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or any part thereof, contrary to the classi-, be forced to move from any present locafication as fixed in the manner herein pro- tion; but that entire ordinance shall be vided and set out in said permit, shall be operative as the future. That all ordiguilty of an offense punished in the same nances and parts of ordinances in conflict manner as provided in § 5 of this ordinance. with this ordinance be and the same are If, however, the majority of the property hereby repealed.” owners in said lot in which the proposed A further amendment was as follows: building or structure is to be erected and “That the ordinance adopted by the genfor which permit is asked, as above pro- eral council on the 16th day of June, 1913, vided, shall protest against said house, and approved by the Honorable J. G. Woodbuilding, or structure in the manner above ward, mayor, on the 17th day of June, 1913, provided, then in such case no permit shall providing for the use of separate blocks by issue on said application for the erection white and colored people for residences and of a building or house or structure for the for other purposes, be amended by adding use set out in said application. The pro- thereto the following sections: visions of this section are intended to “Section 1. That from and after the approvide a method by which a block which proval of this ordinance it shall be unlawful is vacant may be improved, and by which for any colored person to move into, or use its use for either white or colored person as a residence or place of abode, any house, may be determined.

building, or structure, or any part of a “Section 7. That wherever, after the house, building, or structure, situated or passage of this ordinance, a majority of the located except as provided in said original owners of either real or leasehold property ordinance, which said house, building, or in any block which is subject to the oper- structure has previously been occupied by ation of ss 1 and 2 of this ordinance shall white people, and where white people are make application in writing to the building still living in houses or buildings adjoininspector, requesting that he declare the ing the same, without the consent of the house in said lot to be open for occupancy white people living in said adjoining house thereafter by either white or colored per- or buildings. sons, it shall be the duty of the building "Section 2. That from and after the apinspector to notify the board of police com- proval of this ordinance it shall be unlawmissioners that said block is not longer sub- ful for any white person to move into, or ject to SS 1 and 2 of this ordinance, as use as a residence or place of abode, any the case may be. Upon the filing of said house, building, or structure, or any part application, as above provided, with the of a house, building, or structure, situated or building inspector, either white persons or located except as provided in said original colored persons moving into or using as ordinance, which said house, building, or places of abode or residences the houses structure has previously been occupied by and buildings in said block shall not be sub- colored people, and where colored people ject to the penalties provided for in this are still living in houses or buildings adordinance. Provided, however, that if at joining the same, without the consent of any time thereafter said block shall be the colored people living in said adjoining occupied entirely by white persons, to wit, houses or buildings. all the residences thereof shall be either “Section 3. The penalty for violation of white or colored, then said black shall the previous sections shall be as provided thereupon immediately become subject to in § 5 of said original ordinance." the provisions of the other sections of this Under the operation of $$ 1 and 2 of ordinance with reference to white blocks or the original ordinance, and the correspondblack blocks respectively, that is, if white ing sections of the amendment, the folpersons entirely occupy said blocks, then it lowing result could be brought about: shall thereafter be a white block, and if | Assuming that in any mixed block-that colored persons entirely occupy said block, is, one occupied by both white and colored then it shall thereafter be a black block, persons—there three adjacent lots and subject to the provisions of this ordi- owned by separate persons, each of whom nances with reference to white and black resides on his lot, and that the proprietor blocks.

of the middle lot be a white person, and “Amended by Alderman Nutting: Be it that the proprietor on one side be a white ordained by the mayor and general council, person, and the proprietor on the other be that the pending ordinances in re segrega a colored person: If the middle proprietor tion of races be amended as follows: That should desire to move out and substitute no provisions of the foregoing ordinance a colored tenant, he could not do so if the shall cause any change in the status of the adjacent white proprietor objected; or if

as to present occupancy or owner- he should sell to a colored person the purship, and no member of either race shall chaser could not move into the house to




reside, or substitute another colored per- every owner of property by the Constituson to do so, if the adjoining white pro- tion and laws of the land.” prietor objected. So, also, if the middle While this pronouncement seems to indiproprietor were

