name, is called the ‘police power of the state,’-a power incapable of exact definition, but the existence of which is assential to every well-ordered government. By means of this power the legislature exercises a supervison over matters involving the common weal, and enforces the observance by each individual member of society of the duties which he owes to others and to the community at large. It may be exerted whenever necessary to secure the peace, good order, health, morals, and general welfare of the community; and the propriety of its exercise within constitutional limits is purely a matter of legislative discretion, with which the courts cannot interfere. In short, the police power covers a wide range of particular unexpressed powers reserved to the state, affecting freedom of action, personal conduct, and the use and control of property. ‘All property,’ said SHAW, C. J., in Com. v. Alger, 7 Cush. 85, ‘is held subject to those general regulations, which are necessary to the common good and general welfare.’ This power, of course, is subject to limitations. The line of demarkation between its lawful and unlawful exercise is often difficult to trace. We have held that it cannot be exerted for the destruction of property lawfully held and acquired under existing laws, or of any of the essential attributes of such property, ( Wynehamer v. People, supra;) nor to deprive an individual of the right to pursue a lawful business on his own premises, not injurious to the public health, or otherwise inimical to the public interests, ( In re Jacobs, supra;) nor to prevent the manufacture or sale of a useful article of food, ( People v. Marx, supra.) But we have held that the legislature may lawfully subject the owner of premises to pecuniary liability for injuries resulting from intoxication caused in whole or in part by the use of liquor sold by the lessee therein, although the sale itself was lawful, ( Bertholf v. O'Reilly, supra;) and it was held by the supreme court of the United States, in Munn v. Illinois, 94 U. S. 113, that a state law...