147 Ga. 248 | Ga. | 1917
Lead Opinion
Frank Harden, a colored man, rented a house for a residence on the corner of Linden and Myrtle streets in the City of Atlanta. He was notified by the police to vacate the premises, because the house is included in what is known as a “white block,” and under an ordinance of the city a person of color is not permitted to live in a white block. On his failure to vacate the premises he was summoned to appear before the recorder’s court and charged with a violation of the race-segregation ordinance. Thereupon he filed a petition to enjoin the ■ city from attempting to remove him from the premises, and from further prosecuting the charge against him, on the ground that the ordinance is void as being unreasonable and unconstitutional. The court refused an interlocutory injunction.
The material parts of the ordinance are as follows: “Section 1.. It shall be unlawful for any colored person to move into and occupy as a residence or place of abode, or to establish and maintain as a place of public assembly, any house upon any block in which a greater number of houses are occupied as residences, places of abode, or places of public assembly by white people than are occupied as residences, places of abode, or places of public assembly by colored people.” Section 2 is identical with section one, except it applies to white persons living in a block of colored people. Section 3 defines what is meant by a block. Section 4 is as follows: “Nothing in this ordinance shall affect the location of residences, places of abode, or places of public assembly, made' previous to the approval of this ordinance; and nothing herein shall, be so construed as to prevent the occupation of residences, places of abode, or places of public assembly by white or colored servants or employees of occupants of such residences, places of abode, or places of public assembly on the block on which they are employed; nor shall anything herein contained be construed to prevent any person who, at the date of the passage of this ordinance, shall have acquired or possessed the right to occupy any
The plaintiff in error rented the house subsequently to the enactment of the ordinance. The ordinance is attacked as unconstitutional on the ground that it violates the -declaration in the bill of rights that “Protection to person and property is the paramount duty of government, and shall be impartial and complete,” and is" opposed to the fourteenth amendment of the Federal constitution, which forbids a State to make or enforce a law which shall abridge the privileges or immunities of citizens of the United States, or one which shall deprive any person of life,, liberty, or property without due process of law, or which shall deny to any person within its jurisdiction the equal protection of the laws. No point is made on the power of the municipal legislature to pass the ordinance if it be not opposed to the constitution of Georgia or that of the United States. The pivotal issue is the liability of the ordinance to the constitutional attacks made against it.
Some time ago the City of- Atlanta enacted an ordinance of a similar nature, which contained no reservation for,the protection
The fundamental difference in the arguments for and against the validity of an ordinance of the kind we are considering is the conception of the relation of the police power to property ownership. The advocates of the invalidity of the ordinance deny either that property, rights ever are limited by the police power, or, if so limited in any case, that such a, limitation can be extended to a case like this. A reasonable restraint upon alienation of property by individuals not only pervades our statute law, but is found in our State constitution. The law prescribing the manner of executing wills and deeds in order to be effective as conveyances of title is to some extent a restriction on the alienation of property. Likewise is the provision that a person under twenty-one years of age can not make a deed to land. The proscription against a married woman selling property to her husband, or conveying her separate estate in settlement of the debts of her husband, or entering into a contract of suretyship, has never been supposed to be void as destroying any right of absolute ownership of property. The fact that police regulations may limit the use of property.in ways which greatly diminish its value does not necessarily render them void. Rideout v. Knox, 148 Mass. 368 (19 N. E. 390, 2 L. R. A. 81, 12 Am. St. R. 560); Camfield v. U. S., 167 U. S. 518 (17 Sup. Ct. 864, 42 L. ed. 260). We take it that no one can successfully maintain that the right of individual ownership of property is so absolute as to override the welfare and safety of the public. As was said by Mr. Justice Field in Crowley v. Christensen, 137
Judgment affirmed.
Dissenting Opinion
dissenting. Under the constitution and general law, any person, irrespective of race, may own or acquire, land anywhere in the City of Atlanta. Such right carries with it the right to reside on land lawfully acquired. The municipal ordinance in question undertakes to deny such rights of acquisition and enjoyment of property on the mere basis of racial distinction, which the constitution forbids. By denying the right it goes beyond mere regulatory legislation. While the ordinance differs somewhat from that involved in the case of Carey v. City of Atlanta (cited in the opinion supra), it violates the basic principles applied in that case. There can he no competition between the police power and the mandates of the constitution; the latter are supreme. If it is desired to have segregation of a character that denies the right of a citizen to acquire a home in which to reside, at any place he may choose, upon the sole basis of racial distinction, that object should be accomplished by an amendment to the constitution. In the majority opinion it is urged that the ordinance in question con
