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at least equally competent, the engineer is Court of Criminal Appeals of the State of denied the right to serve as conductor, and Texas for further proceedings not inconthe exclusive right of appointment and pro- sistent with this opinion. motion to that position is conferred upon Reversed. brakemen.

3. So that the case distinctly raises the Mr. Justice Holmes dissents. question as to whether a statute, in permitting certain competent men to serve, can lay down a test which absolutely prohibits other competent men from entering the DISTRICT OF COLUMBIA COURT OF

APPEALS. same private employment. It would seem that to ask the question is to answer, — and the answer in no way denies the right

PORTER L. PAYLOR, Plff. in Err., of the state to require examinations to

UNITED STATES. test the fitness and capacity of brakemen, firemen, engineers, and conductors to enter

(42 App. D. C. 428.) upon a service fraught with so much of risk to themselves and to the public. But Gaming testimony of other party all men are entitled to the equal protection sufficiency accomplice. of the law in their right to work for the

One with whom a bet is made is not an support of themselves and families. A accomplice of the other party to the trans. statute which permits the brakeman to action, who is under prosecution for violatact,-because he is presumptively compe- rule that a conviction cannot be had upon

ing the statute against betting, within the tent,—and prohibits the employment of en

the unsupported testimony of an accomplice. gineers and all others who can affirmatively prove that they are likewise compe

(November 2, 1914.) tent, is not confined to securing the public safety, but denies to many the liberty of

RROR to the Police Court of the Dis

E contract granted to brakemen, and operates

trict of Columbia to review a judgment to establish rules of promotion in a private convicting defendant of betting or gambling employment.

in violation of law. Affirmed. If brakemen only are allowed the right The facts are stated in the opinion. of appointment to the position of conduc

Messrs. Daniel W. Baker and Thomas tors, then a privilege is given to them which C. Bradley, for plaintiff in error: is denied all other citizens of the United The witnesses who testified against the States. If the statute can fix the class from defendant were accomplices. which conductors on freight trains shall be Yeager v. United States, 16 App. D. C. taken, another statute could limit the class 361; Thompson v. United States, 30 App. from which brakemen and conductors on D. C. 352, 12 Ann. Cas. 1004; 12 Cyc. 445; passenger trains could be selected, and so, Stone v. State, 3 Tex. App. 675; Moses v. progressively, the whole matter as to who State, 58 Ala. 117; Davidson v. State, 33 could enter the railroad service, and who Ala. 350; English v. State, 35 Ala. 428; could go from one position to another, State v. Light, 17 Or. 358, 21 Pac. 132, 8 would be regulated by statute. In the na- Am. Crim. Rep. 326; Wright v. State, 23 ture of the case, promotion is a matter of Tex. App. 313, 5 S. W. 117. private business management, and should If the witnesses that testified against the be left to the carrier company, which, plaintiff were accomplices, the court should bound to serve the public, is held to the have advised or cautioned the jury that exercise of diligence in selecting competent they should not find the defendant guilty men, and responsible in law for the acts on the uncorroborated testimony of such of those who fill any of these positions. accomplices.

4. There was evidence that. Smith safely Reagan v. United States, 157 U. S. 301, and properly operated the train which had 39 L. ed. 709, 15 Sup. Ct. Rep. 610; United in it cars containing freight destined for States v. Neverson, 1 Mackey, 152; United points in Texas, Missouri, Oklahoma, and States v. Bicksler, 1 Mackey, 341; State v. Kansas. But in view of what has been Light, 17 Or. 358, 21 Pac. 132, 8 Am. Crim. said it is not necessary to consider whether Rep. 326; State v. Stebbins, 29 Conn. 463, the plaintiff, as engineer, was in a position 79 Am. Dec. 223; State v. Woolard, 111 to raise the point that, under the decision Mo. 248, 20 S. W. 27; State v. Jones, 64 in the Adams Express Case (Barrett v.

