Ferguson v. Gies

• Decision Date: 10 October 1890
• Citation: 46 N.W. 718,82 Mich. 358
• Court: Michigan Supreme Court
• Parties: FERGUSON v. GIES.

46 N.W. 718

82 Mich. 358

FERGUSON v. GIES.

Supreme Court of Michigan

October 10, 1890

Error to circuit court, Wayne county; GEORGE GARTNER, Judge.

D A. Straker and R. E. Frazer, for appellant.

Wm. Look and H. F. Chipman, for appellee.

MORSE J.

The defendant, at and before the time this suit was brought, was the manager of a public restaurant in the city of Detroit and was licensed by that municipality to conduct such public restaurant. It was to all intents and purposes a public place. On the 15th of August, 1887, the plaintiff, a colored man, in company with a friend, entered this restaurant, and, sitting down at one of the tables provided for that purpose, ordered supper. The plaintiff claims, in substance, that the restaurant was divided in two parts, not separate rooms, but one side or part of the room was known as the "restaurant side," and the other as the "saloon side." The restaurant side was furnished with tables, covered with tablecloths. Glasses were on the tables, with napkins in them, and there was an electric fan over the tables. The tables had a very neat appearance. The tables on the saloon side were furnished with beer glasses, and were beer tables such as are usually found in saloons. The plaintiff testifies that he and his friend sat down on the restaurant side at the first table from the last in the second row, and called for a lunch. The waiter said: "I can't wait on you here." Ferguson said: "What do you mean by that?" The waiter replied: "We cannot serve you kind of people here. It is against the rules of the house to serve colored people in the restaurant. If you want anything to eat, you will have to go on the other side of the house." After waiting a few minutes Ferguson went to the office, and said to the defendant, "Mr. Gies, I came into your restaurant with a friend, and I have been insulted by one of your waiters," and told him what the waiter had said. Gies replied: "That is all right. That is the rule of this house, if you want anything to eat." They had some conversation, which ended by defendant saying to plaintiff that he would get nothing to eat unless he went on the other side. Plaintiff asked if he could not sit at the table adjoining, or at any of the tables behind him, which were empty, but the defendant refused to serve him at any of the tables on that side of the room. Plaintiff went away without eating anything. While he was sitting at the table, several white persons came in, sat down, and had refreshments at different tables on the restaurant side of the house. The defendant admits that he refused to serve refreshments of any kind to the plaintiff at the table where he sat, for no other reason than that Ferguson was a colored man, and that he said to him: "That is the rule of the house. We cannot serve colored people right at those certain tables." But he testifies that he further said: "Ferguson, there is no use in your waiting here. We cannot serve you at these tables. If you will sit over at the next table in the other row, I will see that you are served there all right, the same as any other person will be." Ferguson said, "No." There was about six feet between the two rows of tables. Defendant admits also that there was a difference in the tables, being of different shape; that the tables at which he told Ferguson he might be served were at the time uncovered; and that the covers were taken off to accommodate the crowd that came in for beer; but testifies that he told plaintiff he would cover the table, and furnish it the same as the one he was sitting at, and that he should be waited upon and served the same as those on the other side of the room. Defendant denies that this was in the saloon part of his place. He says it was a part of the restaurant, but situated in a more private place, as the bar would hide them from the view of those in the front part of the place. There was no partition between the tables. They were in the same room, and divided only by space. Colored people were not permited to sit except in one part of the room, but white men were served wherever they liked. The circuit judge, Hon. GEORGE GARTNER, instructed the jury that the plaintiff was entitled, under the law, to full and equal accommodations at this restaurant with all other citizens; that "all citizens under the law have the same rights and privileges, and are entitled to the same immunities,-it makes no difference whether white or colored. A different idea or principle than this never rested in reason. The reasoning of Chief Justice TANEY in his opinion in the Dred Scott Case is now largely and almost universally regarded as fallacious and contrary to the principles of law then claimed to exist. The emancipation of the slaves followed, and then the fifteenth amendment placed the colored citizen upon an equal footing in all respects with the white citizen. Since then, in many of the states, laws have been enacted to modify and overcome the prejudices entertained by many of the white race against the colored race, and to place the latter upon an equal footing with the former, with the same rights and privileges. Thus, the legislature of this state in 1885 passed a law with that object and for that purpose; and in certain instances a denial of such rights is made a crime under the law of this state." He further said to the jury that, if they found that the plaintiff was denied full and equal accommodations, the defendant was liable in damages for such denial. So far the learned judge was eminently sound in his reasoning, and correct in his law, but in his application of the law to this particular case he was in error. The jury, under the defendant's own version of the transaction, should have been instructed to find a verdict for the plaintiff.

