Bryant v. Rich's Grill

216 Mass. 344 | Mass. | 1914

Braley, J.

This action is brought to recover the forfeiture given by the R. L. c. 212, § 89, for the unlawful discrimination from his fellowmen of the plaintiff by reason of his race and color in a public place kept for gain by the defendant.

It is important in the construction of the statute, which is a composite, to inquire as to its origin and gradual development. The St. of 1865, c. 277, enacted more than three years before the adoption of the Fourteenth Amendment to the Constitution of the United States, declared that “no distinction, discrimination or restriction on account of color or race shall be lawful in any licensed inn, in any public place of amusement, public conveyance or public meeting in this Commonwealth,” and any violation of the act was punishable as a misdemeanor. The construction adopted in Commonwealth v. Sylvester, 13 Allen, 247, that where a billiard room was unlicensed the exclusion of a negro was not within its prohibition, was followed by the St. of 1866, c. 252, which, without reference to the preceding statute, provided that it should be unlawful to exclude persons from, or restrict them in, any theatre or public place of amusement licensed under our laws or in any public conveyance or public meeting or licensed inn, except for good cause. By the Pub. Sts. c. 207, § 69, these statutes were consolidated and a uniform fine was established; but this section shortly after was repealed by the St. of 1885, c. 316, which enlarged the public places of amusement from which, whether licensed or unlicensed, exclusion because of color or race was prohibited under a heavier pecuniary penalty. The St. of 1893, c. 436, added barber shops "or other public place kept for hire, gain or reward. ” But no further changes are found until the Legislature, by the St. of 1895, c. 461, while repealing these statutes, recast them, and in the most comprehensive terms prohibited any discrimination except for good cause, applicable alike to all persons of every color or race whatsoever, in respect to the admission of any person to, or his treatment in, public places of amusement, other public meetings, inns, barber shops, or public places kept for hire, gain or reward, whether licensed or not. A person violating the statute, or whoever aided in its violation, was “to forfeit and pay” for each offense, “a sum not less than twenty-five dollars nor more than three hundred dollars,” to be recovered by the party aggrieved in an action of tort, as well as deemed to be guilty of a misdemeanor, and upon conviction subject to fine or imprisonment, or both. But if suit were brought, there could be no recovery against more than one person by reason of any single instance of unlawful distinction, discrimination or restriction. The R. L. c. 212, § 89, while codifying this statute, transposed the civil and penal clauses, and omitted all reference to the remedy. The transposition, however, does not change the legislative intention, and the remedy in tort may be pursued in any court having jurisdiction. Paszkowski v. Stony Brook Paper Co. 210 Mass. 86, 89. Roberge v. Burnham, 124 Mass. 277. R. L. c. 167, § 13.

It is stated in the record that the plaintiff, while in its restaurant and barroom and in the presence of the officers of the defendant corporation, was unlawfully “discriminated against” by its servant and barkeeper. The statute having expressly conferred upon him the right under such circumstances to enforce the forfeiture, the plaintiff can recover it in his own name, and for his sole benefit. Roberge v. Burnham, 124 Mass. 277.

The words “fine” and “forfeiture” found in the statute are often interchangeably used, and where “forfeiture” is employed to denote punishment it may be held to be the equivalent of “fine.” State v. McConnell, 70 N. H. 158, 159. State v. Mumford, 73 Mo. 647. Fines belonged to the Crown at common law, but here they belong to the State which has succeeded to the prerogatives of the Crown. Oroenvelt’s Case, 1 Ld. Raym. 213. Taunton v. Sproat, 2 Gray, 428, 430. See Commonwealth v. Boston Terminal Co. 185 Mass. 281, 282. If the whole or any part is to go to an informer for setting the prosecution afoot, the statute must so provide. R. L. c. 221, § 2. State v. Marshall, 64 N. H. 549. And where no apportionment is made by the court, under § 2, in imposing sentence, proceedings for recovery of the whole or any part of the fine, forfeiture or penalty which does not enure to the benefit of the Commonwealth, must be brought in its name. R. L. c. 221, § 3. Smith v. Look, 108 Mass. 139. Wheeler v. Goulding, 13 Gray, 539. Colburn v. Swett, 1 Met. 232, 236. By § 1 the statute applies only to “fines and forfeitures exacted as a punish-' ment for any offense or for the violation or neglect of any duty imposed by statute, ” and are recoverable only where there is a criminal prosecution. Commonwealth v. Murray, 144 Mass. 170. The right to institute civil proceedings under the statute in question, is not a part, or consequence, of the conviction of the offender. It is a personal and independent right, although the unlawful act is also made a criminal offense, the prosecution of which is within the control of the public authorities. “It is an action given to the party aggrieved only, and is in the nature of a remedial suit” where “proof by a reasonable preponderance of the evidence is sufficient, ” said Mr. Justice Morton in Roberge v. Burnham, 124 Mass. 277, 278, 279, when speaking of a similar provision in the St. of 1875, c. 99, § 15, giving a forfeiture to the parent where a dealer sells intoxicating liquor to a minor child.

The act of discrimination suffered by the plaintiff was an actionable wrong, even if the damages recoverable are denominated as a forfeiture which cannot fall below or exceed a certain limit. It follows, that the .plaintiff could have released the participants from all civil liability. Quarles v. Quarles, 4 Mass. 680, 688. See R. L. c. 217, § 54. By the express terms of the statute, the plaintiff cannot recover against more than one, where either of the prohibited acts are committed by two, or more persons. If plainly there is but one wrong, the liability is several if there is more than one offender or tortfeasor, and if without suit satisfaction is accepted from either of them, the others are discharged, even where no formal release under seal is executed. Boston Supply Co. v. Rubin, 214 Mass. 217, and cases cited. The jury found specially that the plaintiff, upon consultation with his counsel, lodged a criminal complaint against the barkeeper, and while proceedings were pending it was agreed between the plaintiff’s attorney and the attorney for the defendant, that if the defendant would plead guilty and pay any fine which might be imposed, the plaintiff would accept this result in full satisfaction of any claim which he might have because of the discrimination. The agreement was not unlawful. It did not tend to pervert public justice, by stifling the prosecution through some favor shown to the offender. Partridge v. Hood, 120 Mass. 403. Shaw v. Reed, 30 Maine, 105. The agreement which was fully executed was not a bargain to allow the wrongdoer to escape conviction, and having been accepted by the plaintiff as a vindication, and in satisfaction, the defendant corporation was thereby discharged from all civil liability. New York Bank Note Co. v. Kidder Press Manuf. Co. 192 Mass. 391, 407, 408. Brewer v. Casey, 196 Mass. 384, 389. Boston Supply Co. v. Rubin, 214 Mass. 217.

The plaintiff urges that he is not bound, because in making the settlement his attorney acted without authority, but the record does not show that any directions to the contrary were given, or that the plaintiff was not informed of the proceedings, or ever repudiated the settlement, or previous to the present action has manifested any dissatisfaction. It was his duty, if dissatisfied, to express his disaffirmance within a reasonable time, and to notify the parties who relied upon the settlement for their own protection. It is now too late for him to disavow what was honestly done in his behalf and for his benefit, and the defendant’s first request, that upon the evidence the action could not be maintained, should have been given. Everett v. Charlestown, 12 Allen, 93. Benedict v. Smith, 10 Paige, 126. Gemberling v. Spaulding, 104 Mich. 217. Whitesell v. Peck, 165 Penn. St. 571.

The exceptions, therefore, must be sustained, and judgment entered for the defendant under the St. of 1909, c. 236.

So ordered.