tion; but that entire ordinance shall be operative as the future. That all ordinances and parts of ordinances in conflict with this ordinance be and the same are hereby repealed." or any part thereof, contrary to the classi- be forced to move from any present locafication as fixed in the manner herein provided and set out in said permit, shall be guilty of an offense punished in the same manner as provided in § 5 of this ordinance. If, however, the majority of the property owners in said lot in which the proposed building or structure is to be erected and for which permit is asked, as above provided, shall protest against said house, building, or structure in the manner above provided, then in such case no permit shall issue on said application for the erection of a building or house or structure for the use set out in said application. The provisions of this section are intended to provide a method by which a block which is vacant may be improved, and by which its use for either white or colored person may be determined. A further amendment was as follows: "That the ordinance adopted by the general council on the 16th day of June, 1913, and approved by the Honorable J. G. Woodward, mayor, on the 17th day of June, 1913, providing for the use of separate blocks by white and colored people for residences and for other purposes, be amended by adding thereto the following sections: "Section 1. That from and after the approval of this ordinance it shall be unlawful for any colored person to move into, or use as a residence or place of abode, any house, building, or structure, or any part of a house, building, or structure, situated or located except as provided in said original ordinance, which said house, building, or structure has previously been occupied by white people, and where white people are still living in houses or buildings adjoining the same, without the consent of the white people living in said adjoining house or buildings. "Section 7. That wherever, after the passage of this ordinance, a majority of the owners of either real or leasehold property in any block which is subject to the operation of §§ 1 and 2 of this ordinance shall make application in writing to the building inspector, requesting that he declare the house in said lot to be open for occupancy thereafter by either white or colored persons, 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 §§ 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 white or colored, then said black shall thereupon immediately become subject to the provisions of the other sections of this ordinance with reference to white blocks or black blocks respectively, that is, if white persons entirely occupy said blocks, then it shall thereafter be a white block, and if colored persons entirely occupy said block, then it shall thereafter be a black block, and subject to the provisions of this ordinances with reference to white and black blocks. "Section 3. The penalty for violation of the previous sections shall be as provided in § 5 of said original ordinance." Under the operation of §§ 1 and 2 of the original ordinance, and the corresponding sections of the amendment, the following result could be brought about: Assuming that in any mixed block-that is, one occupied by both white and colored persons-there are three adjacent lots owned by separate persons, each of whom resides on his lot, and that the proprietor of the middle lot be a white person, and that the proprietor on one side be a white person, and the proprietor on the other be a colored person: If the middle proprietor should desire to move out and substitute a colored tenant, he could not do so if the adjacent white proprietor objected; or if he should sell to a colored person the purchaser could not move into the house to every owner of property by the Constitution and laws of the land." While this pronouncement seems to indicate a disposition to hold the ordinance void because the ordinance was retroactive, it at the same time recognizes that the ordinance involved jus disponendi of the owner, and that right was within the protection of the Constitution. In North Carolina a person, in violation of a segregation ordinance, moved his family into a house to occupy it as a residence. He was tried for violating the ordinance, and found guilty. In the supreme court of that state it was ruled: "Charter and statutory authority to pass ordinances for the general welfare of the city, and such regulations for the better government of the town as the commissioners may deem necessary, does not include power to forbid members of either the white or colored race to live in any block where a majority of the residents are of the other race." State v. Darnell, 166 N. C. 300, 51 L.R.A. (N.S.) 332, 81 S. E. 338. reside, or substitute another colored person to do so, if the adjoining white proprietor objected. So, also, if the middle proprietor were a colored person and should desire to move out and substitute a white person to reside in his dwelling, he could not do so if the colored adjoining proprietor objected; or, if he should sell to a white person, the