# Record and brief — Joseph A. Walker, Plaintiff in Error, vs. Charles S. Sauvinet > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1874_6_0%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1874 ## Text A a ~ wo f é # TRANSCRIPT OF RECORD. oe PE UPA A a 2 JOSEPH A. WALKER, PLAINTIFF IN ERROR, if VS. A CHARLES 8S, SAUVINET. IN ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA. FILED DECEMBER 7, 1872. SUPREME COURT OF THE UNITED STATES. No. 350. JOSEPH A. WALKER, PLAINTIFF IN ERROR, VS. CHARLES 8. SAUVINET. IN ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA. INDEX. PROCEEDINGS HAD IN THE EIGHTH DISTRICT COURT FOR THE PARISH OF ORLEANS, 6 I pctcieceunde ccucntcines dcuses nieces \sadews cadéensensdnoese notion Citation to Landfried ...... 2... 2... --ccnce eons concen snmewe eandvdcsdwie Sheriff's return , Citation to Walker RN ON ia inicinies sa chen dickininiali oleic igs etminiet ahaa timate his feelings, and has sustained damages to the amount of ten thousand dollars. | Wherefore your petitioner prays that said J. A. Walker and Frank Landfried be cited to appear and answer this petition, and after due proceedings that they be condemned severally and in solido to pay to your petitioner the said sum of ten thousand dollars, with costs; and he further prays that judgment be rendered against said J. A. Walker and Frank Landfried, declaring their license from the State and city to keep the said establishment to be forfeited, and the said establishment to be closed. And your petitioner prays for general relief, and asin duty bound. 6 K. FILLEUL, Counsel. Citation.—Issued 26 January, 1871. C. S. SAUVINET US. No. 399. J. A. WALKER & ALS. : Mr. FRANK LANDFRIED, N. O., La.: You are hereby summoned to comply with the demand contained in the petition of which a copy accompanies this citation, or deliver your answer to the same, in the office of the clerk of the eighth district court _. for the parish of Orleans, in ten days after the service hereof. Witness the honorable Henry C. Dibble, judge of the said court, the twenty-sixth day of January, in the year of our Lord eighteen hundred and seventy-one. | SEAL. | (Signed) : ROBERT LYNNE, | Dy Clerk. 7 Sheriffs return on foregoing.—Filed January 27th, 1871. Received, New Orleans, January 26, 1871, and on the same day served a copy with petition, personally on Frank Landfried, at his place of busi- ness, No. 8 Carondelet st., at 4 o’clock and 40 minutes p. m. (Signed) P. CREAGH, Coroner 1st, 4th, 5th, and 6th Districts. Citation.—Issued 26 Jan’y, 1871. State of Louisiana, eighth district court. C. S. SAUVINET U8. No. 399. J. A. WALKER AND ALS. Mr. J. A. WALKER, N. O. La.: You are hereby summoned to comply with the demand contained in aw a atin mm ite marae see Mate ROSIE RL) A RE oe A OR EE Le RS Pwr ARS Pees ewe 2 PONS Rew re JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. | 3 the petition of which a copy accompanies this citation, or deliver your answer to the same in the office of the clerk of the eighth district 8 — for the parish of Orleans, in ten days after the service ereof. Witness the honorable ‘Henry C. Dibble, judge of the said court, the twenty-sixth day of January, in the year of our Lord eighteen hundred and seventy-one. (Signed) 3 ,OBERT LYNNE, 3 Dy Clerk. Sheriff’s return on foregoing.—-Filed January 27th, 1871. Received, New Orleans, January 26th, 1871, and on the same day served a copy, with petition, at the place of business of J. A. Walker, No. 6 Royal st., at-4 o’clock and 30 minutes p. m. (Signed) P. CREAGH, Coroner 1st, 4th, Sth, & 6th Dist’s. Kighth district court for the parish of Orleans. ©. S. SAUVINET ? vs. | No. 399. J. A. WALKER & a5 9 Answer.—Filed 3d Feb’y, 1871. ‘Now comes into court, by his undersigned counsel, Frank Landfried, made defendant in the above-entitled and numbered cause, and, after expressly reserving to himself all exceptions and other legal means of defence, for answer to plaintiff’s petition and demand herein, says: That he denies all and singular the facts and allegations of said plaintiff’s petition and demand herein. Respondent, for further answer herein, says that he denies having any connection with or interest in the coffee-house and establishment known as the “ Bank,” situated at No. six Royal street; that he was formerly in partnership with Joseph Alphonse Walker and a part-owner of said es- tablishment; but that, on the eleventh of February, 1870, said partner- ship was dissolved, and he then sold all and singular his right, 10 and title, and interest in and to the said establishment unto said Joseph Alphonse Walker, and from that moment ceased to have any interest in or connection with said establishment. That plaintiff herein has therefore no right of acting whatsoever against him. Wherefore he prays that plaintiff’s demand be hence dismissed at said plaintiff’s cost, and for judgment in his (respondent’s) favor, with costs, and her further prays for all general and equitable relief in the premises. A. L. TISSOT, Of Counsel. This answer of Frank Landfried filed February 3rd, 1871. (Signed) ROBERT LYNNE, Dy Clerk. Te ee ee ee a eRe RR Te yar ere 12 iv oo oy * 3 JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET. Answer.— Filed 4th Feb’y, 1871. Highth district court. C. S. SAUVINET U8. No. 399. J. A. WALKER AND ALS. Answer of J. A. Walker, Now into this honorable court, by his undersigned attorneys, 11 comes Joseph A. Walker, made defendant herein, and, for answer to plaintiff’s petition, pleads a general denial of all the allega- tions therein contained, and specially denies that he is in any manner indebted to said plaintiff. Wherefore respondent prays for judgment in his favor, with costs, for- a trial by jury, and for all general relief. A. A. ATTOCHA & HORNOR & BENEDICT, Att’ys. Filed February 4th, 1871. | J. D. TAYLOR. Dy Clerk. Motion for subpana duces tecum. Eighth district court. C. S. SAUVINET ) U8. | = o. 399. J. A. WALKER. On motion of E. Filleul, of counsel for plaintiff, it is ordered that sub- peena duces tecum issue to J. A. Walker commanding him to bring into court, on Wednesday, the 1st of March, 1871, the State license 12 and city license, which he is bound by law to take, in order to keep his cofiee-house establishment, to be ‘used in evidence on the trial of this case. (Extract from minutes 27th Feb’y, 1871.) J. D. TAYLOR, Dy Clerk. Subpeena duces tecum.—Issued February 27th, 1871. State of Louisiana, eighth district court for the parish of Orleans. C. S. SAUVINET U8. No. 399. J. A. WALKER. To J. A. WALKER, Esq., New Orleans, La.: You are hereby commanded, in the name of the eighth district court for the parish of Orleans, to bring with you and produce in open court, on Wednesday, the 1st day of March, 1871, at the hour of 10 a. m., to be used in evidence at the trial of the above-entitled case by the plaint- | / | nN Ae seni Pot de ee ; SSE oi ie 4 Y ge et ee ST ee EE ae ee eet eRe = = 5 r PRIS, CA NE OTe eh ha ION pie ee H Fae Ce PCT EN MAE eS Meco iat ge tet, © obeob> JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. 17 by one of them to take a drink, and not expecting for a moment that that simple thing would be refused. It put me, as you might expect, somewhat out of my ordinary state of mind, but, at the same time, I never lost for a single moment the respect that I was owing to myself in my Official capacity. I knew that under the law I was to be pro- tected. I knew that I had, as an officer of the law, to respect the law. Therefore I went out, and I prevented, through my coun- 51 sel, one of the other gentlemen from creating, as I said before, what might have been a fuss in the bar-room, and walked out. Q. Then I understand you to say that you cannot remember the con- - versation betwecn Finuegan and the bar-keeper ? A. Finnegan is here. We both went—three of us together. I was refused a drink. The others asked why, and the same answer was given to them as to me, and the same treatment offered them as was given to me. Q. Dol understand you to say that you cannot remember the con versation between Finnegan and the bar-keeper ? A. I say that I cannot detail it. Q.: How does it happen that you are able to detail so accurately your Own conversation, and cannot remember that of Finnegan with the bar- keeper ? 52 A. Because it is a personal matter between him and me, and I acted as the principal in that. Q. Do you remember the‘conversation your other friend and the bar-keeper ? A. As I said, I could not detail it. Q. Are you a colored man? — (Objected to as irrelevant. Objection overruled, and counsel for plaintiff reserves a point for a bill of exceptions.) A. Well, I will answer directly to your point. Whether I am or not is a matter that I do not know myself. But I am, and was legally, for ‘his reason: That prior to the war, and before the Congress of the United States had passed laws granting and giving citizenship to men born on the soil, whether colored or not, you had always refused me, . though born and raised here, the right to vote and to exercise the rights of citizenship. 53 @. Was it not your habit, before the war, to go into different saloons and bar-rooms and drink as other white men did? A. Yes, sir. Q. These two gentlemen, Finnegan and Conklin, that were with you, are they white men? A. They are said to be. I do not know. Q. To all external appearances they are? A. Yes, sir. Re-examined : | Q. You say that previous to the war, and previous to this new state of things, the passage of the act of Congress and the amendment to the Constitution of the United States, you were denied the rights of suffrage ? A. Yes. Q. On account of your race ? A. Yes, sir. I never enjoyed it. Q. You were denied this right on account of ‘your race ? (Objected to as leading.) 54 Q. You state you were denied this right of voting and exer- REc. 350—2 18 | JOSEPH A. WALKER V8. CHARLES 8. SAUVINET. cising the rights of citizenship because of the fact that you were supposed to be a person of color? A. Yes; most particularly. — Q. Was not such the general reputation in the community that you were a person of color; and was not that the reason that you were ex- cluded trom the right of citizenship and holding office ? A. Yes; and even as late as the late election one of the leading newspapers of the city said that-I was a negro. I can offer that in evi- dence. Cross-examined: Q. You say that before the war you were denied the right of suffrage, &c., on account of your being reputed to be a colored man ? A. Yes. Q. Did you ever apply for that right ? 55 A. I never did. Q. Did you ever become a candidate, or attempt to become a ae for any office before the war ? A. No Q. Did you ever apply for any other rights of citizenship ? A. I never did. Q. When you go among stran gers are yea not received as a white man ? A. [am received as a gentleman. I never enquired whether I was received one way or the other. Q. Has it not been your custom to let it be generally known and understood that you are a white man ? (Objected to as irrelevant. Overruled.) A. I should answer that I am very much astonished that I should be wanted to be proven a white man, when a few peers ago I was called a negro. 56 Q. Answer the question. A. I can only answer this way—no; because everybody knew that it was not. Q. That what was not ? A. Just this: that I was not a white man, because I was refused all the rights inherant to that title; and how can a man be a white man and be refused that ? Q. He might have been a foreigner. _A. Then I am not; because everybody knows that I was born here. Q. Have you never said that both your parents were white persons? A. That both my parents were foreigners. Q. Answer the question. Have you never said that both your parents were white persons? — A. I do not know. Q. You do not know whether you have ever said that both your parents were white persons ? 