(After stating the foregoing facts.)
We are of the opinion that the court erred in refusing to enjoin the enforcement of section 2 of the ordinance in question. The amendment to section 2, which is shown in the evidence, did not remove the objectionable features of the ordinance. The questions made as to the validity of section 2 of the ordinance are important, but are by no means novel. The same questions have been' considered and decided by courts of last resort in several States of this country. While the precise question presented has not been ruled on by this court, decisions have been rendered by this court which announced principles that are applicable to the issues here presented. We can reach no other conclusion than that section 2 of the ordinance is not based upon a lawful classification, and that it is discriminatory. The provisions of section 2 are not
A case closely in point here is that of Yee Gee v. San Francisco,
“ ‘And it is of the utmost consequence in a city subject, as San Francisco is the greater part of the year, to high winds, and composed principally within the limits designated of wooden buildihgs, that regulations of a strict character should be adopted to prevent the possibility of fires. That occupations in which continuous fires are necessary should cease at certain hours . . would seem to be, under such circumstances, a reasonable regulation as a measure of protection. At any rate, of its necessity for the purpose designated the municipal authorities are the appropriate judges.. The regulations in this matter are not subject to any interference by. the Federal tribunals, unless they are made the occasion for in
We have made this lengthy quotation from the case because it differentiates certain other cases decided by the Supreme Court of the United States, and other courts, which seem to announce principles relied upon by the defendant in the instant case.
In the case of Johnson v. Philadelphia,
In the petition it is prayed that the City of Atlanta and its officers be enjoined from enforcing so much of section 1 of the ordinance in question here as forbids colored barbers from serving as barbers children under the age of 14 years. The court granted the injunction as to that part of the ordinance, and the defendant in the cross-bill of exceptions assigns error upon that judgment. Reading the clause'“children under the age of 14 years” in connection with its context, we are satisfied that it was the intention of the council to make it applicable to white children only; and counsel for the city contend that such was the meaning. So construing it, we are nevertheless of the opinion that the court did not err in enjoining the enforcement of that part of the ordinance last referred to. As already seen, we have held that section 2 of the ordinance is void on the ground that it is unreasonable, and declined to rule upon the question as to whether or not it is void on the ground of its unconstitutionality.. But we are of the opinion that that part of section 1 the enforcement of which the court has enjoined is void as being in conflict with the provision of the 14th amendment of the constitution of the United States, and the similar provision in the constitution of the State of Georgia, which forbids the enactment of a law which deprives any person of life, liberty, or property without due process of law, or which denies to any person the equal protection of the laws. The right to carry on a lawful business is here denied to one class of the citizens of
In the case of Carey v. Atlanta, 143 Ga. 192 (
In the case of Harden v. Atlanta, 147 Ga. 248 (
We do not think that evidence tending to show that a large percentage of the colored race is afflicted with a highly infectious disease would justify the classification upon which this ordinance is based. The ordinance does not limit the right of colored barbers to serve as’ such upon the ground that they are afflicted with the disease referred to. It is not based upon that contagious disease, but is based upon color. The operation of this ordinance would in its enforcement prevent a colored man who is free from any disease, and who may be able to demonstrate his freedom in this respect before any competent examiner, from serving white children. If the disease specifically referred to is so general as certain evidence which was offered and rejected tends to show, then the prevalence of that disease among the. members of the colored" race would also authorize, if it is competent for the city to pass this ordinance, an
The contention of counsel for defendant in error in the main bill of exceptions, that the ordinance involved in this case is not 'to be. confused with those laws looking to the segregation of races in public places, such as laws requiring equal and separate accommodations in railway carriages and laws which exclude members of the colored race from theaters and hotels which entertain white people only, and other similar laws, is sound. Within certain limitations these segregation statutes are generally and properly upheld, where they are merely regulatory, and do not destroy nor impinge upon property rights. The necessity for them grows out of social habits
There is no such error in the court’s ruling upon the admissibility of evidence as requires the grant of a new trial. Certain portions of the evidence offered by defendant and held by the court to be inadmissible were irrelevant and immaterial; and if all the evidence offered by the defendant had been admitted, it would not have authorized a ruling as to the first section of the ordinance different from that actually rendered by the court.
The city demurred generally, and presented to the court, among other things, the proposition that a court of equity has no jurisdiction to interfere in criminal matters either to enjoin the commission of a crime or its prosecution. The court ruled adversely to the defendant upon this contention, and the ruling was authorized under the contentions as shown by the pleadings. In the case of Morrow v. Atlanta, 162 Ga. 228 (
Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill.