purchaser could not move into the dwelling to reside, nor substitute a white tenant to do so, if the colored adjoining proprietor objected. In each of such instances an owner of property could, by mere force of the ordinance and caprice of an adjoining proprietor, without any compensation or process of law, be deprived for all time of the right to reside on his property, or to substitute a tenant or grantee to do so. The right of the owner of property to reside on it is inherent, and permanent deprivation of that right is in substance a taking of the property itself. Deprivation thereof in the manner above indicated, without any symbol of legal procedure, is opposed to the guaranty 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 May 19, 1911, in Baltimore, Maryland, and has several times been amended. Since then several other cities have adopted segregation ordinances, and the state of Virginia has enacted a statute on the subject. A person was prosecuted for violating the Baltimore ordinance. The defendant attacked the validity of the ordinance. The supreme court of the state of Maryland, in dealing with the case (State v. Gurry, 121 Md. 534, 47 L.R.A. N.S.) 1087, 88 Atl. 546), discussed the constitutionality of the ordinance at length, and expressed the view that under the exercise of the police power a law of that character could be adopted, but finally decided that the ordinance was void on the ground that it wa so unreasonable as to be unauthorized under the general welfare clause of the charter of the city. On this subject it was stated in the opinion that the serious objection to the provisions of the ordinance was that they wholly ignored all vested right which existed at the time of the passage of the ordinance. This was put upon the ground that the ordinance affected the rights of an owner existing at the time of the passage of the ordinance. Relatively to them it was said: "To deny him such rights would be a practical confiscation of his property, for his house might be of a character he would not rent to a colored person; and, if he could not use it himself, he would be deprived of not only the income from it, but of such use of it as is guaranteed to support of the proposition that the ordinance was not authorized under the general welfare clause of the charter of the municipality is pertinent and persuasive on the constitutional question. In the course of the opinion it was said: "Besides, an ordinance of this kind forbids the owner of property to sell or to lease it to whomsoever he sees fit, as well as forbids those who may be desirous of buying or renting property from doing so where they can make the best bargain. Yet this right of disposing of property, the jus disponendi, has always been held one of the inalienable rights incident to the ownership of property, which no statute will be construed as having power to take away. In Bruce v. Strickland, 81 N. C. 267, it is said: "The jus disponendi is an important element of property, and a vested right protected by the clause in the Federal Constitution which declares the obligation of contracts inviolable.' The same doctrine is fully held and discussed in Hughes v. Hodges, 102 N. C. 239, 9 S. E. 437, and in the numerous citations to those two cases, which will be found in the Anno. ed. This ordinance forbids a white man or a colored man to live in his own house if it should descend to him by inheritance, and should happen to be located on a street where a majority of the residents happen to be of such different race. There is no reason why the power of the county commissioners to provide for the public welfare should not be as broad as those of the town commissioners, and if, under such While the police power is very broad, its limits are within the Constitution. In Cutsinger v. Atlanta, 142 Ga. 555, L.R.A. 1915B, 1097, 83 S. E. 263, the following was quoted with approval from the decision in Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636: "The limit of the [police] power cannot be accurately defined, and the courts have not been able or willing definitely to circumscribe it. But the power, however broad and extensive, is not above the Constitu tion. When it speaks, its voice must be heeded. It furnishes the supreme law, the guide for the conduct of legislators, judges, and private persons, and, in so far as it imposes restraints, the police power must be exercised in subordination thereto." 