Hopkins v. City Of Richmond

• Decision Date: 09 September 1915
• Docket Number: (No. 2.),(No. 1.)
• Court: Virginia Supreme Court
• Parties: HOPKINS et al. v. CITY OF RICHMOND. COLEMAN. v. TOWN OF ASHLAND.

86 S.E. 139

117 Va. 692

HOPKINS et al.

v.CITY OF RICHMOND.

COLEMAN.

v.TOWN OF ASHLAND.

(No. 1.)

(No. 2.)

Supreme Court of Appeals of Virginia.

Sept. 9, 1915.

Keith, P., dissenting.

Error to Hustings Court of Richmond.

Mary S. Hopkins and another, were convicted of violating an ordinance of the City of Richmond, and they bring error. Affirmed.

Error to Circuit Court, Hanover County.

John Coleman was convicted of violating an ordinance of the Town of Ashland, and he brings error. Affirmed.

The ordinance of the city of Richmond is as follows:

"An ordinance (approved April 19, 1911) to secure for white and colored people, respectively, the separate location of residences for each race.

"Be it ordained by the council of the city of Richmond:

"1. That it shall be unlawful for any white person to occupy as a residence or to establish and maintain as a place of public assembly, any house upon any street or alley between two adjacent streets on which a greater number of houses are occupied as residences by colored people than are occupied as residences by white people.

"2. That it shall be unlawful for any colored person to occupy as a residence or to establish and maintain as a place of public assembly, any house upon any street or alley between two adjacent streets on which a greater number of houses are occupied as residences by white people than are occupied as residences by colored people.

"3. That no person shall construct or locate on any block or square on which there is at that time no residence, any house or other building intended to be used as a residence, without declaring in his application for a permit to build, whether the house or building so to be constructed is designed to be occupied by white or colored people, and the building inspector of the city of Richmond shall not issue any permit in such case unless the applicant complies with the provisions of this section.

"4. That nothing in this ordinance shall affect the location of residences made previous to the approval of this ordinance, and nothing herein shall be so construed as to prevent the occupation of residences by white or colored servants or employes, on the square or block on which they are so employed.

"5. Every person either by himself or through his agent violating, or any agent for another violating, any one or more of the provisions of this ordinance, shall be liable to a fine of not less than one hundred nor more than two hundred dollars recoverable before the police justice of the city of Richmond, and, in the discretion of the police justice, such person may, in addition thereto, be confined in the city jail not less than thirty nor more than ninety days.

"6. This ordinance shall be in force from its passage."

The following is the ordinance of the town of Ashland:

"An ordinance to secure for white and colored people, respectively, the separate location of residences for each race.

"Be it ordained by the council of the town of Ashland, Virginia:

"1. That it shall be unlawful for any white person to occupy as a residence, or to establish and maintain as a school or place of public assembly, any house upon any street or alley between two adjacent streets on which a greater number of houses are occupied as residences by colored people than are occupied as residences by white people.

"2. That it shall be unlawful for any colored person to occupy as a residence, or to establish and maintain as a school or place of public assembly, any house upon any street or alley between two adjacent streets on which a greater number of houses are occupied as residences by white people than are occupied as residences by colored people.

"3. On all streets upon which no house is occupied the color of residence, schools and places of public assembly shall be governed by the adjacent streets, and any person desiring to build on such vacant street shall state whether the house or building so to be constructed is designed to be occupied by white or colored people, and the building committee of the town of Ashland shall not issue any permit in such case unless the applicant complies with the provisions of this section.

"4. That nothing in this ordinance shall affect the location of residences made previous to the approval of this ordinance, and nothing herein shall be so construed as to prevent the occupation of residences by white or colored servants or employes, on the lot on which they are so employed.

"5. Every person either by himself or through his agent violating, or any agent for another violating, any one or more of the provisions of this ordinance, shall be liable to a fine of not less than twenty nor more than fifty dollars, recoverable before the mayor of the town of Ashland, Virginia, and, in the discretion of themayor, such person may, in addition thereto, be confined in jail not less than thirty nor more than ninety days.

"6. This ordinance shall be in force from its passage."

