60.

Argument for Plaintiff in Error.

Slaughter House Cases, 16 Wall. 36, 70-72; Ex parte Virginia, 100 U. S. 339, 344; Strauder v. West Virginia, 100 U. S. 303, 306; Washington, Alexandria & Georgetown R. R. Co. v. Brown, 17 Wall. 445; State v. Darnell, 166 N. Car. 300, 302, 303. It forbids, under penalty of criminal proceedings, an owner of land in many parts of the city to live thereon if he happens to be a negro, although he would be free to do so if he were white. This inequality is not removed by forbidding white owners to live on their own land in other parts of the city, for the Constitution cannot be satisfied by any such offsetting of inequalities. A plainer case of racial discrimination cannot well be imagined.

The cases upholding laws providing for separate railroad accommodations are inapplicable here, for if equal facilities be furnished and the rates are reasonable and nondiscriminatory the carrier may determine what vehicle the passenger shall occupy. Chiles v. Chesapeake & Ohio Ry. Co., 218 U. S. 71; West Chester & Philadelphia R. R. Co. v. Miles, 55 Pa. St. 209; The Sue, 22 Fed. Rep. 843. No right otherwise existing is impaired and hence such statutes are not within the prohibitions of the Fourteenth Amendment. See McCabe v. Atchison, Topeka & Santa Fe Ry. Co., 235 U. S. 151.

The cases of public schools are even more remote from that under consideration. The States are not bound to provide schools for anybody. Statutes regulating attendance at schools do not cut down rights previously recognized, but grant privileges which would not otherwise exist. If, therefore, the privileges granted to white and to colored children are in general similar, there can be no complaint. It is true that a statute requiring segregation in private schools was sustained in the Berea College Case, 211 U. S.. 45, but there the statute was construed as an amendment to the defendant's charter. If defendant had been an individual, it is plain that the statute must have been declared void. See dissenting opinion, p. 68.

Argument for Defendant in Error.

245 U.S. The cases upholding statutes against miscegenation are also irrelevant, since marriage is a matter of status in which the interests of the State are vitally concerned. Such statutes are equal in their operation since they impose no penalty upon the members of one race for doing that which is lawful for members of the other race. Pace v. Alabama, 106 U. S. 583.

The ordinance cannot be justified as an exercise of the police power. Like any other law police regulations are subject to the equal protection clause of the Fourteenth Amendment, Atchison, Topeka & Santa Fe Ry. Co. v. Vosburg, 238 U. S. 56, 69; Geiger-Jones Co. v. Turner, 230 Fed. Rep. 233, 244, 245; and a regulation which forbids citizens of one color to do acts which those of another color are permitted to do does not afford equal protection of the laws. Truax v. Raich, 239 U. S. 33, 41; Yick Wo v. Hopkins, 118 U. S. 356, 369; Barbier v. Connolly, 113 U. S. 27, 31; Opinion of the Justices, 207 Massachusetts, 601, 605; Ah Kow v. Nunan, 5 Sawy. 552. The ordinance cannot be justified as a measure to protect property rights, since it is designed to protect the rights only of a certain class; or as a measure to prevent conflict between the races, since the means adopted are beyond the constitutional power of the State to employ. If such legislation can be sustained, there is no limit to possible discrimination between citizens. An attempt to segregate Irish from Jews, foreign from native citizens, Catholics from Protestants, would be fully as justifiable in communities where there is feeling between them.

Mr. Stuart Chevalier and Mr. Pendleton Beckley for defendant in error:

The ordinance is fair and equal on its face and effects no discrimination for or against either race. It is a valid police regulation, enacted in good faith, and clearly and fairly designed to accomplish its declared purpose. It

60.

Argument for Defendant in Error.

does not interfere with the ownership but merely regulates the occupancy of property. The right of an owner to occupy his own property, previously acquired, is expressly secured by § 4, so that every constitutional objection that it is an undue interference with property rights is removed.

The court will not declare invalid a police regulation unless it clearly appears from the law itself, or from facts of which the court may take judicial notice, that it violates constitutional guaranties; whether the legislation is wise, expedient or necessary, or the best calculated to promote its object, is a legislative and not a judicial question. Chicago, Burlington & Quincy Ry. Co. v. McGuire, 219 U. S. 568, 569; McLean v. Arkansas, 211 U. S. 547, 548; Noble State Bank v. Haskell, 219 U. S. 575, 580; Munn v. Illinois, 94 U. S. 113; Powell v. Pennsylvania, 127 U. S. 678; Tenement House Department v. Moeschen, 179 N. Y. 325; 203 U. S. 583; Hyman v. Boldrick, 153 Kentucky, 77, 79; Rast v. Van Deman & Lewis Co., 240 U. S. 342, 357, 366; Tanner v. Little, 240 U. S. 369, 385; Cusack Co. v. Chicago, 242 U. S. 526, 530.