57 A. I do not know that I have ever said so. I stated, and I state again, that they were both foreigners, born outside of the limits of the United States. Q. Have you not stated that you are as much a white man, and of white blood, as any man in the community ? A. I have so stated. Aint I? Counsel for plaintiff calls for the production by the defendant of his license from the city and State, under the subpoena duces tecum. Be- i | New 19 ing called upon to produce these licenses from the city and State, called for by the subpeena duces tecum, defendant admits that he has a sim- ilar license, as the blank form marked A, together with the endorse- ments printed on the back of this blank license, and also admits 58 that he made application to the city in the form marked B, and also that he has a similar State license to the blank license marked C, together with the endorsements printed on the back. Plaintiff offers in evidence these blank forms above referred to, marked A, B, and C respectively, now filed. W. H. FINNEGAN sworn for plaintiff : Q. Where do you live? A. In New Orleans. : Q. = you acquainted with Mr. Sauvinet, the plaintiff ? A. Yes. Q. Will you state what took place on the 20th of January, when you went to the “ Bank” saloon with Sauvinet ? : A. I had occasion to call on Sauvinet that day, or on or about that day, to see him on some business connected with his office, and 59 this gentleman, Mr. Conklin, with me; also had business in con- nection with an injunction I had in court. I wanted Sauvinet to give it his early attention, and have the process served, and after talking with him a few minutes, we walked up Royal street. I believe Mr. Lynne was in company with us. We went up Royal street as far as Conti. I proposed that we should treat. I felt exhausted. Mr. Lynne excused himself, saying that he was going on business, in the auditor’s office, I believe. He left us there. We proceeded along Royal street till we came to the “ Bank.” I suggested that the best place to get a drink would be in a first-class coffee-house. We. went in. I came to the “Bank” with Conklin and Sauvinet, and after a 60 moment or two I addressed the bar-keeper there. He went to- wards the street window, and did not seem to pay any attention. I motioned to him that we wanted to be served. He shook his head and appeared to be excited. He was rather pale in the face, and looked excited. Conklin again asked him, or told him that we wanted a drink, and he shook his head and said. He did not use any words at the time, but he shook his head and did not seem to make any reply. We again asked, and he again said, “That is all right if you “ *¢ I¢ is all right if you——.” 1Idonot know exactly whether he said that we should have any drink or not; but his motions were such, so indifferent, that he did not seem to want to wait onus. After a moment or two he went around and seemed embarrassed. Sauvinet now 61 suggested that we had better go out. Conklin said to the bar- keeper, ‘“‘ What is the reason you would not serve us?” He said, «“ That is nothing, it is all right,” or something of. that kind, and looked upon it very indifferent, as if he did not care. I insisted upon having an understanding; but Sauvinet said, ‘‘ No, we had better not,” and took me towards the door. Conklin remained behind. In fact, I do not know what Conklin said, but it was that he wanted to have an ex- planation, and wanted to know why we were refused. I did not know the reason at the time, but Sauvinet suggested that we had better go out, and he said, “ 1 know the reason why we were refused.” He did JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET. ‘not say then, I believe, exactly, that he was a colored man, but he was embarrassed, and we all felf much mortified. We then pro- 62 ceeded along up to St. Charles st., and I then did not know or understand the reason we were refused, but Sauvinet said that he 20 JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. knew the reason, and we went on to Carondelet street, and there he said that the reason was that he was reported to be a colored man, and Walker had told him before in some business transaction—— | (Counsel for defendant objects to witness testifying to anything which _Sauvinet said about his conversation to Walker.) Q. Told him what ? A. Before he gave me to understand the cause of the refusal he said -that in some business transaction with Walker he had invited him to his room and said to him, “If you go to my roon, it is all right, but if you go to my bar-room you do me an injury, because persons 63 say you area colored man.” Then the cause struck me at once. I did not know that Sauvinet was a colored man by his appearance. Before we went to Carondelet street, we went to Santini’s, and, not knowing why he was refused, we wanted to know the reason, and then went on to Carondelet street, and at the corner there it was that Sau- vinet gave the reason why he was refused, and he said that he had drank there often at the “ Bank,” but that Walker had said that he would do him a favor by not coming there, because people said he was a colored man, or something of that kind. Q. Had you ever been in that establishment before to drink? A. Yes, sir; several times. Q. They knew you there ? A. I have been several times during the winter, and have often 64 had drinks there. It is considered a first-class house. Q. Do they know you there? A. Probably by appearance. Q. You have drank there several times and never been refused be- fore ? A. No, I was not refused. Q. When Sauvinet, Conklin, and yourself went into the bar-room what was your conduct ? A. We went.in quietly and went directly to the bar—there was a large crowd in there—and we called for drinks. Q. They had liquors there and served them out to others ? A. The young man seemed to come to us, but went by towards the window, and did not seem to pay any attention to us, and on his return I asked for drinks: He was very pale and excited and shook his head. He did not use any language at all but shook his head when Sauvinet asked, “‘ Letus have some drinks,” and “ Why doyou not 65 Serve US,” OF something of that kind, and the bar-keeper said, “Well, it is all right,” and “ It isall right. ” I thought it was just as much as to say that if we insisted upon it we would have trouble. Sauvinet took me by the arm and walked towards the door. Q. a heard Sauvinet ask the bar-keeper for drinks? A. Yes Q. And he shook his head? A. I asked him for drinks and he shook his head to me, and after- wards Sauvinet asked him for drinks, or simply motioned to him, and he shook his head again and said, “ That is all right,” or “‘ That will do.” Then we went to the door, and Conklin remained and said, ‘* What is the reason you refused us drinks?” .I did not hear the reply. Sauvinet was anxious to go, and outside hesaid. ‘I know the reason why 66 he refused us.” Conklin joined us, and we went towards St. Charles street. He did not explain the reason then. We went to Santini’s, and from there we went along Common street. We went in Santini’s ‘first and took drinks. I believe [ paid for them. Sauvinet then took . ad JOSEPH A. WALKER VS. CHARLES S. SAUVINET. 21 out his memorandum- book, and he asked my initials, and also Conklin’s. We then went along to Carondelet street, and he explained the reason, and gave us along history, describing the language in which Walk- er had notified him before, in some business transaction, that he would do him a favor by not coming te his saloon, as he was reported to be a colored man. I sympathised with Sauvinet and his motive, and did not want to exact from Sauvinet whether he was colored. He said “I am well known there, and it is on my account that we were refused.” 67 Q. Santini’s was a first-class coftee-house ? A. Yes. Q. No objection was made there to his ee A. No; the clerk waited on us. : Q. Sauvinet drank there ? A. Yes. Q. Where is Conklin ? A. He resides, I believe, on Polymnia street. I do not know whether he is there now. I have not seen him for a week or ten days. Q. Was the attention of the people in the bar-room attracted to the fact that the bar-keeper had refused you drinks ? A. No, not mach so, because we were quiet, and Sauvinet seemed to be embarrassed, and did not want to have a row. Q. You say that you felt mortified, and Sauvinet seemed to be very much so ? A. —_ he seemed troubled, and seemed to be very much ex- cited. 68 1° What did Sauvinet say when you withdrew from the “ Bank” saloon? . A. Sauvinet took me by the arm and said, “‘ I know the reason,” but he did not say then what was the reason. PATRICK CREAGH sworn for plaintiff. ~Q. ¥ou received the subpcena for Conklin ? A. Yes. Q. State whether you have been able to serve it. A. I served it at the residence where he had been stopping. The name of W. W. McGarritty is on the door, number 34 Polymnia st. About a month ago, when this trial first began, I found Conklin in that house, and I served him personally. This time I went with the subpcena there and I saw a colored woman coming out, and Mr. McGarritty 69 was taking dinner. I do not know whether Conklin was in. I have sent three attachments after him. Q. You have made dilligent enquiry after him ? A. Yes. : Q. And used all dilligence necessary to find him, and have not suc- ceeded ? A. Yes, I have, and I have not succeeded. Avetst DE BLANC sworn for plaintiff. Q. How old are you? A. Sixty, and over. Q. You were born in the States? A. Yes, sir. Q. You have always resided in Louisiana? 22 JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. A. Yes, sir; part of the time in New Orleans, and a part of the time in St. John the Baptist. Q. Were you born in St. John the Baptist ? A. No; in the city of New Orleans. . . Q. You are accquainted with Sauvinet ? A. Yes, sir. 70 Q. For many years, I suppose ? A. Fifteen years, I suppose. Q. What reputation has he as regards color? (Objected to.) (Objection overruled, and the point reserved by counsel for defend- ant for a bill of exception. ) A. Well, sir, he has passed always for a colored man. . He has that general reputation 2 . Yes, Sir. ) V. MoCaRTHEY sworn for plaintiff. . How old are you? . Sixty-one years. . Were you born in this city ? Yes, sir. . Have you always resided here ? . Yes, it has always been my domicile, since I was born; but I have absented myself, and been gone to Europe. Q. Do you know Sauvinet ? A. Yes. 71 Q. How long have you known him? A. More than twenty-five years; since he was a child. 2. — is his general reputation in the community, as regards color A. I never heard anybody say whether he was white or colored. Es a is his reputation in the community; does he pass for a man of color A. I think Sauvinet was very much embarrassed to tell his origin, as a great many other people. Some people might take him as a white man, and others as a colored man. >bOP>OoPOoW poh EDMOND CAMPANEL sworn for plaintiff : Q. Were you born in the city ? A. Yes Q. And reside in New Orleans? A. Yes. Q. How old are you? ' A. Fifty-five years. Q. Do you know Sauvinet? 72 A. Yes. Q. What is his general reputation in the community ? Is he considered a white or colored man ? A. He has the reputation of being a colored man. Q. How long have you known him ? A. Since his childhood. PATRICK CREAGH recalled for plaintiff: Q. Do you know Sauvinet ? A.. A good many years; yes. — --> —— a me eight hundred & seventy. JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. 23 Q. State what reputation he ‘ell in regard to color, whether as a white or colored man ? A. Before the war I thought he was a white man. I never heard be- fore the war that he was a colored man. Q. How long have you heard that he was a colored man ? A. Since the war, but not before that. . @. Was he regarded before the last election as a colored 73 man ? A. Yes. Q. The public papers and everybody knew it ? A. Yes, all regarded him as a colored man before the last election. Q. Before the war you had not heard anything about it ? A. Not anything in regard to his being a man of color. I saw him associating all the time with white men. Q. At the last election, or previous to the election, he was regarded as a colored man ? A. Yes, as a colored man. ‘Q. When Sauvinet was elected sheriff, and nominated, did not all the community know he was a colored man } A. He got nominated as such; that I know. He got nominated as a colored man. All the community regarded him as such, and the con- vention that nominated him regarded him as & colored man. 14 Cross-examined : Q. Who nominated Sauvinet ? A. The republican convention—the parish convention. Q. They, you say, nominated him as a colored man ? A. I think so; yes. Q. Are you able to state whether his seeking to obtain the nomina- tion as a colored man was, or not, a dodge to obtain the nomination ? A. I do not know. Q. You do not know whether that was not a dodge to induce people to vote for him? A. I do not know that—— : Plaintiff closes. Defendant offers no testimony. DOCUMENT “ B.” Coffee-house license in blank. Filed March 17th, 1871. . O. W. TENNISON, D’y Clerk. Mayoralty of New Orleans. Coffee-house and beer-house license, for the year 1870. 