Butts v. Merchants & Miners Transportation Company/Opinion of the Court
This is an action to recover twelve penalties of $500 each under §§ 1 and 2 of the act of March 1, 1875 (18 Stat. at L. 335, chap. 114, U.S.C.omp. Stat. 1901, p. 1260), known as the civil rights act. According to the declaration the facts are these: The plaintiff is a colored woman and a citizen of the United States, and the defendant is a maryland corporation engaged in the transportation of passengers and freight by vessels plying between Boston, Massachusetts, and Norfolk, Virginia. Upon tickets purchased for the purpose, and entitling her to the accommodations and privileges of a first-class passenger, the plaintiff was carried by the defendant on one of its steamships from Boston to Norfolk, and on another back to Boston. Both vessels were engaged in the coastwise trade as public conveyances, and were duly enrolled under the laws of the United States. During both voyages the plaintiff was denied, because of her color, the full and equal enjoyment of the accommodations and privileges of a first-class passenger, the denials consisting in requiring her to take her meals at a second table, instead of at the first, with the white passengers having tickets like her own, and in giving her a stateroom on the lower deck, instead of on the upper one, where the white passengers possessing like tickets were given rooms. The acts of discrimination were twelve in number. Eleven were charged as occurring upon the high seas, more than a marine league from any land, and the other as occurring merely upon the high seas. There was no attempt to set up a common-law right of recovery, the sole reliance being upon §§ 1 and 2 of the act of 1875, supra. The defendant demurred, claiming that those sections are unconstitutional and void, and the demurrer was sustained, judgment being given for the defendant. The plaintiff then sued out this direct writ of error.

The preamble of the act and the sections under which the penalties are claimed are as follows:

'Whereas, it is essential to just government we recognize the equality of all men before the law, and hold that it is the duty of government in its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, color, or persuasion, religious or political; and it being the appropriate object of legislation to enact great fundamental principles into law: Therefore,

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

'Sec.2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall also, for every such offense, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year: Provided, That all persons may elect to sue for the penalty aforesaid, or to proceed under their rights at common law and by state statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this proviso shall not apply to criminal proceedings, either under this act or the criminal law of any state: And provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively.'

The question of the constitutional validity of those sections came before this court in Civil Rights Cases, 109 U.S. 3, 27 L. ed. 836, 3 Sup. Ct. Rep. 18, and upon full consideraton it was held (a) that they receive no support from the power of Congress to regulate interstate commerce because, as is shown by the preamble and by their terms, they were not enacted in the exertion of that power, and (b) that, as applied to the states, they are unconstitutional and void because in excess of the power conferred upon Congress, and an encroachment upon the powers reserved to the states respectively. That decision has stood unchallenged for almost thirty years, and counsel for the plaintiff does not question it now. But he does contend that, although unconstitutional and void in their application to the states, the sections are valid and effective in all other places within the jurisdiction of the United States, such as upon an American vessel upon the high seas, more than a marine league from land, and in the District of Columbia and the territories. And in this connection our attention is directed to that part of the opinion in Civil Rights Cases which says (p. 19):

'We have also discussed the validity of the law in reference to cases arising in the states only; and not in reference to cases arising in the territories or the District of Columbia, which are subject to the plenary legislation of Congress in every branch of municipal regulation. Whether the law would be a valid one as applied to the Territories and the District is not a question for consideration in the cases before us; they all being cases arising within the limits of states.'

The real question is whether the sections in question, being in part-by far the greater part-in excess of the power of Congress, are invalid in their entirety. Their words, as also those of the preamble, show that Congress proceeded upon the assumption that it could legislate, and was legislating, in respect of all persons and all places 'within the jurisdiction of the United States.' It recognized no occasion for any exception and made none. Its manifest purpose was to enact a law which would have a uniform operation wherever the jurisdiction of the United States extended. But the assumption was erroneous, and for that reason the purpose failed. Only by reason of the general words indicative of the intended uniformity can it be said that there was a purpose to embrace American vessels upon the high seas, the District of Columbia, and the territories. But how can the manifest purpose to establish a uniform law for the entire jurisdiction of the United States be converted into a purpose to create a law for only a small fraction of that jurisdiction? How can the use of general terms denoting an intention to enact a law which should be applicable alike in all places within that jurisdiction be said to indicate a purpose to make a law which should be applicable to a minor part of that jurisdiction and inapplicable to the major part? Besides, it is not to be forgotten that the intended law is both penal and criminal. Every act of discrimination within its terms is made an offense and misdemeanor, and for every such offense it gives to the aggrieved party a right to a penalty of $500, and subjects the offender to a fine of not less than $500 nor more than $1,000, or to imprisonment for not less than thirty days nor more than one year.

