Gibbs v. Arras Brothers, Inc. Respondent's Brief in Support of Motion for Reargument

    Libman’s Law Printery, New York.

To be Argued by 
Samuel Schwabtzbeug.

NEW YORK SUPREME COURT

Appellate D ivision—F irst Department.

Benjam in  D. Gibbs,

Plaintiff-Respondent,

against v

Arras Brothers, I nc.,

Defendant-Appellant.
________ __________ _________ _ ^

RESPONDENT’S B R IE F.

Statement.

The facts are substantially as contained in the 
statem ent of the appellant’s brief. A repetition of 
them is therefore unnecessary. This verbal opin­
ion of the tr ia l Justice was made a t the end of the 
tr ia l (fol. 102). “The Court. ‘I  have no reason 
to disbelieve the testimony of the plaintiff. I  
am convinced th a t these two men went into the 
saloon and th a t they were discriminated against 
so far as the price of liquors is concerned.”



2

POINT I.

A saloon is a place of public accom­
modation.

I t  is a m atter of common knowledge and it 
certainly was in the mind of the learned tria l 
Justice, tha t all liquor saloons, in the City of 
New York besides serving liquid refreshments, 
m aintain free lunch counters for their customers 
and also a lunch counter or tables or both, where 
customers a t  lunch time are served with meals, 
with or w ithout drinks for which they pay, of 
course. That such saloons also m aintain public 
comfort stations, which as a m atter of fact the 
“man on the street” may and frequently does 
use for his convenience w ithout any charge, or 
necessity for any consideration. I t  Is also well 
known tha t most saloons have news and stock 
tickers, public telephones, Bullinger’s guides and 
numerous other conveniences for the general pub­
lic. In  short, the saloons of this city as they are 
conducted to-day, if not the most, are certainly 
one of the most democratic of our institutions. 
And it is well so, and for th a t reason they are 
called “the poor man’s club”, for which the only 
initiation or membership fee is the price of a 
d rin k ; and so eager have saloon keepers been to 
postpone the immediate payment thereof, tha t our 
beneficent statutes have penalized such conduct 
by barring suits by saloon keepers for the pay­
ment of drinks had on their premises. To sum 
it up, i t  must be fairly conceded tha t in fact, a t 
any rate, if not in law, saloons as a t present 
conducted, are and are known to be places of 
public accommodation in the fullest sense of the 
word.

B ut notwithstanding this, the defendant urges 
tha t the “poor man’s club” is not a place of 
public accommodation. The sanctuary of the free



3
/

lunch and inspiration of the Raines Law Hotel, 
assumes unto itself an exclusiveness, which would 
bar from participating in its manifold benefits, 
any one of whose race, creed or color its pro­
prietor might not approve.

And to sustain this contention, the appellant 
invokes two rules of statu tory  construction, 
namely, the rule of cjusdem generis and also the 
rule of expressio unius est exclusio alterius, and 
places complete reliance upon two analagous cases 
in foreign jurisdictions, namely, Rhone v. Loomis, 
74 Minn. 200; and K ellar v. Koerber, 61 Ohio St. 
388;. and also in the case of Cecil v. Green, 161 
111. 265. Such foreign decisions are, a t best, a 
very slender reed to lean upon, because for almost 
every decision of the courts of this .state, foreign 
decisions can always be found diametrically on- 
posed. And concerning the statute under dis­
cussion and as a concrete example in point, in 
the cases of People v. King, 110 K. Y. 418, and 
Jones v. Broadway Roller Rink Co., 136 Wise. 
595, the highest Courts of this state and of W is­
consin respectively have held tha t a skating rink 
is a place of public amusement, whereas the con­
trary  was held by the highest court of Iowa in 
the case of Bowlin v. Lyon, et al. 67 Iowa 536, 
and furtherm ore while the Courts of Ohio held in 
K ellar v. Koerber (supra), th a t a saloon was not 
a place of public accommodation, they on the 
other hand in the case of Johnson v, Humphrey 
Pop Corn Co. 24 Ohio Circuit Court, 135, held 
th a t a bowling alley was a place of public accom­
modation.

In fact after examining the appellant’s brief 
upon this ; ppcai respondent's counsel was sorely 
tempted to adopt i t  as his own, and submit the 
proposition solely upon the appellant’s brief. 
W ere it not for the fact th a t this question now 
appears before this Court for the first time, and 
is of greater magnitude than the particular parties



4

involved in this action and affects millions of 
the citizens of this State, of different races, creeds 
and color, respondent would have so submitted. 
But the im portance of the question involved com­
pels a t least a passing review of the main cases 
relied upon by the appellant.

Thus, at page 7 of appellant’s brief the follow­
ing is quoted from the case of Rhone v. Loomis 
( s u p ra ) :

“B ut here is a case where the legislature 
has specifically enumerated in a somewhat 
descending order according to rank or im­
portance EVERY K1 NI> OF PLACE OF 
REFRESH M EN T W H ICH  WAS PR E SE N T ­
LY IN  MIND TO W H ICH  THEY IN TEN D ­
ED TH E ACT TO APPLY, but have omitted, 
APPARENTLY PURPOSELY, to enumerate 
places where intoxicating liquors are sold as 
a beverage.”

Is such a condition present in our own statu te? 
Obviously not. In  this connection the statu te 
sued upon only provides,

“All persons within the jurisdiction of this 
State shall be entitled to the full and equal 
accommodations, advantages, and privileges 
of A N Y  PLACE OF PUBLIC ACCOMMODA­
TION, resort or amusement, subject only to 
the conditions and limitations established by 
law and applicable alike to all persons. * * *

“A place of public accommodation, resort 
or amusement w ithin the meaning of this 
article, shall he deemed to include any inn, 
tavern, or hotel whether conducted for the 
entertainm ent of transient guests or for the 
accommodation of those seeking health, 
recreation or rest, any restaurant, eating- 
house, public conveyance, on land or water, 
bath-house, barber shop, theatre, and music 
hall.”



5

[Note th a t among these there is no place men­
tioned where drinks alone are customarily served. 
In  the Minnesota statute, soda w ater fountains 
and ice-cream soda parlors are mentioned. In  
view of th a t fact the Minnesota Court’s ruling 
has a certain amount of justification.

