Darius v. Apostolos

• Decision Date: 01 December 1919
• Docket Number: 9437.
• Citation: 68 Colo. 323,190 P. 510
• Parties: DARIUS v. APOSTOLOS.
• Court: Colorado Supreme Court

190 P. 510

68 Colo. 323

DARIUS v. APOSTOLOS.

No. 9437.

Supreme Court of Colorado, En Banc.

December 1, 1919

On Rehearing, June 7, 1920.

Error to El Paso County Court; W. P. Kinney, Judge.

Action by W. L. Darius against Peter Apostolos. Judgment for defendant, and plaintiff brings error.

Reversed and remanded.

Teller Scott, and Bailey, JJ., dissenting.

On Rehearing.

E. P. Blakemore, of Denver, for plaintiff in error.

G. W Musser, of Denver, and W. D. Lombard and C. B. Horn, both of Colorado Springs, for defendant in error.

BURKE J.

Section 1, c. 61, Laws of 1895, p. 139 (section 609, Revised Statutes 1908), provides that 'all persons' shall be entitled to the equal enjoyment----

'of the accommodations, advantages, facilities and privileges of inns, restaurants, eating houses, barber shops public conveyances on land or water, theaters, and all other places of public accommodation and amusement,' etc.

Section 2 of the same act (Rev. St. 1908, § 610) that any person violating the provisions of the foregoing----

'shall for every such offense forfeit and pay a sum of not less than fifty (50) dollars nor more than five hundred (500) dollars to the person aggrieved thereby to be recovered in any court of competent jurisdiction, * * * and shall also for every such offense be deemed guilty of a misdemeanor.'

Plaintiff in error brought this action against defendant in error under the foregoing act. The complaint alleges that the defendant conducted a bootblacking establishment in the city of Colorado Springs, service in which was refused plaintiff because he was a colored man. The prayer is for damages in the sum of $500. A general demurrer to this complaint was sustained by the trial court, on the ground that defendant's business was not covered by the language of section 1, supra. The cause is now before us on error, and this is the sole question for our consideration.

Considering the penal character of this statute, the rule of strict construction must be applied. Brown v. J. H. Bell Co., 146 Iowa 89, 123 N.W. 231, 124 N.W. 901, 27 L.R.A. (N. S.) 407, Ann.Cas. 1912B, 852.

Finding, as we do, that the judgment of the trial court must be reversed, each of the three principal contentions made by counsel for defendant will be discussed. They are as follows:

First. That the doctrine of ejusdem generis is applicable, and hence the phrase 'all other places of public accommodation' should be read 'all other similar places of public accommodation'; that defendant's place of business does not fall within the same general class as those enumerated; and that the identical question has been so decided in Burks v. Bosso, 180 N.Y. 341, 73 N.E. 58, 105 Am.St.Rep. 762.

We have heretofore stated the general application and limitation of this rule of construction as follows:

'The familiar general rule, which is enforced in this jurisdiction, is that where words of general import follow specific designations the application of the general language is controlled by the specific. This is but a rule of construction, and is not allowed to defeat the plain legislative will; yet, where the legislative intent is doubtful, resort to rules of construction is proper.' Gibson v. People, 44 Colo. 600-605, 99 P. 333, 335.

The decision in the New York case was as asserted by defendant, but we are of the opinion that it is based upon false reasoning. That court says (180 N.Y. 344, 73 N.E. 59, 105 Am.St.Rep. 762):

'A bootblacking stand may be said to be a place of public accommodation, like the store of a dry goods merchant, a grocer, or the proverbial 'butcher, baker and candlestick maker."

This, we think, is incorrect. The principal business of such establishments is the sale of merchandise, whereas the principal business of barber shops and bootblacking stands is the furnishing of personal service. They do not, therefore, belong in the same general class. Furthermore, while the New York court points out that 'bathhouses and barber shops are not in the same class with hotels and public conveyances,' the bearing of this distinction on the question at issue, and the rule of law therefore necessarily applicable seems to have been overlooked by it. This determination of the diversity of character in the kinds of business specifically enumerated, removes the case from the application of the doctrine of ejusdem generis.

Where the kinds of business enumerated bear no common analogy to each other except that they are all for pecuniary profit, the rule is not applicable. Brown v. Corbin, 40 Minn. 508, 42 N.W. 481. The rule does not apply where the specific words signify subjects greatly different from one another. McReynolds v. People, 230 Ill. 623, 82 N.E. 945-948. A bootblacking stand is a 'place of public accommodation.' It is of the same general class as 'barber shops,' in that the business of each consists principally in furnishing personal service and the two are quite generally operated in conjunction, but it is not of the same general class as 'public conveyances on land or water,' or 'theaters'; hence in the instant case the doctrine of ejusdem generis is not applicable.

Second. That such a distinction exists between barber shops and bootblacking stands as to clearly imply the exclusion of the latter from the operation of the act of 1895, which distinction, it is said, arises from the fact that barber shops are impressed with a public character by reason of their statutory regulation. Laws of 1909, p. 294. In view of the fact that such statutes were not enacted until 14 years after the section in question here, the contention is without merit.

Third. That defendant's business must be excluded from the phrase 'all other places of public accommodation' because it is omitted from the definition of that phrase as contained in section 3, c. 55, Laws of 1917, p. 163.

There is no such relation between the two acts as would give to the definition even the doubtful force of later legislative interpretation. The former prohibits certain discrimination. The later prohibits only the advertisement of certain discrimination. The former provides that 'all persons' shall be entitled to the privileges of the establishments mentioned; the latter that no person shall be publicly proclaimed as excluded because of 'race, sect, creed, denomination or nationality.' Moreover, the definition of the phrase in the act of 1917 is by its express terms limited to that act. The later act neither repeals, amends, nor refers to the former; and there is nothing to suggest that the Legislature had the one in mind when the other was passed. The same process of reasoning which would exclude bootblacking stands from the definition 'all other places of public accommodation,' as used in the act of 1895, would also exclude bathhouses; but, if the definition of 'places of public accommodation' found in the act of 1917 is to be applied to the phrase as used in the act of 1895, then 'bathhouses,' which are specifically mentioned in the later act, must be read into the former. Hence this contention is without merit.

Moreover the legal presumption is that words and phrases in the statute are used in their usual sense unless the intent clearly appears to use them in a more restricted or different sense. Westerlund v. Black Bear Mining Co., 203 F. 599-605, 121 C.C.A. 627. No such intent can here be made to appear, except by the application of that rule of construction which we have above eliminated. The phrase here in question 'all other places of public accommodation,' given its commonly accepted meaning, includes bootblacking stands. To hold otherwise would be to construe that phrase out of the statute...