Note. New York, 232 U. S. 14, 58 L. ed. 483, 34

The question, Who is an accomSup. Ct. Rep. 203) the statute interfered plice in gambling within rule requiring cor

roboration of testimony, is considered in with interstate commerce. The judgment note to Hendrix v. State, 43 L.R.A. (N.S.) is reversed and the case remanded to the 546.

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Mo. 391; Hoyt v. People, 140 III, 588, 16, police court of the District of Columbia. L.R.A. 239, 30 N. E. 315; 1 Greenl. Ev. $ The information was filed against Porter 380; State v. Perry, 41 W. Va. 651, 24 S. L. Paylor, the plaintiff in error, charging E. 634; Ray v. State, 1 G. Greene, 323, 48 him with the violation of the provisions of Am. Dec. 379.

§ 869 of the District Code, as amended by Messrs. Clarence R. Wilson and Bol. the act of May 16, 1908 (35 Stat. at L. 164, itha J. Laws, for the United States: chap. 172). The act, as amended, reads as

The witnesses in this case were not ac- follows: "It shall be unlawful for any percomplices.

son or association of persons to bet, gamble, 12 Cyc. 448; Com. v. Bossie, 100 Ky. 151, or make books or pools on the result of any 37 S. W. 844; Day v. State, 27 Tex. App, trotting or running race of horses, or boat 143, 11 S. W. 36; Stone v. State, 3 Tex. race, or race of any kind, or on any election App. 675; Cain v. Com. 6 Ky. L. Rep. 517; or any contest of any kind, or game of baseGreen v. Com. 6 Ky. L. Rep. 217; Truss v. ball. Any person or association of persons State, 13 Lea, 311; Rountree v. State, 88 violating the provisions of this section shall Ga. 457, 14 S. E. 712; Parsons v. State, 43 be fined not exceeding $500 or be imprisoned Ga. 197; Askea v. State, 75 Ga. 356; Wall not more than ninety days, or both.” v. State, 75 Ga. 474; Porter v. State, 76 Defendant was convicted on five separate Ga. 658.

counts, in each of which the witness proIt is a matter wholly within the dis- duced against him was the person with cretion of the trial court whether or not he whom he was charged with having bet or will instruct the jury how to treat testi-gambled. The material error urged remony of accomplices.