In  referring to K ellar v. Koerber (supra) ap­
pellant on page 9 of his brief says,

“For, reasoned the Court, the general policy 
of the law is, and always has been, to dis­
courage the sale of liquor—not to encourage 
it—and a penalty will not be imposed for the 

) sale of th a t which it  has always been sought 
to stop.”

A ppellant however does not go further, and 
contend as he logically should tha t such is the 
general policy of the law of this state. And far 
be it  from the appellant of all persons to  claim 
th a t i t  is so, for once such a dictum finds lodg­
ment in our decisions it  will not profit the 
calling of the appellant, but will in time rebound 
against him as a  boomerange.

The substance of the decision of the Illinois 
Court in Cecil vs. Green (supra) is. contained in 
the concluding paragraph thereof, which is quoted 
as page 10 of appellant’s brief. That case holds 
nothing more than th a t a drug store with or w ith­
out a soda fountain is not a place of public ac­
commodation. Reading this decision carefully 
will disclose th a t it does not hold th a t a soda 
w ater fountain conducted independently or an 
ice-cream soda parlor is not a place of public 
accommodation. W hat, therefore, does i t  prove in 
connection with a saloon? Surely, putting a  soda 
fountain in a drug store which deals in, and is 
engaged in  compounding, drugs and medical 
preparations does not make such a. drug store any 
more a place of public accommodation than the 
selling or serving of bromo seltzer or zoolak by



. §

saloon keepers, makes the saloon a drug store. 
W ould a saloon which serves such a  drink be com­
pelled to m aintain a registered drug clerk and 
comply w ith the other provisions regarding a drug 
store, simply for the reason th a t an occasional 
customer orders such a drink, perhaps to over­
come the effects of indulging “not too wisely but 
too well” in  other drinks obtained in  the same 
place?

And while examining the cases relied upon by 
the appellant it  may be well to point out their 
inherent weakness, which is best done in  the words 
of the dissenting judges who sat upon them. In  
Rhone v. Loomis (supra) a t page 206, Chief 
Justice S ta rt of the S tate of Minnesota says:

“The statu te was intended to cover places 
other than  those specifically mentioned. E f­
fect must be given to the general terms and 
other places held to  be w ithin the purview 
of the statute. W hat other places of refresh­
ment and accommodation? Clearly places of 
the same general classes or kind as those spe­
cifically enumerated, blow, a restaurant and 
saloon are ejusdem generis when the words 
are used in  the ordinary meaning, as they 
are in the statute. They are places to which 
the public are invited for refreshments in 
the form of food or drink, or both, as is often 
the case with restaurants. Why saloons were 
not specifically mentioned in  the statute, I 
do not know, unless i t  was for the purpose of 
euphemising the legislative in ten t as to them.
IS a t w hatever m ay have been the  
reason, l  am of the opinion th a t the  
s ta tu te  w ill not adm it of any reason­
able construction  which w ill exclude 
saloons f rom its  general item s,”

and Associate Justice Collins of the same Court 
a t page 207 w rites :



7

“The purpose of the state, if it has any at 
all, is to confer equal rights upon the colored 
man in  all public places. I t  expressly pro­
vides tha t colored persons shall have equal 
accommodations, advantages, privileges and 
facilities a t all inns, hotels, restaurants, and 
'other places of public resort, refreshment, 
accommodation or entertainm ent.’ In  view of 
this positive enactment, would i t  be held that 
an inn or a hotel, or a restaurant in  which 
liquors are kept for the express purpose of 
serving a t tables when called for, could law­
fully refuse to furnish those articles to a  man, 
properly seated a t a table, because of his 
color? I  TH IN K  NOT; and if so, it  seems 
as if the saloon is to be regarded as a sort of 
sanctuary, not to be profaned by the admis­
sion and entertainm ent of the colored man. 
* * * I  am. decidedly of the opinion that- the 
saloon is one of the 'other places of public 
accommodation or entertainm ent’ mentioned 
in the law. IF IT IS NOT, w h a t  p la c e  
is?

Furtherm ore in  considering the decisions of 
foreign jurisdictions, there is nothing before this 
Court to show th a t saloons are conducted in the 
same manner in Ohio and Minnesota as they are 
here in New York. They surely have not the- 
same Excise Laws th a t we have, and i t  may be 
tha t in  these States saloons have not the same 
accommodations above outlined present in saloons 
in  this state, showing the strong sim ilarity be­
tween saloons and restaurants in New York City 
particularly. Concerning the case of Rhone v. 
Loomis (supra) and Keller v. Koerber (supra) 
Lewis’ Sutherland's S tatutory Construction, page 
842 says:

“The general words were held not to include 
saloons, although THEY WOULD SEEM TO 
BE EJU SD EM  G EN ERIS.”



8

In  the case of Babb v. El,singer, which was 
argued before the Appellate Term in  this D epart­
ment, a t the January  1914 term, th a t Court 
squarely decided in  April, 1914 th a t a saloon was 
a place of public accommodation within the Civil 
Bights Law then in  existence which was Chapter 
14 of the Consolidated Laws. That deecision was 
rendered by the unanimous Court affirming upon 
the opinion in  the Court below and while not 
officially reported, i t  appears in  147 K. Y. Supp. 
98 and was also published in  the INew York Law 
Journal, on April 25th, 1914. In  th a t case which 
was tried  in  the Municipal Court before Mr. 
Justice Spiegelberg and a Jury , the defendant 
after a verdict brought in  for the plaintiff, made 
a motion to set the same aside on the usual 
grounds and on the further ground th a t a saloon 
was not a place of public accommodation within 
the law. The learned tria l Justice reserved his 
decision on the motion insofar as i t  involved the 
question concerning a saloon being a  place of 
public accommodation and thereafter handed down 
his decision denying the motion and holding tha t 
a saloon was such a  place. In  view of the fact 
th a t this decision was adopted by the Appellate 
Term in  its unanimous affirmance, and it  fully 
considered and discussed the authorities now re­
lied upon by the appellant i t  would not be amiss 
to quote from the same. A ppellant’s authorities 
are commented upon as follows:

