Donnell v. State

48 Miss. 661

• Court: Mississippi Supreme Court
• Decided: April 15, 1873
• Status: Published

Opinion

Simrall, J.:

The relator, George Donnell, states in his petition for the writ of habeas corpus, that he is unlawfully deprived of his liberty by the sheriff of Hinds county; said sheriff claiming to detain and hold him under the judgment of a justice of the peace, imposing a fine of $100 upon him, the relator, for depriving H. C. Carter and D. Webster of their equal rights and privileges, under what is commonly called the “ civil rights’ bill,” passed February 7, 1873, and also ordering that said relator should stand committed to the custody of the sheriff until said fine and costs are paid. The petition then recites a series of facts (not necessary to be noticed here), Avhich were intended to raise the question whether the relator had done any acts in violation of the statute.

The sheriff made return upon the writ that he held the relator in custody by virtue of the warrant of commitment of the justice of the peace, and filed a copy of it as part of his return. This is an extract from said paper in substance. George Donnell, being brought before the justice, charged on the affidavit of H. C. Carter with having refused to sell the said Carter a ticket entitling said Carter to. admission to a public shoAv or theatrical performance, given at a public hall in the city of Jackson, “ because said Carter was a man of color, and whereas, upon a due examination of the facts, * * * I (the justice) haAÚng found him guilty as charged of violating the ac.t of 7th February. 1873, proceeded to pronounce the prescribed penalty.” As appears from this extract, the relator was detained in custody, pursuant to a sentence or judgment of a justice of the peace, for a violation of the statute.

On the trial of the habeas corpus, the relator might, under section 1410 (Code of 1871)., offer evidence to contradict the return, “ for such return shall not be conclusive of the facts therein stated.”

The writ “ extends to all cases of illeg’al confinement or detention whatsoever.” § 1396. How far shall the judge, before whom the relator was brought, proceed in the inquiry whether he is illegally confined or detained ? It was competent for Donnell to have denied the existence of the judgment referred to in the return ; that question would have been disposed of by an examination of the record of the trial before the justice of the peace. It would, also, have been competent to urge that the justice of the peace had no jurisdiction over the offense; and if that position were well taken, the judgment of conviction would have been void and the detention illegal. The relator might also insist that the act of the legislature has not the validity of law, because of its conflict with the constitution, and therefore what he did was not an offense.

It is manifest that the judge could not hear testimony and inquire whether the relator was guilty of the matters charged against him, or whether there was testimony enough before the justice to have sustained the conviction. This would have been to have tried the original case de novo. If the relator had desired a re-trial of his case on its merits, he ought to have appealed to the circuit court. The writ of habeas corpus is in nature of a writ of error, in so far as it brings into review the legality" of the authority by which the prisoner is confined. If that authority be the conviction by a justice of the peace or by a higher court, of a criminal offense, the judge is' confined to the inquiry whether the conviction he void or not, for the want of jurisdiction, or whether the fact of which the relator has been convicted be a crime or not; and he cannot examine whether the convictiofi; was right or wrong under the law and evidence.

In our view of the limits of the investigation, at the hearing of the habeas corpus, we must shut out of view altogether those facts and circumstances admitted or proved in the trial, which were offered for the purpose of proving that no offense had been committed, and therefore the justice of the peace ought to have acquitted the party. These facts did not “ contradict the return” upon the writ. • The only question then to be solved is, whether the conviction and sentence by the justice was in law a justification of the sheriff to hold his prisoner.

■ ' Events of such vast magnitude and influence now and hereafter, have gone into history within the last ten years, that the public mind is not yet quite prepared to consider them calmly and dispasionately. To the judiciary, which ought at all times to be calm, deliberate and firm, especially so when the public thought and sentiment are at all excited beyond the normal tone, is committed the high trust of declaring what are the rules of conduct: and propriety prescribed by the supreme authority, and what are the rights of individuals under thém. ' As to the policy of legislation, the judiciary have nothing to do. That is wisely left with the law-making department of -the government. A court only consults the policy of a law, as an aid to attain the legislative meaning and intent.

The 13th, 14th and 15th amendments of the constitution of the United States, are the logical results of the late civil war, now more distinctly seen than immediately succeeding its termination. Practically, slavery had been abolished before the adoption of the 13th amendment. That truth was fully realized in this state, for the convention which met in August, 1865, declared that “slavery having been destroyed,” it shall not hereafter exist in this state. Lest a question should be made as to the validity of the mode of its destruction, and to make its re-establishment impossible, the 13th article affirms “that neither slavery nor involuntary servitude * * * shall exist within the United States, or any place subject to its jurisdiction.”

