Bolden v. Grand Rapids Operating Corp.

• Decision Date: 06 June 1927
• Docket Number: No. 112.,112.
• Citation: 239 Mich. 318,214 N.W. 241
• Parties: BOLDEN v. GRAND RAPIDS OPERATING CORPORATION.
• Court: Michigan Supreme Court

239 Mich. 318

214 N.W. 241

BOLDEN

v.GRAND RAPIDS OPERATING CORPORATION.

No. 112.

Supreme Court of Michigan.

June 6, 1927.

Error to Superior Court of Grand Rapids; Leonard D. Verdier, Judge.

Action by Emmett N. Bolden against the Grand Rapids Operating Corporation. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

Argued before SHARPE, C. J., and BIRD, STEERE, FELLOWS, WIEST, and McDONALD, JJ.Oliver M. Green, of Grand Rapids (Jewell, Face & Messinger, of Grand Rapids, of counsel), for appellant.

Butterfield, Keeney & Amberg, of Grand Rapids, for appellee.

SHARPE, C. J.

The first two sections of Act No. 130, Pub. Acts 1885, as amended by Act No. 375, Pub. Acts 1919, being sections 15570, 15571, Comp. Laws Supp. 1922, read as follows:

Ԥ 15570. Section 1. All persons within the jurisdiction of this state shall be entitled to full and equal accommodations, advantages, facilities and privileges of inns, restaurants, eating houses, barber shops, public conveyances on land and water, theaters, motion picture houses and all other places of public accommodation, amusement and recreation and all public educational institutions of the state subject only to the conditions and limitations established by law and applicable alike and to all citizens.

‘§ 15571. Sec. 2. Any person being an owner, lessee, proprietor, manager, superintendent, agent or employé of any such place who shall directly or indirectly refuse, withhold from or deny to any person any of the accommodations, advantages, facilities and privileges thereof or directly or indirectly publish, circulate, issue, display, post or mail any written or printed communications, notice or advertisement to the effect that any of the accommodations, advantages, facilities and privileges of any such places shall be refused, withheld from or denied to any person on account of race, creed or color or that any particular race, creed or color is not welcome, objectionable or not acceptable, not desired or solicited, shall for every such offense be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than fifteen dollars or more than one hundred dollars or shall be imprisoned in the county jail for not less than ten days nor more than ninety days or both such fine and imprisonment in the discretion of the court.’

The plaintiff, a dentist by profession, is a colored man, a native-born American citizen. The defendant is a corporation. It conducts and operates a theater in the city of Grand Rapids. Plaintiff sought to procure a ticket entitling him to a seat on the first floor. He was denied the privilege of doing so, solely because of his color and race. In this action he seeks to recover damages for such exclusion. Defendant's motion to dismiss for the reason that the declaration did not state a cause of action was granted. Plaintiff reviews the judgment entered by writ of error. Two questions are presented: (1) Is the act constitutional? (2) If so, does it confer a right of action for its violation?

1. The act in question is usually called the ‘Civil Rights Act.’ Its purpose is apparent. While it applies to ‘all persons within the jurisdiction of this state,’ it cannot be doubted that it was enacted with special reference to those of African descent. It clearly provides against discrimination on the part of those conducting theaters by withholding from or denying to colored people the accommodations, advantages, facilities, or privileges accorded to others. The power of the Legislature to so provide rests upon its so-called police power. The existence of this power and the enactment of laws pursuant to it are necessary to the well-being of the people of all civilized communities.

‘Courts have consistently and wisely declined to set any fixed limitations upon subjects calling for the exercise of this power.’ People v. Brazee, 183 Mich. 259, 262, 149 N. W. 1053, 1054 (L. R. A. 1916E, 1146).

As was said by Shaw, C. J., in Commonwealth v. Alger, 7 Cush. (Mass.) 53, 85:

‘The power we allude to is rather the police power, the power vested in the Legislature by the Constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, nor repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth.’

‘It is elementary that all property is held subject to the general police power to regulate and control its use so as to secure the general safety.’ Peninsular Stove Co. v. Burton, 220 Mich. 284, 286, 189 N. W. 880, 881.

Under it supervision may be exercised over ‘the use of private property, when the health, morals, or welfare of the public demands it.’ People v. Smith, 108 Mich. 527, 66 N. W. 382,32 L. R. A. 853, 62 Am. St. Rep. 715. And when within the scope of its constitutional power, courts will not assume to interfere with the propriety of its exercise.

