After a statement of the case, made as above,

delivered the opinion of the court:

The" sole question for determination on this appeal is whether the complaint states a.cause of action, it being admitted that the court had jurisdiction of the cause. This question upon careful examination of the allegations relied upon, must be answered in the negative. The fact *236that the respondent informed the court that be would not serve as a juror with the appellant, because he is a colored man, of itself, gave rise to no cause of action, notwithstanding that under our statute a colored citizen, if otherwise qualified, has the same right to serve on a jury as a white citizen, and the same means of redress in the event of an infringement of that right. Color is not a test of one’s right to render jury service. Sec. 1297, R. S.

The black man in this country now enjoys full citizenship with the white man. All the rights and privileges incident to such citizenship attend him same as the white man. This is so by virtue of the Constitution of the United States. The colored man, therefore, stands upon perfect equality with all others, before the law.

In accordance with the Divine law, the humane and enlightened judgment of our country has ordained that “all men are equal before the law.” Hence, while socially people may do as they choose within the law, and may associate with some and exclude others, yet, in matters public, a white man is entitled to no rights or privileges which are denied a black man, and vice versa. That one person is colored differently from 'another is in law wholly immaterial. “Because,” says Mr. Justice Morse, in Ferguson v. Gies, 82 Mich. 358, “it was divinely ordered that the skin of one man should not be as white' as that of another furnishes no reason that he should have less rights and privileges under the law than if he had been born white, but cross-eyed, or otherwise deformed. The law, as l understand it, will never permit a color or misfortune, that God has fastened upon a man from his birth, to be punished by the law unless the misfortune leads to some contagion or criminal act; nor while he is sane and honest can he have less privileges than his more fortunate brothers. The law is tender, rather than *237harsh, towards all infirmity; and, if to be born black is a misfortune, then the law should lessen, rather than increase, the burden of the black man’s life. ”

If then the appellant, who is a colored man, had been injured by any misdeed of the respondent the law would afford him redress. The difficulty in this case, however, is that the complaint fails to show any language, act, or conduct on the part of the respondent, which is actionable. There is nothing to show that he abused or assaulted the appellant, or attempted to expel him from the jury, or even that he employed abusive language towards him in his presence, or asked for his discharge. Nor was there any defamation of character, or any libelous accusation so far as shown by the record. The writing referred to in the complaint of itself did not injure the appellant. If he suffered any damage, it was caused by the action of the attorneys and the court in discharging him from further participation in the trial as a juror. Whether, under the circumstances, such action was warranted, we are not called upon to decide. It is clear, however, that the respondent cannot be held responsible for it. The sole charge, as to him, is that he objected in writing to serve on the jury with the appellant because of his color. While such objection was frivolous, unwarranted and unworthy of one who had taken an oath to do his duty as a juror, still under the circumstances as shown here, it was not such as to-cause a pecuniary liability.

If, however, it be true, as seems to be indicated by the record, that the respondent sat quietly by without objection, until all the jurors were examined and sworn to try the cause, and then for the first time made his objection, maliciously and that such objection led to the discharge of himself and the appellant from the jury, the court to maintain its own dignity, would have been justified in *238adjudging him guilty of contempt, and in imposing an adequate penalty therefor. Such conduct and trifling ought not to be permitted in a court 'of j ustice.

We are of the opinion that the demurrer to the complaint was properly sustained.

The judgment is affirmed, with costs.