colored person

and cate a disposition to hold the ordinance void should desire to move out and substitute because the ordinance was retroactive, it at a white person to reside in his dwelling, the same time recognizes that the ordinance he could not do so if the colored adjoining involved jus disponendi of the owner, and proprietor objected; or, if he should sell that right was within the protection of the to a white person, the purchaser could not constitution. move into the dwelling to reside, nor sub- In North Carolina a person, in violation stitute a white tenant to do so, if the of a segregation ordinance, moved his fam. colored adjoining proprietor objected. In ily into a house to occupy it as a residence. each of such instances an owner of property He was tried for violating the ordinance, could, by mere force of the ordinance and and found guilty. In the supreme court of caprice of an adjoining proprietor, without that state it was ruled : "Charter and any compensation or process of law, be statutory authority to pass ordinances for deprived for all time of the right to reside the general welfare of the city, and such on his property, or to substitute a tenant regulations for the better government of or grantee to do so. The right of the the town as the commissioners may deem owner of property to reside on it is inherent, necessary, does not include power to forbid and permanent deprivation of that right members of either the white or colored race is in substance a taking of the property to live in any block where a majority of itself. Deprivation thereof in the manner the residents are of the other race.” State above indicated, without any symbol of v. Darnell, 166 N. C. 300, 51 L.R.A. (N.S.) legal procedure, is opposed to the guaranty 332, 81 S. E. 338. as embodied in the due process clauses of As indicated by the note, the court was the state and Federal Constitutions. Ordi- not passing on the constitutional question, nances of this character are of recent origin. but much of the reasoning employed in The first seems to have been adopted on support of the proposition that the ordiMay 19, 1911, in Baltimore, Maryland, and nance was not authorized under the general has several times been amended. Since welfare clause of the charter of the municithen several other cities have adopted segre. pality is pertinent and persuasive on the gation ordinances, and the state of Vir constitutional question. In the course of ginia has enacted a statute on the subject. the opinion it was said: "Besides, an ordiA person was prosecuted for violating the nance of this kind forbids the owner of Baltimore ordinance. The defendant at property to sell or to lease it to whomsotacked the validity of the ordinance. The ever he sees fit, as well as forbids those who supreme court of the state of Maryland, in may be desirous of buying or renting propdealing with the case (State v. Gurry, 121 erty from doing so where they can make the Md. 534, 47 L.R.A. , N.S.) 1087, 88 Atl. best bargain. Yet this right of disposing 546), discussed the constitutionality of the of property, the jus disponendi, has always ordinance at length, and expressed the view been held one of the inalienable rights incithat under the exercise of the police power dent to the ownership of property, which no a law of that character could be adopted, statute will be construed as having power but finally decided that the ordinance was to take away. In Bruce v. Strickland, 81 void on the ground that it wa so unreason. N. C. 267, it is said: “The jus disponendi able as to be unauthorized under the gen. is an important element of property, and eral welfare clause of the charter of the a vested right protected by the clause in city. On this subject it was stated in the the Federal Constitution which declares opinion that the serious objection to the obligation of contracts inviolable. The the provisions of the ordinance was that they same doctrine is fully held and discussed in wholly ignored all vested right, which ex. Hughes v. Hodges, 102 N. C. 239, 9 s. E. isted at the time of the passage of the | 437, and in the numerous citations to those ordinance. This was put upon the ground two cases, which will be found in the Anno. that the ordinance affected the rights of ed. This ordinance forbids a white man an owner existing at the time of the passage or a colored man to live in his own house of the ordinance. Relatively to them it was if it should descend to him by inheritance, said: “To deny him such rights would be and should happen to be located on a a practical confiscation of his property, street where a majority of the residents for his house might be of a character he happen to be of such different race. There would not rent to a colored person; and, if is no reason why the power of the county he could not use it himself, he would be commissioners to provide for the public weldeprived of not only the income from it, fare should not be as broad as those of the but of such use of it as is guaranteed to town commissioners, and if, under such


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general authority, similar regulations are due process of law. In the recent case of prescribed for the country districts, one McCabe v. Atchison, T. & S. F. R. Co. 235 who should buy or inherit property in a U. S. 151, 59 L. ed. 35 Sup. Ct. Rep. 69, section where the opposite race is in the where the court had under consideration majority could not reside on his own prop- a statute which allowed railroad erty, and he could not sell it or rent it panies to furnish dining cars for white peoout, except to persons of such different ple and to refuse to furnish dining cars race, since none other could reside there. altogether for colored persons, this language Neither a white manager nor any white was used in reference to the contentions tenants could reside on a farm where a of the attorney general: “This argument majority of the tenants or hands are col with respect to volume of traffic seems to ored.

