Younger v. Judah

• Decision Date: 02 July 1892
• Citation: 19 S.W. 1109,111 Mo. 303
• Parties: YOUNGER v. JUDAH.
• Court: Missouri Supreme Court

19 S.W. 1109

111 Mo. 303

YOUNGER v. JUDAH.

Supreme Court of Missouri, Division No. 1.

July 2, 1892.

CIVIL RIGHTS — THEATERS — COLOR LINE.

The rules of a theater reserving certain sections thereof for whites, while allowing persons of color to occupy others, are not in violation of Const. U. S. 14th amend., prohibiting states from making or enforcing laws abridging the rights of citizens, or denying to any person the equal protection of the laws, and may, in the absence of any statute to the contrary, be enforced.

Appeal from circuit court, Jackson county; R. H. FIELD, Judge.

Action by Simpson C. Younger against A. Judah. A demurrer was sustained to the complaint, and plaintiff appeals. Affirmed.

Henry R. Hall, for appellant. Henry Wollman and Alexander New, for respondent.

BLACK, J.

The questions presented for our consideration in this case arise out of the action of the court in sustaining a demurrer to the plaintiff's evidence. The substantial averments of the petition are that the defendant was the lessee of the Ninth Street Theater in Kansas City; that plaintiff purchased two tickets calling for seats in the orchestra, and that defendant and his employes unlawfully and maliciously refused to seat him in the seats so purchased. There is the further allegation that defendant and his agents unlawfully, maliciously, and insultingly ejected plaintiff from the theater. The evidence discloses these facts: After the plaintiff had purchased the tickets as alleged, he and his companion, a colored woman, passed up a flight of stairs. An employe, stationed at the upper landing, received the tickets, detached portions of them, and handed the seat coupons back to the plaintiff. He and the woman passed to the orchestra floor, where he gave the seat coupons to an usher, and they all three started towards the seats. On their way, this usher was met by another one, and the two had a conversation. Plaintiff, in his evidence, says they held a "whispered confab for a few minutes;" that during this conversation he overheard the word "nigger;" that one of the ushers informed him he could not have the seats; that there had been some mistake. After a further conversation the usher said: "You cannot stay here. It is against the rules." The usher then proposed to exchange the tickets for others, and seat him in a different part of the house, and for that purpose started up to the balcony, but the plaintiff refused to follow. As to what then occurred, the plaintiff testified: "I went on down to the box office, and presented the tickets to the person who sold them to me, and asked him why I could not have the seats. He seemed to be indignant, and said, `You can have them.' He looked at me again, and I suppose he discovered that drop of African blood in me, and said: `It is a mistake; those seats are occupied.'" The person in charge of the ticket office offered to exchange the tickets for tickets in the balcony, or refund the money paid by plaintiff, but the latter refused both offers, and left of his own volition. He and his companion went to another theater, where he procured seats set apart for colored persons. He had attended entertainments at the defendant's theater on former occasions, and, when in company with colored persons, took a seat in the balcony, but when alone was admitted to the orchestra. He says the usher on the occasion in question used sneering language, but his further examination shows clearly that the usher did no more than say in firm but respectful language that he could not have the seats because it was against the rules of the house. The charge made in the petition that defendant ejected plaintiff from the theater is not supported by any evidence, and must therefore be disregarded.

The tickets for seats in the orchestra were sold to plaintiff on the supposition that they were to be used by white persons. This is evident. It is clear, too, that defendant had a rule to the effect that colored persons attending his place of amusement should occupy seats in the balcony; and the only real question in this case is whether he had a right to make and enforce such a rule. If he had, the plaintiff has no cause of action. It is earnestly insisted on behalf of the plaintiff that such a rule amounts to discrimination against colored persons, and that such discrimination is prohibited by the fourteenth amendment of the constitution of the United States. The clauses of that amendment relied upon by the plaintiff are those whereby it is declared that "no state shall make or enforce any law which shall abridge the privileges and immunities of the citizens of the United States; * * * nor deny to any person within its jurisdiction the equal protection of the laws." These clauses do not undertake to confer new rights, nor do they undertake to regulate individual rights. They are simply prohibitory of state legislation, and of state action. All this was held and ruled in the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. Rep. 18. As there stated, "individual invasion of individual rights is not the subject-matter of the amendment." This state has enacted no law having any application to ...