“I t  is true in  the only two cases which I  
was able to  find where a similar question, 
as in  this case, has arisen, i t  was held tha t 
the term  ‘saloon’ was not included w ithin the 
meaning of statutes containing similar pro­
visions as in  our Civil Rights Law. Kell a r 
v. Koerber, 61 Ohio St. 388, Rhone v. Loomis, 
74 Minn. 200. In  the Ohio case, the reason 
is squarely placed upon the theory th a t the



9

liquor traffic is an evil which, should be dis­
couraged and restricted, and th a t the Civil 
Rights act should not be construed as en­
couraging a traffic which the clearly defined 
policy of the State of Ohio discourages. In  
the Minnesota case, the Court by a bare 
m ajority seems to have adopted the same view. 
* * * I  am not aware th a t such a theory has 
found lodgment in the policy of the State 
of Yew York. The other reasons set forth 
by the m ajority of the Court in Rhone v. 
Loomis, supra, in my opinion are neither 
persuasive nor logical, and are fully met in. 
the two dissenting opinions. * * *

Y or is the case of Cecil v. Green 161 111. 
265, applicable. In  tha t case it was held tha t 
a soda fountain kept in a drug store was not 
a  public place w ithin the meaning of the 
statute, for the reason th a t 'tha t such places 
can be considered places of accommodation 
or amusement to no greater extent than a 
place where dry goods or clothing boots or 
shoes, hats and caps, or groceries are dis­
pensed.’ * * * Sufficient perhaps too much 
has been said to  show that, i f  any place, a 
saloon is a place of public accommo­
dation  w ith in  the scope of the civil 
rights ac t.”

The Appellate Term of this Departm ent had 
also by inference held in the case of Fuller v. Mc­
Derm ott which is not officially reported but ap­
pears in 87 Y. Y. Supp. 536, th a t a cause of action 
against a saloon keeper would lie for a refusal 
to serve a colored man with a glass of beer a t a 
liquor saloon because of his race or color. This 
was under the Laws of 1895 Chapter 1042, Page 
974. Outside of these two decisions by Courts 
of lower jurisdiction, the only other decisions 
reported in this S tate passing upon the question 
as to any places not specified being included



10

w ithin the purview of the statu te are those of 
People v. King, 110 N. Y. 418 and Burks v. Bosso 
180 N. Y. 341.

In  the case of People v. King (supra), the Court 
of Appeals sustained a conviction of the defendant 
under the penal statu te for discrim inating against 
a colored man in connection w ith a  skating rink, 
which it  held was a place of public amusement.

In  the case of Burks v. Bosso (supra), the 
Court of Appeals reversing the Appellate Division 
held th a t a bootblack stand in  the hall of an 
office building was not a place of public accommo­
dation. In  this case, the Court of Appeals con­
tra ry  to the in terpretation placed on its  decision 
by the appellant, signified its intention and desire 
NOT TO LIM IT or confine the number or kind 
of places to which the Law applies and 'NOT to 
narrow  itself by any application of the doctrine 
of EJU SD EM  G E N E SIS  or any other principle 
of construction, so th a t each case should be con­
sidered solely upon its merits, as appears a t page 
344 in the opinion of W erner, J :

“We do not deem it necessary a t this time 
to enter into a discussion as to how far the 
sovereign power may go in  restricting the in ­
dividual rights and privileges which inhere 
in some of the callings enumerated in the 
statu te under consideration, because we are 
of the opinion th a t the phrase ‘and all other 
places of public accommodation’ does not 
include bootblacking stands.”

There is surely a vast difference between a boot- 
black stand in a hall of an office building and a 
saloon; an office building, w ith or w ithout a boot- 
black stand is strictly  a private place, although 
throngs may enter and leave i t  in  the course of a 
day; whilst a saloon, even in the most isolated 
place and w ith a minimum of patrons is never the-



11

less a public place and of c-onrse a place of public 
accommodation.

Quoting again from decision, in  the case of Babb 
v. Elsinger (supra) :

“In  discussing the statu te (St. 5 and 0 
Edw ard VI, ch. 25), dealing with visitorial 
powers over ale houses,, i t  is said in a note 
in  Stephens v. Watson, Salk 45: ‘This statu te 
extends not to inns, for they are for lodging 
of travelers; but if  an inn degenerate to an 
alehouse by suffering disorderly tippling, etc., 
i t  shall be deemed as such.’ And in Over­
seers of the Poor v. W arner, supra, 3 Hill, 
a t page 157, i t  is said: ‘A t common law, any 

i person may erect an inn for the public accom­
modation, without a license ; as the lSeeeping 
of i t  is not a  franchise, bu t a  lawful trade, 
open to- every citizen.’ I f  an inn is a place 
of public accommodation, why not a place 
where intoxicating liquors are sold in which 
the public has, from the earliest times, shown 
greater solicitude than in inns? I t  is of the 
greatest significance tha t in England the 
equivalent of the word ‘saloon’ as used in this 
country is the word ‘public house.’ The Ox­
ford English Dictionary gives the following 
definition of public house: ‘A house for the 

1 entertainm ent of any member of the com­
munity, in consideration of payment. (a) 
An inn or hostelry providing acommodation 
(food and lodging,, or light refreshments) for 
travelers or members of the general public, 
usually licensed for the supply of ale, wines 
and spirits. isTo<w commonly merged in ‘b’. 
(b) in current restricted application: A 

. house of which the principal business is- the 
sale of alcoholic liquors to be consumed on 
the premises; a tavern.’

I t  may not be amiss to add th a t while in



12

this country the term  ‘tavern’ is a synonym 
of inn and hotel (People v. Jones, supra), 
in  England it  signified ‘a house in  which per­
sons are regaled with wines and other liquors, 
but not with the more substantial entertain­
ment of the victualing house.’ ( Will cock
Laws of Inns, p. 1. 1; see also, Oxford English 
Diet., sub. Tavern). ,

I t  is well known th a t hotels and restau­
ran ts usually contain saloons or drinking 
bars. If, therefore, the contention of the 
learned counsel for the defendant is correct, 
we would be confronted w ith the anomalous 
situation th a t a proprietor of a saloon may 
discriminate against a  colored citizen, so long 
as it  is detached from a  restauran t or a 
hotel, bu t comes w ithin the prohibition of the 
statu te if the saloon is located in a  restau­
ran t or hotel.”

