
    Kellar v. Koerber et al.
    
      Intoxicating liquors — Place of sale — Civil rights — Protection in— Section 4426-1 Rev. Stat.
    
    A place where intoxicating liquors are sold at retail is not within the phrase “all other places of public accommodation and amusement,” as used in section 4426-1, Revised Statutes, which provides for the equal accommodation of all persons at the places therein designated.
    (Decided December 19, 1899.)
    Error to the Circuit Court of Summit County.
    The plaintiff seeks to recover a penalty of $500 under Sections 4426-1 and 4426-2 of the Revised Statutes. In his petition he alleges that he is a colored person of African descent; that the defendant, Koerber, is the proprietor of a place in the city of Akron, where meals are furnished to persons desiring them and intoxicating liquors are sold by the drink. That on the 14th day of October, 1897, he went to said place and asked George W. Williams, who was the bar-keeper for the defendant for two glasses of liquor called whiskey cocktail, one for himself and the other for a colored companion. The same were sold to him and with the knowledge of the of the proprietor Williams charged the plaintiff therefor the sum of thirty cents for each glass, while sales thereof to any and all Avhite persons were made at fifteen cents a glass, and that by reason thereof he was discriminated against. A demurrer was filed to this petition, and in the court of common pleas the demurrer was sustained. On petition in error by the plaintiff in the circuit court the judgment of the common pleas court was affirmed.
    
      H. C. Sanford and E. B. Kinkead, for plaintiff in error.
    Every eating-house, saloon or bar must be and is a place of public accommodation within the meaning of the statute and in fact. The former statute on this subject provided a penalty not exceeding one hundred dollars. Bates Stat., Section 4426-2, provides a penalty not to exceed five hundred dollars. By this is would seem the legislature has treated this as an important subject.
    The statute of Michigan in principle is precisely the same as the Ohio statute. The doctrine of accommodation and privileges is fully discussed under the Michigan statute in the case of Ferguson v. Guise, 46 N. W. R., 718; 25 Bull., 65.
    The grand objects and purposes of the Fourteenth Amendment to the Constitution of the United States are to extend citizenship to all natives and naturalized persons, and to prohibit the states from abridging their privileges and immunities. Bowman 
      v. Lewis, 25 U. S., 989; Strouder v. West Va., 25 U. 5., 664; Ex parte Va. v. Kines, 25 U. S., 667; Hayes v. The State of Mo., 30 U. S., 578.
    
      Sauder & Rogers, for defendants in error.
    We maintain: First. That this being a penal statute it should be strictly construed. Hargo v. Meyers, 4 C. C. R., 275, 2 C. D., 543; Schultze v. Cambridge, 38 Ohio St., 659. Second. That the words, “All other places of public accommodation or amusement,” as used in the above statute are qualified by what precedes them, and no other cases will be included in the general terms except those of the same character or kind as are specifically enumerated. Woodworth v. State, 26 Ohio St., 196; Schultze v. Cambridge, 38 Ohio St., 659; Cecil v. Green, 43 N. E. R., 1105, (161 Ill., 265).
    The allegations of the petition do not bring the business of the defendant within the express terms of the statute; nor can it be fairly said that the business is of the same character or kind as those enumerated.
   Bv The Court :

The statute which is said to confer a right of action upon the plaintiff in view of the facts alleged in the petition is in substance as follows (Section 4426-1) : “That all persons within the jurisdiction of said state shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, restaurants, eating-houses, barber shops, public conveyances on land or water, theaters and all other places of public accommodation and amusement, subject only to the' conditions and limitations established by law and applicable alike to all citizens.” The following section provides for the recovery of a penalty of $500 by one against whom a discrimination is made in violation of the provision quoted.

The view presented by plaintiff’s counsel is that, although a place where intoxicating liquors are sold at retail is not specifically named in the statute, it is within the meaning of the phrase: “All other places of public accommodation and amusement.” This view is much discouraged by the dissimilarity between a place where intoxicating liquors are sold at retail and those which the statute specifically designates. It seems to be completely refuted by other considerations. Our constitution contains the provision that, “No license to traffic in intoxicating liquors shall hereafter be granted in this state; but the general assembly may by law provide against evils resulting therefrom.” The statutes which lay a tax upon the traffic are founded upon this provision of the constitution. They assume that the traffic is an evil, and they seek to discourage and restrict it. By other statutes sales to minors or to persons intoxicated or in the habit of becoming intoxicated, are forbidden under penalties, and rights of action are given for causing intoxication by sales unlawfully made. To all such persons by clear provision of the statute the vendor sells at his peril. We should not infer a condition which places him in peril when he refuses to sell to any one; nor should we interpret this statute as encouraging a traffic which the clearly defined policy of the state discourages.

Judgment affirmed.  