143 Ga. 192 | Ga. | 1915
Lead Opinion
The particular parts of the ordinance complained of as being unconstitutional are sections 1 and 2 of the original ordinance, and the corresponding sections of the amendment. These are alleged to be void, because they (a) deprive the plaintiffs of the use and enjoyment of their property, (5) deprive the plaintiffs of their property rights, without due process of law, and (c) delegate to individuals the right to say how the plaintiffs shall use their property. By amendment to the petition it was charged that these provisions of the ordinance were void as being violative of art. 1, sec. 1, paragraphs 2 and 3, of the-constitution of this State (Civil Code, §§ 6358, 6359), which declare that “protection to person and property is the paramount duty of government, and shall be
“An ordinance for preserving peace, preventing conflict and ill feeling between the white and colored races, and promoting the general welfare of the city, by providing for the use of separate blocks by white and colored people for residences, and for other purposes. . . Sec. 1. That from and after the approval of this ordinance it shall be unlawful for any white person to move into or use as a residence or place of abode any house, building, or structure, or any part of a house, building, or structure situated or located on any block as hereinafter defined in Section 4, on which block the house, building, or structures, in whole or in joart, shall be occupied or used as residences or places of abode by colored persons, otherwise than as provided in Section 3 hereof. The block into which white persons are herein forbidden to move or occupy, being occupied or used by colored persons as herein set forth, shall be deemed 'a ‘Colored Block’ for the purpose of this ordinance. Sec. 2. That from and after the approval of this ordinance it shall be unlawful for any colored person to move into, or use as a residence or place of abode, any house, building, or structure, or any part of a house, building, or structure situated or located on any block as hereinafter defined in Section 4, on which block the houses, building, or structures shall be occupied or used as residences or places of abode by white persons, otherwise than as provided in Section 3 hereof. The block into which colored persons are herein forbidden to move or occupy, being occupied by white persons as herein set forth, shall be deemed a ‘White Block’ fot the purpose of this ordinance. Sec. 3. That nothing in either of the
“Amended by Alderman Nutting: Be it ordained by the Mayor and General Council, that the pending ordinance in Be Segregation of races be amended as follows: That no provisions of the foregoing ordinance shall cause any change in the status of the races as to present occupancy or ownership, and no member of either race shall be forced to move from any present location; but that entire ordinance shall be operative as to the future. That all ordinances and parts of ordinances in conflict with this ordinance be and the same are hereby repealed.”
A further amendment was as follows: “That the ordinance adopted by the General Council on the 16th day of June, 1913, and approved by the Honorable J. G. Woodward, Mayor, on the 17th day of June, 1913, providing for the use of separate blocks by white and colored people for residences and for other purposes, be amended by adding thereto the following sections: Section 1. That from and after the approval of this ordinance it shall be unlawful for any colored person to move into, or use as a residence or place of abode, any house, building, or structure, or any part of a house, building, or structure situated or located except as provided in said original ordinance, which said house, building, or structure has previously been occupied by white people, and where white people áre still living in houses or buildings adjoining the same, without the consent of the white people living in said adjoining house or buildings. Sec. 2. That from and after the approval of this ordinance it shall be unlawful for any white person to move into; or use as a residence or place of abode, any house, building, or structure, or any part of a house, building, or structure situated or located except as provided in said original ordinance, which said house, building, or structure has previously been occu
Under the operation of sections 1 and 2 of the original ordinance, and the corresponding sections of the amendment, the following result could be brought about: Assuming that in any mixed block — that is, one occupied by both white and colored persons— there are three adjacent lots owned by separate persons, each of whom resides on his lot, and that the proprietor of the middle lot be a white person, and that the proprietor on one side be a white person and the proprietor on the other be a colored person: if the middle proprietor should desire to move out and substitute a colored tenant, he could not do so if the adjacent white proprietor objected; or if he should sell to a colored person, the purchaser could not move into the house to reside, or substitute another colored person to do so, if the adjoining white proprietor objected.' So also if the middle proprietor were a colored person and should desire to move out and substitute a white person to reside in his dwelling, he could not do so if the colored adjoining proprietor objected; or if he should sell to a white person, the purchaser could not move into the dwelling to reside, nor substitute a white tenant to do so, if the colored adjoining proprietor objected. In each of such instances an owner of property could, by mere force of the ordinance and caprice of an adjoining proprietor, without any compensation or process of law, be deprived for all time of the right to reside on his property, or to substitute a tenant or grantee to do so. The right of the owner of property to reside on it is inherent, and permanent deprivation of that right is in substance a taking of the property itself. Deprivation thereof in the manner above indicated, without any symbol of legal procedure, is opposed to the guaranty as embodied in the due-process clauses of the State and Federal constitutions. Ordinances of this character are of recent origin. The first seems to have been adopted on May 19, 1911, in Baltimore, Md., and has several times been amended. Since then several other cities have adopted segregation ordinances; and the State of Virginia has enacted a statute on the subject. A person was prosecuted for violating the Baltimore ordinance. The
The effect of the ordinance under consideration was not merely to regulate a business or the like, but was to destroy the right of the individual to acquire, enjoy, and dispose of his property. Being of this character, it was void as being opposed to the due-process clause of the constitution; and the judge erred in refusing to grant the injunction.