Our state Legislature has enacted many such laws. Among those affecting theaters are provisions for fire escapes, for ample means of egress, and that the doors in the halls thereof shall be made to open outward. These serve to illustrate by example the broad distinction between regulatory laws clearly within the police power and those by which it is sought to regulate and control the conduct of a private business, based on the claim that it is of such a character that it is clothed with a public interest, and therefore subject to regulation by the public. A discussion of the validity of the latter class will be found in Wolff Co. v. Industrial Court, 262 U. S. 522, 43 S. Ct. 630, 67 L. Ed. 1103, 27 A. L. R. 1280;Michigan Commission v. Duke, 266 U. S. 570, 45 S. Ct. 191, 69 L. Ed. 445, 36 A. L. R. 1105;Tyson v. Banton, 47 S. Ct. 426, 71 L. Ed. 718 (decided February 28, 1927).

As it is upon these and like cases that defendant places reliance, it may be well to state the issues on which they were decided. In the Wolff Case, the constitutionality of what is known as the Industrial Relations Act of Kansas (Laws Sp. Sess. 1920, c. 29) was considered. This act declared certain industries, among them the manufacture and preparation of food for human consumption, to be affected with a public interest, and vested in the court created by it the power to adjust the wages of workmen engaged therein. Chief Justice Taft stated the essence of the act to be:

‘It curtails the right of the employer on the one hand, and of the employee on the other, to contract about his affairs.’

And added:

‘This is part of the liberty of the individual protected by the guaranty of the due process clause of the Fourteenth Amendment.’

The Michigan Commission Case involved the power of the state Legislature to regulate and control those engaged in the business of transporting persons or property from certain points in Michigan to cities in Ohio, and it was held that the regulations imposed were ‘a burden upon interstate commerce,’ and that it was ‘beyond the power of the state by legislative fiat to convert property used exclusively in the business of a private carrier into a public utility, or to make the owner a public carrier, for that would be taking private property for public use without just compensation, which no state can do consistently with the due process of law clause of the Fourteenth Amendment.’

In the Tyson Case, an effort was made by legislation in the state of New York to declare that the charge for admission to theaters was a matter of public interest and to regulate the price for which tickets thereto should be sold, and it was held that the public had no such interest in the business as would permit its control in that way by the Legislature under its police power.

The validity of the act in question is in to way affected by these decisions. The intent and purpose of the Legislature in its enactment cannot be doubted. It clearly indicates a belief on their part that the public safety and general welfare of our people demand that, when the public are invited to attend places of public accommodation, amusement, and recreation, there shall be no discrimination among those permitted to enter because of race, creed, or color. It is bottomed upon the broad ground of the equality of all men before the law. It does not provide that all persons who present themselves at a theater must be admitted. The proprietor may exclude ‘the rough, boisterous, and rowdyish element.’ Meisner v. Detroit, etc., Ferry Co., 154 Mich. 545, 118 N. W. 14,19 L. R. A. (N. S.) 872, 129 Am. St. Rep. 493. In our opinion, the act is a valid regulation imposed by the state in its exercise of the police power.

In Ferguson v. Gies, 82 Mich. 358, 46 N. W. 718, 9 L. R. A. 589, 21 Am. St. Rep. 576, it was held that recovery might be had under this act against the keeper of a restaurant who refused to serve a colored man in the same part of the building in which white people were served. The constitutionality of the act was not raised in that case, but it may be assumed that it was not overlooked by defendant's counsel.

Many of the other states have Civil Rights Acts, with provisions quite similar to that here considered. They have, so far as we are able to ascertain, been uniformly upheld. See citations in the Ferguson Case. What are perhaps regarded as the leading cases in which the constitutional question was discussed are People v. King, 110 N. Y. 418, 18 N. E. 245, 1 L. R. A. 293, 6 Am. St. Rep. 389, and Donnell v. State, 48 Miss. 661, 12 Am. Rep. 375. In the former it was said:

‘But the law in question simply insures to colored citizens the right to admission, on equal terms with others, to public resorts, and to equal enjoyment of privileges of a quasi public character. The law in question cannot be set aside, then, because it has no basis in the public interest; and the promotion of the public good is the main purpose for which the police power may be exerted; and whether, in a given case, it...