75 No. No. street. Mr. having furnished the security required by law, is hereby permitted to retail spirituous liquors until December 31, 1871. He shall conform to all the city ordinances relative to coffee- houses, &c., and shall pay for this license to the city treasurer, in advance. Given at the city-hall of New Orleans, , one thousand - vt ee oe ns Ns Sie ood oA hen hes C ethic ae 24 JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. CiTy OF NEW ORLEANS, Treasurer’s Office, 1870. No. |] Received from , | dollars. The tax on the above license for — 1870. Treasurer. P.R. BR. Controller. DocuMENT “ C.” . State license in blank. Filed March 17th, 1871. 1 | 76 2 O. W. TENNISON, Dy Clerk. Seventy-five dollars license. STATE OF LOUISIANA, Auditor’s office : Having paid seventy-five dollars to the State of Louisiana, 18 hereby licensed to pursue and follow the occupation of for the year ending December 31st, one thousand eight hundred and seventy- one. Auditor. —_— payment this day of . , 1871. 0. Collector. Act 38—approved February 23rd, 1869. SEc. 3. Thai 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 condi- %7 tion that the place of business or public resort shall be open to the accommodation and patronage of all persons, without dis- tinction 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, shall be liable at the suit of the person aggrieved to such damages as he shall sustain thereby, ‘before any court of competent jurisdiction. Sec. 4. That for violation of any of the provisions of the first and second sections of this act, the party injured shall have a right of action to recover any damage, exemplary, as well as actual, which he may sus- tain, before any court of competent jurisdiction. 78 All coffee-houses, bar-rooms, grog-shops, or cabarets, shall be divided into the following classes, and shall pay the licenses affixed respectively thereto, viz: ’ _ THTRD CLASS.—Those whose sales are less than five thousand dollars, seventy-five dollars per annum. All retail groceries selling liquors by the glass shall pay, in addition to the grocery license, the third-class coffee-house license. Each partner of any firm doing business in this State, in any line of . ¢. ee _— . ¢. > ee * . JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. 25 occupation, whether resident or non-resident, active or silent, shall pay a license as herein prescribed. Each and every person having more than one store or other establishment or place of business, or following more than one trade or profession, shall pay the license upon each separately. 79 Submitted minutes, March 17th. Highth district court. . €. 8. SAUVINET U8. No. 399. J. A. WALKER. This case, continued to this day for trial by jury, came on. - Present, E. Filleul & A. B. Field for pl’ff; Hornor, Benedict & At- tocha for defendant. | The roll of the jury empanelled to try this case having been called, and each juror being present, the trial of the case was proceeded with. After hearing further testimony and argument of counsel, the jury re- ceived the charge of the court and retired to deliberate. After deliberation they returned into court, and through their foreman informed the court that they could not agree upon a verdict in this case. 80 Whereupon, in conformity with act No. 23, of the session of the legislature of the year 1871, the court took this case under ad- visement and ordered that, counsel furnish briefs within ten days. - Act No. 23. Filed March 18th, 1871. J. D. TAYLOR, D’y Clerk. An act to regulate the mode of trying cases arising under the provis- ions 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. SECTION I. 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, 81 privileges, and immunities guaranteed to all persons under the pro- visions of the article thirteen of the constitution of Louisiana, or. under the provisions of any acts of the legislature to enforce the said ar- ticle 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. SECTION II. 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; 82 and it shall be the duty of the judge to decide the case at once, without any further proceedings, arguments, countenance, or de- = . Dae eS ee ee a eee > Pee Ee POON RMS ES Biss ey ae Sie he : ‘ 26 JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET. lay; each party having the right to appeal to the supreme court in all cases where an appeal is allowed by law. SECTION III. Be it further enacted, And that this act shall take effect from and after its passage. (Signed) G. W. CARTER, Speaker of the House of Representatives. (Signed) OSCAR J. DUNN, Tieutenant Gov. and President of the Senate. Approved February 27th, 1871. (Signed) H. C. WARMOTH, Governor of the ria of Louisiana. OFFICE OF SECRETARY oF STATE, STATE OF LOUISIANA, New Orleans, March 16th, 1871. This is to certify that the above and foregoing is a true and 83 exact copy from the original act on file in this office, and the in- terlineation in the 2nd line of the 1st section, between the words ‘‘ representatives” and “in,” was made before signing this. Given under my hand and the seal of State this 16th day of March, 1871. GEO. E. BOVEH, Sec’y of State. Bill of exceptions, No. 1, for defendant. —A. Attocha and Hornor & Bene- dict, att’ys. Filed April 4th, 1871. | J. D. TAYLOR, D’y Clerk. Eighth district court. ©. S. SAUVINET vs. No. 399. J. A. WALKER. Be it remembered ‘that, on the trial of this case, in open court, on Thursday, the 16th day of "March, 1871, the counsel for defendant made a challenge to the array ‘of the jury for the reasons fully ex- $4 hibited and set forth in paper marked “ Challenge No. 1,” here- inbefore filed, and submitted the same upon ‘the testimony al- ready taken thereupon and in the record. Whereupon the court overruled said challenge as being unfounded in law, after hearing evidence and argument, and proceeded to empanel the jury. But the court overruled these objections and ordered the evidence to be received, when the counsel for defendant excepted to the said ruling of the court and tendered this bill of exceptions, praying the court to sign the same and make it a part of the record in this case. (S’g’d) HENRY C. DIBBLE, Judge. Bill of exceptions, No. 2, for defendant.—A. A. Attocha and Hornor and Benedict, att’ys. Filed April 4th, 1871. | Bit 85 J. D. TAYLOR, D’y Clerk. ’ .. > Sain. JOSEPH A. WALKER VS. CHARLES S. SAUVINET. 27 Eighth district court, parish of Orleans. C. S. SAUVINET U8. No. 399. J. A. WALKER. Be it remembered that, on the trial of this case, in open court, on Thursday, the 16th day of March, 1871, the names of the jurors having been called, and including one Louis Kenzel, having been placed in the box and been drawn out by the clerk, and a list formed as required by arts. 496 et seq. of the Code of Practice, when said Louis Kenzel was called to the book and presented as a juror to the pl’ff. Whereupon said Kenzel asked to be excused from service as a juror, on the ground that he was exempt as a fireman. To which the counsel of the defend- ant objected on the grounds following: 86 First. That the application to be excused came too late, and “oe should have been made before the name of the juror was put into the box. But the court overruled these objections, and ordered the evidence to be received, when the counsel for defendant excepted to the said ruling of the court, and tendered this bill of exceptions, praying the court to sign the same and make it a part of the record in this case, after due exhibition to counsel for plaintiff. 3, 16-71. (S’g’d) HENRY C. DIBBLE, — EK. FILLEUL. Bill of —— No. 3, for defendant.—A. A. Attocha and Hornor and Benedict, atty’s. Filed April 4th, 1871. J. D. TAYLOR, D’y Clerk. Eighth district court, parish of Orleans. C. S. SAUVINET ) | 7 V8. No. 399. A J. A. WALKER. 87 Be it remembered that, on the trial of this case, in open court, on Thursday, the 16th day of March, 1871, the juror, Joseph Pi. jeux, having been presented, and it appearing ‘that said juror was 2 colored man, counsel for defendant challenged said juror for cause, on the ground that he was interested and prejudiced in this case on ac- count of his color. But the court overruled these objections, and ordered the juror to be received, when the counsel for defendant excepted to the said ruling of the court, and tendered this bill of exceptions, praying the court to sign the same and make it a part of the record in this case, after due exhibition to counsel for plaintiff. (S’g’d) HENRY C. DIBBLE, Judge. $8, 16-71. No objection. EK. FILLEUL. 28 JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. 88 Bill of exceptions, No. 5, for defendant.—A. A. Attocha and Hor: nor and Benedict, att’ys. Filed April 4th, 1871. | J. D. TAYLOR, D’y Clerk. Eighth district court, parish of Orleans. C. S. SAUVINET V8. No. 399. J. A. WALKER. Be it rerhembered that, on the trial of this case, in open court, on Thursday, the 16th day of March, 1871, the juror, Edward Vorster, hav- ing been presented to and accepted by both parties, refused to be sworn — as a juror, and stated that he was an atheist, that he neither believed in any Supreme Being, or in a state of future rewards and punishments when counsel for defendant objected to him as a juror, on the ground that he was incompetent, for the reasons as above stated by said 89 juror. But the court overruled the objection, and ordered the clerk to administer the usual affirmation, omitting the words * So help me God,” which was accordingly done, and the juror took his seat in the jury-box, when the counsel for defendant excepted to the said ruling of the court, and tendered this bill of exceptions, praying the court to sign the same and make it a part of the record in this case, after due exh | to counsel for plaintiff. 3, 16-71. HENRY C. DIBBLE, Judge. No objection. EK. FILLEUL. Bill of exceptions, No. 6, for defendant.—A. A. Attocha and Hornor and Benedict, att’ys. Filed April 4th, 1871. J. D. TAYLOR, D’y Clerk. Kighth district court, parish of Orleans. ©. S. SAUVINET VS. No. $99. J. A. WALKER. 90 Be it remembered that, on the trial of this case, in open court, on Thursday, the 16th day of March, 1871, the counsel for plain- tiff offered to prove, by C.S. Sauvinet, the plaintiff, then on the witness stand, a conversation which took place some days previous to the oc- currence complained of in pl’ff’s petition, to which the counsel of de- fendant objected, on the grounds following: First. That the same was irrelevant, and notin any manner con- nected with the subject-matter of this suit. Second. That there were no proper allegations in the pl’fi’s petition to warrant the introduction of such testimony. But the court overruled these objections, and ordered the evidence to be received, when the counsel for the defendant excepted to the 91 said ruling of the court, and tendered this bill of exceptions, praying the court to sign the same and make ita part of the record in this case, after due exhibition to plaintiff’s counsel. , 3, 16-71. HENRY C. DIBBLE, Judge. No objection. FILLEUL. valle Siete 1 i ait RUNES ai A ar alae ign ea JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET. 29 Bill of exceptions, No. 7, for def’t.—A. A. Attocha and Hornor and Bene- dict, att’ys. Filed April 4th, 1871. | J. D. TAYLOR, D’y Clerk. Kighth district court, parish of Orleans. C. S. SAUVINET V8. No. 399. J. A. WALKER. Be it remembered that, on the trial of this case, in-open court, on Thursday, the 16th day of March, 1871, the counsel for plafntiff offered in evidence a blank city license, and offered to prove by the pl’ff, then a witness on the stand, that it was such a license as all coffee- 92 house keepers in the city were obliged to have; to which the counsel for defendant objected, on the grounds following: First. That it was irrelevant, the question not being before the court as to all coffee-houses, but only to that of def’t, and therefore— Second. That it was not the best evidence. But the court overruled the objections, and ordered the evidence to be received; when the counsel for defendant excepted to the said ruling of the court, and tendered this bill of exceptions, praying the court to sign the same and make it a part of the record in this case, after due exhibition to plaintifi’s counsel. 3, 16-71. “HENRY C. DIBBLE, Judge. EK. FILLEUL, Atéy. 93 Bill of exceptions, No. 8, for def’t.