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 comerty, 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 Constitution, but exists of natural right. There is no question that legislation can control social rights by forbidding intermarriage of the races, and in requiring Jim Crow cars, and in similar matters. It was also held in Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273, that, as the state had the right to regulate or forbid the sale of liquor, that one who had devoted his property to such purpose could not object that he is forbidden longer to so use it; but none of these interfere with the fundamental right of everyone to acquire and dispose of property by sale." It appears from the report of the case that, in addition to the cases specially mentioned in the foregoing excerpt, the court had before it Berea College v. Kentucky, 211 U. S. 45, 53 L. ed. 81, 29 Sup. Ct. Rep. 33; Plessy v. Ferguson, 163 U. S. 537, 41 L. ed. 256, 16 Sup. Ct. Rep. 1138; and many other cases on the subject of race regulations under the police power in matters concerning the administration of educational institutions, the operation of separate cars, and the like, in which it was held that the difference in the races afforded a basis for classification which would support in some instances ordinances, and in others statutes, regulating the conduct of those particular businesses. In those cases the equal protection clause of the Constitution was the one mainly discussed. In each instance the complaining person was afforded the opportunity to ride, or to attend institutions of learning, or afforded the thing of whatever nature to which in the particular case he was entitled. The most that was done was to require him as a member of a class to conform to reasonable rules in regard to the separation of the races. In none of them was he denied the right to use, control, or dispose of his property, as in this case. Property of a person, whether as a member of a class or as an individual, cannot be taken without In the opinion it was held: "The Constitution of this state not only recognizes the necessary power of the courts to declare laws in violation of the state or Federal Constitution void (a power already known to exist), but expressly declares it to be their duty to hold such acts void." The effect of the ordinance under consideration was not merely to regulate a business or the like, but was to destroy the right of the individual to acquire, enjoy, and dispose of his property. Being of this character, it was void as being opposed to the due process clause of the Constitution; and the judge erred in refusing to grant the injunction. Judgment reversed. All the Justices concur, except Fish, Ch. J., absent. Lumpkin, J., concurring specially: I concur in the result reached, but not in all that is said in the opinion of Mr. Justice Atkinson. It seems to me that the discussion in regard to the right to use property as an incident to ownership may lead to extreme results. The right of an owner to use his property is important, but it is not so absolute that he may, at all times of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power, even by courts of states where the political rights of the colored race have been longest and most earnestly enforced." In Pace v. Alabama, 106 U. S. 583, 27 L. ed. 207, 1 Sup. Ct. Rep. 637, it was held that adultery between blacks and whites could constitutionally be punished more severely than the same crime between persons of the same race, on the ground that the white and black were punished alike, without discrimination. A law prohibiting the intermarriage of the two races has been declared valid. State v. Gibson, 36 Ind. 389, 10 Am. Rep. 42. 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 contain many laws restricting the use of property by the owner of it, and prohibiting him from using it for certain purposes. Laws prohibiting the erection of wooden buildings within the fire limits of a city restrict the owner's use of his property, although he may contend that a wooden building which he desires to erect would be safe, and that he has not the means to build one of brick or stone. Laws which prevent an owner from using his property for the storage of dynamite, powder, oil, or other dangerous substances, in populous communities, likewise place limitations upon the owner's right to use his property as he sees fit. The right to contract has been treated as a part of the liberty of a citizen, and yet it is subject to certain limitations for the public good. Thus usurious contracts have long been prohibited. Many other illustrations might be given in addition to those arising under laws relating to the segregation of the white and negro races in cars and schools. I cannot subscribe to the apparent idea that classification has nothing to do with such laws. Classification as to the particular use to which property is to be put, having in view its location and surroundings, may be an important element in considering laws of this character. In the leading case of Plessy v. Ferguson, 163 U. S. 537, 41 L. ed. 256, 16 Sup. Ct. Rep. 1138, Mr. Justice Brown, delivering the opinion of the court, said: "A statute which implies merely a legal distinction between the white and colored races-a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color-has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude." Referring to the 14th Amendment, he said: "The object of the Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their Suppose that an owner of property in the best residential portion of a city should claim the right to build upon his lot a large boarding house or rooming house, in which he should receive indifferently boarders of both races and sexes, producing a situation of great