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WALKER V. SAUVINET, 92 U. S. 90 (1875)
U.S. Supreme Court
Walker v. Sauvinet, 92 U.S. 90 (1875)
Walker v. Sauvinet
92 U.S. 90
1. A trial by jury in suits at common law pending in the state courts is not a privilege or immunity of national citizenship which the states are forbidden by the Fourteenth Amendment of the Constitution of the United States to abridge.
2. Questions presented by the assignment of error cannot be considered here unless the record shows that they were brought to the attention of the court below.
This is an action brought by Sauvinet against Walker, a licensed keeper of a coffee house in New Orleans, for refusing him refreshments when called for, on the ground that he was a man of color.
Art. 13 of the Constitution of Louisiana provides that
"All persons shall enjoy equal rights and privileges upon any conveyance of a public character, and all places of business or of public resort, or for which a license is required by either state, parish, or municipal authority, shall be deemed places of a public character, and shall be open to the accommodation and patronage of all persons, without distinction or discrimination on account of race or color."
On the 23d February, 1869, an act was passed by the general assembly of the state entitled "An Act to enforce the thirteenth article of the Constitution of this state, and to regulate the licenses mentioned in said thirteenth article." Sec. 3 of this act is as follows:
"SEC. 3. That all licenses hereafter granted by this state, and by all parishes and municipalities therein, to persons engaged in business, or keeping places of public resort, shall contain the express condition, that the place of business or public resort shall be open to the accommodation and patronage of all persons, without distinction or discrimination on account of race or color; and any
person who shall violate the condition of such license shall, on conviction thereof, be punished by forfeiture of his license, and his place of business or public resort shall be closed, and, moreover, [he] shall be liable at the suit of the person aggrieved to such damages as he shall sustain thereby, before any court of competent jurisdiction."
On the 27th February, 1871, another act was passed entitled
"An Act to regulate the mode of trying cases arising under the provisions of article thirteen (13) of the Constitution of Louisiana, or under any acts of the legislature to enforce the said article thirteen of the said constitution, and to regulate the licenses therein mentioned."
Secs. 1 and 2 of this act are as follows:
"SECTION 1. Be it enacted by the Senate and House of Representatives of the state of Louisiana in general assembly convened that all cases brought for the purpose of vindicating, asserting, or maintaining the rights, privileges, and immunities guaranteed to all persons under the provisions of the article thirteen of the Constitution of Louisiana or under the provisions of any acts of the legislature to enforce the said article thirteen and to regulate the licenses therein mentioned, or for the purpose of recovering damages for the violation of said rights, privileges, and immunities, shall be tried by the court, or by a jury if any party to the suit prays for a trial by jury."
"SEC. 2. Be it further enacted &c., that if the jury do not agree, or fail to render a verdict, either for the plaintiff or defendant, the jury shall be discharged and the case shall be immediately submitted to the judge upon the pleadings and evidence already on file, as if the case had been originally tried without the intervention of a jury, and it shall be the duty of the judge to decide the case at once, without any further proceedings, arguments, continuance, or delay, each party having the right to appeal to the supreme court in all cases where an appeal is allowed by law."
Walker, in his answer, denied all the allegations in the petition and prayed for a trial by jury. The cause was thereupon tried by a jury, who failed to agree. This having been entered upon the minutes, Sauvinet, by his counsel, moved that the court proceed to decide the case under the provisions of sec. 2 of the act of 1871. To this Walker objected, alleging for cause that the act was unconstitutional, but without specifying
in what particular. Time was given counsel to file briefs upon the constitutional question, and at a later day, after consideration, a judgment was rendered against Walker for $1,000. That judgment was affirmed upon appeal to the supreme court of the state, whereupon Walker sued out this writ of error.
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