—A. A. Attocha and Hornor and Benedict, att’ys. : Filed April 4th, 1871. | J. D. TAYLOR, Dy Clerk. Eighth district court, parish of Orleans. ©. S. SAUVINET V8. ts o. 399. J. A. WALKER. Be it remembered that, on the tria! of this case, in open court, on Friday, the 17th day of March, 1871, the court, in its charge to the jury, instructed them * that they were the judges whether laws are to apply to facts, and had no power to determine what the law is;” and further, that Act No. 38, of 1869, was constitutional and binding; to which the counsel of defendant objected on the grounds following : First. That said charges were incorrect and illegal. Second. That the constitutionality of said act was a fact 94 directly put at issue before the jury, which was for them to deter- mine. Third. That the court should have charged the jury that they were absolutely judges of the law, as well as of the fact. But the court overruled these objections, when the counsel for defend- . 30 JOSEPH A. WALKER V8. CHARLES 8. SAUVINET. ant excepted to the said ruling of the court, and tendered this bill of exceptions, praying the court to sign the same and make ita part of the record in this case, after due exhibition to counsel for plaintiff. 3, 20-71. HENRY C. DIBBLE, Judge. E. FILLEUL, Att'y. Bill of exceptions, No. 9, for def’t.—A. A. Attochaand Hornor and Bene- 3 dict, att’ys. Filed April 4th, 1871. J. D. TAYLOR, Dy Clerk. 95 Eighth district court, parish of Orleans. C. S. SAUVINET 8. No. 399. J. A. WALKER. Be it remembered, that on the trial of this case in open court, on Friday, the 17th day of March, 1871, the counsel for defendant asked the court to charge the jury that “ under the allegations of the petition. the jury must find that plaintiff is a man of color or he cannot recover ;” which charge the court declined to give, on the grounds following : First. That it was a sataaceaash of fact, and should be left to the jury, without instructions. When the counsel for defendant excepted to the said ruling of the court, and tendered this bill of exceptions, praying the court to sign the same and make it a part of the record in this case, after due exhibi- tion to counsel for plaintiff.. 3, 20-71. E. FILLEUL, Af?tys. 96 | Reasons for judgment. Filed April 27th, 1871. HENRY ©. DIBBLE, Judge. J. D. TAYLOR, Dy Clerk. Kighth district court. C. S. SAUVINET U8. No. 399. Jd. A. WALKER. This suit for damages was instituted by the plaintiff for the purpose of vindicating his civil rights guaranteed by Article 13 of the consti- tution, and sanctioned by the law approved February 23rd, 1869, enti- tled “An act to enforce the thirteenth articlé of the constitution of this 7 and to regulate the licenses mentioned in said thirteenth article. The defendant in his answer prayed for a trial by jury. A special jury was empaneled, and on the seventeenth of March, 1871, the case was submitted to them. They failed to agree and were : discharged. JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. 31 97 Thereupon the plaintiff’s counsel moved that the court should at once proceed to decide the case in compliance with section two of an act approved February 27th, 1871, entitled “An act to regu- late the mode of trying cases arising ‘under the provisions of article thirteen of the constitution of Louisiana, or under any acts of the leg- islature, to enforce the said article thirteen of the constitution, and to regulate the licenses therein mentioned.” To this motion the defendant’s counsel objected, saying that the law is unconstitutional. The fact of the mistrial was ordered to be entered upon the miuutes. The case was taken under advisement, and time was gtanted for the attorneys to file briefs upon the question of the validity of the last- named act. That act provides that all cases brought for the purpose of vin- 98 dicating, asserting, or maintaining the rights, privileges, and im- munities guaranteed to all persons under the provisions of the article thirteen, or of acts to enforce the same, shall be tried by the court, or a jury, if any party to the suit prays for a jury trial. It then provides that the court shall determine the cause in case of mistrial, as aforesaid. Several objections are urged to the vakdity of this statute, which must now be passed upon: 1st. It is insisted that its provisions should have no application to this case, because it was not promulgated until the seventeenth of March, the day after the trial commenced ; that quo ad this suit it is retroactive and violates Article 110 of the constitution. But the law was approved February 27th, and was to take effect from its passage It was a law on that date, though not promulgated. 99 2 An., 68; 13 An., 502; 14 An., 486. It was, therefore, not retroactive as regards this case, for when the _ occurred the statute was in full force. It relates alone to the tria 2. It is urged that at the time the present constitution was framed the right of trial by jury in such cases was not denied, and that such right is, therefore, expressly reserved by the terms of article fourteen, which declares that *“ the rights enumerated in this title shall not be coustrued to limit or abridge other rights of the people not herein expressed.” If it were a fact that a constitutional right of trial by jury in civil cases existed at the time of the adoption of the constitution of 1868, it would be necessary to examine the scope of this article foyrteen of the bill of rights; but’ such is not the case. It has been settied by 100 numerous decisions that the right of jury trial in civil cases, guaranteed by the seventh amendment to the Constitution of the United States, only has reference to proceedings in the Federal courts, and has no application to the State tribunals; 5 M., 436. Indeed, it is not now urged that the law violates the Constitution of the United States in that respect. The several constitutions of Louisiana have guaranteed theright of jury trial in criminal prosecutions, but have lett to the legislature the power of determining in what civil cases such trials shall be had. 1 An., 418; 3 An., 197; 3 R., 123. The whole judicial frame-work is based upon such denial, for the Supreme Court is empowered to review questions of fact which have been decided by juries, contrary to the commeon- law doctrine. The present constitution expressly denies the right of 82 § JOSEPH A. WALKER VS. CHARLES 8. SAUVINET. 101 jury trial in all cases which may come before the parish court, article eighty-seven. Therefore, as the right of jury trial in such a case as this, prior to the adoption of the constitution, depended upon legis- lative will, it does not seem that article fourteen is violated. 3, Counsel insist that the first section of this statute guarantees the right of jury trial; that there has been no trial, but a mistrial, and therefore the second section, directing the court to decide the case when the jury does not agree, is destroyed. The several provisions of statutes are construed together. 4. And finally it is said that this act is mischievous in its tendency, and subversive of the republican form of government. If the law is not unconstitutional the courts have nothing to do with its tendency; it — may be a good or a bad law; the judges who administer it are not responsible. 102. The act does not violate any provision of the Constitution of the United States, or of our own State. Itis true that it is an infringement of the right of a person who has been sued to have his case determined by his peers, but it does not seem at all clear that any wrong has been committed. The ultimate power, in this State, of de- ciding all questions of fact and law in civil cases, is not with the jury, but with the judges. Litigation must not continue forever. The law was evidently formed for the purpose of ending these suits-which could not otherwise be concluded. Juries could not be obtained who would agree one way or the other. Therefore, there seems to be considerable strength in the argument of plaintiff’s counsel, who argues that the legislature was bound to pass some such law to meet the exigency. 103 Article ten of the constitution declares that the courts shall remain open, and every person, for injury done him, &c., shall have adequate remedy by due process of law, and justice administered without denial or unreasonable delay. The remedies which existed before this act was passed only afforded to the person who sought to maintain the rights guaranteed to him by article thirteen the prospect of an interminable suit; afforded means to plaintiff and defendant of preventing the cause from going before the judges who have the final authority to decide. Such remedies did not meet the requirements of the bill of rights. They were not adequate, did not afford the means for the administration of justice without un- reasonable delay. I proceed, then, to consider the case upon its 104 merits. Article thirteen of the constitution is as follows: ‘¢‘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 mu- nicipal authority, shall be deemed places of a public character, and shall be opened to the accommodation and patronage of all persons, without distinction or discrimination on account of race or color.” The statute of 1869, aforesaid, which was passed for the purpose of enforcing this article, provides that common carriers shall have the right to refuse to admit persons who are of infamous character, or who may be guilty of vulgar or disorderly conduct, or ‘of acts tending to in- jure the business of such carrier, provided that the rules and reg- 105 ulations of such carriers shall not exclude any one on account of race or color. Otherwise, common carriers are forbidden to expel any one from, or refuse to admit any one to, their conveyance. The same rule is applied to public inns, hotels, and all places of public resort. The law further provides that all licenses granted by State, 5 ee PU IO a GD ay CL a Ret Set NG RSNA NRE A tis hls Si i Ni RRA atte Se eneneneemen * JOSEPH A. WALKER VS. CHARLES S. SAUVINET. 33 parish, or municipal authority to persons engaged in the business of keepin g places of public resort shall contain an express condition that the place of business or public resort shall be open to the accommoda- tion of all persons, without distinction or discrimination on account of race or color. Any violation of these conditions renders the license liable to forfeiture, and the person aggrieved is authorized to sue for damages exemplary as well as actual. The plaintiff, who is the sheriff of this parish, alleges that the 106 defendant, who keeps a coffee-house on Royal street, refused to supply him with refreshments because lie is a colored man; that he, defendant, offered this indignity to him for no other reason. He therefore claims exemplary damages in the sum of ten thousand dollars. , Another person was joined as defendant with Walker, but the suit was discontinued as to him. The petition also prayed for the forfeiture of defendant’s tice: but that demand was abandoned on trial. The answer is a general denial. The evidence taken before the jury would. hardly have been offered to the court liad there been no jury. The arguments were effectively made to men disposed to disagree, and were certainly not intended for the court. 