irritation and calculated to bring about unfortunate results. It is quite possible that the sacred right of property might be subject to regulation for the public safety (which has been declared to be the supreme law) by a reasonable pre-existing ordinance. In Plessy v. Ferguson, supra, the law involved was one requiring railway companies carrying passengers in their coaches in the state of Louisiana to provide equal but separate accommodations for the white and colored races, by means of separate cars or by dividing the passenger coaches by a partition. Such a law necessarily interfered to some extent with the right of the owner of the property to use it as it saw fit. While this law related to railway companies, the opinion of the majority of the Supreme Court of the United States was not based on that ground. On the contrary, Mr. Justice Harlan, who dissented, referred to the fact that a railway was a quasi public highway, where all might travel. Of course, regulations based on a distinction between the two races must be reasonable and not arbitrary, and the municipal council or other body making them must have authority to do so. In the present case, the petition does not distinctly make the point that the general welfare clause in a city charter does not confer authority to adopt la segregation ordinance, or aver in terms that the ordinance under consideration was unreasonable. It does, however, charge that the ordinance delegated to individuals the right to say how the plaintiffs should use their property. I think that this ground is well taken. If the residence of the two liable for injury done by a car through the negligence of one to whom he let it with knowledge that the hirer had no acquaintance with the operation of that make of cars. dangerous machine test skill of hirer. races in close proximity was a matter re- | in preparing the ordinance of Atlanta, was mate classification. The near approach of the end of the term and the rush of business incident thereto, under a provision of our Constitution which requires that all cases shall be decided at the first or the second term, prevent a more thorough discussion of the subject. I agree with the majority of the court that the particular ordinance here involved is unconstitutional and void. But I think the line of reasoning adopted by them may carry them too far. IOWA SUPREME COURT. ROBERT M. NEUBRAND, Appt., V. W. H. KRAFT et al. '(-Iowa, 151 N. W. 455.) Automobile letting to incompetent Generally, as to liability of master for injury done by servant to third person in use of dangerous agency, other than automobile, placed in his custody, see note to Galveston, H. & S. A. R. Co. v. Currie, 10 L.R.A. (N.S.) 367. Generally, as to liability of owner for injuries by automobile while being used by a servant or a third person for his own business or pleasure, see notes to Christy v. Elliott, 1 L.R.A. (N.S.) 215; Hayes v. Wilkins, 9 L.R.A. (N.S.) 1035; Jones v. Hoge, 14 | such a dangerous instrument that one let2. An automobile in good condition is not ting it for hire must test the competency and skill of a customer before intrusting him with it, under penalty of liability for injuries done by the hirer's negligence. (March 16, 1915.) PPEAL by plaintiff from a judgment of the District Court for Monona County in defendants' favor in an action brought to recover damages for personal injuries caused by the negligent operation of an automobile for which defendants were alleged to be responsible. Affirmed. The facts are stated in the opinion. Mr. J. A. Prichard, for appellant: Defendants, as the owners of the automobile let for hire, were responsible for the driver. McColligan v. Pennsylvania R. Co. 214 Pa. 229, 6 L.R.A. (N.S.) 544, 112 Am. St. Rep. 739, 63 Atl. 792, 20 Am. Neg. Rep. 471; Salisbury v. Erie R. Co. 66 N. J. L. 233, 55 L.R.A. 578, 88 Am. St. Rep. 480, 50 Atl. 117, 10 Am. Neg. Rep. 584. An implement not dangerous per se may become a dangerous instrumentality in the hands of inexperienced or incapable per sons. Savannah Electric Co. v. Wheeler, 128 Ga. 550, 10 L.R.A. (N.S.) 1176, 58 S. E. 38. It is the duty of all owners of automobiles to see that their machines are driven by competent persons, and that such drivers are persons who will use ordinary care in driving a machine; otherwise the owners are responsible. Salisbury v. Erie R. Co. supra; Tuller v. Talbot, 23 Ill. 357, 76 Am. Dec. 695; L.R.A. (N.S.) 216; Danforth v. Fisher, 21 L.R.A. (N.S.) 93; Steffen v. McNaughton, 26 L.R.A. (N.S.) 382; Fleischer v. Durgin, 33 L.R.A. (N.S.) 79; Hartley v. Miller, 33 L.R.A. (N.S.) 81; Riley v. Roach, 37 L.R.A. (N.S.) 834; and Symington v. Sipes, 47 L.R.A. (N.S.) 662. And as to liability where automobile is being used by a member of owner's family, see McNeal v. McKain, 41 L.R.A. (N.S.) 775, and Birch v. Abercrombie, 50 L.R.A. (N.S.) 59. As to who is responsible for negligence of chauffeur operating a leased or demonstrating car, see notes to Gerretson v. Rambler Garage Co. 40 L.R.A. (N.S.) 457; Meyers v. Tri-State Automobile Co. 44 L.R.A.(N.S.) 113; and Forbes v. Reinman, 51 L.R.A. (N.S.) 1164. |