The 14th amendment, propria rigore, incorporates the recently enfranchised colored race into the body of citizenship, by the words, “ all persons born in the United States, or naturalized and subject to the jurisdiction thereof, are citizens of the United States, and of the state where they reside.” Such constitutional provision was necessary to confer the citizenship, for although the 13th amendment insured perpetual freedom, the colored race would have been left under the operation of the rule declared by the supreme court of the United States, in Dred Scott v. Sanford, that none of the colored race could, as the constitution then was, become citizens of the United States. The article also inhibits the states from abridging the privileges and immunities of citizens of the United States, or to deny to any person within its jurisdiction the equal protection of its laws.

The 15th amendment is: “The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition.” The final section to each of these articles is: “ Congress shall have power to enforce this section by appropriate legislation.”

The special object of the 15th amendment was to put the right of suffrage forever at rest, so that neither in the 'politics and legislation of the nation, or the state, could be the irritating subject, as between the races, be ever agitated. That subject had been left open by the 14th amendment. Prior to the adoption of the 15th article, the power remained with the states to regulate suffrage. The second section of the 14th amendment enacted that “ if the right to vote at any election for the choice of electors for president and vice-president of the United States, representatives in congress, or for the executive and judicial officers or members of the legislature, is denied to any of the male inhabitants of the state, twenty-one years of age, being citizens of the United States, # # the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in the state. Under this section, then, if a state chose to exclude any of its male citizens from the ballot (except for crime whereof the party has been convicted), it could do so, electing thereby to accept a reduced representation.

The danger to be apprehended under the poAver left with the states, under the fourteenth amendment, was that, in those states where the white race predominated, the ballot might be denied to the colored people ; and that, in those where the colored race was most numerous, the white race might be abridged in the right of suffrage. The fifteenth amendment makes that impossible, and guarantees to all citizens forever the elective franchise.

The fundamental idea and principle pervading these amendments, is an impartial equality of rights and privileges, civil and political, to all “ citizens of the United States,” and of “ the state where they reside,” the same measure and rule of right “ to vote,” the same “protection of life,* liberty and property,” by “due course of law; ” “ the equal protection of the laws to all within the jurisdiction of the state; ” “ nor shall the state make or enforce, any law. which shall abridge th.e privileges and immunities of citizens of the United States.”

These amendments, whilst affirmatory, and guarantees of certain rights and privileges, are also prohibitory upon the states from the doing of anything to their prejudice and impairment.

A law which would discriminate injuriously against one portion of the citizens, abridging equal civil or political privileges, or which would afford less protection to life, liberty or property, to one class than another, would clearly.. violate these amendments. Equality .of rights, privileges and-capacities is the condition of all citizens, established by these organic laws. Special privileges can be conferred upon none, nor can exceptional burdens or restrictions be put upon any. _

_ It is very difficult to define that very large residuum of legislative power which the state has. Cooley on Constitutional Limitations (572) says it has this extent: To make rules for public order; to suppress and punish crime; to prescribe regulation's for the intercourse of citizens with each other; to insure good manners and good neighborhood, which may prevent a conflict of rights and insure to each the uninterrupted enjoyment of his own. In Mayor v. Myler, 11 Pet. 102, the supreme court say : “ The state has the same undeniabe and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, when that jurisdiction is not surrendered to or restrained by the constitution of the United States.” We add, or when not prohibited or excepted out of legislative control by its own constitution. The court further add, “ that is not only the right, but the duty of the state, to advance the happiness, the safety and prosperity of its people, and provide for the general welfare, by every act of legislation which it may deem conducive to those ends.” The most absolute and unqualified title to private property is held upon the condition that the owner will so use it as not to-encroach upon the rights of others; and the state may rightfully interfere with the owner, so far as to control the use as that it shall not be seriously detrimental to others. Commonwealth v. Alger, 7 Cush. 84.