2 Fi The facts proved are these: The plaintiff is reputed to be, and ~ 107 ~=is, acolored man. He entered the coftee-house of defendant in. | company with two other men, white men, and was refused a drink * because he is reputed to be, and is, a colored man. While disputing the facts before the jury, the defendant’s counsel argued that the article thirteen and the statute of 1869 aforesaid shuuld be held void, as con- oe travening the fourth and ninth amendments to the Constitution of the \ United States. In the charge to the jury they were instructed that it | was not their province to declare constitutions and laws null, and they were charged that there is no conflict between the provisions of the National Constitution and our own. ‘This charge was correct. The fourth amendment to the Constitution, declaring the right of the people 4 to be secure in their persons, houses, papers, and effects against 108 unreasonable searches and seizures, was intended to prevent domi- ciliary visits and arbitrary arrests upon general warrants. (Story, sec. 1902.) The fourteenth amendment, declaring that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people, rightly declares a rule of con- struction. (Story, section 1905.) The thirteenth article of the consti- | tution of Louisiana, and the act to enforce the same, in no way conflict | | with these provisions of the Constitution of the nation. They are in % ! full consonance, however, with th® thirteenth, fourteenth, and fifteenth | amendments to the pational Constitution, abolishin g slavery and extend- ing to men of African descent, whether they have been slaves or not, the rights of citizenship in the republic, and in the States in which i : they reside. ty | I do not desire to discuss, and it is not my duty to consider, 109 the wisdom of the constitutional and statutory provisions under 1 “p: which the plaintiff brought this action. It is enongh that I have sworn to obey them. Every citizen has the right to ask from courts * that he be protected in the immunities and privileges guaranteed by | the Constitution. In this case, the plaintiff shows an infringement of such civil rights. His citizenship has been degraded. He should have exemplary dam- ages. Such an amount should be estimated as would sanctify the princi- REc. 350—3 ‘ 34 JOSEPH A. WALKER VS. CHARLES &. SAUVINET. ple involved, and deter others from inflicting the same injury. I think that one thousand will be sufficient. It is, therefore, ordered, adjudged, and decreed that the plaintiff, C. S. Sauvinet, do have and recover from the defendant, J. A. Walker, the sum and amount of one thousand dollars as exemplary damages, and all costs of suit. 110 Judgment. In this case, submitted to the court for determination, after delibera- tion, and for the reasons assigned in the written opinion this day deliv- ered and filed, the court considering the law and the evidence to be in favor of the plaintiff ; It is ordered, adjudged, and decreed that the plaintiff, C. S. Sauvinet, do have and recover from the defendant, J. A. Walker, the sum and amount of one thousand dollars as exemplary damages, and all costs of suit. Four (4) words erased approved before signing. Judgment rendered April 27th, 1871. May Sth, 1871. 7 (Signed) HENRY C. DIBBLE, Judge. Rule for new trial. Filed May Ist, 1871. J. D. TAYLOR, Dy Clerk. 111 Eighth district court. C. S. SAUVINET ) vs. No. 399. J. A. WALKER. \ On motion of Hornor and Benedict and A. A. Attocha, of counsel for defendant, it is ordered that the plaintiff show cause on the 17th day of May, 1871, at 10 o’clock a. m., why a new trial should not be granted in this case on the exceptions taken at the trial and of the record, and on the following grounds: ist. That the act under which this action is brought is null and. void by reason of its being violative of the Constitution of the United States, and of the State of. Louisiana. 2nd. That the plaintiff failed to ngake out his case, in not proving that he was a colored man; that he had been refused entertainment because he was a colored man, or that. he suffered any actual dam- age, 112 “3rd. That the judge erred in not taking upon himself to decide the case after the jury had failed to render a verdict, the act of , 1871, under which he undertakes to do so, being contra- dictory and inoperative, and not reconcilable with itself, or the laws in reference to a trial by jury. 4th. That the defendant was entitled to a rehearing before a jury. 5th. That this cause is one arising under a penal statute, which cre- ates an offence and provides a punishment, and, therefore, under the constitution of the State, the defendant has a right of trial by jury, of which he cannot be deprived by act ef the legislature. H i 1 f if JOSEPH A. WALKER VS. CHARLES § SAUVINET. 35 6th. That by the fourteenth amendment of the Constitution of the United States certain inalienable rights are guaranteed to the de- 113 = fendant which the laws of the State cannot deprive him of, among which is the trial by jury. tth. That the judgment of the judge is contrary to law and evidence. Sth. That the damages awarded are excessive, and in all dispropor- tion to the circumstances of the case or the condition of the defend- ant. Rule for new trial. Filed May 3rd, 1871. ) : ROBERT LYNNE, Dy Clerk. State of Louisiana, eighth district court for the parish of Orleans. MonDaAY, the 1st day of May, 1871. Present: The Honorable Henry C. Dibble, judge. C. S. SAUVINET U8. No. 399. J. A. WALKER. On motion of Hornor and Benedict, and A. A. Attocha, of counsel for defendant, it is ordered that the plaintiff show cause on the 7th 114 day of May, 1871, at 10 a. m., why a new trial should not be granted in this case on the exceptions taken at the trial and of record, and on the grounds herein filed in this office. A true extract from the minutes. é J. D. TAYLOR, Dy Clerk, Sheriff’s return. teceived May Ist, 1871, at 7 o’clock p. m., and service accepted. (Signed) 7 F. M. SICARD, Dy Sheriff. Rule discharged.— Minutes, May 8th, 1871. . tighth district court. C..S. SAUVINET vs. (So. 399. J. A. WALKER. The rule for a new trial in this case came on. Present. Hornor and Benedict for pl’ff in rule; E. Filleul for pl'ff in suit and def’t in rule. After hearing pleadings, evidence, and counsel, the court con- 115 sidering the law and the evidence to be in favor of def’t in rule, it is ordered that said rule be discharged and a new trial re- fused. ATR iN tt sp NLS ERE i A Raa CN act” Nc PM TRE CR Rt Bae ten STO oS | | 36 JOSEPH A. WALKER VS CHARLES &. SAUVINET. : , Motion and order of appeal. Filed May 17th, 1871. J. D. TAYLOR, Dy Clerk. Eighth district court. C. S. SAUVINET US. No. 39%. J. A. WALKER. On motion of Hornor and Benedict, and A. A..Attocha, att’ys of de- fendant, and on suggesting to the court that defendant is informed and believes that there is error to his prejudice in the final judgment of the court herein rendered, and that he desires to take a suspensive appeal therefrom, It is ordered by the court, that defendant be allowed asuspensive ap- | peal, herein, returnable to the supreme court of Louisiana on the 116 ‘first Monday of November, 1$71, upon his giving bond with good and solvent security in the sum of eighteen hundred dollars, con- ditioned as the law directs. Bond of appeal. Filed May 17th, 1571. J. D. TAYLOR, Dy Cler?. Eighth Cistrict court. ) oo 390. C. S. — * xo, J. A. Waraee. \ Know all men by these presents, that we, Joseph A. Walker, as princi- pal, and Charles Cavanac, W’m B. Schmidt, W’m Solomon, Hugh Mc- Closkey, and Jno. H. Rareshide, in solido as sureties, are held and firmly bound unto Thomas Lynne, clerk of the eighth district court for the parish of Orleans, his successors, executors, administrators, and assigns, in the sum of eighteen hundred dollars; for the payment whereof, © 117 we bind ourselv es, our heirs, executors, and administrators, firmly by these presents, sealed with our seal and dated in the “§ city of New Orleans, on the16th day of May, in the year of our Lord one thousand eight hundred and seventy-one. a Whereas the above-mentioned Joseph A. Walker has on this day ‘ filed a motion of appeal from a final judgment rendered against him in the suit of C. S. Sauvinet vs. J. A. Walker et als., No. 399, in the eighth district court for the parish of Orleans, on the 27th day of April, 1871, and signed on the Sth day of May, 1871: f Now, the condition of the above obligation is such, that the above © | bound Joseph A. Walker shall prosecute his appeal, and shall satisfy whatever judgment may be rendered against him, or that the 118 same shall be satisfied by the proceeds of the sale of his estate, te a " z, _ _ " p z JOSEPH A. WALKER VS. CHARLES 8. SAUVINET.. 37 real or personal, if he be cast in the appeal; otherwise, that the said sureties shall be liable in his place. J. A. WALKER, [SEAL. | CHARLES CAVANAGC, [SEAL.| W. B. SCHMIDT. WM SOLOMON. HUGH McCLOSKEY. J. H. RARESHIDE. Signed, sealed, and delivered in the presence of— Clerk’s certificate. I, Thomas Lynne, clerk of the eighth district court for the parish of Orleans, and as such duly commissioned and sworn, do hereby certify that the foregoing one hundred and twenty-five pages contain a true and correct transcript of all the proceedings had, all the docu- 119 + ments filed, as well as all the testimony and evidence adduced upon the trial of the cause wherein C. S. Sauvinet is plaintiff and J. A. Walker and F. Landfried are defendants, the same being numbered three hundred and ninety-nine on the docket of the eighth district court for the parish of Orleans. In testimony whereof I have hereunto set my hand and affixed the impress of the seal of the said court in the city of New Orleans, this thirty-first day of August, in the year of our Lord one thousand eight hundred and seventy-one, and the ninety-sixth year of the Independ- ence of the United States. [SEAL.| (Signed) THOMAS LYNNE, Clerk. 120 Supreme court of the State of Louisiana. Answer to appeal.— Filed Nov. 6, 1871: | State of Louisiana, supreme court. C. 8S. ongihiene : vs. No. 39513. J. A. WALKER. \ The appellee, answering this appeal, thinks that he has sustained wrong by the judgment of the district court, in this, to wit, that the dam- ages allowed him are insufficient and inadequate. That the whole amount of the damages claimed by him, to wit, ten thousand dollars, should have been allowed. He therefore prays that the judgment of the district court be amend- ed, and that ten thousand dollars be allowed him. 121 © This case was called for trial, and having listened ‘to argument from E. Filleul, esq., of counsel for the plaintiff & appellee, and Joseph P. Hornor, esq. . of counsel for the defendant, appellant herein, the court took the same under advisement upon the brief for appellee and the papers now on file, and the brief to be filed on behalf of appellant by counsel within ten days from this date. Opinion. Filed March 11, 1872. (Signed) M. P. JULIAN, Dep’y Clerk. 123 Supreme court. C. S. SAUVINET ) VS. No. 3013. J. A. ee Appeal from the eighth district court for the parish of Orleans. Mr. Justice TALIAFERRO: This is an action brought under the 4th section of the act of the legislature, approved 24th of February, 1869, entitled “An act to pro- vide for carrying into effect the one hundred and thir ty-second article of the constitution of the State.” The plaintiff alleges that on the 20th of January, 1871, in company with two of his friends, he called at the coffee-house of the defendant, and asked of the person in attendance to be furnished with refresh- ments, kept and sold there by the defendant, a duly licensed coffee- i 2 house keeper. That he offered to pay the usual and customary 3 124 price of such refreshments, and conducted himself in an orderly | and respectful manner. That notwithstanding, the accommoda- Pee tions asked for were refused, and that he was ordered to leave the ‘or. house. That this refusal and ill-treatment arose from no other cause or reason than that the petitioner is a man of color, and on that account not to be furnished with the accommodations extended in that estab- lishment to others. The plaintiff avers that from the indignity so wantonly offered to him his feelings have’ been greatly outraged, and JOSEPH A. WALKER VS. CHARLES &. SAUVINET. 