I t  is thus shown th a t the resemblance between 
a saloon and a restaurant, inn, tavern or hotel 
is now and since the time of King Edw ard VI, 
has been recognized as being more than  super­
ficial as contended by appellant.

In  the light of all the decisions set forth find of 
the reasoning of the authorities, is it  too much 
to claim tha t a  liquor saloon as conducted in  this 
City is as much, if not more a place of public 
accommodation, as a skating rink is a place of 
public amusement. (See People v. King, supra.)

POINT II.

Section 40 of Chapter 265 of the Taws 
of 1913, include saloons.

A ppellant contends (appellant’s brief p. 17) 
tha t because of the change in the statute caused



1 o
it)

by the amendment to the previous Civil Rights 
Law,

“tha t the statem ent of the specified places, 
following as i t  does, the general statement 
brings this statute within the well settled 
rule th a t the mentioning of some, excludes 
all others.”

In  view of the decision of the Court of Appeals 
in the case of People v. King (supra) which holds 
tha t a skating rink (which is not specified in the 
statu te) is nevertheless included w ithin i t  
as a place of public amusement, in order to  arrive 
a t the conclusion which the appellant does, it 
m ust be necessary to assume th a t the legislature 
in passing the present statu te repealed the former 
one under which th a t decision was rendered. Any 
other conclusion would be inconsistent w ith ap­
pellant’s contention.

In  the recent case of People v. Dwyer, et al. 
which is reported in the New York Law Journal 
of May 20th, 1915, the Court of Appeals laid down 
the following rule regarding repeal by implication.

“The general rule is tha t a statu te £is not 
repealed by implication, unless the two 
statutes are manifestly repugnant, and in ­
consistent, or the la ter statu te covers the 
whole subject m atter and was intended as a 
substitute for the former. * * * A repeal of 
a statu te by implication is not favored, and 
is only allowed when the inconsistency and 
repugnancy of the two acts are plain and 
unavoidable. * * * The intent of the Legisla­
tu re  must prevail, and a  statu te will not be 
deemed to  have been repealed by a la ter 
statute, if the two are not clearly repugnant, 
unless the in ten t to repeal is clearly ind i­
cated.’ (Citing Mongeon v. People, 55 N. 
Y., 613, 615; Smith v. People, 47 N. Y., 330; 
see Bowen v. Lease, 5 H ill, 221; Davis v. 
Supreme Lodge, K. of H., 165 N. Y., 159;



14

P ra tt  Institu te  v. City of New York, 183 
N. Y., 151; People v. H arris, 123 N. Y. TO.)

On this point also Lewis’ Sutherland, on S ta tu ­
tory  Construction on page 458 (Section 24(5) 
s ta te s :

“A repeal will take effect from any sub­
sequent statu te in which the legislature gives 
a clear expression of its  will for th a t pu r­
pose.”

and again a t page 4(51 (Section 247) says further,

“Such repeals are recognized as intended 
by the legislature and its intention to repeal 
is ascertained as the legislative in ten t is as­
certained in  other respects, when not ex­
pressly declared, by construction. An im­
plied repeal results from some enactments, 
the terms and necessary operation of which 
cannot be harmonized with the term s and 
necessary effect of an earlier act.

(P. 464) The intention to repeal however, 
will not be presumed, nor the effect of repeal 
admitted, unless the inconsistency is un­
avoidable, and only to the extent of the re­
pugnance.”

In  comparing the two- statutes, can anything 
be found in  the present statu te whereby the terms 
and necessary operation thereof cannot be har­
monized with the terms and necessary effect of the 
former act as construed in Babb v. Elsinger, supra. 
There is surely no repugnance between the pro­
visions of the former statutes and the present 
one, the only effect of the amendment being: to 
specifically include within- the scope of the statute, 
certain places concerning which there may have 
been a question under the former statutes and for­
bidding the doing, of certain things in  addition 
to those prohibited in the former Civil Rights 
Law.

The prim ary rule of statu tory  construction as



15

laid down by Lord Bacon (IV  Lord Bacon’s 
Works, 1.87) is thus expounded:

“I  would wish”, says Lord Bacon, “all 
readers tha t expound statutes to do as scho­
lars are willed- to do; th a t is, first to seek 
out the principal verb; th a t is to note and 
single the m aterial words whereupon the 
statu te is framed; for there are in every s ta t­
ute certain words; which are as veins where 
the life and blood of the Statute cometh and 
where all doubts do arise.”

Applying this test to the statu te in question, 
the present Civil Rights Law, i t  becomes manifest 
th a t the principal verb contained in  Section 40 
is “shall be deemed to  include.”

“The word ‘include’ has two meanings, 
the first which accords with its etymology, 
from ‘eland,ere’ ‘to  shut, is to confine w ith in ; 
to shut up ; to hold,—as, the shell of a nu t 
includes the kernel; a pearl is included in 
a shell.’ W ebster’s Dictionary. The second 
and derivative meaning is ‘to comprehend; 
as, a genus the species, the whole, a  p a rt’.”

Hibberd v. Slack 84 Fed. 571, 576, 577.

“The word ' include’ has two shades of 
m eaning.. I t  may apply where th a t which 
is affected is the only thing included * * * 
I t  is also used to express the idea tha t the 
thing in question constitutes a p a rt only . 
of the contents of some other thing.’ THE 
LATTER SENSE W E CONSIDER the 
most usual.” Dumas v. Boutin, McGloin 
(La.) 274, 277, 278.

According to the context the term  is often used 
as. a word of extension and not of limitation. 
See in this connection Reg. v. Kershaw, 6 E. & 
B. 999. 1007; 2 Ju r. N. S. 1139: 26 L. J. M. C. 
19; 5 Wldy. Rep. 53; 88 E. C. L. 999.

The words “shall include” (in statute) are



16

not identical with or put for “shall mean;’ 
Reg. v. Hermann, 4 Q. B. D. 284, 288; 14 Cox. 
C. C. 279; 48 L. J . M. C. 106; 40 L. T. Rep. 
2ST. S. 268, 27 Wklv. Rep. 475.