The utility and expediency of a law is often confounded with the question of its constitutionality. Full and plenary legislative power is inherent in the state, unless surrendered to or prohibited by the federal constitution, or withheld by its own. The state may pass all laws, unless the federal constitution or its own prohibit. The reverse is the rule with congress. The national government has limited powers, consisting of specific grants over particular subjects. A law of congress must be supported by a specific grant of power, or by such incidental power necessary to give efficiency to the specific grant. The large subjects of the general welfare, safety, happiness and prosperity of the people of the state are committed to the legislature, to be advanced and promoted by legislation. If a law comes before the judiciary, touching a subject not given up to the national government, nor prohibited by the federal constitution, nor excepted out of legislative power in the state constitution, shall the judiciary listen to arguments founded upon its supposed inutility or inexpediency ? That would involve the monstrous power of the judiciary sitting in review upon the legislative wisdom and discretion. It would be a palpable violation of the third article of the constitution, which prohibits the functionaries of either of these great departments of government, into which its powers are distributed, “ from exercising any power belonging to either of the others.” In the nature of things, the legislature must judge finally and conclusively of the fitness and adaptation of a law to promote the general good and happiness of the people, and its conclusion is obligatory upon the- courts.

The remedy under our system of free institutions for unwise use of the legislative power is the ballot box. Legislation is submitted at each recurring election to the popular approval or condemnation. t The constituent body has thus reserved to itself the ultimate voice to shape public ¡aolicy and to indicate what is needful for the general welfare.

Upon the taxing power, the most delicate and most liable to be abused, there is no constitutional limitation as to rate, either upon congress or the legislature. Yet the ballot has always been efficient, in the end, to check and restrain abuses.

Guided by the rule, that to determine the validity of an act of the legislature we look not for the grant of power to pass it, but rather to see whether there is a constitutional provision restraining or prohibiting the legislation, let us examine so much of the statute of the 7th of February, 1873, as bears upon this case. The principle is so familiar that it hardly needs to be stated that one part of a statute may be valid whilst another may fall, for conflict with some article of the constitution.

The law amendatory of sections 2731 and 2732 of the Code of 1871, impose more stringent regulations upon inn-keepers, hotel-keepers, common carriers * * and the owners, lessees or managers of theatres, and other places of public resort. It will hardly be denied that the legislature may, if it deems it expedient, pass regulations applicable to each of these subjects.

Among those customs which we call the common law, that have come down to us from the remote past, are rules which have a special application to those who sustain a quasi public relation to the community. The wayfarer and- the-traveler -had a-right- tp demand -food and lodging from the inn-keeper; the common carrier was bound to accept all passengers and goods offered for transportation, according to his means. Soo, too, all who applied for admission to the public shows and amusements, were entitled to admission, and in each instance, for a refusal, an action on the case lay, unless sufficient reason were shown. The statute deals with subjects .which have always been under legal control.

So much of it as is here involved is to this effect: “ That all the citizens of this state, without distinction of race, color, or previous condition of servitude, are entitled to the equal and impartial enjoyment of any accommodation, advantage, * # * privilege, furnished by common carriers, inn-keepers, * * * or by any owner, manager, or lessee of any theatre or other place of popular amusement; and any person who shall violate the' foregoing provisions, or who shall deny to, or withhold from any person the enjoyment of any of the foregoing accommodations, *' * *' privileges, # * * equally and impartially, on any such account, or who shall abridge or infringe the same, or incite thereto,” shall incur the penalty denounced in the act. To constitute the offense there must be the denial, abridgment, or impairment of the equal and impartial accommodations mentioned in the statute, because of the “ color,” or previous condition of servitude of the person who applies.

The relator in his petition for the writ, states that he had been convicted by the justice of the peace, of depriving H. C. Carter and Webster, of the equal enjoyment of their rights under this statute. The return of the sheriff makes specific this general allegation, whereby it appeared that the relator had been found guilty, and so adjudged by the justice, of refusing to sell to H. C. Carter a ticket of admission to a theatrical performance in a public hall in the city of Jackson, used for that purpose, because said Carter was a person of color.

The intent of the law is, that all persons may have equal accommodations in the vehicles of common carriers, at the inns, hotels, theatres and other public places of amusement, upon the terms of paying the usual prices therefor. If any are excluded, it must not be on account of race.

We see no constitutional objection to that portion of the statute which has application to this case; counsel for the appellant has pointed to none, except the inhibition that private property shall not be taken for public use unless compensation be first made.- It is not perceived in what manner this law infringes that section of the bill of rights. The assertion of a right in all persons to be admitted to a theatrical entertainment, and the punishment as an offense the act of the owner, lessee or manager, who denies or refuses to sell a ticket to a person for the reason asserted in these proceedings, in no sense appropriates the private property of the lessee, owner or manager, to the public use.

Let the judgment he affirmed.