39 for this illegal and unwarranted act of the defendant the plaintiff prays damages in the sum of ten thousand dollars. The answer is a general denial. The case was tried before a jury, but there wasadisagreementand no verdict rendered. Thecourt there- 125 upon, under the provisions of act No. 23 of the statutes of 1871, rendered a judgment for one thousand dollars in favor of the plaintiff, and the defendant appealed. There are numerous bills of ex- ceptions found in the record, but their examination is not important in determining this case. Six of them relate to the formation of and the judge’s charge to the jury; the other two relate to the admission of tes- timony, and : are not important. There was no evidence introduced on the part of the defendant. All the material allegations of the plaintiff we consider are fully es- tablished. The plaintiff is shewn to be a man of character and respect- ability: that he has frequently held public office, and that he is now, and was at the time he was refused refreshments in the defendant’s 126 _—coffee-house or saloon, civil sheriff of the parish of Orleans. It is clear that the refusal of the accommodations asked for was made solely on the ground that the plaintiff is a manof color. The de- fendant has, therefore, incured the penalty of the act of 1869. We think the judgment of the lower court correct. Itis therefore ordered, adjudged, and decreed that the judgment of the district court be affirmed, with costs. vs. WALKER. SAUVINET WYLY, J., dissenting: | I think the plaintiff had the right to be served at the bar-room of the defendant; but I do not think the refusal ought to entitle him, a colored man, to greater damages than a white man ought to recover; it being no greater wrong to refuse a colored man than a white man. 127 The question of color has nothing to do with the case; nor is : tLe position of the plaintiff of any consequence. A citizen of the State has been refused entertainment at a public re- sort, and he claims exemplary damages under a statute highly penal in its character. _ The jury could not agree upon a verdict, and under a special statute the district judge was authorized to dispose of the case. He imposed on the defendant $1,000.00 exemplary damages, no actual damages being shown. I think the penalty wholly disproportionate to the offence. If instead of refusing the plaintiff a drink merely, the defendant had seized a chair and beaten him half to death with it, the damages would _ probably not have exceeded $250.00; yet is the right to enjoy 128 the entertainment of a drinking-saloon of greater moment or more sacred than the right of personal security from violence ? Grave offenders are rarely condemned to pay a larger penalty than $1,000.00, as the law is now administered; and yet, without any evidence of the ability of thé defendant to pay the penalty, he is condemned to pay one thousand dollars for merely refusing to sell a drink, not probably worth twenty-five cents, and where no actual damage has resulted from the refusal. As the statute is highly penal, as there is no proof of the circumstances _ of the defendant, and as the damages imposed by the district judge are nla tat Uh MO i eee — oe ‘ 40 JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET. - Im my ‘opinion unreasonable and oppressive, I believe justice requires that this case should be remanded for new trial by a jury. To vindicate Mr. Sauvinet’s civil rights it is not necessary to despoil the defendant or to impose on him a greater penalty than he can bear, the object of: the law being to correct the abuse, not to bestow wealth upon the party injured or to destroy the offender. For these reasons I deem it my duty to dissent in this case. | PAUNIRET ) v8. Dissenting opinion. WALKER. \ HOWE, J.: The provision of the Constitution and the statute under which this suit was brought should be enforced so long as they are the law of this State. . We cannot treat them as dead-letters, and the plaintiff has, there fore, a cause of action. But after hearing the dissenting opinion of Mr. Justice Wyly, I am inclined to agree with him that the damages are excessive. 130 | Decree. —LEutract from the minutes. MONDAY, January 29th, 1872. The court was duly opened pursuant to adjournment. Present, their honors, John T. Ludeling, chief justice, and James G. Taliaferro, Rufus K. Howell, W. G. Wyly, William W. Howe, associate justices. His honor Justice Taliaferro pronounced the judgment and decree of the court in the following cases: C..S. SAUVINET No. 3913. v8. J. A. WALKER ET AL. On appeal from the 8th district court for the parish of Orleans. : It is ordered, adjudged, and decreed that the judgment of the district court be affirmed with costs. 131 (Mr. Justice Wyly, dissenting. read a Separate opinion herein. His honor Justice Howe, concurring with Mr. Justice Wyly, filed a dissenting opinion in this case.) Petition for a rehearing.—Filed February 16, 1872. Supreme court. C. S. SAUVINET, APPELLEE, | v8. ' & No. 3513. JOSEPH A. WALKER, APPELLANT. We most respectfully ask for a hearing in this case upon the follow- ing grounds, viz: 1st. That your honors have failed to take any notice of our objections to the unconstitutionality and illegality of act No. 23 of the statutes of 1871, under the provisions of which this case was decided by the lower court, after the jury had disagreed. This point was urged with great earnestness by us, both before the district judge and your honors JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET. 41 132 and theformer occupied the larger part of his quite lengthy reasons for judgment in disposing of it, and we trust that this court will not leave it without passing upon it. 2d. That the decision of this court upon the amonnt of damages to be inflicted upon the defendant as a punishment, is, in itself, a cer- tain indication that such a law conferring upon a single judge unlimited power to punish is contrary to the principles of a republican form of government; and that the only safe measure of damages in such cases is that assessed by a jury, which doctrine has always heretofore been held by this court. See cases cited in our original brief. In this connection we would also call attention to the fact that the ease of Larrien vs. Dumonteil was submitted for decision wjth this case, and remains undecided by your honors. The facts are precisely the 133 sameas in the case at bar, and the Jury in that case found a verdict for the defendant. 3d. That the damages allowed by the decree are excesive. Upon this point we can add nothing to the very strong arguments used by Mr. Justice Wyly in his dissenting opinion. Wherefore defendant and appellant prays that a rehearing may be granted him. Alt of which is respectfully submitted. A. A. ATTOCHA, HORNOR & BENEDICT, | Of Counsel. New Orleans, February 8th, 1872. Opinion.—( Rehearing refused.)—-Filed March 11, 1872. Supreme court. C. S. SAUVINET | vs. No. 3513. J. A. WALKER. 134. Mr. Justice TALIAFERRO : In the application for a rehearing in this case, the question as to the constitutionality of the act of the legislature under which the judgment against the defendant was rendered is pressed upon the con- sideration of the court. We are not aware of the existence of any con- stitutional provision-making it imperative upon the legislature to accord a trial by jury in all civil cases. It was competent for the law-making power to provide that cases like the one before us should be tried with- out the intervention of a jury. Therefore it had the right to prescribe, as it did in this class of cases, that issues of the sort here presented should be tried by a jury if any party to the suit pray for a jury, and to provide, in the event the jury do not agree, or fail to render a verdict either for the plaintiff or defendant, that the case be determined 135 _—srby the judge. No facts appear on therecord shewing that the damages awarded are excessive. The application for a rehearing is refused. ii ai OS Ly ete hPa is 2 sry = “ — She 2d ee ee ‘ he gittine & oF ae Bra se AOR esha may 4 + ee TO ee we Sp ee OeL SL 4 oe r ieee io ee LA Se, oe ee ee Ce a on ett ee Se oh 2 a see ott eye Meee err ro | a ree or w NS tn ree “it tet Ss Peg ig Sees hie ott Py Pr ee AT eS SE i oi anes Teo SP i eer aN mem aa tt Stan? led ee a xe tev! a : og SB ot ere Dee. Ce. ath aap eee othe NEES SR as te SES “ ca RETIRES re we . - - he ‘JOSEPH A. WALKER VS. CHARLES 8S. SAUVINET. Decree.—Extract from the minutes. MONDAY, March 11, 1872. The court was duly opened, pursuant to adjournment. Present, their honors John T. Ludeling, chief justice, and James G. Taliaferro, Rufus K. Howell, W. G. Wyly, William W. Howe, associate justices. His honor Judge Taliaferro pronounced the judgment and decree ot the court in the following case. . vs. J. A. WALKER ET AL. C. S. SAUVINET » No. The application for a rehearing is refused. 136 Petition for writ of error.—Filed March 1°, 1872. Supreme court of Louisiana. JOSEPH A. WALKER, PL’FF IN ERROR, vs. No. 3513. CHARLES S. SAUVINET, DEF’T IN ERROR. To the hon. chief justice and associate justices of the supreme court of Louisiana: The petition of Joseph A. Walker, defendant in a cause wherein Charles S. Sauvinet is plaintiff, with respect represents to your honors : That he is aggrieved by the final judgment in the supreme court of Louisiana, over which your honors preside, (said court being the high- est of record in this State,) herein rendered against your petitioner and in favor of said Charles 8S. Sauvinet ; that in said suit were drawn in question, as appears on the face of the record thereof, certain 137 ~=—srights, privileges, and immunities claimed by petitioner under the Constitution of the United States, and especially under sec- tion four of article four thereof, and under article seven and section one of article fourteen in the amendments thereto. That said rights and privileges have been adjudicated upon adversely to petitioner, who is advised and informed that there is error in said adjudication, by which he conceives himself aggrieved and injured ; that he wishes to have said proceedings re-examined, and said final de- cree corrected by the Supreme Court of the United States. Wherefore petitioner prays that this hon. court will grant him a “writ of error,” returnable to the Supreme Court of the United States in due course of proceedings, the same to operate as a supersedeas; that the amount of bond to be furnished be fixed; that citation 138. inerror be signed and issued, and for general reliet. _And as in duty bound, &c. (Signed) HORNOR & BENEDICT, : and A. A. ATTOCHA, 2, 17-72. Attys for PU ff in Error. ey foo eA ee eae we Ly — fits a, A "7 Fe Des ie 03 BLY Rage ee tt Ree eee OO Cae ie ¥. wire OE a ee e JOSEPH A, WALKER VS. CHARLES 8. SAUVINET. | 43 Order. The within petition being considered, it is ordered that a writ of error be allowed petitioner, the same to operate as a supersedeas, returnable to the Supreme Court of the United States on the first Monday of De- cember next, on his executing bond conditioned according to law in the sum of two thousand dollars with good security; and that citation in errror be issued. NEW ORLEANS, March ticelfth, 1872. | (Signed) : JNO. T. LUDELING, Chief Justice Supreme Court -of Louisiana. 139 Bond for writ of error.—Filed March 13, 1872. Supreme court of Louisiana. JOSEPH A. hiasaomiscerd U8. No. 3513. C. S. SAUVINET. Know all men by these presents, that we, Joseph A. Walker, as prin- cipal, and Hugh McCloskey, Tho’s H. Handy, A. W. Merriam, William Schneider, as sureties, are held and firmly bound unto C. 8. Sauvinet in the full and just sum of two thousand. dollars, to be paid to the said C. S. Sauvinet, the clerk of the supreme court of Louisiana, or any party in interest, his certain attorney, executors, and administrators, jointly and severally, by these presents. Sealed with our seals and dated this twelfth day of March, in the year of our Lord one thousand 140 ~=eight hundred and seventy-two. Whereas, lately at a session of the supreme court of Louisiana, holden in the city of New Orleans, in a suit depending in said supreme court, wherein C. S. Sauvinet was plaintiff and Jos. A. Walker was defendant, judgment was rendered against the said Joseph A. Walker defendant, and the said Joseph A. Walker having obtained a writ of error, and filed a copy thereof in the clerk’s office of the said circuit court to reverse the judgment in the afore- said suit, and a citation directed to the said C.S. Sauvinet citing and - admonishing him to be and appear at a Supreme Court of the United States, to be holden at Washington, the first Monday of December next: Now the condition of the above above obligation is such, that if the said Joseph A. Walker shall prosecute his writ to effect, and 141 answer all damages and costs if he fail to make his plea good, then the above obligation to be void, else to remain in full force and virtue. (Signed) J. A. WALKER. iL. &.] (Signed) HUGH McCLOSKEY. iL. S. (Signed) THO’S H. HANDY. [L. 8. (Signed) A. W. MERRIAM. L. 8S. (Signed) | _ WILLIAM SCHNEIDER. |[L. s. Sealed and delivered in presence of— | (S’g’d) JNO. M. HOWELL, Clerk Sup. Court. Approved. (Signed) JNO. T. LUDELING, | Chief Justice Supreme Court of Louisiana. ” 44 -— JOSEPH A. WALKER VS. CHARLES S. SAUVINET. Writ of error.