There is a wide distinction us to be without merit. It makes the between suffrage, which is not an inherent constitutional right depend upon the numright, but which is conferred by constitu-ber of persons who may be discriminated tional prescription, and which is usually against; whereas, the essence of the conextended from time to time, and the in- stitutional right is that it is a personal alienable right to own, acquire, and dispose one." of property, which is not conferred by the While the police power is very broad, its Constitution, but exists of natural right. limits are within the Constitution. In CutThere is no question that legislation can singer v. Atlanta, 142 Ga. 555, L.R.A. control social rights by forbidding inter- 1915B, 1097, 83 S. E. 263, the following was marriage of the races, and in requiring quoted with approval from the decision in Jim Crow cars, and in similar matters. It Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636: was also held in Mugler v. Kansas, 123 “The limit of the (police) power cannot be U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. accurately defined, and the courts have not 273, that, as the state had the right to been able or willing definitely to circumregulate or forbid the sale of liquor, that scribe it. But the power, however broad one who had devoted his property to such and extensive, is not above the Constitupurpose could not object that he is forbidden tion. When it speaks, its voice must be longer to so use it; but none of these inter- heeded. It furnishes the supreme law, the fere with the fundamental right of everyone guide for the conduct of legislators, judges, to acquire and dispose of property by sale.” and private persons, and, in so far as it

It appears from the report of the case imposes restraints, the police power must that, in addition to the cases specially be exercised in subordination thereto." mentioned in the foregoing excerpt, the In the opinion it was held: “The Concourt had before it Berea College v. Ken- stitution of this state not only recognizes tucky, 211 U. S. 45, 53 L. ed. 81, 29 Sup. the necessary power of the courts to declare Ct. Rep. 33; Plessy v. Ferguson, 163 U. S. laws in violation of the state or Federal 537, 41 L. ed. 256, 16 Sup. Ct. Rep. 1138; Constitution void (a power already known and many other cases on the subject of to exist), but expressly declares it to be race regulations under the police power in their duty to hold such acts void.” matters concerning the administration of The effect of the ordinance under coneducational institutions, the operation of sideration was not merely to regulate a separate cars, and the like, in which it was business or the like, but was to destroy held that the difference in the races af- the right of the individual to acquire, enjoy, forded a basis for classification which would and dispose of his property. Being of this support in some instances ordinances, and character, it was void as being opposed to in others statutes, regulating the conduct the due process clause of the Constitution; of those particular businesses. In those and the judge erred in refusing to grant cases the equal protection clause of the the injunction. Constitution was the one mainly discussed. Judgment reversed. In each instance the complaining person was afforded the opportunity to ride, or

