Bryant v. Rich's Grill

Decision Date10 January 1914
Citation216 Mass. 344,103 N.E. 925
PartiesBRYANT v. RICH'S GRILL.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Suffolk County; Charles U. Bell, Judge.

Action by William W. Bryant against Rich's Grill. Verdict for plaintiff, and defendant excepts. Exceptions sustained, and judgment entered for defendant.

Chas. L. Raysor, of Boston, for plaintiff.

Lee M. Friedman and Friedman & Atherton, all of Boston, for defendant.

BRALEY, J.

This action is brought to recover the forfeiture given by R. L. c. 212, § 89, for the unlawful discrimination from his fellowmen of the plaintiff by reason of his race and color in a public place kept for gain by the defendant. It is important in the construction of the statute, which is a composite, to inquire as to its origin and gradual development. The statute of 1865, c. 277, enacted more than three years before the adoption of the fourteenth amendment to the Constitution of the United States, declared that ‘no distinction, discrimination or restriction on account of color or race shall be lawful in any licensed inn, in any public place of amusement, public conveyance or public meeting in this commonwealth,’ and any violation of the act was punishable as a misdemeanor. The construction adopted in Com. v. Sylvester, 13 Allen, 247, that where a billiard room was unlicensed the exclusion of a negro was not within its prohibition, was followed by St. 1866, c. 252, which without reference to the preceding statute provided, that it should be unlawful to exclude persons from, or restrict them in, any theater or public place of amusement licensed under our laws or in any public conveyance or public meeting or licensed inn, except for good cause. By Pub. St. c. 207, § 69, these statutes were consolidated and a uniform fine established; but this section shortly after was repealed by St. 1885, c. 316, which enlarged the public places of amusement from which, whether licensed or unlicensed, exclusion because of color or race was prohibited under a heavier pecuniary penalty. St. 1893, c. 436, added barber shops ‘or other public places kept for hire, gain or reward.’

[1] But no further changes are found until the Legislature by St. 1895, c. 461, while repealing these statutes, recast them, and in the most comprehensive terms prohibited any discrimination except for good cause, applicable alike to all persons of every color or race whatsoever, in respect to the admission of any person to, or his treatment in, public places of amusement, other public meetings, inns, barber shops, or public places kept for hire, gain or reward, whether licensed or not. A person violating the statute, or whoever aided in its violation, was ‘to forfeit and pay’ for each offense, ‘ a sum not less than twenty-five dollars nor more than three hundred dollars,’ to be recovered by the party aggrieved in an action of tort, as well as deemed to be guilty of a misdemeanor, and upon conviction subject to fine or imprisonment, or both. But if suit were brought, there could be no recovery against more than one person by reason of any single instance of unlawful distinction, discrimination, or restriction. R. L. c. 212, § 89, while codifying this statute, transposed the civil and penal clauses, and omits all reference to the remedy. The transposition, however, does not change the legislative intention, and the remedy in tort may be pursued in any court having jurisdiction. Paszkowski v. Stony Brook Paper Co., 210 Mass. 89, 96 N. E. 129;Roberge v. Burnham, 124 Mass. 277; R. L. c. 167, § 13.

[2] It is stated in the record that the plaintiff, while in its restaurant and barroom and in the presence of the officers of the defendant corporation, was unlawfully ‘discriminated against’ by its servant and barkeeper. The statute having expressly conferred upon him the right under such circumstances to enforce the forfeiture, the plaintiff can recover it in his own name, and for his sole benefit. Roberge v. Burnham, 124 Mass. 277. The words ‘fine’ and ‘forfeiture’ found in the statute are often interchangeably used and where ‘forfeiture’ is employed to denote punishment it may be held to be the equivalent of ‘fine.’ State v. McConnell, 70 N. H. 158, 159, 46 Atl. 458;State v. Mumford, 73 Mo. 647, 39 Am. Rep. 532.

[3][4][5] Fines belonged to the crown at common law, but here they belong to the state, which has succeeded to the prerogatives of the crown. Groenvelt's Case, 1 Ld. Raymond, 213; Taunton v. Sproat, 2 Gray, 428, 430. See Com. v. Boston Terminal Co., 185 Mass. 281, 282, 70 N. E. 125. If the whole or any part is to go to an informer for setting the prosecution afoot, the statute must so provide. R. L. c. 221, § 2; State v. Marshall, 64 N. H. 549, 15 Atl. 210,1 L. R. A. 51. And where no apportionment is made by the court, under section 2 in imposing sentence, proceedings for recovery of the whole or any part of the fine, forfeiture or penalty which does not enure to the benefit of the commonwealth, must be brought in its name. R. L. c. [216 Mass. 349]221, § 3; Smith v. Look, 108 Mass. 139;Wheeler v. Goulding, 13 Gray, 539;Colburn v. Swett, 1 Metc. 232, 236. By section 1 the statute applies only to ‘fines and forfeitures exacted as a punishment for any offense or for the violation or neglect of any duty imposed by statute,’ and are recoverable only where there is a criminal prosecution. Com. v. Murray, 144 Mass. 170, 10 N. E. 802.

[6] The right to institute civil proceedings, under the statute in question, is not a part, or consequence, of the conviction of the offender. It is a personal and independent right, although the unlawful act is also made a criminal offense, the prosecution of which is within the control of the public authorities. ‘It is an action given to the party aggrieved only, and is in the nature of a remedial suit where proof by a reasonable preponderance of...

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