holding a beauty salon’s discrimination of an African American because of her race violated the public accommodation laws; also noting that in reenacting the 1909 public accommodation act, the legislature added an additional subsection expanding the meaning of “public accommodation” to remove judicial limitations placed on the act in this court’s decisions in Goff v. Savage, 122 Wash. 194, 210 P. 374 (1922) (holding that a soda fountain in a drugstore was not a place of public accommodation)
How later courts described this case
- holding a beauty salon’s discrimination of an African American because of her race violated the public accommodation laws; also noting that in reenacting the 1909 public accommodation act, the legislature added an additional subsection expanding the meaning of “public accommodation” to remove judicial limitations placed on the act in this court’s decisions in Goff v. Savage, 122 Wash. 194, 210 P. 374 (1922) (holding that a soda fountain in a drugstore was not a place of public accommodation)
- concluding a salon is a place of public accommodation as defined by the public accommodation law, RCW 9.91.010
- black woman denied use of a reducing salon's services because of her race
- damages for hurt feelings and embarrassment
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Nord v. Shoreline Savings Ass'n, 116 Wash. 2d 477 (1991)
54 Wn.2d 440, 448 , 341 P.2d 859 (1959), overruled in part by Nord v. Shoreline Savs. Ass’n, 116 Wn.2d 477, 484 , 805 P.2d 800
Overruled on other grounds by State v. Delcambre, 116 Wash. 2d 444 (1991)
54 Wn.2d 440, 447 , 341 P. 2d 859 ( 1959), overruled on other grounds by Nord v. Shoreline Say. Ass 'n, 116 Wn.2d 447
The opinion
Mallery, J.
(dissenting) — Because respondent is a ne-gress, the Slenderella Systems of Seattle, a private enterprise, courteously refused to give her a free reducing treatment, as advertised. She thereupon became abusive and brought this civil action for the injury to her feelings caused by the racial discrimination.
This is the first such action in this state. In allowing respondent to maintain her action, the majority opinion *453 has stricken down the constitutional right of all private individuals of every race to choose with whom they will deal and associate in their private affairs.
No sanction for this result can be found in the recent segregation cases in the United States supreme court involving Negro rights in public schools and public busses. These decisions were predicated upon section 1 of the fourteenth amendment to the United States constitution, which reads:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Italics mine.)
In the pre-Warren era, the courts had held that the privileges of Negroes under the fourteenth amendment, supra, were not abridged if they had available to them public services and facilities of equal quality to those enjoyed by white people. The Warren antisegregation rule abandoned that standard and substituted the unsegregated enjoyment of public services and facilities as the sole test of Negro equality before the law in such public institutions.
The rights and privileges of the fourteenth amendment, supra, as treated in the segregation decisions and as understood by everybody, related to public institutions and public utilities for the obvious reason that no person, whether white, black, red, or yellow, has any right whatever to compel another to do business with him in his private affairs.
No public institution or public utility is involved in the instant case. The Slenderella enterprise was not established by law to serve a public purpose. It is hot a public utility with monopoly prerogatives granted to it by franchise in exchange for an unqualified obligation to serve everyone alike. Its employees are not public servants or *454 officers. It deals in private personal services. Its business, like most service trades, is conducted pursuant to informal contracts. The fee is the consideration for the service. It is true the contracts are neither signed, sealed, nor reduced to writing. They are contracts, nevertheless, and, as such, must be voluntarily made and are then, and only then, mutually enforceable. Since either party can refuse to contract, the respondent had no more right to compel service than Slenderella had to compel her to patronize its business.
There is a clear distinction between the nondiscrimination enjoined upon a public employee in the discharge of his official duties, which are prescribed by laws applicable to all, and his unlimited freedom of action in his private affairs. There is no anology between a public housing project operated in the government’s proprietary capacity, wherein Negroes have equal rights, and a private home where there are no public rights whatever and into which even the King cannot enter.
No one is obliged to rent a room in one’s home; but, if one chooses to operate a boarding house therein, it can be done with a clientele selected according to the taste or even the whim of the landlord. This right of discrimination in private businesses is a constitutional one.