All the Justices concur, except Fish, Ch. to attend institutions of learning, or af. J., absent. forded the thing of whatever nature to which in the particular case he was entitled. Lumpkin, J., concurring specially: The most that was done was to require him I concur in the result reached, but not in as a member of a class to conform to rea- all that is said in the opinion of Mr. Justice sonable rules in regard to the separation of Atkinson. It seems to me that the discusthe races. In none of them was he denied sion in regard to the right to use property the right to use, control, or dispose of his as an incident to ownership may lead to property, as in this case. Property of a extreme results, The right of an owner to person, whether as a member of a class or use his property is important, but it is as an individual, cannot be taken without not so absolute that he may, at all times and under all circumstances, use it as he police power. The most common instance pleases, regardless of the public welfare, of this is connected with the establishment morals, or safety. The statute books con- of separate schools for white and colored tain many laws restricting the use of children, which has been held to be a valid property by the owner of it, and prohibit- exercise of the legislative power, even by ing him from using it for certain purposes. courts of states where the political rights Laws prohibiting the erection of wooden of the colored race have been longest and buildings within the fire limits of a city most earnestly enforced." restrict the owner's use of his property, In Pace v. Alabama, 106 U. S. 583, 27 although he may contend that a wooden L. ed. 207, 1 Sup. Ct. Rep. 637, it was held building which he desires to erect would that adultery between blacks and whites be safe, and that he has not the means to could constitutionally be punished more build one of brick or stone. Laws which severely than the same crime between perprevent an owner from using his property sons of the same race, on the ground that for the storage of dynamite, powder, oil, or the white and black were punished alike, other dangerous substances, in populous without discrimination. A law prohibiting communities, likewise place limitations the intermarriage of the two races has been upon the owner's right to use his property declared valid. State v. Gibson, 36 Ind. as he sees fit. The right to contract has 389, 10 Am. Rep. 42. been treated as a part of the liberty of a Suppose that an owner of property in citizen, and yet it is subject to certain the best residential portion of a city should limitations for the public good. Thus claim the right to build upon his lot a large usurious contracts have long been prohib- boarding house or rooming house, in which ited. Many other illustrations might be he should receive indifferently boarders of given in addition to those arising under both races and sexes, producing a situalaws relating to the segregation of the tion of great irritation and calculated to white and negro races in cars and schools. bring about unfortunate results. It is I cannot subscribe to the apparent idea that quite possible that the ascred right of classification has nothing to do with such property might be subject to regulation laws. Classification as to the particular for the public safety (which bas been deuse to which property is to be put, having clared to be the supreme law) by a reasonin view its location and surroundings, may able pre-existing ordinance. be an important element in considering In Plessy V. Ferguson, supra, the law laws of this character. In the leading case involved was one requiring railway comof Plessy v. Ferguson, 163 U. S. 537, 41 panies carrying passengers in their coaches L. ed. 256, 16 Sup. Ct. Rep. 1138, Mr. Jus in the state of Louisiana to provide equal tice Brown, delivering the opinion of the but separate accommodations for the white court, said: “A statute which implies and colored races, by means of separate cars merely a legal distinction between the or by dividing the passenger coaches by a white and colored races--a distinction partition. Such a law necessarily interwhich is founded in the color of the two fered to some extent with the right of the races, and which must always exist so owner of the property to use it as it saw long as white men are distinguished from fit. While this law related to railway comthe other race by color-has no tendency panies, the opinion of the majority of the to destroy the legal equality of the two Supreme Court of the United States was races, or re-establish a state of involuntary not based on that ground. On the contrary, servitude.”

Mr. Justice Harlan, who dissented, referred Referring to the 14th Amendment, he to the fact that a railway was a quasi said: “The object of the Amendment was public highway, where all might travel. Of undoubtedly to enforce the absolute equal course, regulations based on a distinction ity of the two races before the law, but between the two races must be reasonable in the nature of things it could not have and not arbitrary, and the municipal counbeen intended to abolish distinctions based cil or other body making them must have upon color, or to enforce social, as dis- authority to do so. In the present case, the tinguished from political, equality, or a petition does not distinctly make the point commingling of the two races upon terms that the general welfare clause in a city unsatisfactory to either. Laws permitting, charter does not confer authority to adopt and even requiring, their separation in la segregation ordinance, or aver in terms places where they are liable to be brought that the ordinance under consideration was into contact, do not necessarily imply the unreasonable. It does, however, charge that inferiority of either race to the other, and the ordinance delegated to individuals the have been generally, if not universally, rec- right to say how the plaintiffs should use ognized as within the competency of the their property. I think that this ground state legislatures in the exercise of their l is well taken. If the residence of the two


races in close proximity was a matter re- | liable for injury done by a car through the quiring regulation by ordinance, the legis. negligence of one to whom he let it with lative body should determine the fact, and knowledge that the hirer had no acquaintnot leave it to depend upon the will of ance with the operation of that make of individuals, perhaps the whim of a single resident, and subject to shift from tim

Same to

dangerous machine - duty to

test skill of hirer. time according to the wishes of some of

2. An automobile in good condition is not those who for the time being might reside such a dangerous instrument that one letin the block, so that sometimes the block ting it for hire must test the competency might be classified as "white,” sometimes and skill of a customer before intrusting as "black," and sometimes mixed. It pro- him with it, under penalty of liability for vides for no method for determination of injuries done by the hirer's negligence. the fact by legitimate authority, save as

