#### People of the State of New York, Resp’ts, *v.*Calvin L. King, Appl’t.

*(Supreme Court, General Term, Fourth Department,*

*Filed November,*1886.)

1. Civil and public rights — Colored people — Places of Amusements —Unlawful Discrimination.

A skating rink to which tickets of admission are sold, is a place of amusement, and it is unlawful in the use of it to discriminate against colored persons.

1. Same — Legislature has power to control.

The legislature has power to control and regulate property held for a public or *quasi*public use and the authority it exercises as to the admission of colored people to a skating rink does not deprive the owner of his property nor of its use.

Appeal from judgment of the Court of Sessions of Chenango County.

*E. H. Prindle,*for appl’t; *Geo. A.*Haven, Dist. Attorney, for resp’t.

Boardman, J.

The defendant, who is one of the owners of a skating rink, refused to sell to three .colored persons tickets of admission on a certain evening, when a large number of persons were' admitted thereto for the purpose of amusement- and as spectators; the refusal was upon the sole ground that such applicants were colored. For this act the defendant was indicted, tried, convicted and sentenced to pay a fine of $150, and costs.

The jury under the charge has found that the skating rink was a place of amusement such as is contemplated in § 388, Penal Code, that, the defendant was the owner or manager of the rink within the statute, and that he excluded Breed, Wyckoff and Robbins from said rink by the reason of .their color. These-conclusions can not be subjects of doubt irrespective of the verdict. An attempt is made to argue that a refusal to sell those parties tickets, is not an exclusion of them from the rink. But we think the objection hypercritical and untenable. It may, *139however, have properly been submitted to the jury to determine, as was done, and in that case the verdict of the jury would conclude us.

The case upon the facts is then brought directly within section 388 of the Penal Code, and the conviction is right, if that section of the code is binding as law.

It is claimed that the section is unconstitutional. On a question of so much gravity, the briefs of counsel are very lean. The appellant cites the dissenting opinion of Mr. Justice Field in *Munn*v. *Illinois,*94 U. S. B,., 149, and the *People ex rel. King*v. Gallagher, 11 Abb. N. C., 187. The respondent’s counsel cites on authority whatever. It is claimed that the section is void because it prescribes that a skating rink, owned as private property, shall be devoted to the use of colored people; but that is not a just statement. The law gives to every citizen certain civil rights, from which he shall not be excluded by reason of his race or color. His rights to the equal enjoyments of such accommodations, facilities or privileges, as are furnished by innkeepers, or common carriers, or by owners or managers of theaters, or other places of amusement are among the number. The owner of property has devoted it to a purpose in which the public has an interest, for a consideration the public are admitted to its enjoyment. On payment of a reasonable compensation, citizens are entitled to its use without distinction by reason of race or color. The privilege may be withdrawn by diseon-tinuing the use. *Munn*v. Illinois, 94 U. S., 113. The rule of legislative right has been sanctioned in case of railroads. *Cent. R. R.*v. Green, 86 Penn St. 421, *Railroad Company*v. Brown, 17 Wall., 446. In the *People ex rel. King*v. Gallagher, 93 N. Y., 438, it was held by a divided court that the city of Brooklyn had a special law, by which separate schools for colored children were provided, and that such special law was not abrogated by Ch. 863, of Laws of 1873. A colored man may not be excluded from jury duty *Ex parte Virginia,*100 U. S. R. 339, *Strauder*v. *West Virginia,*id. 303. But the Penal Code, sec. 383, does not infringe upon the U.S. Constitution or laws. It carries the principle too far, as this defendant now claim*, and deprives the owner of the free use of his own property; that, however, is a power inherent in every sovereignty. The sovereign power may regulate the use of one’s property with reference to the public welfare. Under the constitution and laws we may fairly say that no discrimination may be allowed against colored people in the use of certain property of a public, or *quasi*public character. Places of amusement are made such property by the Penal Code. The legislature possessed the power to control and regulate property held for public use, and the authority exercised in the present case does not seem to us to deprive the owner of his property, or of its use, so as to be obnoxious to the restraints of *140article 5, of the Amendments of the Constitution of U. S., or of sec. 1, art. 1 of the Constitution of this State. It is simply a rule of conduct as to its use. Numerous cases of somewhat similar legislation will readily occur to their mind.

The appeal papers do not show a judgment in due form from which an appeal could be taken. But as the elements of a judgment are there, we have thought best to consider the case on its merits and as if on-an appeal from a regular judgment.

For the reasons stated, we think the conviction and judgment should be affirmed.

Hardin, J., concurs; Follett, J., not voting.