Including” is not a word of limitation. 
Rather is it a word of enlargement, and in ordi­
nary signification implies th a t something else has 
been given beyond the general language which 
precedes it. N E IT H E R  18 IT  A WORD OF 
EN U M E R A TIO N  as by the express terms of the 
language of gift. In  a bequest “of all my personal 
property” including furniture, plates, etc., the 
word “including” was not held to limit the 
bequest to the property enumerated after the 
wording, but to cover all of the testa to r’s prop­
erty. In  Re Goetz, 71 App. Hiv. 272.

“Including” as used in Comp. St. p. 578, 
Sec. 9, providing th a t the clerk m ust insert in 
the entry of judgment the necessary disburse­
ments “including the fees of officers allowed 
by law, the fees of witnesses, of commissions, 
the compensation of referees, and the expenses 
of prin ting papers on appeal”, does not neces­
sarily confine the items of disbursements re­
coverable to those enumerated.

Cooper v. Stinson, 5 Minn. 522.
I t  cannot therefore be seriously urged th a t 

judicial construction limits application of a s ta t­
ute in which the word “include” is used only 
to  those places enumerated because of the appear­
ance of th a t word. N either does the application 
of the doctrine expressio unius eat exclmio 
alterius so lim it a statute.

Lewis’ Sutherland on S tatutory Construction 
a t  page 916 states as follows:

“E X PR ESIO  UNIUS EST EXCLUSIO 
ALTERIUS. This maxim, like all rules of
construction is applicable under certain con­
ditions to determine the intention  of the law 
maker, when it  is not otherwise manifest. 
Under these conditions it leads to safe and



17

satisfactory conclusion. BUT OTHERW ISE 
the expression of one or more things is not 
a  negation or exclusion of other things.”

And again, a t page. 924, the same author fu r­
th e r  s ta te s :

“The maxim does not apply to a statu te 
the language of which may fairly compre­
hend many different cases, in which some 
only are expressly mentioned by way of 
example merely, and not as excluding others 
of a. similar nature. The mention of one 
thing is not exclusive when the context shows 
a different intention.

See also the case of Grubbe v. Grubhe, 26 
Oreg. 363, in which the Court holds tha t 
the principle is not of universal application, 
and tha t great caution should be exercised in 
its use.”

As stated by th e same author, Volume 2 a t 
page 693 (Sec. 363):

“The in tent is the vital part, the essence of 
the law and the primary rule of construction 
is to ascertain and give effect to th a t in ­
ten t.” (See the numerous authorites quoted 
there.)

And the Court of Appeals in  the case of 
M anhattan Co. v. Kaldenberg, 165 1ST. Y., a t page 
7, reiterates and amplifies this principle of con­
struction in  the following w ords:

“In  constructing statutes the proper course 
is to s ta rt out and follow the true in tent 
of the Legislature and to adopt th a t sense 
which harmonizes best with the context and 
promotes in  the fullest manner the apparent

; policy and object of the legislature.’
I t  therefore becomes absolutely necessary to 

examine into the policy and the in ten t of the 
legislature in  enacting the Civil Rights Statutes



18

in  spite of the statem ent of the appellant (page 
18) “th a t with the intention of the legislature we 
cannot conjure.”

The Court of Appeals has announced in the 
rase of People v. King, 110 N. Y. 418, at page 
424, the following as the intent of the legislature 
in  passing this law.

“IT CANNOT BE DOUBTED THAT IT 
WAS ENACTED W ITH  SPECIAL R E F E R ­
ENCE TO CITIZENS OF AFRICAN DE- 
SC'ENT, NOR IS  TH ERE ANY DOUBT 
THAT THE POLICY W H ICH  DICTATED 
THE LEGISLATION WAS TO SECURE 
TO SUCH PERSONS EQUAL RIGHTS 
W ITH  W H IT E  PERSONS TO TH E FA CIL­
IT IE S  FU R N ISH ED  BY CARRIERS, IN N ­
K EEPER S, THEATRES, SCHOOLS AND 
PLACES OF PUBLIC AMUSEMENT.”

Similarly in the case of Joyner v. Moore W ig­
gins Co., 152 App. Div., 260, (recently unanimous­
ly affirmed by the Court of Appeals, 211 N. Y., 
522), a t page 268, holds,

“TH E IN TEN T AND OBJECT OF THE 
STATUTE WAS TO SECURE TO ALL 
PERSONS, REGARDLESS OF RACE, 
CREED OR COLOR, FULL AND EQUAL 
ENJOYM ENT OF TH E PR IV ILEG ES AND 
FA C IL IT IE S TH ER EIN  SET FORTH.”

In  going into the causes and history of the s ta t­
ute the Court of Appeals, in the case of People v. 
King, supra, says:

“The race prejudice against persons of 
color, whch had its root, in p a rt at least, in 
the system of slavery, was by no means ex­
tinguished when, by law, the slaves became 
citizens and freemen. They became entitled 
to all the privileges of citizenship, although 
the great mass of them were poorly prepared 
to discharge its obligations. The nation se­



19

cured the inviolability of the freedom of the 
colored race and their rights as citizens by 
the Thirteenth, Fourteenth and F ifteenth 
Amendments of the Constitution of the United 
States.”

And lastly in the case of Burks v. Bosso, 81 
App. Div., 530, Mr. Justice Spring, w riting the 
prevailing opinion, states the policy and construc­
tion of the statu te as follows:

“I  am mindful th a t a statu te both criminal 
and penal in  its im port is ordinarily to be 
construed strictly. TH E LEGISLA TIV E 
INTENT, HOW EVER, MUST CONTROL. 
W here th a t in ten t has been unvaryingly mani­
fested in one direction and th a t in prohibition 
of discrimination against a  large class of 
citizens, the Courts should not hesitate to 
keep pace w ith the legislative purpose. We 
must remember th a t the slightest trace of 
African, places a man under the ban belong­
ing to th a t race. However respectable and 
worthy he may be, he is ostracized socially, 
and when the policy of the law is AGAINST 
extending the prohibition to his civil rights, 
a liberal ra ther than a narrow  interpretation 
should be given to enactments evidencing the 
IN TEN T to eliminate race discrimination, as 
far as th a t can be accomplished by legisla­
tive intervention.”