—Filed March 13, 1872. JOSEPH A. WALKER, PL’FF IN ERROR, ? versus >No. 3513. CHARLES S. SAUVINET, DEF’I IN ERROR. \ UNITED STATES OF AMERICA, 88 142. The President of the United States, to the honorable the judges | of the supreme court of the State of Louisiana, fifth circuit, and holding sessions at New Orleans, Louisiana, greeting: Because in the record and proceedings, as also. in the rendition of the judgment of a plea which is in the said supreme court, before you, or one of you, being the highest court of law or equity of the State of Louisiana in which a decision could be had, in the suit between Joseph A. Walker and C. S. Sauvinet, wherein were drawn in question certain rights and privileges claimed by said Joseph A. Walker, under the Con- stitution of the United States, and more specially under section four of article four thereof, and under article seven and section one of article fourteen in the amendments thereto, a manifest error hath hap- 143 pened, to the great damage of the said Joseph A. Walker, as by his complaint appears: We being willing that error, if any hath been, should be duly cor- rected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then under your seal, distinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the Supreme Court of the United States, “together with this w rit, so that you have the same at Washington, on the first Monday of December next, in the said Supreme Court, to be then and there held ; that the record and proceed- ings aforesaid being inspected, the said Supreme Court may cause fur- ther to be done therein to correct that error, what of right, and accord- ing to the laws and customs of the United States, should be 144 + done. Witness the honorable Salmon P. Chase, Chief Justice of the said Supreme Court of the United States, this tweltth day of March, in the year of our Lord one thousand eight ‘hundred and seventy- - two. (Signed) [SEAL.| I. A. WOOLFLEY, Clerk of the United States Circwit Court for the District of Louisiana. Citation. | Supreme Court of Louisiana. JOSEPH A. WALKER l vs. No. 3013.° C. S..SAUVINET. \ THE UNITED STATES OF AMERICA, Supreme Court of Louisiana : The President of the United States toCharles S. Sauvinet, of the parish of Orleans, State of Louisiana, greeting: You are hereby cited and admonished to be and appear at a Su- «a ee BARS « ee 4 ie 6 if am je (} i if : 2 ly ii 7 -¢ > 3 5 ‘ & 4 se a JOSEPH A. WALKER VS. CHARLES S. SAUVINET. 45 145 preme Court of the United States, to be holden at the city of Washington on the first Monday of December next, pursuant to a writ of error filed in the clerk’s office of the supreme court of Louisiana, wherein Joseph A. Walker is plaintiff in error, and you are notified to show cause, if any there be, why the judgment rendered against the said Jos. A. Walker, as in said writ of error mentioned, should not be corrected, and why speedy justice should not be doue to the parties in that behalf. Witness the honorable Salmon P. Chase, Chief Justice of the Sn- preme Court of the United States, this twelfth day of March, in the year of our Lord one thovsand eight ‘aundred and seventy-two. [ SEAL. | (Signed) JNO. T. LUDELING, oe: 28 Chief Justice Supreme Court, of the State of Louisiana. 146 Sheriff’s return.—Filed March 18th, 1872. Received 15th Maren, 1872, and on the 16th day of the same month and year I served a true copy of the within citation on C. 8. Sauvinet, defendant herein, personally. This service being made by me on ac- count of said Sauvinet being at this time sheriff of the parish of Or- leans. Returned 16th March, 1872. (Signed) P. CREAGH, Coroner ist, 4th, Sth, & 6th dist’s. Affidavit. On this twenty-first day of September, A. D. 1872, personally appeared before the undersigned, P. Creagh, coroner for the first, fourth, fifth, and sixth district, of the city of New Orleans, who, being duly sworn, de- poses and says, that on the 15th March,.1872, he served a copy of the within citation on C. 8. Sauvinet, civil sheriff of the parish of 147 ~=Orleans, State of Louisiana, by handing the same to him personally, as stated In his official return hereon. (Signed) | P. CREAGH. Sworn to and subscribed before me this 21st day of September, A. D. 1872. | [SEAL. | (Signed) W. L. EVANS, 7 Second Justice Peace, Parish of Orleans. Certificate of the Clerk. UNITED STATES OF AMERICA, Supreme Court of the State of Louisiana: I, John Miller Howell, clerk of the supreme court of the State of Louisiana, at New Orleans, do hereby certify that the foregoing one hundred and forty-seven (147) pages contain a true copy of the tran- | script of the proceedings had in the eighth district court for the 148 parish of Orleans in a certain suit wherein C. 8. Sauvinet was _ plaintiff and J. A. Walker et al. were defendants, and also of the proceedings had in this supreme court on the appeal taken by said J. A. Walker, which appeal is now on the files thereof, under No. 35138. In testimony whereof I have hereunto set my hand and affixed the seal of said court, at the city of New Orleans, this nineteenth day of 46° JOSEPH A. WALKER VS. CHARLES §&. SAUVINET. October, anno Domini « one thousand eight hundred and serous: two, and in the ninety-seventh year of the Independence of the United States of America. [SEAL. | JNO. M. HOWELL, Clerk. 149 To the hon. chief justice and associate justices of the supreme court of Louisiana : ‘ The petition of Joseph A. Walker, defendant in a cause wherein Charles S. Sauvinet is plaintiff, with respect represents to your honors: That he is aggrieved by the final judgment in the supreme court of Louisiana, over which your honors preside, (said court being the high- est of record in this State,) herein rendered against your petitioner, and in favor of Charles S. Sauvinet; that in said suit were drawn in ques- tion, as appears on the face of the record thereof, certain rights, privi- leges, and immunities claimed by petitioner under the Constitution of the United States, and especially under section four of article four thereof, and under article seven and section one of article fourteen in the amendments thereto. That said rights and privileges have beenad judicated upon adversely to petitioner, who is advised and informed that there is error in said adjudication, by which he conceives himself aggrieved and injured ; that he wishes to ‘have said proceedings re-examined, and said final decree | corrected by the Supreme Court of the United States. Wherefore petitioner prays that this hon. court will grant him a writ of error, returnable to the Supreme Court of the United States in due course of proceedings, the same to operate as a supersedeas ; that the amount of bond to be furnished be fixed; that citation in error be signed and issued, and for general relief. And as in duty bound, &e. HORNOR & BENEDICT & A. A. ATOCHA, : Attys for PV in Error. 150 (Indorsed :) Supreme court of Louisiana. No. 3513. Joseph A. Walker, pl’ff in error, vs. Charles 8S. Sauvinet, det’t in error. Petition for writ of error. Hornor & Benedict, att’ys for pl’ff in error. Filed March 13th, 1872. C. M. P. Julian, dep’y cl’k. The within petition being considered, it is ordered that a writ of er- ror be allowed petitioner, the same to operate as a supersedeas, return- able to the Supreme Court of the United States on the first Monday of December next, on his executing bond, conditioned according to law, in the sum of two ‘thousand dollars, with eood security, and that citation in error be issued. New Orleans, March tweifth, 1872 JNO. T. LUDELING, Chief Justice Supreme Court of Louisiana. 151. UNITED STATES OF AMERICA, 88: The President of the United States to the honorable the judges of the supreme court of the State of Louisiana, fifth circuit, and holding ses- sions at New Orleans, Louisiana, greeting : | => ? 4 : | »- ! > i t ' ’ ‘ ; ~~ i § j - f J, ey” JOSEPH A. WALKER VS. CHARLES S. SAUVINET. 47 Because in the record and proceedings, as also in the rendition of the judgment of a plea which is in the said supreme court, before you, or one of you, being the highest court of law or equity of the State of Lou- isiana in which a decision could be had, in the suit between Joseph A. Walker and C. S. Sauvinet, wherein were drawn in question certain rights and privileges claimed by said Joseph A. Walker, under the Con- - stitution of the United States, and more specially under section four of article four thereof, and under article seven and section one of article ‘fourteen in the amendments thereto, a manifest error hath happened, to the great damage of the said Joseph A. Walker, as by his complaint ap- pears: | | We being willing that error, if any hath been, should be duly. corrected, and full and speedy justice done to the parties aforesaid inthis behalf, do command you, if judgment be therein given, that then under your seal, distinctly and openly, you send the record and proceedings afore- said, with all things concerning the same, to the Supreme Court of the United States, together with this writ, so that you have the same at Washington on the first Monday of December next, in the said Supreme Court, to be then and there held, that therecord and proceedings afore- said being inspected, the said Supreme Court may cause further to be done therein, to correct that error, what of right and according to the laws and customs of the United States should be done. Witness, the honorable Salmon P. Chase, Chief Justice of the said Supreme Court of the United States, this twelfth day of March, in the year of our Lord one thousand eight hundred and seventy-two. [SEAL. |] F. A. WOOLFLEY, Clerk of the United States Circuit Court for the District of Louisiana. (Iudorsed:) United States circuit court. No.3513. J6seph A. Walker, pl’ft in error, versus Charles S. Sauvinef, def’t in error. Writ of error, supreme court of L’a. Filed March 13th, 1872. Jno. M. Howell, clerk. 152 THE UNITED STATES OF AMERICA, Supreme Court of Louisiana: The President of the United States to Charles 8. Sauvinet, of the parish of Orleans, State of Louisiana, greeting : You are hereby cited and admonished to be and appear at a Supreme Court of the United States, to be holden at the city of Washington on the first Monday of December next, pursuant to a writ of error filed in the clerk’s office of the supreme court of Louisiana, wherein Joseph A. Walker is plaintiff in error; and you are notified to show cause, if any there be, why the judgment rendered against the said Joseph A. Walker as in said writ of error mentioned should not be corrected, and why speedy justice should not be done to the parties in that behalf. Witness the honorable Salmon P. Chase, Chief Justice of the Supreme Court of the United States, this twelfth day of March, in the year of our Lord one thousand eight hundred and seventy-two. [SEAL.] — JNO. T. LUDELING, : Chief Fustice Supreme Court of the State of Louisiana. 153 Supreme court of L’a. Filed March 18th, 1872. CO. M. P. JULIAN, Depy Clerk. POG Ve May 22. ee ee i 48 JOSEPH A. WALKER VS. CHARLES ‘8. SAUVINET. ' (Indorsed :) Supreme courtof Louisiana, Ne. 3512. Joseph A. Walker vs. C. S. Sauvinet. Citation. Sheriff’s return. Received 15 M’ca, 1872, and on the 16th day of the same month and year I served a true copy of the within. citation on C. S. Sauvinet, de- fendant herein, personally ; this service being’ made by me on account of said Sauvinet being at this time sheriff of the parish of Orleans. Returned 16 M’ch, 1872. P. CREAGH, ° Coroner Ast, 4th, Sth, & 6th Dist’s. On this twenty-first day of September, A. D. 1872, personally appeared . before the undersigned, P. Creagh, coroner for the first, fourth, fifth & sixth district’ of the city of New Orleans, who, being duly sworn, deposes .and says that on the 15th March, 1872, he served a copy of the within citation on C.S. Sauvinet, civil sheriff of the parish of Orleans, State of Louisiana, by handing the same to him personally, as stated in his offi- cial return hereon. P. CREAGH. Sworn to and subscribed before me this 21’ day of September, A. D. 1872. coke : W. L. EVANS, Second Justice Peace, Parish of Orleans, La. 154 iKnow all men by these presents that we, Joseph A. Walker, as principal, and Hugh McCluskey, Theo. H. Handy, A. W. Merriam, William Schneider, as sureties, are held and firmly bound unto C. S. Sauvi- net in the fulland justsum of twothousand dollars, to be paid tothe saidC. S. Sauvinet, the clerk of the supreme court of Louisiana, or any party in interest, his certain attorney, executors, administrators, or assigns ; to which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, by these presents, sealed with our seals, and dated this twelfth day of March, in the year of our Lord one thousand eight hundred and seventy-two. Whereas lately, at a session of the supreme court of Louisiana, holden in the city of New Orleans, inasuit depending insaid supreme court, wherein C. S. Sauvinet was plaintiff and Jos, A. Walker was defendant, judg- ment was rendered against the said Joseph A. Walker, defendant, and the said Joseph A, Walker, having obtained a writ of error, and filed a copy thereof in the clerk’s office of the said circuit court, to reverse the judgment in the aforesaid suit, and a citation directed to the said C. S. Sauvinet, citing and admonishing him to be and appear at a Supreme Court of the United States, to be holden at Washington, the first Mon- day of December next: Now the condition of the above obligation is such that if the said Joseph A. Walker shall prosecute his writ to effect, and answer all ¢ JOSEPH A. WALKER VS. CHARLES 8, SAUVINET. 