essential incident to the enjoyment of those rights. The interpretation of this time-honored clause has been considered, in recent cases in this court, with a fulness and completeness which leaves nothing to be said by way of support or illustration. Wynehamer v. People, 13 N. Y. 378; Bertholf v. O'Reilly, 74 Id. 509; In re Jacobs, 98 Id. 98; People v. Marx, 99 Id. 377.

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But, as the language of the constitutional prohibition implies, life, liberty, and property may be justly affected by law, and the statutes abound in examples of legislation limiting or regulating the use of private property, restraining freedom of personal action or controlling individual conduct, which, by common consent, do not transcend the limitations of the Constitution. This legislation is under what, for lack of a better name, is called the police power of the State, power incapable of exact definition, but the existence of which is essential to every well-ordered government. By means of this power the legislature exercises a supervision over matters involving the common weal, and enforces the observance, by each individual member of society, of the duties which he owes to others and to the community at large. It may be exerted whenever necessary to secure the peace, good order, health, morals, and general welfare of the community, and the propriety of its exercise within constitutional limits is purely a matter of legislative discretion with which the courts cannot interfere. In short, the police power covers a wide range of particular unexpressed powers reserved to the State affecting freedom of action, personal conduct, and the use and control of property. "All property," said Shaw, C. J., in Com. v. Alger, 7 Cush. 85, "is held subject to those general regulations which are necessary to the common good and general welfare.” This power, of course, is subject to limitations. The line of demarcation between its lawful and unlawful exercise it is often difficult to trace. We have held that it cannot be exerted for the destruction of property lawfully held and acquired under existing laws, or of any of the essential attributes of such property (Wynehamer v. People, supra); nor to deprive an individual of the right to pursue a lawful business on his own premises, not injurious to the public health, or otherwise inimical to the public interests (In re Jacobs, supra); nor to prevent the manufac ture or sale of a useful article of food. People v. Marx, supra. But we have held that the legislature may lawfully subject the owner of premises to pecuniary liability for injuries resulting from intoxication caused in whole or in part by the use of liquor sold by the lessee therein, although the sale itself was lawful (Bertholf v. O'Reilly, supra); and it was held by the Supreme Court of the United States, in Munn v. Illinois, 94 U. S. 113, that a State law regulating the licensing of elevators for the handling and storage of grain, and fixing a maximum charge therefor, was not repugnant to that part of the Fourteenth Amendment of the Constitution of the United States which ordains that no State shall deprive any person of life, liberty, or property without due process of law."

In considering whether the enactment of section 383 of the Penal Code transcends legislative power, it is important to have in mind the purpose of the enactment. It cannot be doubted that it was enacted with special reference to citizens of African descent, nor is there any doubt that the policy which dictated the legislation was to secure to such persons equal rights with white persons to the facilities furnished by carriers, innkeepers, theatres, schools, and places of public amusement. The race-prejudice against persons of color, which had its root, in part at least, in the system of slavery, was by no means extinguished when, by law, the slaves became freemen and citizens. But this great act of justice towards an oppressed and enslaved people imposed upon the nation great responsibilities. They became entitled to all the privileges of citizenship, although the great mass of them were poorly prepared to discharge its obligations. The nation secured the inviolability of the freedom of the colored race and their rights as citizens by the Thirteenth, Fourteenth, and Fifteenth Amendments of the Constitution of the United States. The Fourteenth Amendment ordained, among other things, that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,

nor deny to any person within its jurisdiction the equal protection of the laws." The construction of the Fourteenth Amendment has come under the consideration of the Supreme Court of the United States in several cases, among others, in two cases known as the jury cases, Strauder v. West Virginia, 100 U. S. 303, and Ex parte Virginia, Id. 339. In the case first mentioned it was held that a State law confining the selection of jurors to white persons was in contravention of the Fourteenth Amendment; and in the second, that the action of the State officer invested with the power to select jurors, excluding all colored persons from the lists, was also repugnant to its provisions. In Strauder v. West Virginia, Strong, J., speaking for the majority of the court, said: "The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity or right most valuable to the colored men, the right of exemption from unfriendly legislation against them distinctively as colored; exemption from legal discrimination implying inferiority in civil society, lessening the security of their enjoyment of the rights which others. enjoy, and discriminations which are steps toward reducing them to the condition of a subject race."

We have referred to these amendments and to the cases construing them, because they disclose the fact that, in the judgment of the nation, the public welfare required that no State should be permitted to establish by law such a discrimination against persons of color as was made by the defendant in this case, for we think it incontestable that a State law excluding colored people from admission to places of public amusement would be considered as a violation of the Federal Constitution. It would seem, indeed, in view of the Act of March 1, 1875, that, in the opinion of Congress, the amendments had a much

broader scope, and prevented not only discriminating legislation of this character by the State, but also such discrimination by individuals, since the jurisdiction of Congress to pass a law forbidding the exclusion of persons of color from places of public amusement, and annexing a penalty for its violation, must be derived, if it exists, from the Thirteenth, Fourteenth, and Fifteenth Amendments. It cannot be doubted that before they were adopted the power to enact such a regulation resided exclusively in the States. But independently of the inference arising from the solemn assertion by the nation, through its action in adopting the amendments, that legal discriminations against persons of color by the action of States was opposed to the public welfare, it is not difficult to see that there is a public interest which justified the enactment of section 385 of the Code, provided it did not overstep the limits of lawful interference with the uses of private property. The members of the African race, born or naturalized in this country, are citizens of the States where they reside and of the United States. Both justice and the public interest concur in a policy which shall elevate them as individuals and relieve them from oppressive or degrading discrimination, and which shall encourage and cultivate a spirit which will make them self-respecting, contented, and loyal citizens, and give them a fair chance in the struggle of life, weighted, as they are at best, with so many disadvantages. It is evident that to exclude colored people from places of public resort on account of their race is to fix upon them a brand of inferiority, and tends to fix their position as a servile and dependent people. It is, of course, impossible to enforce social equality by law. But the law in question simply insures to colored citizens the right to admission, on equal terms with others, to public resorts and to equal enjoyment of privileges of a quasi public character. The law cannot be set aside, because it has no basis in the public interest, and the promotion of the public good is the main purpose for which the police power may be exerted; and whether, in a given case, it shall be exerted or not, the legislature is the sole judge, and a law will not be held invalid because, in the judgment of a court, its enactment was inexpedient or unwise.