In his definition of "full and equal accommodations," the court said: "It is claimed by the defendant that he did not refuse to serve the plaintiff, but told him substantially that he would not serve him on that side of the house, but that, if he would go over and take a seat at a table on the other side of the room in the restaurant, he would then serve him in precisely the same manner in which he would be served at the table at which plaintiff had seated himself; and that the rule of the house was not to serve colored persons on that side of the house. Now, gentlemen the defendant would not have the right to refuse to serve the plaintiff in the restaurant proper; but it is claimed by the defendant that the saloon portion is divided from the restaurant, and that the table at which he requested the defendant to sit was in the restaurant. While the defendant had no right to make a rule providing for an unjust discrimination, still he would have the right, under the law, to make proper and reasonable rules for the conduct of his business, and governing the conduct of his patrons; and whether this was a reasonable rule I will submit to you for determination. Thus, the defendant has the right to reserve certain portions of his business for ladies, and other portions for gentlemen, while he may also reserve other portions for his regular patrons or boarders. He might also, under the law, reserve certain tables for white men, and others where colored men would be served, providing there be no unjust discrimination. And this brings me to an explanation of the term which I have used, viz., 'full and equal accommodations.' By this term 'full and equal' is not meant identical accommodations, but by it is meant substantially the same accommodation. A guest at a restaurant has no more right to insist upon sitting at a particular table than a guest at a hotel has the right to demand a particular room, as long as the accommodations offered are substantially the same. This is all the law demands and requires, and if you find from the evidence in this case that the defendant offered to serve the plaintiff in one part of the restaurant proper in the same manner as guests were served in other parts, and that he offered the plaintiff full and equal, although not identical, accommodations, and if you find that the rule made by the defendant did not make an unjust discrimination, but was reasonable, then your verdict must be for the defendant." Under this charge, the jury found for the defendant. The fault of this instruction is that it permits a discrimination on account of color alone which cannot be made under the law with any justice. As far as it relates to the right of a restaurant keeper to make rules and regulations based upon other considerations, the charge is of no concern in this case, and we shall not express any opinion as to its correctness. But in Michigan there must be and is an absolute, unconditional equality of white and colored men before the law. The white man can have no rights or privileges under the law that is denied to the black man. Socially people may do as they please within the law, and whites may associate together, as may blacks, and exclude whom they please from their dwellings and private grounds; but there can be no separation in public places between people on account of their color alone which the law will sanction. We have been cited to a large number of cases upholding the doctrine enunciated by the trial judge. It has been held that separate schools may be provided for colored children, if they are reasonably accessible and afford substantially equal educational advantages with those provided for white children. State v. McCann, 21 Ohio St. 198; Bertonneau v. Directors, 3 Woods, 177; Ward v. Flood, 48 Cal. 36, 45; Cory v. Carter, 48 Ind. 327; Roberts v. Boston, 5 Cush. 198; People v. Easton, 13 Abb. Pr. (N. S.) 159; Dallas v. Fosdick, 40 How. Pr. 249; U.S. v. Buntin, 10 F. 730; People v. Gallagher, 93 N.Y. 438. It has also...