49 damages and costs if he fail to make his plea good, then the above | obligation to be void; else to remain in full force and virtue. ; 4 : J. A. WALKER. Le i a: HUGH McCLOSKEY. L. 8. 4 r; THO’S H. HANDY. Le 8.) iF \ , A. W. MERRIAM. 3. 8. 4 ! WILLIAM SCHNEIDER. [L. s. | Sealed and delivered in the presence of— ea JNO. M. HOWELL, oe : Clerk Sup. Court. Approved. : ) : JNO. T. LUDELING, | , Chief Justice Supreme Court of Louisiana. | (Indorsed :) Supreme court of Louisiana. No.3513. Joseph A.Walker vs. C.S. Sauvinet. Bond for writ of error. Filed March 13th, 1872. ©. M. P. Julian, dep’y clerk. John W. Madden, stationer and printer, 73 Camp st. ! (Indorsement on cover:) No. 350. Joseph A. Walker, plaintiff in | —_ B.. Charles S. Sauvinet. Louisiana sup. court. Filed 7th Decem- , r, 1872. | REC. 350—4 EK} gIRe PRED ME NIIY re SIS (Se RE PMD Iu the Supreme Cowt of the United States, October Term, 1874. JOSEPH A. WALKER, PLAINTIFF IN Error, US. > No. 350. CHARLES S. SAUVINET, | DEFENDANT IN ERROR. ibid niahasseetiasionaineasabiitay..”’ sal In error to the Supreme Court of the State of Louisiana. Brier oF PLAINTIFF IN ERROR. Plaintiff in error was defendant in the eighth district eourt of New Orleans, in which he was sued for ten thou- sand dollars damages by Sauvinet for having refused to sell refreshments to him though he offered to pay the usual price for them, because he, Sanvinet, was a colored person. The cause was tried by a jury who did not agree, and then the court of original jurisdiction, under a statute of Louisiana, gave judgment for $1,000 as exemplary damages, and all costs of suit. Record, pp. 1, 2, 25, 34. The judgment was affirmed by a majority of the supreme 4 1st. Because the jury has a right, by a general verdict, to decide both law and fact, and no judge can lawfully com- | pel the conscience of a jury on a constitutional question. ¢ 2d. Because if the State law was to be enforced at all, | it was for the reason the defendant in error had been re- fused a drink on account of his race or color, @. ¢., on ac- count of his being a colored man, and unless the jury found him to be such he had no right of actioir; the refusal of the judge therefore was error. All of which is respectfully submitted. DURANT & HORNOR, Jer Walker, Plaintiff in Error. J OSEPH A. WALKER, PLAINTIFF IN ERRor, versus No. 6. CHARLES S. SAUVINET, : DEFENDANT IN ERROR. OCTOBER TERM OF 1875. Writ oF ERROR TO THE SUPREME CouRT OF LOUISIANA. BRIEF OF DEFENDANT IN ERROR. I. Plaintiff in error, in his petition for his writ of error, alleges “ That in said suit were drawn in ques- tion, as appears on the face of the Record thereof, certain rights, privileges, and immunities claimed by petitioner under the Constitution of the United States and especially under section four of article four thereof, and under article seven and section one of article fourteen in the amendments thereto ; that said rights and privileges have been adjudicated upon adversely to petitioner.” Under these allegations, the writ of error was allowed. Rec., p. 46, United States Supreme Court. - ‘ . ? a 4 ‘ * . - +a Sas gah SDP 2, Tk. pe OCR a wes . bait Air it ; a ‘ ' * ne EO ee ee Oe ee ee 2 II. Plaintiff was the owner and keeper of a coffee house, a place of public resort, licensed under the laws of the State, to which defendant in error resorted, and requested to be served and supplied with refresh- ments there kept and sold, with effer of payment, &c., conducting himself orderly and respectfully. His request was refused because he was a colored person, and was ordered to leave the establishment. This was wholly on the ground of color, defendant in error being a respectable person, and at that time Sheriff of the Parish of Orleans. __ _ After allegations of fact, defendant in error set up that,“ under the constitution and laws of the State, he had the right with others, of whatever class or color, of access to said establishment and to be supplied with such refreshments as were there being sold to others. ” - Rec., pp. 1 and 2. The only defense set up was “a general denial,” and on this issue the case went to trial. Rec., p. 4. There was judgment for one thousand dollars damages, against the plaintiff in error. _ ? Rec., p. 34. III. On motion for a new trial, it was set up : First, ‘‘that the act under which this action is brought is null and void by reason of its being violative of the Constitution of the United States and of the State of Louisiana.” Sixth, “that by the fourteenth amendment of the Constitution of the United States certain inalienable rights are guaranteed to the defendant (plaintiff in 3 error) which the laws of the State cannot deprive him of, among which is the trial by jury.” Rec., pp. 34 & 35. 7 This motion being overruled, an appeal was taken to the Supreme Court of the State. | Rec., pp. 35 & 36. IV. The Supreme Court of the State, in deciding the case, state the facts substantially as above set forth, but in no way, even by implication, found it necessary to pass upon any Federal question. Even the dissenting opinion of Mr. Justice Wyly, con- curred in by Mr. : Justice Howe, claims only a reduc- tion of damages. | Rec., pp. 38 to 40. A rehearing was asked for; the second and third grounds being in relation to the damages, as exces- sive; the first only, setting up the unconstitutionality of Act No. 23 of 1871 of Louisiana, under which the suit was brought, “ under the provisions of which this case was decided by the lower court, after the jury had disagreed.” Rec., p. 40. The Court in refusing the rehearing say that, “ We are not aware of the existence of any constitutional provision making it imperative upon the legislature to accord a trial by jury in all civil cases. It was com- petent for the law-making power to provide that cases like the one before us should be tried without the in- tervention of ajury. Therefore, it had the right to prescribe, as it did in this class of cases, that issues of the sort here presented should be tried by a jury if any party in the suit pray for a jury, and to provide, ‘in the event the jury do not agree, or fail to render a est ted “ Si A ci ndenhaacipetge 3 ae ee + ee ee eesti +E SOM ENB Uneceaat den tennis Stas: gies ote ey BP yee Ot eee sit NEED ety Sai tt Soo Rem enr ato nig} Oe EE caaeee POD . : (ee Ss a tt An EO - Oe EONS 2 GES rere 4 verdict either for the plaintiff or defendant, that the case be determined by the Judge.” Rec., p. 41. VY. The only possible Federal question then raised, even collaterally, (for no Federal question was raised by the regulur pleadings,) was that the Court of the first instance decided the case, on the failure of the jury to agree on a verdict. | It is this feature of Act No. 23 of 1871, which is complained of, as in violation of the Constitution of the United States. There is nothing in the act complained of which conflicts with the guarantee of a Republican form of vovernment to the several States, Article VII of the amendments to the Constitution provides that “in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” But it has been repeatedly held, “ that the amendments to the Constitution do not extend to the States.” Livingston’s Lessee vs. Moore, 7 Pet., 551. That “they are exclusively restrictions upon Federal power, intended to prevent interference with the rights of the States, and of their citizens.”’ - Fox vs. Ohio, 5 How., 434. James vs. Commonwealth, 12 8. & R., 221. Barker vs. the People, 3 Cow., 686. See also 7 Peters, 243; 2 Gallis. C. C. R., 138. But this point it would seem was abandoned in the State Court. —— Ree., p. 31. It is hardly to be conceived, that the first section of the fourteenth amendment, can be found to have 5 so large a scope, as to prohibit a State legislature from passing the law in question. Is it one of “the privileges or immunities of citizens of the United States,” that his cause shall be tried in the State courts by a jury, and tried until a verdict shall be found? In the Slaughter-House cases, the question of what constituted the privileges and immunities of citizens was discurred in extenso. But so far, no case has been found in which a trial by jury in a State court, was considered one of the rights, privileges or immunities of citizens of the United States. The Slaughter House Cases, 16 Wall., 36. Corfield vs. Coryell, 4 W. C. C., 380-1. United States vs. Williamson, 4 Am. L. R., 19. Conner vs. Elliot, 18 How., 591. Nor does the prohibition, that no “State shall deprive any person of life, liberty or property with- out due process of law,” apply to jury trials. See Murray’s Lessee vs. Hoboken Land Co., 18 How., 276. It is therefore respectfully submitted :— 1st, That, no Federal question was raised by the pleadings and decision in this cause ; and, 2nd, That, if there had been, the act of the Legislature of Louisiana is not in conflict with any provision of the Constitution of the United States. It is therefore submitted that this writ of error should be dismissed. J. Q. A. FELLOWS, Attorney for Defendant in Error. Batic es 4 verdict either for the plaintiff or defendant, that the case be determined by the Judge.” Rec., p. 41. V. The only possible Federal question then raised, even collaterally, (for no Federal question was raised by the regular pleadings,) was that the Court of the first instance decided the case, on the failure of the jury to agree on a verdict. It is this feature of Act No. 23 of 1871, which is — complained of, as in violation of the Constitution of the United States. There is nothing in the act complained of which conflicts with the guarantee of a Republican form of vovernment to the several States, Article VII of the amendments to the Constitution provides that “in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” But it has been repeatedly held, “ that the amendments to the Constitution do not extend to the States.” Livingston’s Lessee vs. Moore, 7 Pet., 551. That “they are exclusively restrictions upon Federal power, intended to prevent interference with the rights of the States, and of their citizens.” Fox vs. Ohio, 5 How., 434. James vs. Commonwealth, 12 8. & R., 221. Barker vs. the People, 3 Cow., 686. See also 7 Peters, 243; 2 Gallis. C. C. R., 138. But this point it would seem was abandoned in the State Court. | Rec., p. 31. ates It is hardly to be conceived, that the first section of the fourteenth amendment, can be found to have ee aS Oe ea 5 so large a s. ope, as to prohibit a State legislature from passing the law in question. Is it one of “the privileges or immunities of citizens of the United States,” that his cause shall be tried in the State courts by a jury, and tried until a verdict shall be found? In the Slaughter-House cases, the question of what constituted the privileges and immunities of citizens was discurred in extenso. But so far, no case has been found in which a trial by jury in a State court, was considered one of the rights, privileges or immunities of citizens of the United States. The Slaughter House Cases, 16 Wall., 36. Corfield vs. Coryell, 4 W. C. C., 380-1. United States vs. Williamson, 4 Am. L. R., 19. Conner vs. Elliot, 18 How., 591. Nor does the prohibition, that no “State shall deprive any person of life, liberty or property with- out due process of law,” apply to jury trials. See Murray’s Lessee vs. Hoboken Land Co., 18 How., 276. _ It is therefore respectfully submitted :-— 1st, That, no Federal question was raised by the pleadings and decision in this cause ; and, 2nd, That, if there had been, the act of the Legislature of Louisiana is not in conflict with any provision of the Constitution of the United States. It is therefore submitted that this writ of error should be dismissed. : J. Q. A. FELLOWS, Attorney for Defendant in Error. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1874_6_0%3A0. Public record. Not legal advice.