lates to the failure of the court to instruct Reg. v. Stubbs, 33 Eng. L. & Eq. Rep. the jury that it could not find the defend552; Reg. v. Boyes, 1 Best & S. 311, 2 ant guilty upon the uncorroborated testiFost. & F. 157, 30 L. J. Q. B. N. S. 301, mony of an accomplice. We think it un7 Jur. N. S. 1158, 5 L. T. N. S. 147, 9 Week. necessary to enter into any discussion of Rep. 690, 9 Cox, C. C. 32; Com. v. Holmes, the rules of practice governing the admis127 Mass. 424, 34 Am. Rép. 391; Com. v. sion of the testimony of accomplices, since Wilson, 152 Mass. 12, 25 N. E. 16; Com. we are of opinion that, where two persons v. Clune, 162 Mass. 206, 38 N. E. 435; wager on the result of an event, as in this Com. v. Bishop, 165 Mass. 148, 42 N. E. instance a horse race, one is not the ac560; Com. v. Phelps, 192 Mass. 591, 78 complice of the other. To establish the reN. E. 741; People v. Jenness, 5 Mich. 305; lation of accomplice, two or more persons People v. Schweitzer, 23 Mich. 301; People must unite in a common purpose to do an v. Wallin, 55 Mich. 497, 22 N. W. 15, 6 unlawful act. When two persons wager on Am. Crim. Rep. 213; People v. Hare, 57 the result of a certain event, the purpose of Mich. 505, 24 N. W. 843; People v. Dumas, each is diametrically opposed to that of 161 Mich. 45, 125 N. W. 766; Cheatham v. the other. The object to be attained by State, 67 Miss. 335, 19 Am. St. Rep. 310, each is the exact opposite of the other. It 7 So. 204; State v. Hyer, 39 N. J. L. 598; could be asserted with equal force that two State v. Rachman, 68 N. J. L. 120, 53 Atl. persons engaged in fighting a duel are ac1046; State v. Simon, 71 N. J. L. 142, 58 complices. While each is violating the same Atl. 107, affirmed in 59 Atl. 1118; Cross v. law, they are not engaged in a common purPeople, 47 Ill. 152, 95 Am. Dec. 474; Col. pose to kill a common antagonist, but in lins v. People, 98 111. 584, 38 Am. Rep. 105; a distinct and separate purpose of killing State v. Haney, 19 N. C. (2 Dev. & B. L.) | each other. 390; State v. Green, 48 S. C. 136, 26 S. E. The weight of authority is to the effect 234; State v. Sowell, 85 S. C. 278, 67 S. E. that persons engaged in wagering contests 316; State v. Potter, 42 Vt. 495; State v. are not accomplices. Com. v. Bossie, 100 Dana, 59 Vt. 614, 10 Atl. 727; State v. Ky. 151, 37 S. W. 844. In Stone v. State, Kibling, 63 Vt. 636, 22 Atl. 613; State v. 3 Tex. App. 675, the court, considering Hier, 78 Vt. 488, 63 Atl. 877; State v. Wol- the exact question here presented, said: cott, 21 Conn. 272; State v. Carey, 76 Conn. “We do not think the witness, Behman, is 342, 56 Atl. 632; State v. Prudhomme, 25 an accomplice. When several persons bet La. Ann. 522; State v. Hauser, 112 La. 313, at a game of faro, pool, or monte, each is 36 So. 396; 3 Wigmore, Ev. $ 2056; Rex v. guilty of betting at a gaming table or bank Jones, 2 Campb. 131, 11 Revised Rep. 680. exhibited for the purpose of gaming, not

Mr. Ralph Given also for the United as principals and accomplices to each other, States.

but as several, not joint, offenders. There

is not that oneness of intent and oneness Mr. Justice Van Orsdel delivered the of offense between them to make them prinopinion of the court:

cipals. No one of them is aiding or assistThis case is here on writ of error to the ing another by acts or encouraging by words

races

reason

V.

in the commission of the offense. Each , prosecutions would tend to injure or destroy acts independently for himself against the the property of the person so prosecuted, or others, and without concert mediately or im- deprive him of the legitimate enjoyment of mediately with the other betters. An in his property, equity will entertain a suit to dictment charging them as joint, and not inquire into the validity of the ordinance,

and enjoin its enforcement. separate, offenders, would be bad. The par

Constitutional law ties to the game of pool may change, and

intermingling of yet it not affect the defendants. Each one,

prohibition.

3. Sections 1 and 2 of the ordinance of as he takes part in the game, and bets the city of Atlanta adopted June 16, 1913, money on it, is guilty of a separate offense. and the corresponding sections of an amend

If the position contended for by de ment thereto, adopted November 3, 1913, fendants is true, when two defendants en prohibiting white persons and colored pergaged in a fight with and against each sons from residing in the same block, deny other, a conviction cannot be had on the the inherent right of a person to acquire, uncorroborated testimony of one of them.” enjoy, and dispose of property, and for this

are violative of the due process Inasmuch as this disposes of the other clause of the Federal and state Constituquestion presented, the judgment is af- tions. firmed.

(February 12, 1915.) Application for writ of certiorari denied by the Supreme Court of the United States,

E

RROR to the Superior Court for Fulton December 14, 1914, 235 U. S. 704, 59 L. ed. County to review a judgment refusing 35 Sup. Ct. Rep. 209.

to enjoin the enforcement of an ordinance requiring white persons and persons of color to reside in separate blocks. Reversed.

The facts are stated in the opinion. GEORGIA SUPREME COURT.

