New York,[[233]] on April 9, 1874, passed a Civil Rights Bill which prohibited race distinctions in inns, public conveyances on land and water, theatres, other public places of amusements, common schools, public institutions of learning, and cemeteries. It further declared that the discrimination against a citizen on account of color, by the use of the word “white,” or any other term, in any law, statute, ordinance, or regulation, should be repealed. In 1881, it specifically mentioned hotels, inns, taverns, restaurants, public conveyances, theatres, and other places of public resort or amusement.[[234]]
In South
One would naturally expect that most of the legislation in the South guaranteeing civil rights to Negroes would have come during the period that their governments were in the hands of the Reconstructionists, and such is the case.
In 1866 a Florida[[235]] statute made it a misdemeanor for a person of color to intrude himself into any religious or other public assembly of white persons, or into a railroad car or other public vehicle set apart for the exclusive accommodation of white people, or for a white person so to intrude upon the accommodations of colored persons. By 1873, however, the political revolution had come, and a statute[[236]] of that year forbade discrimination on account of race, color, or previous condition of servitude, in the full and equal enjoyment of the accommodations, etc., of inns, public conveyances on land and water, licensed theatres, other places of public amusement, common schools, public institutions of learning, cemeteries, and benevolent associations supported by general taxation. This prohibition did not apply to private schools or cemeteries established exclusively for white or colored persons. It added, as did the law of New York, that there should be no discrimination in any laws by using the word “white.”
A statute of Louisiana[[237]] in 1869 prohibited any discrimination on account of race or color by common carriers, innkeepers, hotel keepers, or keepers of public resorts. The license of such places had to contain the stipulation that they must be open to all without distinction or discrimination on account of color. The penalty was forfeiture of the license and a suit for damages by the party aggrieved. This statute[[238]] was strengthened in 1873 by the further provision that all persons, without regard to race or color, must have “equal and impartial accommodations” on public conveyances, in inns and other places of public resort. It was the duty of the attorney-general to bring suit in the name of the State to take away the license of anyone violating the law. The statute imposed a fine upon common carriers running from other States into Louisiana who made any discrimination against citizens of the latter on account of race or color.
Arkansas,[[239]] in 1873, required the same accommodations to be furnished to all by common carriers, keepers of public houses of entertainment, inns, hotels, restaurants, saloons, groceries, dramshops, or other places where liquor was sold, public schools, and benevolent institutions supported in whole or partly by general taxation.
The law of Tennessee[[240]] of 1875 is in a very different tone, it being very much like, as has been said before, that of Delaware. That statute reads: “The rule of the common law giving a right of action to any person excluded from any hotel, or public means of transportation, or place of amusement, is hereby abrogated; and hereafter no keeper of any hotel, or public house, or carrier of passengers for hire, or conductors, drivers, or employees of such carrier or keeper, shall be bound, or under any obligation to entertain, carry, or admit any person, whom he shall for any reason whatever, choose not to entertain, carry, or admit, to his house, hotel, carriage, or means of transportation or place of amusement; nor shall any right exist in favor of any such person so refused admission, but the right of such keepers of hotels and public houses, carriers of passengers, and keepers of places of amusement and their employees to control the access and admission or exclusion of persons to or from their public houses, means of transportation, and places of amusement, shall be as perfect and complete as that of any person over his private house, carriage, or private theatre, or place of amusement for his family.” This Tennessee law is even more sweeping than that of Delaware. In the latter, common carriers may provide separate accommodations for persons that would be disagreeable to the major portion of the traveling public; in the former, the common carrier might exclude such persons altogether. According to the Tennessee statute, every railroad company in the State had a right to refuse absolutely to carry Negroes on its cars. Of course, this has been changed by its “Jim Crow” laws. The case of State v. Lasater,[[241]] dealing with the second section of the Tennessee statute, has the following to say about the whole enactment: “This is an extraordinary statute. It is generally understood to have been passed to avoid the supposed effects of an act of Congress on the same subject, known as the Civil Rights Bill.”
The constitutionality of the Tennessee and Delaware statutes has not been tested, as far as is known. Therefore, in the absence of authority, an opinion on the matter is of little value, but the following suggestion is ventured: Originally, hotels and inns were no more public places than a man’s dwelling, and one could choose his patrons just as he could choose the guests he would entertain, and might exclude anyone without giving his reasons for it, as a merchant might refuse to sell goods to anyone he chose. For historical reasons, which need not be discussed here, the courts held that an inn-keeper should not be allowed to refuse an applicant for entertainment unless he had some valid reason for it. The common law thereafter considered hotels, etc., public places. It has been seen that the Civil Rights Cases held that the Federal government cannot prohibit a hotel-keeper from refusing to receive an applicant, but that the regulation of such domestic relations is within the exclusive control of the State. If the State sees fit to pass a statute abrogating the common law, as Tennessee and Delaware did, and making hotels, etc., private places, as they were originally, there seems to be no valid constitutional objection. The reasoning that applies to hotels will apply to other places now considered public, possibly even to public conveyances.
The following resolution of the legislature of North Carolina[[242]] of 1877 is worth quoting in full. It is especially significant because it was passed after the Reconstruction régime was over, and the State government had passed back into hands of the Democratic party, with Zebulon B. Vance as Governor.
“Whereas, In the providence of God, the colored people have been set free, and this is their country and their home, as well as that of the white people, and there should be nothing to prevent the two races from dwelling together in the land in harmony and peace;