Patterson v. Taylor , 51 Fla. 275 ( 1906 )

Taxlor, J.,

(after stating the facts.) The first contention of the plaintiff in error is, that the legislative charter of the City of Jacksonville does not give it the authority to enact the quoted ordinance, and that said city, therefore, has no power to adopt or enforce such ordinance.

The charter of the City of Jacksonville, Chapter 3775 Laws of Florida, approved May 31st, 1887, does not in express terms authorize the city council to enact the ordinance in question, but the “general welfare clause,” contained in section 1 of Article 3 of said Chapter, empowers the City Council, after enumerating many specific subjects upon which it can legislate, “to pass all ordinances necessary for the health, convenience and safety of the citizens, and to carry out the full intent and meaning of this act, and to accomplish the object of this incorporation.” Under this clause of its charter we think the City is authorized to adopt and enforce the ordinance in question, as a prudential measure, tending to the preservation of the peace and safety of the inhabitants of the city. The natural tendency of bringing large numbers of them promiscuously together in close contact is to create between the two races antagonism and discord. All existing conditions, make the separation provided for by this ordinance a reasonable precaution against breaches of the peace, and disturbances of the good order of society. Roberts v. City of Boston, 5 Cush. 198.

In the case of Porter v. Vinzant, 49 Fla. 213, 38 South. Rep. 607, we have held that, “The general powers usually given to municipal corporations are, as a general rule, designed to confer other powers than those specifically enumerated; and that general powers conferred upon municipal corporations should be construed with reference to the purposes of the incorporation.” Theisen v. McDavid, 34 Fla. 440, 16 South. Rep. 321. The chief purpose of the incorporation of densely settled localities into municipalities is to more effectually preserve the peace and good order of society in such localities. The design of the questioned ordinance being to safeguard such peace and good order, its enactment and enforcement is within incidental police powers of the city directly resulting from its incorporation into a municipality, even without the general welfare clause or other express authorization. McQullin on Munic. Ord. Sec. 473.

It is next contended that said ordinance is vague and uncertain and delegates to street car companies authority to determine how the races shall be seperated on street cars, thus depriving the city of the right to enforce a uniform operation of the law over the street cars of the city. It has not been pointed out in the briefs or argument here in what particular there is any vagueness or uncertainty in the terms of the questioned ordinance, and Ave fail to discover anything therein that is open to such a criticism, but on the contrary, we think that the ordinance in all of its provisions, is carefully drawn, clear and precise. Neither do Ave think that there is in it an unwarranted delegation of authority or discretion to the street car companies in the practical execution of the ordinance. The duty is thereby clearly imposed upon such street car companies to effect a separation of the races during carriage on their lines in one or the other of two clear'ly defined modes: (1) by providing separate cars for the two races, or (2) by division of the car when the same car is assigned -to the two races. The only delegation of discretion to such carrier® is as to which of these two modes of separation they shall adopt. The ordinance makes it obligatory upon them to adopt the one or the other.

It is next contended that the ordinance is unreasonable and unnecessary, in that the maximum penalty of $500 that it imposes for infractions thereof is excessive and greatly disproportionate to the offense and inconsistent -with the general principles of the penal laws of the State upon kindred topics.

By the provisions of said Section 4 of Article 3 of Chapter 3775 Laws of Florida of 1887, which Chapter comprises the charter of the municipality of Jacksonville, the city council is authorized by ordinances to provide for the imposition of fines, forfeiture, penalties and terms -of imprisonment for a breach of any city ordinance, but no penalty shall exceed five hundred dollars, and no term of imprisonment shall be for a longer term than three months for the same offence.” Thus it will be seen that the city council in prescribing the maximum penalty of $500 for an infraction of this ordinance was entirely within its express charter authority.

In the case of Haynes v. Cape May, 50 N. J. L. 55, 13 Atl. Rep. 231, it was held that “where the legislature has defined the delegated powers, and prescribed with precision the penalties that may be imposed, an ordinance within the powers granted, prescribing a penalty within the designated limit, cannot be set aside as unreasonable.” City of Tarkio v. Cook, 120 Mo. 1, 25 S. W. Rep. 202, S. C. 41 Am. St. Rep. 678. We can easily conceive a case of a wilful and aggravated violation of the ordinance in question, deliberately planned to precipitate a riot, where the maximum fine of $500 would be not at all excessive or unreasonable, but on the contrary quite moderate and appropriate.

It. is next contended that said ordinance, as operated by the street car companies is a denial to petitioner of the equal protection of the law, in that said ordinance is so enforced and operated as to compel petitioner and other colored persons at all times while passengers on street cars to sit and ride in the rear end of the car, while white passengers are allowed to ride at all times in the front end of said car; and that said rear end of the car a® provided and operated by said street car company does not afford equal facility of ease and comfort, and deprives petitioner and all other colored persons of the benefit of pure-fresh air when riding on said cars on account of being forced to ride in the rear thereof, and brands petitioner and his race as an inferior race, and this discrimination against petitioner and his race is on account of race, color and previous condition of servitude.

There is no merit in this contention. A passenger on a street car has no right to any particular seat in such chr, nor to a seat in any particular end of the car, but when he becomes a passenger thereon he does so subject alike to its comforts and discomforts. As we have seen the questioned ordinance makes lawful provision for the separation of the two races on street cars. Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. Rep. 1138; Councill v. Western & Atlantic R. R. Co., 1 Int. Com. Com. Rep. 339; Chespeake & O. Ry. Co. v. Commonwealth of Kentucky 179 U. S. 338, 21 Sup. Ct. Rep. 101; Louisville, N. O. & T. Ry. Co. v. State of Mississippi, 133 U. S. 587, 10 Sup. Ct. Rep. 348; Ex Parte Plessy, 45 La. Ann. 80, 11 South. Rep. 948, S. C. 18 L. R. A. 639, and authorities therein cited; West Chester & Philadelphia R. R. Co. v. Miles, 55 Pa. St. 209. We have seen also that the provision of the ordinance permitting such separation to be accompanied by either supplying separate cars or by dividing the same car, was also reasonable and proper. In order to accomplish such separation in the same car one or the other of the two races would necessarily be required to occupy the front end of the car and the other race the other end, and' when so placed neither race would have any more just cause for complaint as to the locality in the car to which he was assigned than he would have to the same locality in a separate car occupied by and devoted exclusively to the use of members of the race to which he belongs. Bowie v. Birmingham Railway & Electric Co., 125 Ala. 397, 1016 South. Rep. 27, S. C. 50 L. R. A. 632; Hall v. DeCuir, 95 U. S. 485.

At the trial of the habeas corpus proceeding the petitioner offered to prove by witnesses the allegations of his petition to the effect that members of his race were assigned to the rear end of the street cars, but the judge refused to admit such proof. It is contended here that this was error. There was no error in such ruling. The matter offered to be proved was wholly immaterial to any issue before the judge, and if admitted to be true could have no effect upon the validity of the ordinance involved, or as to the legality of the petitioner’s conviction and detention Nr violation thereof.

Finding; no error iu the said record the judgment of the Circuit Court in' said cause is hereby affirmed at the cost of the plaintiff in error.

Shackleford, C. J., Cockrell, Hocker, Whitfield, and Parkhill, JJ., concur.