JOSIAH BAYLIES, IMPLEADED, ETC., v. JOSEPHINE M. CURRY.

30 Ill. App. 105 (Ill. App. 1889)

GARY, J. This is an action on the case under the act of June 10, 1885, "Civil Rights," by the appellee, a colored woman, for being refused, for the reason that she is a colored woman, the full and equal enjoyment of the accommodations,  [**8]  etc., of a theatre conducted by appellant. A motion in arrest of judgment on the ground that the action ought to have been debt and not case being denied, that denial is now assigned as error.

The form of the action is right. The case cited by appellant, Mount v. Hunter, 58 Ill. 246, is an authority against him. "One of the divisions of statutes is remedial and penal. A remedial statute has for its object either to redress some existing grievance, or to introduce some regulation or proceeding conducive to the public good. The remedy for the breach of a remedial statute is by an action for damages sustained from such a breach, at the suit of the party injured. A penal statute imposes a penalty upon the commission of the prohibited offense, which is recovered by an action of debt, in the name of the informer, for his own use, or qui tam. The statute fixes the amount of the penalty, and hence the action of debt is appropriate, while, in actions under remedial statutes, the party injured recovers the amount of injury he has sustained by a breach of the statute, and case is generally the appropriate remedy." P. 247 of case cited.

The statute under which this action is  [**9]  brought declares the right to "full and equal enjoyment of the accommodations," etc., and enacts that for denying them the person so doing "shall, for every such offense, forfeit and pay a sum not less than twenty-five dollars nor more than five hundred dollars, to the person aggrieved thereby, to be recovered in any court  [*110]  of competent jurisdiction," without prescribing the form of action.

"Whenever a statute prohibits an injury to an individual, or enacts that he shall recover a penalty or damages for such injury, though the statute be silent as to the form of the remedy, this action (case) may be supported." 1 Ch. Pl. 161. And debt is not sustainable unless the demand be for a sum certain, or which can readily be reduced to a certainty. Ib. 127.

Here the forfeiture to the person aggrieved is not certain in amount, and the range of limits prescribed as the measure of recovery give a minimum below which the caprice, and beyond which the passion, of a jury shall not fix damages, in their nature not susceptible of mathematical adjustment.

By the evidence, the complaint of the appellee that the appellant refused her the full and equal enjoyment of the accommodations of  [**10]  his theatre, solely because of her color, is fully sustained, and the only questions remaining for this court to pass upon arise upon the refusal of the court to admit evidence offered as to the reasons of the policy of the house to keep colored people separate from the white people, set off by themselves, and upon instructions refused, presenting the same question in part.

The fact that such was the policy had been proved by the appellee, and the appellant offered, but was not permitted to show, that it was a rule of the house that colored people should have one row of seats to themselves in each part of the house, or as many rows as the tickets which they bought would call for, because the house was in a "hard quarter" of the city, and therefore it was necessary for the theatre to make stringent rules, and be extremely cautious and careful, not only with reference to the colored, but with reference to the white people, both as to who got into the theatre, and as to where they sat, and next to whom they sat, to avoid collisions, both on account of race prejudice, if it existed, and on account of other more substantial reasons. That in the immediate neighborhood were quartered some  [**11]  of the worst  [*111]  characters of the city, some of whom were colored. That there had been disturbances in the theatre, some of which were caused by colored people. That the appellant was not actuated by any question of color of skin. That colored persons were given the same advantages for the same price in all parts of the theatre that white persons had, with the exception only that the colored persons were assigned to a particular row of seats. This exception is contrary to the statute. In Railroad Co. v. Brown, 17 Wall. 445, 21 L. Ed. 675 (a colored woman being the plaintiff), the charter by Congress of the company provided "that no person shall be excluded from the cars on account of color." She bought a ticket from Alexandria, in Virginia, to the city of Washington. The distance is only seven miles. There were two cars, alike comfortable; one was set apart for colored persons and the other for "white ladies and gentlemen accompanying them." The case is ambiguous as to where colored gentlemen accompanying white ladies, or gentlemen of no color with no ladies would be permitted to ride.

In going either way the colored car was in front, so that "colored" going  [**12]  south, was "white" coming north, as the cars themselves were not, but only the use of them, reversed. Here was certainly a case of "equal" accommodations.

It was only necessary for a colored person who wished to ride in the "white" car to imagine himself or herself going the other way from that he or she intended, and the car would then be "white." The plaintiff, against the direction of the servant of the company, who told her to get into the front car, persisted in going into the other, and he put her out. She recovered $ 1,500, and Judge Davis, for the Supreme Court, said that the regulation of the company assigning colored persons to one, and excluding them from another car, was "an ingenious attempt to evade a compliance with the obvious meaning of the requirement. It is true that the words, taken literally, might bear the interpretation put upon them by the plaintiff in error, but evidently Congress did not use them in any such limited sense. * * * It told this company, in substance, that it could extend its road within the district, as desired, but that this discrimination must cease, and the colored  [*112]  and white race, in the use of the cars, be placed on an equality.  [**13]  "

The argument of appellant that the operation of the rule of this theatre "was absolutely 'equal' because while the negroes were excluded from sitting in the same row with white persons, the white persons were thereby excluded from sitting in the same row with negroes, would not, perhaps, have been applicable in the construction of the charter of the road in that case, but if it is a good one, it affords an easy method of evading the law in many of the cases provided for by it. It is the custom, so general that the court can not affect ignorance of it, that one buying tickets, with seats reserved, to any public amusement, has his choice of any unsold for which he is willing to pay the price. No white man is ever denied that choice because he is white. If so denied because he is colored, "full and equal enjoyment" is denied. And it is not for the residents of any part of the city, however disreputable they may be, to nullify the law. If the appellant caters for such a class, he must abide the consequences of such lawlessness as he can not, with or without police assistance, restrain.

These views dispose of all the justifications or excuses urged by appellant for taking any notice  [**14]  of the complexion of the appellee, and the judgment is affirmed.

Judgment affirmed.