In Hopkins et al. v. City of Richmond:

A. E. Cohen and J. R. Pollard, both of Richmond, for plaintiffs in error. H. R. Pollard, of Richmond, for defendant in error.

In Coleman v. Town of Ashland:

J. R. Pollard, C. B. Jones, Jr., and Bremner & Bazile, all of Richmond, for plaintiff in error.

Jas. E. Cannon and H. R. Pollard, both of Richmond, for defendant in error.

PER CURIAM. These cases are before us on writs of error to judgments of the hustings court of the city of Richmond and the circuit court of the county of Hanover, respectively, maintaining the constitutionality of so-called segregation ordinances of the city of Richmond and the town of Ashland. These ordinances will appear in the official report. The cases involve the same questions, were heard together, and we shall dispose of them accordingly.

We are of opinion that the ordinances are constitutional and valid in so far as they apply to persons whose rights, either as owners or as tenants, have accrued since the enactment of the ordinance. In case No. 1 the plaintiff in error, Mary S. Hopkins, is a negro, and the plaintiff in error, Amedio Toni, is a white man. Neither of these parties, however, owns the property, but they were renters of the premises into which each moved as tenant subsequent to the enactment of the city ordinance and in violation thereof. In case No. 2 the plaintiff in error, John Coleman, is a negro, and subsequent to the enactment of the ordinance of the town became the owner of and moved into the property affected. The question, therefore, as to the effect of the ordinances upon persons whose right of occupancy as owners vested prior to the enactment of the ordinances does not specifically arise in these cases. It is contended, however, that the ordinances are not separable and that all their provisions must stand or fall together. We cannot accept this view, and are of opinion that they are divisible. It is true that sections 1 and 2 of each ordinance employ general terms which apply alike to persons owning property at the time the ordinances take effect and to persons acquiring property thereafter, but the effect is not different from what it would have been if these sections had each been subdivided, so as to embrace in one paragraph persons owning property at the time the ordinance became effective, and in another paragraph persons subsequently acquiring property. If the ordinances were thus subdivided, and if it be conceded (as we feel constrained to hold) that they cannot be upheld as to property owners whose right of occupancy had vested at the time of their enactment, then we think it would be perfectly clear under the authorities that we could strike out and disregard the invalid subdivisions and uphold the validity of the remaining sections. Black v. Trower, 79 Va. 123, 127; Trimble v. Commonwealth, 96 Va. 819, 821, 32 S. E. 786; Robertson v. Preston, 97 Va. 296, 300, 301, 33 S. E. 618; Berea College v. Kentucky, 211 U. S. 45, 54, 55, 29 Sup. Ct 33, 53 L. Ed. 81. Nor can we see chat the power of the court thus to give effect to one feature of an ordinance when another feature thereof is void can be affected by the mere matter of articulation and phraseology.

In the instant cases, in which, as we have seen, no question as to pre-existing rights arises, we have no doubt as to the validity of the ordinances as applied to the plaintiffs in error, and no doubt, therefore, as to the correctness of the judgments complained of.

We are further of opinion that in so far, and only in so far, as the enactments in question limit or restrict the right of any white or colored person to move into and occupy property of which he was the owner at the time such enactments went into effect, they are beyond the police power of the municipalities and are invalid and inoperative. While it is true, as claimed by counsel for defendants in error, that the ordinances "do not move a single negro or a single white person from the home in which they may be living at the time of" their enactment, it is also true that their provisions are broad enough to prohibit both white and colored persons who own, but do not occupy, property at the time they take effect from thereafter, at their pleasure, moving into and personally occupying and enjoying the same. It is this latter result which we think the ordinances cannot lawfully bring about, and it is in this respect, and in this only, that we do not concur in the effect of the opinion of the circuit court hereinafter set out in full.

As already indicated, the particular retrospective effect of the enactments under consideration which we have condemned is not specifically involved in the judgments before us. We have dealt with this feature of the ordinances, however, because it is so closely related to the contention that they must be sustained or annulled as a whole, and because all the questions involved are of such general and public concern, as that we deemed it proper to express fully our conclusions upon the whole subject.

In a written opinion in case No....