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hold that since slavery, as the court has repeatedly declared, was the moving or principal cause of the adoption of that amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races. Congress, therefore, under its express power to enforce that amendment, by appropriate legislation, may enact laws to protect that people against the deprivation, on account of their race, of any civil rights enjoyed by other freemen in the same state; and such legislation may be of a direct and primary character, operating upon states, their officers and agents, and also upon, at least, such individuals and corporations as exercise public functions and wield power and authority under the state.
By way of testing the correctness of this position, let us suppose that, prior to the adoption of the fourteenth amendment, a state had passed a statute denying to freemen of African descent, resident within its limits, the same rights which were accorded to white persons, of making or enforcing contracts, or of inheriting, purchasing, leasing, selling, and conveying property; or a statute subjecting colored people to severer punishment for particular offenses than was prescribed for white persons, or excluding that race from the benefit of the laws exempting homesteads from execution. Recall the legis relation of 1865–66 in some of the states, of which this court, in the Slaughter-house Cases, said that it imposed upon the colored race onerous disabilities and burdens; curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value; forbade them to appear in the towns in any other character than menial servants; required them to reside on and cul. tivate the soil, without the right to purchase or own it; excluded them from many occupations of gain; and denied them the privilege of giving testimony in the courts where a white man was à party. 16 Wall. 57. Can there be any doubt that all such legislation might have been reached by direct legislation upon the part of congress un. der its express power to enforce the thirteenth amendment? Would any court have hesitated to declare that such legislation imposed badges of servitude in conflict with the civil freedom ordained by that amendment? That it would have been also in conflict with the fourteenth amendment, because inconsistent with the fundamental rights of American citizenship, does not prove that it would have been consistent with the thirteenth amendment.
What has been said is sufficient to show that the power of congress under the thirteenth amendment is not necessarily restricted to leg. islation against slavery as an institution upheld by positive law, but may be exerted to the extent at least of protecting the race, so liberated, against discrimination, in respect of legal rights belonging to freemen, where such discrimination is based upon race.
It remains now to inquire what are the legal rights of colored persons in respect of the accommodations, privileges, and facilities of public conveyances, inns, and places of public amusement.
1. As to public conveyances on land and water. In New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 382, this court, speaking by Mr. Justice Nelson, said that a common carrier is “in the exercise of a sort of public office and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.” To the same effect is Munn v. Illinois, 9400 U. S. 113. In Olcott v. Sup'rs, 16 Wall. 694, it was ruled that railroads are public highways, established, by authority of the state, for the public use; that they are none the less public highways because controlled and owned by private corporations; that it is a part of the function of government to make and maintain highways for the conveyance of the public; that no matter who is the agent, and what is the agency, the function performed is that of the state; that although the owners may be private companies, they may be compelled to permit the public to use these works in the manner in which they can be used; that upon these grounds alone have the courts sustained the investiture of railroad corporations with the state's right of eminent domain, or the right of municipal corporations, under legislative authority, to assess, levy, and collect taxes to aid in the construction of railroads. So in Town of Queensbury v. Culver, 19 Wall. 91, it was said that a municipal subscription of railroad stock was in aid of the construction and maintenance of a public highway and for the promotion of a public use. Again, in Township of Pine Grove v. Talcott, 19 Wall. 676: “Though the corporation (railroad] was private, its work was public; as much so as if it were to be constructed by the state." To the like effect are numerous adjudications in this and the state courts with which the profession is familiar. The su. premo judicial court of Massachusetts, in Inhabitants of Worcester v. Western R. Corp. 4 Metc. 566, said, in reference to a certain railroad:
“The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike, or highway, a public easement.
It is true that the real and personal property necessary to the establishment and management of the railroad is vested in the corporation; but it is in trust for the public.”
In Erie & N. E. R. Co. v. Casey, 26 Pa. St. 287, the court, refer. ring to an act repealing the charter of a railroad, and under which the state took possession of the road, said, speaking by BLACK, J.:
"It is a public highway, solemnly devoted to public use. When the lands were taken it was for such use, or they could not have been taken at all. * *
Railroads*established upon land taken by the right of eminent domain by authority of the commonwealth, created by her laws as thoroughfares for commerce, are her highways. No corporation has property in them, though it may have franchises annexed to and exercisable within them.”
In many courts it has been held that because of the public interest in such a corporation the land of a railroad company cannot be levied on and sold under execution by a creditor. The sum of the adjudged cases is that a railroad corporation is a governmental agency, created primarily for public purposes, and subject to be controlled for the public benefit. It is upon that ground that the state, when unfettered by contract, may regulate, in its discretion, the rates of fares of passengers and freight. And upon this ground, too, the state may regulate the entire management of railroads in all matters affecting the convenience and safety of the public; as, for example, by regulating speed, compelling stops of prescribed length at stations, and prohibiting discriminations and favoritism. If the corporation neglect or refuse to discharge its duties to the public, it may be coerced to do so by appropriate proceedings in the name or in behalf of the state.