I t  is needless and unprofitable to go any further 
into this point, but i t  cannot be closed without 
reference to the learned opinion of Mr. Justice 
H arlan, of the United States Supreme Court, in 
the case of Civil Rights Cases, 109 U. S., 3, and 
more especially a t page 48, and also the strong 
dissenting opinion of Justice Collins, in  Rhone v. 
Loomis, supra, above quoted. (See also Joyner v. 
Wiggins, 152'App. Div., 266, p. 268).

Another significant fact which the Court should 
consider in this connection is th a t the policy of



20

the legislature, as evidenced by the statu te sued 
upon, is to broaden rather than  lim it the scope 
of the former statutes, by making it a crime to ad­
vertise the doing of anything prohibited in the 
statute, and specifically extending the scope there­
of to summer hotels and health resorts, as well 
as making a cause of action thereunder assign­
able. Surely this does not indicate on the part 
of the Legislature any in ten t to lim it the scope 
of the statu te in question within the narrow  con­
fines of the places specifically enumerated in  it. 
If  the legislature had intended to  reverse the ef­
fect of the decision of the Court of Appeals in 
People v. King, i t  would surely have indicated its 
intention to do so in a more pronounced and cer­
ta in  manner than by broadening the scope of the 
statu te in the manner stated.

In  conclusion, a word of reply to the veiled 
strictures against the race of plaintiff, contained 
a t page 22 of appellant’s brief, would not be out 
of place. True it is, and it would be miraculous 
were i t  otherwise, th a t there are disorderly and 
criminal colored men as there are whites. W hat 
the poportion is, as far as this State is concerned, 
we are in no position to state. However, a race 
which w ithin two generations after its freedom 
from slavery, has accomplished the achievements 
and reached the heights attained by many of its 
members in every branch of the arts, science, le t­
ters and industries, does not require in its behalf 
our feeble efforts as apologist or defender. And 
fa r be i t  from us to  place in the shadow the ef­
fect, upon the colored race, of such a narrow' 
minded and bigotted construction of this statute 
as is sought by the appellant, and to put into a 
stronger light the effect thereof upon the mem­
bers of other different races, creeds or colors. But 
although appellant’s counsel “conjectures” tha t 
one reason wrhy saloons are not specified in the 
act is tha t the legislature had in mind th a t “if 
colored and white people are perm itted to mix 
and be served a t the same bar i t  may not always



21

mean th a t they will fraternize,” the fact still re­
mains tha t such an argument can be advanced 
against enforcing the present statute in reference 
to every place specified in  i t  and discrimination 
in  public places teas forbidden by the common 
law (Faulkner v. Solazzi, 79 Conn., 541).

W hat right has appellant to  assume th a t the 
legislature would not believe the police force of 
this city competent to meet any case of ordinary 
disorder occurrng in  a saloon used by colored men 
or by white men. And in this great State of New 
York and in the City of New York, which con­
tains most of the colored people of the State, what 
proportion of them go into saloons, much less sa­
loons frequented by whites. I t  is well known and 
may not be wrong to call the Court’s attention to 
the fact, th a t saloon keepers in localities where 
colored patrons are not desired, under the present 
statute, (which most of them believe covers sa­
loons), are making i t  extremely disagreeable for 
any such colored patrons.

F inally  in view of the decisions of the Courts of 
this State, declaring its  policy in reference to dis­
crimination against the colored race as far as 
their civil rights are concerned, how can any logi­
cal argum ent be advanced in aid of the contention 
th a t only such places as are specified within the 
law are covered by it.

POINT III.

The appeal from the judgment should 
be dismissed and the judgment in  favor 
of the plaintiff affirmed.

Respectfully submitted,

SAMUEL SCHWARTZBERG, 
A ttorney for Plaintiff-Respondent.

[933]



P r e ss  of F r e m o n t  P a y n e , 47 B ro a d  S t.— ’P h o n e s , 2277-78-79 B ro ad .

To be Argued by 
I. Maurice W ormser.

(Emtrt of Appeals
State of New York.

Benjamin  D. Gibbs,
Plaintiff-Respondent,

against

Arras Brothers, I nc.,
Defendant-Appellant.

RESPONDENT’S BRIEF IN SUPPORT
OF MOTION FOR REARGUMENT.

This brief is respectfully submitted on bebalf 
of plaintiff-respondent on his motion submitted 
herewith for a reargument of the appeal herein.

The case was decided by this Court on January  
15, 1918, the opinion of the m ajority being w ritten 
by Judge Collin. Three judges dissented, with­
out opinion.

The case is one of great public importance and, 
unfortunately, was submitted to  this Court by the 
appellant w ithout oral argument. We respectfully 
submit th a t the following points were inadvert-



2

(‘lit ly overlooked by this Court, and that, therefore, 
a reargument should be g ran ted :

(1) That this Court inadvertently overlooked 
the fact tha t a saloon is a place of public resort 
even if not a place of public accommodation. The 
S tatu te (Civ. Eights L., Sec. 40), declares th a t all 
persons shall be entitled to the full and equal ac­
commodations of any place of public resort, and, 
with the utmost deference to this Court, we suggest 
th a t a saloon surely must be regarded as a place of 
public resort, even if not, perhaps, technically, a 
place of public accommodation,

(2) That this Court inadvertently overlooked 
the fact th a t the case of Burks vs. Bosso, 180 1ST. Y., 
341, upon which it relies in  its opinion, was de­
cided under the Laws of 1895, ch. 1042, before the 
amendment of 1913, L, 1913, ch. 265, now consti­
tu ting  Civil Rights Law, Sec. 40-41, and that, in 
point of fact, the amendment of 1913 was enacted 
in order to give greater efficacy to the policy of the 
original statutes.

(3) That this Court inadvertently overlooked 
the fact th a t the Law of 1895, under which the 
decision in Burks vs. Bosso, 180 hi. Y., 341, was 
made, did not extend to  places of “public resort,” 
but only mentioned “places of public accommoda­
tion or amusement.” Whereas the amendment of 
1913 under which the present suit was brought, ap­
plies to places of public resort as well as to places 
of public accommodation or amusement, and the 
present statute, while it states tha t certain places 
shall be deemed to be included, does not exclude 
other places provided they come within the general 
term  “public resort.”