The decision of this court in United States v. Reese, 92 U.S. 214, 23 L. ed. 563, is well in point. That was a prosecution under a congressional enactment punishing election officers for refusing to any person entitled to do so the right to cast his vote. The statute was expressed in general terms, embracing some acts which Congress could condemn and others which it could not. As to the latter, it was, of course, invalid, and the claim was made that, as the act charged was not of the latter class, but of the former, the statute should be sustained as to acts like the one charged, notwithstanding the general terms were in excess of the power of Congress. But the court held otherwise, saying:

(p. 219). 'This is a penal statute, and must be construed strictly; not so strictly, indeed, as to defeat the clear intention of Congress, but the words employed must be understood in the sense they were obviously used. United States v. Wiltberger, 5 Wheat. 85, 5 L. ed. 40. If, taking the whole statute together, it is apparent that it was not the intention of Congress thus to limit the operation of the act, we cannot give it that effect.

(p. 221.) 'We are therefore directly called upon to decide whether a penal statute enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish. For this purpose, we must take these sections of the statute as they are. We are not able to reject a part which is unconstitutional, and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of the sections must stand as a whole, or fall altogether. The language is plain. There is no room for construction, unless it be as to the effect of the Constitution. The question, then, to be determined, is whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only.

'It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government. The courts enforce the legislative will when ascertained, if within the constitutional grant of power. Within its legitimate sphere Congress is supreme and beyond the control of the courts; but if it steps outside of its constitutional limitations, and attempts [to do] that which is beyond its reach, the courts are authorized to, and when called upon in due course of legal proceedings, must, annual its encroachments upon the reserved power of the states and the people. To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty.'

So here, to give to the sections in question the effect suggested, it would be necessary to reject or strike out the general words 'within the jurisdiction of the United States,' whereby Congress intended to declare and define in what places the sections should be operative, and to insert other and new words, restricting their operation to American yessels upon the high seas and to the District of Columbia and the territories. To do this would be to introduce a limitation where Congress intended none, and thereby to make a new penal statute, which, of course, we may not do.

Another decision no less in point is Trade-Mark Cases, 100 U.S. 82, 25 L. ed. 550, which related to an act of Congress providing generally for punishing the fraudulent use of registered trademarks, although the power of Congress in that regard extended only to trademarks used in commerce with foreign nations, or among the several states, or with the Indian tribes. In pronouncing the statute invalid in its entirety the court said:

(P. 96.) 'When, therefore, Congress undertakes to enact a law, which can only be valid as a regulation of commerce, it is reasonable to expect to find on the face of the law, or from its essential nature, that it is a regulation of commerce with foreign nations, or among the several states, or with the Indian tribes. If not so limited, it is in excess of the power of Congress.

(P. 98.) 'It has been suggested that if Congress has power to regulate trademarks used in commerce with foreign nations and among the several states, these statutes shall be held valid in that class of cases, if no further. To this there are two objections: . . . Secondly, while it may be true that when one part of a statute is valid and constitutional, and another part is unconstitutional and void, the court may enforce the valid part where they are distinctly separable, so that each can stand alone, it is not within the judicial province to give to the words used by Congress a narrower meaning than they are manifestly intended to bear, in order that crimes may be punished which are not described in language that brings them within the constitutional power of that body.

(P. 99.) 'If we should, in the case before us, undertake to make by judicial construction a law which Congress did not make, it is quite probable we should do what, if the matter were now before that body, it would be unwilling to do; namely, make a trademark law which is only partial in its operation, and which would complicate the rights which parties would hold, in some instances, under the act of Congress, and in others under state law.'