Mr. George Westmoreland for plaintiffs

in error. JOHN CAREY et al., Piffs. in Err.,

Messrs. J. L. Mayson and W. D. Ellis,

for defendants in error: CITY OF ATLANTA et al.

This is an effort to enjoin a criminal

prosecution, which cannot be done. (- Ga. 84 S. E. 456.)

Starnes v. Atlanta, 139 Ga. 531, 77 S. E.

381; Neall V. Atlanta, 141 Ga. 31, 80 Parties injunction interference S. E. 284; Georgia R. & Electric Co. v. Oak.

with property. 1. Where an owner of a city lot makes a White v. Tifton, 129 Ga. 582, 59 S. E. 299;

land City, 129 Ga. 576, 59 S. E. 296; contract of sale, and, upon payment of a part of the purchase money, executes a bond Rowland v. Road & Revenue Comrs. 133 for title, and places the purchaser in pos

Ga. 190, 65 S. E. 404; Jonesboro v. Central session, the obligor and the obligee `are of Georgia R. Co. 134 Ga. 190, 67 S. E. proper parties in a suit against the city to 716; Shellman v. Saxon, 134 Ga. 29, 27 enjoin an illegal interference with the pos- L.R.A.(N.S.) 452, 67 S. E. 438. session of the property.

The allegations of plaintiff's petition that Injunction against repeated prosecu- the ordinance is a bad law and has worked tions.

injury to him are not sustained, and there. 2. While equity will not ordinarily enjoin fore the petition should be dismissed. a criminal prosecution yet, where repeated

Reid v. Eatonton, 80 Ga. 755, 6 S. E. prosecutions are threatened under a void municipal ordinance, and the effect of such 602; Cooley, Const. Lim. 5th ed. 197;

Marshall v. Donovan, 10 Bush, 681; SinHeadnotes by ATKINSON, J.

clair V. Jackson, 8 Cow. 543; Smith y. Note. Validity of segregation statute | L.R.A. (N.S.) 332, 81 S. E. 338, it was held

or ordinance prohibiting persons of that charter and statutory authority to pass different race or color from living in ordinances for the general welfare of the same locality.

city, and such regulations for the better

government of the town as the commissionThe present note is a continuation to the ers may deem necessary, does not include note to State v. Gurry, 47 L.R.A. (N.S.) power to forbid members of either the white 1087.

or colored race to live in any block where Since the publication of the early note a majority of the residents are of the other there appears to be but one other reported race. This decision it will be observed is case in addition to CAREY v. ATLANTA pass in conflict with the holding in State V. ing upon the validity of a law prohibiting Gurry, supra, and Ashland v. Coleman, persons of different race or color from liv- 19 Va. L. Reg. 427, a Virginia lower ing in the same locality.

court decision, which is set out in the note In State v. Darnell, 166 N. C. 300, 51 | in 47 L.R.A. (N.S.) 1087.

A. L. R.

McCarty, 56 Pa. 359; Antoni v. Wright, 22 colored person, purchased a lot and house Gratt. 857.

from a white person, in which the latter The state has for many years put under resided. The property was located in a the head of "police powers” the segregation block occupied by white and colored persons. of the races.

A white person resided on a lot adjoining The policy of the state having been fixed, the one purchased as above mentioned. On the general walfare clause of the municipal. December 9, 1913, the plaintiff above menity can follow, and separate the races as tioned contracted to sell the lot at an adin other instances.

