On Application for a Rehearing.

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 consideration of this court. 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 competent for the law-making power to provide that cases like the one before us should be tried without 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 by the judge.

No facts appear on the record showing that the damages awarded are excessive.

The application for a rehearing is refued.

Rehearing refused.

This is an action brought under the fourth section of the act of the Legislature approved twenty-fourth of February, 1869, entitled “An Act to provide for carrying into effect the one hundred and thirty second article of the constitution of the State.”

The plaintiff alleges that on the twentieth of January, 1871, in company with two of his friends, he called at the coffeehouse of the defendant, arid asked of the person in attendance to he furnished with refreshments, kept and sold here by the defendant, a duly licensed coffeehouse keeper; that he offered to pay the usual and customary price of such refreshments, and conducted himself in an orderly and respectfu lmanner; that notwithstanding, the accommodations asked for were refused, and that he was ordered to leave the house; that tills 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 establishment to others. The plaintiff avers that from the indignity so wantonly offered to him his feelings have been greatly outraged, and for the 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, hut there was a disagreement and no verdict rendered. The court thereupon, 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 exceptions 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 testimony and are not important.

There was no evidence introduced on the .part of the defendant.

All the material allegations of the plaintiff we consider fully established. The plaintiff is shown to be a man of character and respectibility; that he has frequently held public office, and that he is now *15and was, at the time he was refused refreshments in the defendant’s coffeehouse or saloon, civil sheriff of the parisli of Orleans. It is clear that the refusal of the accommodations asked for was made solely on the ground that the plaintiff is a man of color. The defendant has therefore incurred the penalty of the act of 1869 — acts of 1869, p. 37.

We think the judgment of the lower court correct.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed with costs.

dissenting. 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 can not treat them as dead letters; and the plaintiff has therefore 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.

dissenting. I think the plaintiff had the right to be served at the barroom 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 tp recover, it being no greater wrong to refuse a colored man than, a white man. The question of color has nothing to do with the case. Nor is the position of the plaintiff of any consequence.

A citizen of the State has been refused entertainment at a public resort, 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 §1000 exemplary damages, no actual damages being shown.

I think the penalty wholly disproportionate to the offense. 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. Yet, is the right to enjoy the entertainment. of a drinking saloon of greater moment or more sacred than the right-of personal security from violence1?

Gravé offenders are rarely condemned to pay a larger penalty than §1000, as the law is now administered; and yet, without any evidence of the ability of the defendant to pay the penalty, he is condemned to pay one thousand dollars for merely refusing to sell a drink, not probably worth more than 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, in my opinion, unreason*16able 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.