The final question, therefore, is, does the law in question invade the right of property protected by the Constitution? The State could not pass a law making the discrimination made by the defendant. The amendments to the Federal Constitution would forbid it. May not the State impose upon individuals having places of public resort the same restriction which the Federal Constitution places upon the State? It is not claimed that that part of the statute giving to colored people equal rights, at the hands of innkeepers and common carriers, is an infraction of the Constitution. But the business of an innkeeper or a common carrier, when conducted by an individual, is a private business, receiving no special privilege or protection from the State. By the common law,

1 See the Civil Rights Cases, 109 U. S. 3; ante, p. 554. — ED.

innkeepers and common carriers are bound to furnish equal facilities to all, without discrimination, because public policy requires them so to do. The business of conducting a theatre or place of public amusement is also a private business in which any one may engage, in the absence of any statute or ordinance. But it has been the practice, which has passed unchallenged, for the legislature to confer upon municipalities the power to regulate by ordinance the licensing of theatres and shows, and to enforce restrictions relating to such places, in the public interest, and no one claims that such statutes are an invasion of the right of liberty or property guaranteed by the Constitution.

The statute in question assumes to regulate the conduct of owners or managers of places of public resort in the respect mentioned. The principle stated by Waite, C. J., in Munn v. Illinois, supra, which received the assent of the majority of the court, applies in this case. "Where," says the Chief Justice, "one devotes his property to a use in which the public have 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." In the judgment of the legislature the public had an interest to prevent race discrimination between citizens, on the part of persons maintaining places of public amusement, and the quasi public use to which the owner of such a place devoted his property, gives the legislature a right to interfere. If the defendant, instead of basing his exclusion of a class of citizens upon color, had made a rule excluding all Germans, or all Irishmen, or all Jews, the law as applied to such a case would have seemed entirely reasonable. United States v. Newcombe [U. S. Dist. Ct.], 4 Phila. 519. But the principle is the same, and if the law could be sustained in the one case, it may in the other. The validity of similar statutes in Mississippi and Louisiana has been sustained by the courts in those States. Donnell v. The State, 48 Miss. 661; Joseph v. Bidwell, 28 La. 382. The statute does not interfere with private entertainments, or prevent persons not engaged in the business of keeping a place of public amusement, from regulating admission to social, public, or private entertainments given by them as they may deem best, nor does it seek to compel social equality. It was, we think, a valid exercise of the police power of the State over a subject within the cognizance of the legislature.

The judgment should be affirmed.

All concur, except PECKHAM and GRAY, JJ., dissenting: RUGER, C. J., concurring in result. Judgment affirmed.1

1 And so Ferguson v. Gies, 82 Mich. 358 (1890), as to restaurants, where the statute is said to be only declaratory of the common law, as now understood in that State; Baylies v. Curry, 128 Ill. 287 (1889). Compare Central R. R. Co. v. Green, 86 Pa. St. 427 (1878); R. R. Co. v. Brown, 17 Wall. 445 (1873).-ED.

LEHEW v. BRUMMELL.

SUPREME COURT OF MISSOURI. 1890.

[103 Mo. 546.]

E. M. Hurber, for appellants.

R. A. DeBolt, for respondents.

BLACK, J. The five plaintiffs in this case reside in School District Number 4, in Grundy County, and each has children entitled to attend the public school maintained therein for the education of white children. In September, 1887, when this suit was commenced, the defendant Barr was the teacher, and three of the defendants were directors of the school district. The defendant Brummell is a man of African descent, and at the last-mentioned date had four children, all of whom resided with him in said district and were of the ages entitling them to attend the public schools. These four children were the only colored childr n of school age in the district. No separate school was ever established or maintained therein for the education of colored children; but there was such a separate school in the town of Trenton in the same county, three and one-half miles from Brummell's residence. No white child in District Number 4 had to go more than two miles to reach the schoolhouse. These colored children were permitted to attend the school maintained for white children in District Number 4 for a short time.

On the foregoing facts a temporary injunction was awarded the plaintiffs, restraining Brummell's children from attending the school so established for white children, which was made perpetual on the final hearing of the cause, and the defendants appealed.

But two questions are presented by the briefs for our consideration. The first is, that the laws of this State concerning the education of colored children are in conflict with section 1 of the Fourteenth Amendment of the Constitution of the United States, and, therefore, void.

Section 1, of article 11, of the Constitution of this State, makes it the duty of the General Assembly to establish and maintain free public schools for the gratuitous instruction of all persons in this State between the ages of six and twenty years; and section 3 of the same article declares: "Separate free public schools shall be established for the education of children of African descent."

A system of free public schools has been established by general laws throughout the State, and for all the purposes of this case it will be sufficient to notice the statutes concerning colored schools. . . .

These statute laws simply carry out and put in operation the command of that section of our Constitution before quoted, and the objection now made is levelled at the constitutional provision, and it is that which we are asked to strike down, because of the contention that it violates section 1 of the Fourteenth Amendment of the Constitution of the United States.

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