Wade v. Horner

• Decision Date: 09 November 1914
• Docket Number: 235
• Citation: 170 S.W. 1005,115 Ark. 250
• Parties: WADE v. HORNER. HAVIS v. PHILPOT
• Court: Arkansas Supreme Court

170 S.W. 1005

115 Ark. 250

WADE v. HORNER.

HAVIS v. PHILPOT

No. 235

Supreme Court of Arkansas

November 9, 1914

Appeal from Garland Circuit Court; Calvin T. Cotham, Judge affirmed.

Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor affirmed.

STATEMENT BY THE COURT.

The appeals in the above styled cases come from different courts but involve the same questions and are, therefore, considered together.

In the appeal from the Garland Circuit Court, the facts are that a petition was filed by C. J. Horner, and others, in the county court of Garland County on January 1, 1914, by the adult white inhabitants of the city of Hot Springs, in that county for the purpose of empowering the county court to grant license for the sale of intoxicating liquors under the provisions of the act of the Legislature numbered 59 entitled, "An Act to regulate the issuance of liquor license in Arkansas," approved February 17, 1913, as the same appears in the Acts of 1913, at page 180, and commonly known as the Going Act. On January 14, 1914, C. M. Wade filed his petition, "in behalf of himself and all others similarly situated," alleging that he was a citizen of the State of Arkansas, of African descent, a legal voter in the city of Hot Springs, Garland County, and residing within the incorporated limits of said city, and, as such inhabitant and voter, was interested, as well as all other colored citizens who were adult inhabitants of the said city of Hot Springs, in the granting or refusal to grant liquor license in said city and county. That the law under which the petitioners, Horner and others, were proceeding was unconstitutional and void, for the reason that the same is in the nature of an election to determine whether license shall be issued or not, and limits the right to sign the petition to adult white inhabitants, and makes the action of the court on said petition depend upon the finding as to whether a majority of the white adults of the city have signed the same. That petitioner and members of the race to which he belongs were refused the right to sign the petition, and no provision was made for the exercise of the right of suffrage by them, but the court could consider only the signatures of members of the white race, and that such petitioners were given the exclusive right to dictate to all others whether license should be granted for the sale of liquors or not, or, at least, authorized the courts to act in that behalf. It was further alleged that the court's action would affect all members of the African race in regard to their taxes, police regulations, and suffrage, and that the said act under which the proceedings were had was, and is in violation of the following articles of the State Constitution, towit: Sections 1, 3, 4, 8, 12, 18, 19 and 29, of article 2; section 1 of article 3; section 3 of article 3; and Amendment No. 10 of said Constitution. Petitioners aver that they proceed under the authority of section 13, of article 16, of the Constitution of the State, which provides "that any citizen of any county, city or town may institute suit in behalf of himself and all others interested to protect the inhabitants thereof against the enforcement of any illegal exaction whatever," and further allege that the said act of the General Assembly of the State of Arkansas violates the Fourteenth and Fifteenth Amendments to the Constitution of the United States, in as much as it makes an arbitrary classification of citizens who occupy exactly the same relation to the subject-matter with which it deals and grants privileges and advantages to citizens, or a class of citizens and inhabitants, which, upon the same terms, circumstances and considerations, apply equally to all citizens and inhabitants, and for this reason the same is void and of no effect. The petition concluded with the prayer that "the petition of said C. J. Horner and others be dismissed, and that the court proceed in the matter of granting or refusing license in the same manner as if said petition had never been filed and said law never been enacted." The county court refused to take jurisdiction of the petition for the reasons stated in its order; that the court was asked to declare the Going Act unconstitutional.

On the 27th day of January, 1914, the petition of Horner and others was granted by the county court, and certain white citizens of Hot Springs, who, on their motion, had been made parties to the proceeding, appealed to the circuit court, and, on the 20th of April, Wade and others prayed, and were granted, an appeal to the circuit court; and on June 1, 1914, the circuit court dismissed the petition of Wade "for and on account of the fact that the Supreme Court of Arkansas has held the law under which the petition of Horner and others was filed constitutional and valid, and for that reason alone." Wade excepted to this action of the court and has duly prosecuted this appeal.

In the other appeal the facts are that on the 12th day of January, 1914, appellant Ferd Havis, for himself and on behalf of numerous other persons who were members of the African race, brought an action against C. M. Philpot, as county judge of Jefferson County, to restrain him from considering a petition to be presented by F. M. Rosenberger, Henry Hanff, and others, in pursuance of the Going Act, for the reason that said act provided that only adult white inhabitants are permitted under said act to petition the county judge upon the question, whether liquor license shall be granted, and that petitioner, a negro, and others of his race, are denied the right to sign such petition or remonstrate, and that the same is oppressive and highly discriminative, and is in conflict with the Constitution of the State of Arkansas and of the United States.

Decree and judgment affirmed.

Irving Reinberger and Davies & Ledgerwood, for appellants.

1. The Going Act discriminates against the African race and is unconstitutional. Injunction is the proper remedy. 216 U.S. 146; Ib. 165; 195 Id. 223; 16 S.W. 489; 166 S.W. 174; art. 2, § 18, Coast. Ark.; 14 Amend. Const. U. S. It abridges the privileges of and denies the equal protection of the law to, colored people, citizens. 43 Ark. 42-54; 19 A. & E. Enc. Law, 120; 184 U.S. 540-588; 143 Id. 135; 118 Id. 356; 87 L. R. A. 76.

2. The objection to the act is that it is a discrimination between adult inhabitants, as to the imposition of a police regulation, which is determined solely by a petition by white adults when the result affects also the negro race. Art. 18, § 13, Const. Ark.; Ib., art. 2, § 18; 122 S.W. 123; 108 Mo. 82 S.W. 645; 30 Cyc. 15-34; 109 U.S. 855; 170 Ind. 199; 110 U.S. 651; 203 Id. 24; 109 Id. 3-20-22. The act is void.

No brief for appellees.

OPINION

SMITH, J., (after stating the facts).

It is seen from the statement of facts that the same question is involved in each of these appeals. It does not appear in either case whether the appellants desired the issuance of liquor license or not, as neither of them state in their petition what action they desired the county court to take in that behalf. The burden of their complaint is that the county court in each instance should have proceeded to a consideration of the determination of its policy in regard to the issuance of liquor license without reference to the requirements of the Going Act, and that this is true because said act contravenes the various sections of the Constitution of this State and of the Constitution of the United States set out in the petitions. Appellants argue that the act in question constitutes a discrimination against them on account of their race, in that they are alike interested with white citizens of the State in the ...