(March 16, 1915.). & property owner's neighbors may wish. A similar ordinance adopted in Baltimore, which seems to have been taken as a guide APPEAL by plaintiff from a judgment of

the District Court for Monona County in preparing the ordinance of Atlanta, was

in defendants' favor in an action brought declared invalid by the supreme court of to recover damages for personal injuries Maryland, although that court did not deny caused by the negligent operation of an au. the right to use the distinction between the tomobile for which defendants were alleged white and black races as a basis of legiti- to be responsible. Affirmed. mate classification.

The facts are stated in the opinion. The near approach of the end of the

Mr. J. A. Prichard, for appellant: term and the rush of business incident

Defendants, as the owners of the autothereto, under a provision of our Constitu- mobile let for hire, were responsible for tion which requires that all cases shall the driver. be decided at the first or the second term,

McColligan v. Pennsylvania R. Co. 214 prevent a more thorough discussion of the Pa. 229, 6 L.R.A.(N.S.) 544, 112 Am. St. subject. I agree with the majority of the Rep. 739, 63 Atl. 792, 20 Am. Neg. Rep. court that the particular ordinance here 471; Salisbury v. Erie R. Co. 66 N. J. L. involved is unconstitutional and void. But 233, 55 L.R.A. 578, 88 Am. St. Rep. 480, 50 I think the line of reasoning adopted by Atl. 117, 10 Am. Neg. Rep. 584. them may carry them too far.

An implement not dangerous per se may become a dangerous instrumentality in the hands of inexperienced or incapable per


Savannah Electric Co. v. Wheeler, 128

Ga. 550, 10 L.R.A.(N.S.) 1176, 58 S. E. 38. ROBERT M. NEUBRAND, Appt., It is the duty of all owners of automo

biles to see that their machines are driven W. H. KRAFT et al.

by competent persons, and that such driv. - Iowa, 151 N. W. 455.)

ers are persons who will use ordinary care

in driving a machine; otherwise the own. Automobile letting to incompetent

ers are responsible. driver liability for injury.

Salisbury v. Erie R. Co. supra; Tuller 1. The keeper of a motor car livery is not v. Talbot, 23 Ill. 357, 76 Am. Dec. 695; Note. - Automobiles: liability of owner, L.R.A.(N.S.) 216; Danforth v. Fisher, 21 upon the ground of dangerous agency, L.R.A. (N.S.) 93; Steffen v. McNaughton, or of negligence in intrusting car to 26 L.R.A. (N.S.) 382; Fleischer v. Durgin, incompetent or negligent person, for 33 L.R.A. (N.S.) 79; Hartley V. Miller, 33 injuries inflicted while latter is oper- L.R.A. ( N.S.) 81; Riley v. Roach, 37 L.R.A. ating car for his own purposes. (N.S.) 834; and Symington v. Sipes, 47

L.R.A. (N.S.) 662. Generally, as to liability of master for in- And as to liability where automobile is jury done by servant to third person in use being used by a member of owner's family, of dangerous agency, other than automobile, see McNeal v. McKain, 41 L.R.A. ( N.S.) 775, placed in his custody, see note to Galveston, and Birch v. Abercrombie, 50 L.R.A. (N.S.) H. & S. A. R. Co. v. Currie, 10 L.R.A. (N.S.) 59. 367.

As to who is responsible for negligence of Generally, as to liability of owner for in- chauffeur operating a leased or demonstratjuries by automobile while being used by a ing car, see notes to Gerretson v. Rambler servant or a third person for his own busi- Garage Co. 40 L.R.A. (N.S.) 457; Meyers v. ness or pleasure, gee notes to Christy v. El Tri-State Automobile Co. 44 L.R.A. ( N.S.) liott, 1 L.R.A. (N.S.) 215; Hayes v. Wilkins, 113; and Forbes V. Reinman, 51 L.R.A. 9 L.R.A. (N.S.) 1035; Jones v. Hoge, 14' (N.S.) 1164.


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