. Judgment reversed.
Concurrence Opinion
concurring specially. I concur in the result reached, but not in all that is said in the .opinion of Mr. Justice Atkinson. It seems to me that the discussion in regard to the right to use property as an incident to ownership may lead to extreme results. The right of an owner to use his property is important, but it is not so absolute that he may, at all times and under all circumstances, use it as he pleases, regardless of the public welfare, morals, or safety. The statute books contain many laws restricting the use of property by the owner of it, and prohibiting him from using it for certain purposes. Laws prohibiting the erection of wooden buildings within the fire limits of a city restrict the owner’s use of his property, although he may contend that a wooden building which he desires to erect would be safe, and that he has not the means to build one of brick or stone. Laws which prevent an owner from using his property for the storage of dynamite, powder, oil, or other dangerous substances in populous communities, likewise place limitations upon the owner’s right to use his property as he sees fit. The right to contract has been treated as a part of the liberty of a citizen, and yet it is subject to certain limitations for the public good. Thus usurious contracts have long been prohibited. Many other illustrations might be given in addition to those arising under laws relating to the segregation of the white and negro races in cars and schools, I can not subscribe to the apparent idea that classification has nothing to do with such
In Pace v. Alabama, 106 U. S. 583 (1 Sup. Ct. 637, 27 L. ed. 207), it was held that -adultery between blacks and whites could constitutionally be punished more severely than the same crime between persons of the same race, on the ground that the white and black were punished alike, without discrimination. A law prohibiting the intermarriage of the two races has been declared valid. State v. Gibson, 36 Ind. 389 (10 Am. R. 42).
Suppose that an owner of property in the best residential portion of a city should claim the right to build upon his lot a large boarding-house or rooming-house, in which- he should receive indifferently boarders of both races and sexes, producing a situation of great irritation and calculated to bring about unfortunate re-
In Plessy v. Ferguson, supra, the law involved was one requiring railway companies carrying passengers in their coaches in the State of Louisiana to provide equal but separate accommodations for the white and colored races, by means of separate ears or by dividing the passenger-coaches by a partition. Such a law necessarily interfered to some extent with the right of the owner of the property to use it as it saw fit. While this law related to railway companies, the opinion of the majority of the Supreme Court of the United States was not based on that ground. On the contrary, Mr. Justice Harlan, who dissented, referred to the fact that a railway was a quasi public highway, where all might travel. Of course, regulations based on a distinction between the two races must be reasonable and not arbitrary, and the municipal council or other body making them must have authority to do so. In the present case, the petition does not distinctly make the point that the general welfare clause in a city charter does not confer authority to adopt a segregation ordinance, or aver in terms that the ordinance under consideration was unreasonable. It does, however, charge that the ordinance delegated to individuals the right to say how the plaintiffs should use their property. I think that this ground is well taken. If the residence of the two races in close proximity was a matter requiring regulation by ordinance, the legislative body should determine the fact, and not leave it to depend upon the will of individuals, perhaps the whim of a single resident, and subject to shift from time to time according to the wishes of some of those who for the time being might reside in the block, so that sometimes the block might be classified as “white,” sometimes as “black,” and sometimes mixed. It provides for no method for.determination of the fact by legitimate authority, save as a property-owner’s neighbors may wish. A similar ordinance adopted in Baltimore, which seems to have been taken as a guide in preparing the ordinance of Atlanta, was declared invalid by the Supreme Court of Mainland, although that court did not deny the right to use the distinction between the white and black races as a basis of legitimate classification.