The ninth amendment to the United States constitution specifically provides:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
All persons familiar with the rights of English speaking peoples know that their liberty inheres in the scope of the individual’s right to make uncoerced choices. as to what he will think and say; to what religion he will adhere; what occupation he will choose; where, when, how, and for whom he will work, and generally to be free to make his own decisions and choose his courses of action in his private civil affairs. These constitutional rights of law-abiding citizens are the very essence of American *455 liberties, For instance, they far outweigh in importance the fifth amendment to the United States constitution which excuses criminals from giving evidence against themselves. It was, in fact, an afterthought. Our consti-tional forefathers were chiefly concerned with the rights of honest men. They would have specified their rights with the same particularity that they did in regard to criminals if they had foreseen that courts would become unfamiliar with them.
In a Saturday Evening Post article of April 4, 1959, p. 32, entitled “When a Negro Moves Next Door,” a Negro, who had bought a house in the white district of Ashburton in Baltimore, told the assembled neighbors:
“ ‘If you want to protect your home and your way of life . . . continue living in your own home. . . .
“ ‘Don’t think you can escape the problem simply by putting your house up for sale and running away . . . Even if you move far out in the suburbs . . . There will be Negroes living near you.
“ ‘As a matter of fact, ... if this area turns all Negro, I plan to move out to the suburbs with you/ ” (Italics mine.)
If he does make such a move, he will be discriminating against Negroes. This he has a right to do for discrimination is but another word for free choice. Indeed, he would not be free himself if he had no right so to do. In dealings between men, both cannot be free unless each acts voluntarily, otherwise one is subjected to the other’s will.
Cash registers ring for a Negro’s as well as for a white man’s money. Practically all American businesses, excepting a few having social overtones or involving personal services, actively seek Negro patronage for that reason. The few that do not serve Negroes adopt that policy either because their clientele insist upon exclusiveness, or because of the reluctance of employees to render intimate personal service to Negroes. Both the clientele and the business operator have a constitutional right to discriminate in their private affairs upon any conceivable basis. The right to exclusiveness, like the right to privacy, ■ is *456 essential to freedom. No one is legally aggrieved by its exercise.
No sanction for destroying our most precious heritage can be found in the criminal statute cited by the majority opinion. It does not purport to create a civil cause of action. The statute refers to “places of public resort.” (Italics mine.) This phrase is without constitutional or legal significance. It has no magic to convert a private business into a governmental institution. If one man a week comes to a tailor shop, it is a place of public resort, but that does not make it a public utility or public institution, and the tailor still has the right to select his private clientele if he chooses to do so. As a matter of fact, the statute in question is not even valid as a criminal statute. Obviously, this is not the occasion, however, to demonstrate its unconstitutionality.
The majority can find no sanction for violating the constitutional rights of the appellant by citing the conflicting decisions of foreign states for two conclusive reasons. (1) Only this court can declare the law or set a precedent in Washington. (2) Foreign courts are in substantial conflict on so many questions of law that they can neither be harmonized nor followed. Practical uniformity of laws has been attained between the states only by the uniform acts passed by the several legislatures.
The majority opinion violates the thirteenth amendment to the United States constitution. It provides, inter alia:
“Neither slavery nor involuntary servitude . . . shall exist within the United States ...” (Italics mine.)
Negroes should be familiar with this amendment. Since its passage, they have not been compelled to serve any man against their will. When a white woman is compelled against her will to give a negress a Swedish massage, that too is involuntary servitude. Henderson v. Coleman, 150 Fla. 185 , 7 So. (2d) 117 .
Through what an arc the pendulum of Negro rights has swung since the extreme position of the Dred Scott de- *457 cisión! Those rights reached dead center when the thirteenth amendment to the United States constitution abolished the ancient wrong of Negro slavery. This court has now swung to the opposite extreme in its opinion subjecting white people to “involuntary servitude” to Negroes.
I dissent.
Ott, J., concurs with Mallery, J.