Legislation segregating the white and colored races has universally been recognized by the courts as a constitutional exercise of the police power. Thus regulations requiring separate railroad accommodations, laws establishing separate schools, and laws against miscegenation have been sustained. Plessy v. Ferguson, 163 U. S. 537, 545; Chiles v. Chesapeake & Ohio Ry. Co., 218 U. S. 71; West Chester & Philadelphia R. R. Co. v. Miles, 55 Pa. St. 209; Roberts v. City of Boston, 5 Cush. 198; People v. Gallagher, 93 N. Y. 438; Berea College Case, 123 Kentucky, 209; 211 U. S. 45. The same reasons, constitutional and practical, which justify the segregation of the races in these instances apply with redoubled force here. Unlike the ordinance declared invalid in Yick Wo v. Hopkins, 118 U. S. 356, this ordinance operates equally upon both

Argument for Defendant in Error.

245 U.S. classes, and does not vest the municipal authorities with the arbitrary power in its enforcement to discriminate against any particular class.

The Constitution does not prohibit a State from abridging under its police power privileges and immunities of citizens of the State; the fact that privileges thereby regulated may not in fact be equal or identical does not amount to a denial of equal protection of the laws; nor does the Constitution guarantee social or economic equality. The "privileges and immunities of citizens of the United States" are in nowise affected or abridged by legislation of this character. Slaughter House Cases, 16 Wall. 36; Maxwell v. Dow, 176 U. S. 581; Twining v. New Jersey, 211 U. S. 96; Hadacheck v. Los Angeles, 239 U. S. 394; Guinn v. United States, 238 U. S. 347; Myers v. Anderson, 238 U. S. 368; Ex parte Kinney, 3 Hughes, 9; Cummings v. County Board of Education, 175 U. S. 528; People v. Gallagher, 93 N. Y. 438; Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 U. S. 703. Every police regulation necessarily restrains, limits or destroys certain personal or property rights, or both. This does not make the law unequal in the legal sense, as the inequalities arise from matters with which the law has no concern, such as geographical location, economic or educational condition, etc. The investigation of these matters is for the legislative, not the judicial, determination. Hadacheck v. Los Angeles, 239 U. S. 394, 413. If neither race is denied any privilege in the cases of schools, coaches, or marriage, there is no denial of an advantage or privilege here. The objection that the ordinance limits the negroes to the "undesirable" sections of the city, therefore, does not go to the validity of the ordinance. But in fact, it neither restricts the negroes to the places where they are now living nor to the undesirable sections. There is nothing in the law to prevent the indefinite expansion of the present negro neighborhoods or the building up of new

60.

Argument for Defendant in Error.

negro sections. The improvement of the negro's condition is limited only by his own character and efforts.

The use of property and the liberty of contract are subject to reasonable police regulations, and their enforcement does not deprive a person of property without due process of law. Slaughter House Cases, supra; Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659; Mugler v. Kansas, 123 U. S. 623; Tenement House Department v. Moeschen, 179 N. Y. 325; 203 U. S. 583; O'Bryan v. Highland Apartment Co., 128 Kentucky, 282; Welch v. Swasey, 214 U. S. 91. But the present ordinance, far from impairing such rights, will have the effect of protecting property from the most serious and destructive-results.

The objection that segregation laws impair property values and prevent individuals from living where they please is fully answered by this court in L'Hote v. New Orleans, 177 U. S. 587. The injury is merely incidental to the city's right to segregate and does not warrant the overthrow of police regulations.

Police regulations prohibiting the carrying on in defined areas of certain industries, lawful in themselves, having for their object the protection, enjoyment and stability of the home, have frequently been sustained, even though discriminating in favor of persons engaged in the same industry in other parts of the city. Hadacheck v. Los Angeles, 239 U. S. 394; Reinman v. Little Rock, 237 U. S. 171; Fischer v. St. Louis, 194 U. S. 361; Schefe v. St. Louis, 194 U. S. 373; Ex parte Quong Wo, 118 Pac. Rep. 714; Ex parte Montgomery, 125 Pac. Rep. 107; People v. Ericsson, 105 N. E. Rep. 315. So with respect to regulations prohibiting the erection of tall buildings, Welch v. Swasey, 214 U. S. 91; and the erection in residential sections of billboards. Cusack Co. v. Chicago, 108 N. E. Rep. 340.

The fact that the ordinance interferes with the jus disponendi or restricts the right of the individual to contract with reference to his property is no valid objection.