State v. Patterson , 50 Fla. 127 ( 1905 )

Taylor, J.,

(after stating the facts.) The order of the Circuit Judge discharging the petitioner from further custody is the only error assigned.

We are entirely clear that Section seven (7) of the questioned act is violative of Section 1 of the Fourteenth Amendment to the Constitution of the United States, in that it diacriminately abridges the privileges and immunities of one class of citizens of the United States by giving to another class of such citizens privileges that are withheld from the class discriminated against. It gives to the Caucassian mistress the right to have her child attended in the Caucassian department of the car by its African nurse, and withholds the right from the African mistress the equal right to have her child attended in the African department of the car by its Caucassian nurse. It also discriminates between the races in that it gives to the invalid adult Caucassian, man or woman, the right ix. be attended in their department of the car by his or her coloi'ed nurse, and withholds from the African invalid the corresponding right to be attended in his or her department of the car by his or her white nurse. It also gives to the African nurse the right to space in either department of the car and withholds from the Caucassian nurse the same privilege, thereby discriminating between the races in favor of the African nurse as against the Caucassian nurse belonging to the same occupational class of persons.

Finding that the seventh (7) section of the act is unconstitutional and void, the question arises does its taint necessarily vitiate the entire act? We are likewise clear that it does. The legislature in the enactment of the said section seven of the act have in express terms recorded its intent that African nurses in charge of Caucassian children or adult invalids should not be subject to the pains and penalties of the other provisions of the act when with such Caueassian children or invalids they invaded the Caueassian department of a car, to strike said section seven from the act and to maintain the remaining provisions thereof would inevitably subject to the pains and penalties of the act a class of persons, to-wit: colored nurses, in the face of the expressed intention of the legislature that they should not be so subject. The settled rule is that if the obnoxious section or part is of such import that the other sections or parts without it would cause results not contemplated or desired by the legislature, then the entire statute must be held inoperative. I Lewis Sutherland Statutory Construction (2nd ed.) Sec. 297; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. Rep. 431. For these reasons we must adjudge the whole act to be unconstitutional and void. It follows that the judgment of the Circuit Court in said cause must be affirmed and it is so ordered at the cost of the county of Duval.

All concur.