vanced price to the other plaintiff, and State v. Hyman, 98 Md. 596, 64 L.R.A. executed a bond for title, The former 637, 57 Atl. 6,1 Ann. Cas. 742; Police white owner having moved out, the obligee Comrs. v. Wagner, 93 Md. 182, 52 L.R.A. in bond for title, who contemplated taking 775, 86 Am. St. Rep. 423, 48 Atl. 455; up his future residence in the house, caused Cochran v. Preston, 108 Md, 220, 23 L.R.A. the same to be temporarily rented to a (N.S.) 1163, 129 Am. St. Rep. 432, 70 colored person, and received one month's Atl. 113, 15 Ann. Cas. 1048; District of rent. When the tenant moved in, the white Columbia v. Brooke, 214 U. S. 138, 53 proprietor of the adjoining residence obL. ed. 941, 29 Sup. Ct. Rep. 560; Noblejected to the occupancy of the house by a State Bank v. Haskell, 219 U. S. 104, 55 colored person, and, upon notice from the L. ed. 112, 32 L.R.A. (N.S.) 1062, 31 Sup. chief of police that a case would be made Ct. Rep. 186; Barbier v. Connolly, 113 against the tenant under the ordinance, the U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. latter moved out, and the plaintiff was re357; Chicago, B. & Q. R. Co. v. Illinois, 200 quired to refund the money paid for rent. U. S. 592, 50 L. ed. 609, 26 Sup. Ct. Rep. The plaintiff was also notified by the chief 341, 4 Ann. Cas. 1175; Crowley v. Christen- of police that the ordinance would be ensen, 137 U. S. 86, 34 L. ed. 620, 11 Sup. forced against him or any other colored Ct. Rep. 13; Slaughter-House Cases, 16 person who attempted to occupy the dwellWall. 62, 21 L. ed. 404; Mugler v. Kansas, ing as a residence, upon objection being 123 U, S. 623, 31 L. ed. 205, 8 Sup. Ct. urged by the adjoining white proprietor. Rep. 273; Jacobson v. Massachusetts, 197 The particular parts of the ordinance U. S. 25, 49 L. ed. 649, 25 Sup. Ct. Rep. complained of as being unconstitutional are 358, 3 Ann. Cas. 765; Cooley, Const. Law, S8 1 and 2 of the original ordinance, and 251.

the corresponding sections of the amendIn order to avoid disorder and violence ment. These are alleged to be void, beand to continue the good feeling between cause they (a) deprive the plaintiffs of the races, the courts encourage the enforce the use and enjoyment of their property, ment of valid and bona fide segregation (b) deprive the plaintiffs of their property laws.

rights without due process of law, and (c) Plessy v. Ferguson, 163 U. S. 537, 41 delegate to individuals the right to say how L. ed. 256, 16 Sup. Ct. Rep. 1138; Berea the plaintiff's shall use their property. By College v. Kentucky, 211 U. S. 45, 53 L. ed. amendment to the petition it was charged 81, 29 Sup. Ct. Rep. 23; Louisville, N. 0. & that these provisions of the ordinance were T. R. Co. v. Mississippi, 133 U. S. 587, 33 void as being violative of article 1, $ 1, L. ed. 784, 2 Inters. Com. Rep. 801, 10 Sup. 11 2 and 3, of the Constitution of this state Ct. Rep. 348.

(Civil Code, $$ 6358, 6359), which deelare

that protection to person and property is ' Atkinson, J., delivered the opinion of the the paramount duty of government, and court:

shall be impartial and compli te; and that 1, 2. The rulings announced in the first “no person shall be deprived of life, tiband second headnotes do not require elabor- erty, or property, except by due process of ation.

law.” The ordinance was also charged to 3. The assignment of error complained of be violative of the Constitution of the the judgment of the trial court refusing United States, as contained in the 14th to grant an interlocutory injunction. The Amendment (Civil Code, § 6700), which controlling question is as to the constitu- declares that “all persons born or naturaltionality of an ordinance of the city of At-ized in the United States, and subject to the lanta which provides for the segregation jurisdiction thereof, are citizens of the of residences, the design of the ordinance United States, and of the state wherein being to require white persons and persons they reside. No state shall make or enforce of color to reside in separate blocks. It any law which shall abridge the privileges appears from the pleadings and evidence or immunities of citizens of the United that the ordinance was adopted on June 16, States; nor shall any state deprive any 1913, and amended on November 3, 1913. I person of life, liberty, or property without On October 1, 1913, one of the plaintiffs, a due process of law, nor deny to any person

no

within its jurisdiction the equal protection streets, without reference to the street which of the laws."