(4) That this Court inadvertently overlooked 
the interpretation placed upon statutes of this kind 
by this Court itself in the leading case of People 
Vs. King, 110 N. Y>, 418, particularly  a t pages 425- 
427, in which case the opinion was w ritten  by 
Judge Charles Andrews, a recognized authority 
Upon, questions of public policy and the police 
power.

(5) That this Court inadvertently overlooked 
the fact tha t the word ‘Tavern” has been judicially 
defined to be a house to which a  license to sell 
liquors in small quantities to  be drunk on the spot 
has been granted, and th a t it has been held tha t 
the term “tavern” is practically synonymous with 
“barroom” or “drinking shop.”

3

POINT 1.

This Court inadvertently over­
looked the fact that a saloon is a 
place of public resort, even if not a 
place of public accommodation. The 
Statute (Civ. Rights !>., Sec. 40), de­
clares that all persons shall be en­
titled to the full and equal accommo­
dations of any place of public resort, 
and, with the utmost deference to 
this Court, we Suggest that a saloon 
surely must be regarded as a place 
of public RESORT, even if not, per­
haps, technically a place of public 
accommodation.

A saloon, we respectfully submit, is a place of 
public resort, even if not a place of public accom­
modation. The present statu te (Civ. Eights L.,



4

Sec. 40) declares tha t places of public resort, as 
well as places of public accommodation or amuse­
ment, are included. A saloon, even if not a place 
of public accommodation, is a place of public re­
sort. Judicial notice should be taken of this cir­
cumstance. In  fact, in  England, a saloon is known  
as a public house. In  this country, many of us be­
lieve tha t saloons are not desirable, but whether 
we think so or do not think so, it is respectfully 
submitted th a t a saloon is surely a place of public 
resort. In  point of fact, the circumstance th a t a 
saloon is a place of public resort is one of the very 
reasons why many of us object to saloons and re­
gard them with disfavor.

In  the opinion, w ritten on behalf of this Court, 
by Judge Collin, no mention is made of saloons as 
places of public resort, and it would seem th a t the 
m ajority of this Court inadvertently overlooked the 
changed terminology of the present statute.

A t the outset of the m ajority opinion, this Court 
states tha t the question herein is: “Is a liquor
saloon a\ place of public accommodation, w ithin the 
intendment of the statute.” W ith all deference, we 
respectfully submit th a t this is not a t all the ques­
tion involved. The question is rather, “Is a liquor 
saloon a place of public resort or public accommo­
dation w ithin the intendment of the statute.”

I t  seems to  the w riter tha t careful consideration 
should be given by this Court to the proposition 
whether a saloon may not reasonably and fairly be 
deemed to be a place of public resort, even if not a 
place of public accommodation.

I t  has been held th a t where intoxicating liquors 
are kept in a house and sales are made therein, it 
may properly be regarded as “a place of public 
resort.”



i n ­

state vs. Madison, 23 S. Dak., 584, 122 1ST.
W., 647, 650.

And surely, on reason and on sound principle, a 
saloon should be regarded as “a place of public re­
sort.” If  it  is not, then w hat is?

POINT II.

The majority of this Court in its
©pinion, relies upon the case of Burks 
vs, Boss©, 180 N. IT., 841, which was 
decided under the Statute of 1895 
(1. 1895, eh. 1042). The Statute of 
1895, quoted by this Court in its opin­
ion, applied to “places of public ac­
commodation or amusement.” It did 
not extend to “places of public 
resort.”

The present statute (L. 1913, Oh, 265, now Sec. 
40 of Civ. Rights Law), extends to places of public 
resort as well as to places of public accommoda­
tion or amusement. The present statu te reads, in 
part, as follows:

"All persons w ithin the jurisdiction of this 
state shall be entitled to the full and equal 
accommodations, advantages and privileges 
of any place of public accommodation, resort 
or amusement, subject only to the conditions 
and limitations established by law and appli­
cable alike to all persons.”

We call careful attention to this insertion in the 
present statute, whereas the earlier statute merely 
read as follows:



6

“All persons within the jurisdiction of this 
State shall be entitled to the full and equal 
accommodations, advantages, and privileges of 
inns, restaurants, hotels, eating-houses, bath­
houses, barber shops, theatres, music halls, 
public conveyances on land and water, and 
all places of public accommodation or amuse­
ment, subject only to the conditions and lim ita­
tions established by law and applicable alike 
to all citizens.”

The addition in the present statute is of obvious 
significance.

POINT III.

This Court inadvertently over­
looked. the fact that the Law of 1895, 
under which the decision in Burks 
vs. Boss©, 189 N. Y., 841, was made, 
did not extend to places of “public 
resort” but only mentioned, “places 
of public accommodation or amuse­
ment. Whereas the amendment of 
1918 under which the present suit 
was brought, applies to places of 
public resort as well as to places of 
public accommodation or amuse­
ment, and the present Statute, while 
it states that certain places shall be 
deemed to be included, does not ex­
clude other places provided they 
come within the general term “pub­
lic resort.”

The Burks vs. Bosso case was decided before the 
amendment in 1913, which was made to include 
places of public resort, and in point of fact, the



7

amendment of 1913 was framed by able counsel 
and was enacted by the legislature in order to meet 
the lim itations of the 1895 statu te and in order to 
give greater efficacy to the original statu te in this 
state (see Woolecott vs. Shubert, 217 N. Y., 219).

I t  follows th a t the Bosso case, as an authority, 
is of little, if any, weight in the decision of the in­
stan t case. I t  interprets an entirely different s ta t­
ute—in fact, a  statute which was insufficient and 
Which was la ter amended in order to  meet the 
insufficiencies and inadequacies in i t  which this 
Court pointed out in the case of Burks vs. Bosso 
(supra) . I f  the statute, as it now stands, is in ­
adequate and insufficient, it is hard  to conceive 
how an adequate statu te could be framed, because 
the in ten t of the present sta tu te  was absolutely 
to include all places of public resort as well 
as of public accommodation and amusement. 
While the present statute, i t  is true, states th a t cer­
ta in  places shall be deemed to be included, it does 
not exclude other places provided they come w ith­
in the purview of the general term, “public resort.”

