Faulkner v. Solazzi

• Decision Date: 06 March 1907
• Parties: FAULKNER v. SOLAZZI.
• Court: Connecticut Supreme Court

65 A. 947

79 Conn. 541

FAULKNER

v. SOLAZZI.

Supreme Court of Errors of Connecticut.

March 6, 1907.

Appeal from Court of Common Pleas, Pairfield County; Howard J. Curtis, Judge.

Action by Henry H. Faulkner against Thomas Solazzi to recover double damages for defendant's refusal to afford plaintiff, a colored man, the accommodations of plaintiff's barber shop. A judgment was rendered for defendant on demurrer to the complaint, and plaintiff appeals., Affirmed.

The complaint alleged, in substance, that the plaintiff was a colored man, and the defendant the proprietor of a barber shop, and that the latter, contrary to the provisions of chapter Ill, p. 323, of the Public Acts of 1905, and on account of the former's color, refused to the former, and deprived him of the advantages, facilities, privileges, and accommodations of said shop, for which he had applied and presented himself. The defendant demurred to the complaint, upon the ground that said barber shop was not a place of public accommodation, within the meaning of said act. The court sustained the demurrer, and rendered judgment for the defendant

Elmer H. Lounsbury and William W. Bent, for appellant Frederic A. Bartlett and Israel J. Cohn, for appellee.

PRENTICE, J. The demurrer sustained was inartifically drawn, but the defendant intended by it to put in issue the fundamental question of the case, and it was accepted by both the plaintiff and the court as accomplishing that result. We may well therefore follow the example thus concurred in, and pass to a consideration of the vital issue thus determined. That issue is as to whether or not a barber shop is "a place of public accommodation," within the meaning of the statute under which the action is brought. The common law has long been familiar with forms of business regarded as—to use Lord Hale's oft-adopted phrase—"affected with the public interest," so as either to confer upon the state some power of regulation in the interest of the public, or to impose certain duties as owed to the individual members of the public, or both. Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; New Jersey Navigation Co. v. Merchants' Bank, 6 How. (U. S.) 344, 12 L. Ed. 465. This public interest which is thus regarded as affecting these employments and agencies of business is held to arise, for purposes of public regulation, from their enjoyment of some franchise or special privilege granted by the state to be exercised by them for the public convenience, as in the case, for example, of all those so-called quasi public utilities upon which the power of eminent domain is properly conferrable. Dow v. Beidelman, 125 U. S. 680, 686, 8 Sup. Ct. 1028, 31 L. Ed. 841; Munn v. Illinois (dissenting opinion) 94 U. S. 113, 24 L. Ed. 77. It is also held to arise, for like purposes of public regulation, from the devotion of the property of the business agency to a use in which the public has an interest, so that the manner of its use is of public consequence, and affects the community at large, and especially if a natural or virtual monopoly is enjoyed, as in the case of railroads, telegraph and telephone companies, theaters and places of public amusement, gas and water companies, public warehouses, grain elevators, etc. Munn v. Illinois 94 U. S. 113, 126, 24 L. Ed. 77; Chesapeake Tel. Co. v. Baltimore & O. Tel. Co., 66 Md. 399, 7 Atl. 809, 59 Am. Rep. 167; Civil Rights Cases, 109 U. S. 42, 3 Sup. Ct. 18, 27 L. Ed. 835; Spring Valley Water Works v. Schottler, 110 U. S. 347, 354, 4 Sup. Ct. 48, 28 L. Ed. 173; Budd v. New York, 143 U. S. 547, 12 Sup. Ct. 468, 36 L. Ed. 247; Brass v. State ex rel. Stoeser, 153 U. S. 399, 14 Sup. Ct. 857, 38 L. Ed. 757. Again, there are certain occupations which the law has long clothed with a puhlic character which not only invests the public with the power of regulation, but also, in the absence of regulation, involves duties to the individual members of the public of the most stringent character and highest consequence. Such occupations are those of the common carrier and innkeeper, and they form a class quite apart from those already enumerated. The underlying conception in their case is that theirs is a public employment involving a public service for the public accommodation, and so it has long been held, and quite apart from other considerations, that public policy demanded of them conduct strictly conforming to the conception which the law took of them and without the power of discrimination. New Jersey Navigation Co. v. Merchants' Bank, 6 How. (U. S.) 382, 12 L. Ed. 465; Rex v. Ivens, 7 C. & P. 213, 219. We do not recall any other conditions which have been recognized by the common law as sufficient to affect with a public interest any class of business or employment carried on by private persons of such a character at least as could be appealed to by the plaintiff, whether by way of analogy or otherwise, in aid of his contention.

The plaintiff has sought to array barber shops with the class of business agencies first above referred to, to wit, those operating under a franchise or privilege bestowed by the state, and therefore exercising a power not open to all. The reason for this claim is found in the fact that a barber cannot ply his trade without a license and that all barber shops are under sanitary regulation, and subject to sanitary inspection by a state board. Pub. Acts 1903, p. 91, c. 130. The object thus sought is not, as we understand, to demonstrate that the state possesses the power of regulation, for it is not denied by the defendant that legislation such as is contained in the act in question could be lawfully aimed at barber shops, but to affect the defendant's employment with the public interest, and thus give it a public color as introductory to a claim that its accommodations therefore properly...