runs to said block, but does not cross same. The ordinance in its entirety was as fol- Corner lots, improved or unimproved, shall lows:

be deemed located in the block upon the “An ordinance for preserving peace, pre street on which they front or are intended venting conflict and feeling between the to front when improved. In using the white and colored races, and promoting the word 'lots' in this section it is intended to general welfare of the city, by providing include the houses on same where such lots for the use of separate blocks by white are improved. and colored people for residences, and for “Section 5. That any person violating the other purposes.

provisions of $$ 1 or 2 of this ordinance "Section 1. That from and after the ap- shall, on conviction in the recorder's court, proval of this ordinance it shall be unlawful be deemed guilty of an offense and be punfor any white person to move into or use ished by a fine not exceeding $100, or as a residence or place of abode any house, sentenced to work on the public works for building, or structure, or any part of a not exceeding thirty days, either or both house, building, or structure, situated or punishments to be inflicted in the discrelocated on any block as hereinafter defined | tion of the recorder, and each day's vioin § 4, on which block the house, building, lation of the ordinance to be considered a 'or structures, in whole or in part, shall be separate offense. occupied or used as residences or places “Section 6. That, upon the approval of of abode by colored persons, otherwise than this ordinance, any person desiring to build as provided in § 3 hereof. The block into or erect, for himself or as agent for another, which white persons are herein forbidden any building or structure to be used as to move or occupy, being occupied or used residence or place of abode upon property by colored persons as herein set forth, shall situated in any block, as defined in g 4 be deemed a 'Colored Block' for the purposes hereof, and within which there are of this ordinance.

houses, buildings, or structures used as resi“Section 2. That from and after the ap-dences, or otherwise vacant property, shall, proval of this ordinance it shall be unlawful in the application for a permit to the buildfor any colored person to move into, or use ing inspector, declare that such houses or as a residence or place of abode, any house, structures for which a permit is asked are building, or structure, or any part of a to be used as residences or places of abode house, building, or structure, situated or for white persons or for colored persons. located on any block as hereinafter defined Upon the filing of said application the in § 4, on which block the houses, buildings, building inspector shall order the same pubor structures shall be occupied or used as lished for two successive weeks in one of residences or places of abode by white per- the daily newspapers of the city of Atlanta, sons, otherwise than as provided in § 3 calling particular attention to said notice, hereof. The block into which colored and the fact that the houses, buildings, or persons are herein forbidden to move or structures proposed to be built or erected occupy, being occupied by white persons as are to be used as residences by white people herein set forth, shall be deemed a 'White or by colored people, as the case may be; Block' for the purposes of this ordinance and unless within five days from the date

"Section 3. That nothing in either of the of the last publication thereof protest be preceding sections shall be construed or de- made in writing to the building inspector fined to prevent domestic servants from re- by a majority of the property owners of siding in the house or building wherein they said lot against the use mentioned in said are employed, or upon the same lots with notice, the permit desired shall issue, if in the houses or buildings which they serve. other respects said application be in con

"Section 4. That the word 'block,' as used formity with the ordinances of the city. in this ordinance, is hereby defined to mean Thereafter all houses, buildings, or structhat portion of any street or alley together tures erected for houses or residences or with the lots abutting on same, whether or places of abode, and all houses, buildings, not, and upon both sides thereof, between or structures in said lot erected for other the two adjacent intersecting or crossing purposes, but which it may be desired to streets. In case either of said adjacent use as residences or places of abode, shall be streets intersect, but do not cross, the so used either as residences or places of street upon which the block in question may abode for white persons or for colored perbe located, the lots improved or unimproved, sons, as may be determined by the permit upon the side of the last-mentioned street, granted in the manner hereinbefore proto wit, the street facing the intersecting vided. Any person or persons moving into street, shall be included in the block bed or using as residences or places of abode tween the two adjacent intersecting crossing any of such houses, buildings, or structures,

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