POINT IV.
Tills Court inadvertently over­

looked the interpretation placed 
upon Statutes of this kind by this 
Court itself in the leading- case of 
People vs. King, 110 N. Y., 418, partic­
ularly at pages 425-427, in which case 
the opinion was written by Judge  
Charles Andrews, a recognized - au­
thority upon questions of public pol­
icy and the police power.

In  the leading case of People vs. King (supra), 
this Court took occasion to say through Judge An­
drews :



8

' “The race prejudice against persons of color, 
which had its root, in  part at least, in the sys­
tem of slavery, was by no means extinguished 
when, by law, the slaves became free men and 
citizens

Tlie Court thus took notice tha t the purpose of 
these statutes was to protect citizens of African 
descent and to- confer upon them civil rights from 
which they should not be excluded by reason of 
their race or color.. I t  is elementary th a t in the in-* 
terpretation of a statute, a Court should bear in 
mind the mischiefs and evils which the statute was 
enacted in  order to- suppress, and should consider 
the statu te with reference, to the objects it had in 
view.

In  People ex rel. Wood vs. Ltteombe, 99 N. Y., 
43, 49, this Court sa id :

“In  tlie interpretation o f statutes, the great 
principle which is to control is the intention 
of the legislature in passing the same, which 
intention is to be ascertained from the cause 
or necessity of making the statute, as well as 
other circumstances.*’

In  Republic of Honduras vs. Soto, 112 N. Y., 310, 
313, -this Court sa id :

“The statute m ust be construed with refer- 
ence to the object i t  had in  view, the evils in­
tended to be remedied and the benefits expect­
ed' to be derived from it.”

Chancellor K ent said in his Commentaries (page 
495) :

“I t  is the duty of judges to make such a con­
struction as should suppress the mischief and 
advance the remedy.”



9

Tn the leading case of People vs. King, 110 N. Y., 
418, this Court pointed out tha t the purpose of these 
statutes under present discussion is to free colored 
people from any brand of inferiority. Judge An­
drews said (pages 426-627) :

“The members of the African race, born or 
naturalized in this country, are citizens of the 
state where they reside and of the United 
States. Uotii justice and the public interest 
concur in  a policy which shall elevate them as 
individuals and relieve them from oppressive 
or degrading discrimination, and wTkich shall 
encourage and cultivate a spirit which will 
make them self-respecting, contented and loyal 
citizens, and give them a fair chance in  tne 
struggle of life, weighted, as they are a t best, 
with so many disadvantages, i t  is evident 
that to exclude colored people from  places of 
public resort on account of their race is to fix 
upon them a brand of inferiority, and tends to 
fix their position as a servile and dependent 
people. I t  is, of course, impossible to enforce 
social equality by law. B ut the law in question 
simply insures to colored citizens the right to 
admission, on equal terms with others, to public 
resorts and to equal enjoyment of privileges of 
a quasi public character.”

This language is surely equally applicable in the 
instan t case. I f  a saloon is not a place of public 
resort, what is f

We further beg to refer most respectfully to the 
failure of the opinion of this Court to consider the 
leading case of People vs. King (supra), and the 
rules of construction of statutes of this kind laid 
down by the Court in th a t case. While this Court 
refers to Burks vs. Bosso, 180 N. Y., 341, it  makes 
no mention of Judge Andrews' epoch-making deci­



30

sion in the case of People vs. King.. If  a skating 
rink may fairly be deemed a place of public amuse­
ment, surely a saloon may fairly be deemed a place 
of public resort, if not of public accommodation.

P O IN T  V ,

Tliis Court inadvertently over-* 
looked the fact that the word “tav­
ern” lias bees judicially defined to he
a house to which a license to sell li­
quors in small quantities to toe drunk: 
on the spot lias been granted, and 
that it has been held that the term 
'“tavern” is practically sym & iiyiK Lons  
with “barroom” or “drinking Shop.’”

The m ajority of this Court, in  its  opinion, as­
sumes “th a t the legislature did not specifically de­
clare a  liquor saloon included.” I t  is true th a t the 
sta tu te  does not specifically use the word “saloon.” 
It, however, does mention the term  “tavern.”
. The word “tavern” has been judicially defined to 
be a house to  which a license to sell liquors in small 

iquantities to be drunk on the spot has been granted. 
.The term  “tavern” is practically synonymous with 
.“barroom” or “drinking shop.”

In  re Schneider, 11 Ore., 288, 297; 8 I'ac., 
289, 290.

State  vs. Chamhli/ss, Chews (S. Car.) 
220; 34 Am. Dee., 593.

. And, of course, “saloon” is synonymous with 
“barroom” or “drinking shop.”

, In  the case of In  re Schneider (supra) , W atson, 
C. J., said (page 297) :

“There can be no essential difference be­
tween the original meaning: of the word



11

“tavern” and the word “barroom” or “drinking 
shop.”

I t  is true tha t the term  “tavern” is not in com­
mon use. But the w riter’s judgment would be tha t 
a tavern as distinguished from an inn or hotel is a 
place which sells liquors in  small quantities pu r­
suant to license.

This point deserves consideration, because the 
term  “saloon” does not appear to  be used in s ta t­
utes of this kind in this State. The greater in­
cludes the less, and if colored people are entitled 
to purchase liquors in inns, why should they not be 
entitled a fortiori to purchase liquors in  taverns 
and saloons without discrimination?

FINAL POINT.
For all of the reasons above out­

lined, it is respectfully submitted 
that this Court should grant a rear* 
gument of the appeal herein, espe­
cially because the original appeal 
was submitted without argument. 
The question involved is one of great 
public importance and the case has 
aroused much discussion, and the 
points inadvertently overlooked by 
the opinion of this Court, seem to de­
mand consideration. The writer 
yields to no man in respect for this 
Court, but the proposition of law in­
volved in this case demands further 
consideration.

Respectfully submitted,

SAMUEL SCHWARTZBERG, 
Attorney for Plaintiff-Respondent.

I. Maurice W ormser,
of Counsel on present motion.



■ . r . i c C /;.• Vih.

ill