Such being the relations these corporations hold to the public, it would seem that the right of a colored person to use an improved public highway, upon the terms accorded to freemen of other races, is as fundamental in the state of freedom, established in this country, as are any of the rights which my brethren concede to be so far fundamental as to be deemed the essence of civil freedom. "Personal liberty consists,” says Blackstone, “in the power of locomotion, of changing situation, or removing one's person to whatever place one's own inclination may direct, without restraint, unless by due course of law.” But of what value is this right of locomotion, if it may be clogged by such burdens as congress intended by the act of 1875 to remove? They are burdens which lay at the very foundation of the institution of slavery as it once existed. They are not to be sustained, except upon the assumption that there is still, in this land of universal liberty, a class which may yet be discrimated against, even in respect of rights of a character so essential and so supreme, that, deprived of their enjoyment, in common with others, a freeman is not only branded as one inferior and infected, but, in the competitions of life, is robbed of some of the most necessary means of existence; and all this solely because they belong to a particular race which the nation has liberated. The thirteenth amendment alone obliterated the race line, 80 far as all rights fundamental in a state of freedom are concerned.
2. As to inns. The same general observations which have been made as to railroads are applicable to inns. The word "inn" has a technical legal signification. It means, in the act of 1875, just what it meant at common law. A mere private boarding-house is not an inn, nor is its keeper subject to the responsibilities, or entitled to the privileges of a common innkeeper. “To constitute one an innkeeper, within the legal force of that term, he must keep a house of entertainment or lodging for all travelers or wayfarers who might choose to accept the same, being of good character or conduct." Redf. Carr. $ 575. Says Judge STORY:
"An innkeeper may be defined to be the keeper of a common inn for the lodging and entertainment of travelers and passengers, their horses and attendants. An innkeeper is bound to take in all travelers and wayfaring persons, and to entertain them, if he can accommodate them, for a reasonable compensation; and he must guard their goods with proper diligence. * If an innkeeper improperly refuses to receive or provide for a guest, he is liable to be indicted therefor.
They carriers of passengers] are no more at liberty to refuse a passenger, if they have sufficient room and accommodations, than an innkeeper is to refuse suitable room and accommodations to a guest.” Story, Bailm. 88 475, 476.
Said Mr. Justice COLERIDGE, in Rex v. Ivens, 7 Car. & P. 213, (32 E. C. L. 495:)
"An indictment lies against an innkeeper who refuses to receive a guest, he having at the time room in his house; and either the price of the guest's entertainment being tendered to him, or such circumstances occurring as will dispense with that*tender. This law is founded in good sense. The innkeeper is not to select his guests. He has no right to say to one, you shall come to my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants, they having in return a kind of privilege of entertaining travelers and supplying them with what they want.
These authorities are sufficient to show that a keeper of an inn is in the exercise of a quasi public employment. The law gives him special privileges, and he is charged with certain duties and responsi. bilities to the public. The public nature of his employment forbids him from discriminating against any person asking admission as a guest on account of the race or color of that person.
3. As to places of public amusement. It may be argued that the managers of such places have no duties to perform with which the public are, in any legal sense, concerned, or with which the public have any right to interfere; and that the exclusion of a black man from a place of public amusement on account of his race, or the denial to him, on that ground, of equal accommodations at such places, violates no legal right for the vindication of which he may invoke the aid of the courts. My answer to that argument is that places of public amusement, within the meaning of the act of 1875, are such as are established and maintained under direct license of the law. The authority to establish and maintain them comes from the public. The colored race is a part of that public. The local government granting the license represents them as well as all other races within its jurisdiction. A license from the public to establish a place of public amusement, imports, in law, equality of right, at such places, among all the members of that public. This must be so, unless it be—which I deny—that the common municipal government of all the people may, in the exertion of its powers, conferred for the benefit of all, discriminate or authorize discrimination against a particular race, solely because of its former condition of servitude.
I also submit whether it can be said—in view of the doctrines of this court as announced in Munn v. Illinois, *94 U. S. 123, and reaf
firmed in Peik v. Chicago & N. W. Ry. Co. 94 U. S. 178--that the management of places of public amusement is a purely private matter, with which government has no rightful concern. In the Munn Case the question was whether the state of Illinois could fix, by law, the maximum of charges for the storage of grain in certain warehouses in that state—the private property of individual citizens. After quoting a remark attributed to Lord Chief Justice Hals, to the effect that when private property is “affected with a public interest it ceases to be juris privati only," the court says:
“Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but, so long as he maintains the use, he must submit to the control.”
The doctrines of Munn v. Illinois have never been modified by this court, and I am justified, upon the authority of that case, in saying that places of public amusement, conducted under the authority of the law, are clothed with a public interest, because used in a manner to make them of public consequence and to affect the community at large. The law may therefore regulate, to some extent, the mode in which they shall be conducted, and consequently the public have rights in respect of such places which may be vindicated by the law. It is consequently not a matter purely of private concern.
Congress has not, in these matters, entered the domain of state control and supervision. It does not assume to prescribe the general conditions and limitations under which inns, public conveyances, and places of public amusement shall be conducted or managed. It simply declares in effect that since the nation has established universal freedom in this country for all time, there shall be no discrimination, based merely upon race or color, in respect of the legal rights in the accommodations and advantages of public couveyances, inns, and places of public amusement.
I am of opinion that such discrimination is a badge of servitude, the imposition of which congress may prevent under its power, through appropriate legislation, to enforce the thirteenth amendment; and consequently, without reference to its enlarged power under the fourteenth amendment, the act of March 1, 1875, is not, in my judgment, repugnant to the constitution.
It remains now to consider these cases with reference to the power congress has possessed since the adoption of the fourteenth amendment.
Before the adoption of the recent amendments it had become, as we have seen, the established doctrine of this court that negroes, whose ancestors had been imported and sold as slaves, could not become citizens of a state, or even of the United States, with the rights