The two cases from which we have quoted have been often followed and applied. United States v. Harris, 106 U.S. 629, 641, 27 L. ed. 290, 1 Sup. Ct. Rep. 601; Baldwin v. Franks, 120 U.S. 678, 685, 30 L. ed. 766, 768, 7 Sup. Ct. Rep. 656, 763; James v. Bowman, 190 U.S. 127, 140, 47 L. ed. 979, 983, 23 Sup. Ct. Rep. 678; United States v. Ju Toy, 198 U.S. 253, 262, 49 L. ed. 1040, 1043, 25 Sup. Ct. Rep. 644; Illinois C. R. Co. v. McKendree, 203 U.S. 514, 529, 530, 51 L. ed. 298, 304, 305, 27 Sup. St. Rep. 153; Karem v. United States, 61 L.R.A. 437, 57 C. C. A. 486, 121 Fed. 250, 259.

Counsel for the plaintiff cites El Paso & N. E. R. Co. v. Gutierrez, 215 U.S. 87, 54 L. ed. 106, 30 Sup. Ct. Rep. 21, as an authority for holding the sections in question valid as applied to American vessels upon the high seas and to the District of Columbia and the territories, notwithstanding their invalidity as applied to the states. The matter involved in that case was whether the provision in the employers' liability act of 1906 (34 Stat. at L. 232, chap. 3073, U.S.C.omp. Stat. Supp. 1911, p. 1316), relating to the District of Columbia and the territories, could be sustained, considering that the provision relating to interstate commerce had been adjudged invalid in Employers' Liability Cases (Howard v. Illinois C. R. Co.) 207 U.S. 463, 52 L. ed. 297, 28 Sup. Ct. Rep. 141. That act was quite unlike the sections now before us in two important particulars: 1. It was not a penal or criminal statute, to be strictly construed, but was a civil and purely remedial one, to be construed liberally. 2. Its applicability to the District of Columbia and the territories did not depend upon the same words which made it appliable to interstate commerce. On the contrary, it dealt expressly, first, with common carriers 'in the District of Columbia, or in any territory of the United States,' and, second, with common carriers 'between the several states.' The latter provision had been adjudged invalid because too broad in some of its features, and the Gutierrez Case involved the other provision. In that case the court, considering the terms of the statute, held that the provision relating to interstate commerce was 'entirely separable from' the one relating to the District of Columbia and the territories, and that Congress manifestly had proceeded 'with the intention to regulate the matter in the District and the territories, irrespective of the interstate commerce feature of the act.' With the invalid and separable provision eliminated, there still remained a complete and operative statute in terms applying to the District of Columbia and the territories. The differences between that act and the sections now before us are so pronounced and so obvious that the Gutierrez Case is not an authority for the plaintiff. On the contrary, it is in entire harmony with the other cases before cited, as is shown throughout the opinion and by the following excerpt (p. 97):

'It remains to inquire whether it is plain that Congress would have enacted the legislation had the act been limited to the regulation of the liability to employees engaged in commerce within the District of Columbia and the territories. If we are satisfied that it would not, or that the matter is in such doubt that we are unable to say what Congress would have done, omitting the unconstitutional feature, then the statute must fall. Illinois C. R. Co. v. McKendree, 203 U.S. 514, 51 L. ed. 298, 27 Sup. Ct. Rep. 153; Employers' Liability Cases, supra.'

Here it is not possible to separate that which is constitutional from that which is not. Both are dependent upon the same general words, 'within the jurisdiction of the United States,' while alone indicate where the sections are to be operative. Those words, as the context and the preamble show, were purposely used. They express the legislative will, and cannot be limited in the manner suggested without altering the purpose with which the two sections were enacted. They must therefore be adjudged altogether invalid. James v. Bowman, 190 U.S. 127, 140, 47 L. ed. 979, 983, 23 Sup. Ct. Rep. 678, and United States v. Ju Toy, 198 U.S. 253, 262, 49 L. ed. 1040, 1043, 25 Sup. Ct. Rep. 644; Poindexter v. Greenhow, 114 U.S. 270, 305, 29 L. ed. 185, 197, 5 Sup. Ct. Rep. 903, 962.

Judgment affirmed. 

Notes